United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT August 4, 2004
Charles R. Fulbruge III
No. 03-41031 Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUBEN MARTINEZ-PARAMO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before BARKSDALE, EMILIO M. GARZA, and STEWART, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
For Ruben Martinez-Paramo’s challenge to his conviction and
sentence, primarily at issue is whether, for sentence enhancement
purposes, his prior Pennsylvania conviction for the misdemeanor
offense of terroristic threats is a requisite “crime of violence”
under § 2L1.2 of the Sentencing Guidelines. The record is not
sufficient to decide that issue. He acknowledges our precedent
forecloses his constitutional challenge to his guilty-plea
conviction. We AFFIRM the conviction; VACATE the sentence; and
REMAND for resentencing.
I.
In early 2003, Martinez-Paramo, a Mexican citizen, pleaded
guilty to being knowingly and unlawfully present in the United
States after a previous deportation, in violation of 8 U.S.C. §
1326(a) and (b). The Guidelines mandate a base-level of eight for
that offense. U.S.S.G. § 2L1.2(a) (2002). Pursuant to Guidelines
§ 2L1.2(b)(1)(A)(ii), the presentence investigation report (PSR)
recommended that Martinez-Paramo’s sentence be increased by 16
levels for his previous deportation following a criminal conviction
for a “crime of violence” (COV). The claimed COV was Martinez-
Paramo’s July 2000 Pennsylvania conviction for terroristic threats,
subsequent to which he was deported in 2002.
Over Martinez-Paramo’s objections to the PSR and at
sentencing, the district court held the Pennsylvania conviction was
a § 2L1.2 COV. After a three-level acceptance of responsibility
downward adjustment, Martinez-Paramo’s total offense level was 21.
Based on his category IV criminal history, his sentencing range was
57-71 months. The district court granted the Government’s downward
departure motion and sentenced Martinez-Paramo, inter alia, to 41
months.
II.
Martinez-Paramo presents two issues. He acknowledges his
challenge to his conviction fails; on this record, we cannot decide
the challenge to his sentence.
A.
Concerning his conviction, Martinez-Paramo claims 8 U.S.C. §
1326(b)(1) and (2) are unconstitutional in the light of Apprendi v.
2
New Jersey, 530 U.S. 466 (2000). He admits, however, that relief
is foreclosed by Almendarez-Torrez v. United States, 523 U.S. 224
(1998). E.g., United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000), cert. denied, 531 U.S. 1202 (2002), overruled on other
grounds by, United States v. Reyna, 358 F.3d 344 (5th Cir. 2004)(en
banc). The issue is raised only to preserve it for possible review
by the Supreme Court.
B.
Concerning his sentence, Martinez-Paramo claims his previous
conviction in Pennsylvania for terroristic threats is not a COV
under § 2L1.2. The district court’s findings of fact are reviewed
only for clear error; its interpretation and application of the
Guidelines, de novo. E.g., United States v. Charles, 301 F.3d 309,
312-13 (5th Cir. 2002) (en banc) (citation omitted).
Under § 2L1.2, a COV
(I) means an offense under federal, state, or
local law that has as an element the use,
attempted use, or threatened use of physical
force against the person of another; and
(II) includes murder, manslaughter,
kidnapping, aggravated assault, forcible sex
offenses (including sexual abuse of a minor),
robbery, arson, extortion, extortionate
extension of credit, and burglary of a
dwelling.
U.S.S.G. § 2L1.2, Application Note 1(B)(ii) (emphasis added).
Because terroristic threats is not an offense enumerated in part
II, Martinez-Paramo’s Pennsylvania conviction for such threats can
3
be a COV only if it “has as an element the use, attempted use, or
threatened use of physical force against [the person of] another”.
Id. (emphasis added). See United States v. Rodriguez-Rodriguez,
323 F.3d 317, 318-19 (5th Cir. 2003) (analyzing conviction at issue
separately under each part of COV definition); United States v.
Rayo-Valdez, 302 F.3d 314, 316-319 (5th Cir.), cert. denied, 537
U.S. 1095 (2002) (holding offense specifically enumerated as COV
need not involve, as an element, use of force).
