United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 28, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
____________________ Clerk
No. 04-40176
____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
CARLOS ALFREDO ALFARO
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
Before KING, Chief Judge, and BENAVIDES and STEWART, Circuit
Judges.
KING, Chief Judge:
Defendant-Appellant Carlos Alfredo Alfaro pled guilty to
being knowingly and unlawfully present in the United States
following deportation, in violation of 8 U.S.C. § 1326, 6 U.S.C.
§ 202, and 6 U.S.C. § 557. At sentencing, the district court
increased his offense level by sixteen points pursuant to UNITED
STATES SENTENCING GUIDELINES (“U.S.S.G.”) § 2L1.2(b)(1)(A)(ii) (2002),
which provides for an enhancement if the defendant previously had
been convicted of a “crime of violence.” Alfaro now appeals his
sentence of fifty months, arguing that the district court erred
by: (1) enhancing his sentence sixteen levels; (2) assigning a
criminal history point for Alfaro’s prior conviction for evading
arrest; (3) failing to find that 8 U.S.C. §§ 1326(b)(1) and (2)
are unconstitutional; and (4) sentencing him