Because the COV definition includes the “as an element”
phrase, a categorical approach is employed; in other words, the
facts underlying a conviction are not considered. Instead, we
“look only to the fact of conviction and the statutory definition
of the prior offense to determine whether a prior conviction
qualifies as a predicate offense for sentencing enhancement
purposes”. Rodriguez-Rodriguez, 323 F.3d at 318-19. See also
Taylor v. United States, 495 U.S. 575, 602 (1990) (using
categorical approach to interpret COV at 18 U.S.C. § 924(e)).
Restated, the § 2L1.2 16-level COV enhancement depends “upon
whether the predicate offense has the use of force as an element of
the crime”. United States v. Vargas-Duran, 356 F.3d 598, 605 (5th
Cir. 2004) (en banc) (citations omitted) (holding use of force
required under § 2L1.2 must be intentional).
4
For examining the elements of the Pennsylvania “terroristic
threats” misdemeanor offense, the version of the statute under
which Martinez-Paramo was convicted states:
A person commits the crime of terroristic
threats if the person communicates, either
directly or indirectly, a threat to: (1)
commit any crime of violence with intent to
terrorize another; (2) cause evacuation of a
building, place of assembly or facility of
public transportation; or (3) otherwise cause
serious public inconvenience with reckless
disregard of the risk of causing such terror
or inconvenience.
18 PA. CONS. STAT. § 2706(a) (2003) (emphasis added). A COV, as used
in § 2706(a)(1), is not, however, defined in the Pennsylvania
statute. In any event, because the terroristic threats statute
contains one subsection which arguably qualifies as a COV and two
subsections which arguably do not, the Government contended in
district court and on appeal that we can look beyond the fact of
conviction to determine the elements of the statute to which
Martinez-Paramo pleaded guilty.
The Government is correct that, although the statutory
definition of an offense is our primary guide, the categorical
approach “does not preclude looking beyond the fact of conviction
in all situations”. United States v. Allen, 282 F.3d 339, 342 (5th
Cir. 2002). In Taylor, the Supreme Court examined whether the
defendant’s conviction was a “burglary” under 18 U.S.C. § 924(e)
and held the sentencing court could go beyond the mere fact of
conviction in a “narrow range of cases where the jury was actually
5
required to find all the elements of generic burglary”. 495 U.S.
at 602. Taylor hypothesized a burglary statute that includes both
entry into an automobile and into a building, in which the
guideline provided that automobile-entry did not qualify for an
enhancement, but building-entry did. Id. For such a situation,
Taylor held that, for enhancement purposes, the sentencing court
was permitted to look to the indictment and jury instructions, if
they showed: the defendant was charged only with burglary of a
building; and the jury necessarily had to find entry into the
building to convict. Id.
By extension, where a defendant pleads guilty to an offense,
we have allowed the sentencing court to look to the indictment to
determine the elements of the statute to which the defendant
pleaded guilty. E.g., United States v. Landeros-Gonzales, 262 F.3d
424, 426 (5th Cir. 2001) (treating separately subsections of a
comprehensive criminal statute and looking at indictment for
sentence enhancement purposes). Calderon-Pena, 339 F.3d 320 (5th
Cir. 2003), vacated for reh’g en banc, 362 F.3d 293 (5th Cir.
2004), followed Taylor and relied on the indictment where the
statute of conviction contained disjunctive elements. Our en banc
court has not decided Calderon-Pena; however, in the light of
Taylor and Landeros-Gonzales, it is proper to look beyond the fact
of conviction to determine the elements of the terroristic threats
statute to which Martinez-Paramo pleaded guilty.
6
The record does not contain an information or indictment
charging Martinez-Paramo with the terroristic threats offense.
Instead, it contains only the criminal complaint and a sentencing
sheet.
The criminal complaint states: Martinez-Paramo was accused of
violating the above-quoted Pennsylvania statute, 18 PA. CONS. STAT.
§ 2706(a) (again, § 2706(a) has three subsections); and “[he] did
threaten to commit a crime of violence with the intent to
terrorize”. (Emphasis added.) The complaint also includes the
arresting officer’s affidavit, detailing the facts underlying the
arrest.
The sentencing sheet appears similar to a judgment of
conviction and lists two charges to which Martinez-Paramo pleaded
guilty and the sentence for each, including one charge of
terroristic threats; it does not, however, cite the section number
of the terroristic threats statute or include language indicating
which of the three subsections may have been involved.
In sum, only the criminal complaint (including the attached
affidavit describing Martinez-Paramo’s conduct) indicates that
Martinez-Paramo ultimately may have been charged with, and pleaded
guilty to, violating § 2706(a)(1) (“threat to (1) commit any crime
of violence with intent to terrorize another”), rather than
subsection (a)(2) or (a)(3). More is needed.
7
Although the district court noted at sentencing that the
criminal complaint was not a charging document, it did not decide
whether the documents in the record were sufficient to determine
the elements of the terroristic threats statute to which Martinez-
Paramo pleaded guilty. Instead, at the Government’s urging, it
relied on Bovkun v. Ashcroft, 283 F.3d 166 (3d Cir. 2002), and held
all three subsections of the Pennsylvania statute (§ 2706(a)) fit
the § 2L1.2 COV definition, thereby obviating the need to parse the
statute’s subsections.
Bovkun addressed a prior version of the terroristic threats
statute and held it to be a COV under 18 U.S.C. § 16(a), which
defines such a crime as, inter alia, “an offense that has as an
element the use, attempted use or threatened use of physical force
against the person or property of another”. (Emphasis added.) As
discussed, under Guidelines § 2L1.2 at issue, the force must be
against a person; under 18 U.S.C. § 16(a), it can also be against
property. Even assuming, arguendo, that the § 16(a) COV definition
is sufficiently similar to § 2L1.2’s to consider Bovkun relevant,
Bovkun is nevertheless distinguishable because Martinez-Paramo was
convicted under § 2706(a) in 2000, after its being amended in 1999
had significantly changed its meaning.
The previous statute did not break the offense into separate
subsections; rather, it provided:
A person is guilty of a misdemeanor of the
first degree if he threatens to commit any
8
crime of violence with intent to terrorize
another or to cause evacuation of a building,
place of assembly, or facility of public
transportation, or otherwise to cause serious
public inconvenience, or in reckless disregard
of the risk of causing such terror or
inconvenience.
18 PA. CONS. STAT. § 2706 (1998) (emphasis added). Bovkun read the
pre-amendment statute as requiring a threat to commit a COV in each
of the three situations; that court considered the subsequent list
to be the different mens rea which could accompany the requisite
actus reus of a threat to commit a COV. 283 F.3d at 166.
In stark contrast to Bovkun’s interpretation of the earlier
statute, the amended statute at issue clarifies that the offense is
committed by communicating a threat to act in any of three ways:
to commit a COV; to cause evacuation of a building; or otherwise to
cause serious public inconvenience. Restated, the amended statute
sets out three separate offenses; only the first is a “threat to
commit” a COV. Because Bovkun interpreted the prior statute as
requiring the “threat to commit” a COV for every terroristic
threats conviction, it is not applicable to deciding whether a
conviction under the version at issue involves a COV. Although
Bovkun noted that the subsequent amendment to the statute did not
appear to alter the meaning of the provision, that statement is
dictum. Id. at 169.
Bovkun’s being inapplicable, we turn to whether it is proper
to look to the criminal complaint (in the record) to determine
9
whether Martinez-Paramo’s prior conviction is a COV under
Guidelines § 2L1.2. In United States v. Turner, 349 F.3d 833, 836
(5th Cir. 2003) (Turner II), we refused to consider the defendant’s
charging instrument in order to determine whether his prior
conviction was a COV under Guidelines § 4B1.2(a)(2), because the
defendant had pleaded guilty to a lesser offense. Because “a
district court may not rely on a charging document without first
establishing that the crime charged was the same crime for which
the defendant was convicted”, id. (quoting United States v. Spell,
44 F.3d 936, 940 (11th Cir. 1995)) and because there was no
document charging Turner with the lesser offense, the indictment
could not be relied upon to determine the elements for which he was
convicted, id. (In United States v. Turner, 305 F.3d 349, 351 (5th
Cir. 2002) (Turner I), discussed infra, we had remanded for review
of the charging instrument to determine whether defendant’s
conviction was a COV). See also Allen, 282 F.3d at 342-43 (holding
district court exceeded Taylor’s limits in relying on a police
report to determine whether a prior conviction was a “serious drug
offense” under 18 U.S.C. § 924(e)(2)(A)(ii), where the indictment
did not answer the question).
The criminal complaint states Martinez-Paramo threatened to
commit a COV with the intent to terrorize, and the facts stated in
the affidavit support the offense involved being under §
2706(a)(1); the record does not reflect, however, whether the
10
complaint is legally sufficient under Taylor and Turner II to
determine that Martinez-Paramo pleaded guilty to a particular
subsection of § 2706(a) — again, a misdemeanor. In this regard,
Pennsylvania courts have held a criminal complaint alone sufficient
to support a valid guilty plea or conviction, even in the absence
of an information or indictment; but, “[o]rdinarily, the
requirement of formal notice is satisfied by the defendant’s
receipt of the criminal information”. Commomnwealth v. Hatchin,
709 A.2d 405, 408 (Pa. Super. Ct. 1998) (holding criminal complaint
sufficient to support conviction if meets certain notice
requirements); Commonwealth v. Clark, 511 A.2d 1382, 1384 (Pa.
Super. Ct. 1986) (holding same in guilty plea context).
In addition to the criminal complaint in the record, an
information or indictment (neither in the record) may exist which
charged Martinez-Paramo under another portion of the statute or may
not have specified under which subsection he was charged. In fact,
the Government stated at oral argument that an information does
exist.
Therefore, we cannot tell from this record whether the
criminal complaint was used when Martinez-Paramo pleaded guilty or
if there was another document which stated the charge(s) against
him. Because the record does not reflect the elements to which he
pleaded guilty, we cannot determine whether Martinez-Paramo’s
conviction was a § 2L1.2 COV. We do not decide, however, whether
11
an information or indictment is the only document which could
properly establish that he pleaded guilty to a particular
subsection of the statute. That task remains initially for the
district court on resentencing.
Accordingly, we remand to the district court for the
Government to supplement the record, if it can, with charging
documents, as well as others, which may establish to which elements
Martinez-Paramo pleaded guilty. Not only did the Government state
at oral argument that an information exists, but also that the plea
agreement and plea colloquy are available. Upon the record being
supplemented, the district court should address whether the new
documents are sufficient to establish that Martinez-Paramo’s prior
Pennsylvania conviction for terroristic threats is a COV under §
2L1.2. In doing so, the district court must determine whether, if
Martinez-Paramo pleaded guilty to § 2706(a)(1) (COV subsection),
the term “crime of violence” as used in that subsection satisfies
the COV definition in Guidelines § 2L1.2. Again, COV is not
defined in the Pennsylvania statute.
We well understand Martinez-Paramo’s objecting to the
Government’s being given a second chance to provide the requisite
documentary support for the claimed COV enhancement. As noted, we
have, however, remanded in similar situations. In Turner I, 305
F.3d at 351, an intervening change in law had repudiated the
district court’s basis for holding that the conviction at issue was
12
a COV under Guidelines § 4B1.2; we could not determine whether the
offense charged met the definition, because the charging document
was not in the record. Therefore, we remanded to the district
court to determine whether the count for which the defendant was
convicted met the enhancement’s requirements. Id. Similarly, in
United States v. Banda-Zamora, 178 F.3d 728, 730 (5th Cir. 1999),
we remanded for the district court to include the state court
judgment against defendant in order to determine whether his
previous sentence was of the requisite length to qualify as an
“aggravated felony” under Guidelines § 2L1.2(b)(1)(A).
Moreover, at sentencing, the Government was at least somewhat
justified in believing that it did not need to expand the record
after the district court adopted the Government’s position that
Bovkun applied and therefore the entire terroristic threats statute
was a COV. Nevertheless, the Government should have already
obtained and introduced all of the relevant documents into the
record.
In the final analysis, remand is proper. This is especially
true given the ongoing development by our court of the application
of the COV definitions in the Guidelines. See, e.g., Calderon-
Pena, 362 F.3d 293 (2004 — granting rehearing en banc); Vargas-
Duran, 356 F.3d 398 (2004 — en banc); Charles, 301 F.3d 309 (2002
— en banc); United States v. Chapa-Garza, 262 F.3d 479 (5th Cir.
2001) (denial of rehearing en banc) (Barksdale, J., dissenting).
13
III.
For the foregoing reasons, Martinez-Paramo’s conviction is
AFFIRMED; his sentence is VACATED; and this matter is REMANDED for
resentencing consistent with this opinion.
AFFIRMED IN PART; VACATED IN PART; and REMANDED
14
CARL E. STEWART, Circuit Judge, concurring in part, and dissenting
in part:
I agree with the majority that we should affirm the
conviction. I also agree that the appellate record in this case
does not allow us to clearly discern what paragraph of 18 PA. CONS.
STAT. § 2706 Martinez-Paramo was convicted under, and that § 2706
does not define crime of violence. I acknowledge that United
States v. Turner, 305 F.3d 349, 351 (5th Cir. 2002) (“Turner I”),
and United States v. Turner, 349 F.3d 833, 836 (5th Cir. 2003)
(“Turner II”), allow remands in certain circumstances. I do not
agree that either Turner I or Turner II command that we do so
here. For the following reasons, I respectfully dissent from the
majority’s determination to remand the case for the Government to
take another bite at the sentencing apple.
On appeal, the Government strenuously argues that on remand it
should be allowed to buttress its claim that the crime of violence
sentence enhancement applies in this case. When the Government
initiated its prosecution of Martinez-Paramo, it decided to rely on
Bovkun v. Ashcroft, 283 F.3d 166 (3d Cir. 2002), as the primary
basis for its sentence enhancement argument. Bovkun addressed a
different version of the terroristic threats statute than is at
issue here. It held that a crime of violence under 18 U.S.C. §
15
16(a) is defined as, “an offense that has as an element the use,
attempted use, or threatened use of physical force against the
person or property of another.” Under U.S.S.G. § 2L1.2, the
sentencing guideline at issue here, the force must be against a
person, while under § 16(a), it can also be against property.
Bovkun is clearly distinguishable and therefore it does not control
the outcome of this case. I agree with the majority here that the
district court erred in holding that Bovkun supported the
Government’s crime of violence sentence enhancement.
I depart from the majority, however, in concluding that a
remand for supplementation of the record is proper in this case.
Unlike the cases cited by the majority where we have remanded the
sentencing enhancement issue to the district court for additional
findings, there has been no intervening case law whatsoever between
the sentencing hearing and this appeal that would require remand as
a matter of law. Though Fifth Circuit case law regarding the
application of the crime of violence enhancement provisions remains
unsettled, the state of the case law had no bearing on the
Government’s litigation decisions. I would hold the Government to
the measure of proof it offered to the district court and the legal
theory it rested upon. I am not persuaded that remanding the case
for an unconditional supplementation of the record is warranted
here.
16
Significantly, the majority’s remand places no limits on how
large the Government’s additional bite at the sentencing apple may
be. The majority states “we remand to the district court for the
Government to supplement the record, if it can, with charging
documents, as well as others, which may establish to which elements
Martinez-Paramo pleaded guilty.”1 (Emphasis added.) Such an
unlimited invitation is unwarranted by the facts of this case.
Moreover, even if we take the Government at its word that the
indictment or other charging documents are available to the
district court upon remand, the sentencing inquiry does not end.
Further parsing of the statute and examination of the pertinent
cases in search of a match between the elements of the crime
Martinez-Paramo pled guilty to and the crime of violence statute
are inevitable. Another appeal of the district court’s ultimate
determination is equally probable. On this record, I would affirm
the conviction and hold that the Government failed to sustain its
burden of proof to show that Martinez-Paramo’s conviction under §
2706 qualifies as a crime of violence under U.S.S.G. § 2L1.2,
comment (B)(ii)(I). Because the district court committed
reversible error, I would vacate the sentence and remand for
1
See majority opinion at 12.
17
sentencing consistent with our findings. Accordingly, I concur in
part and dissent in part.
18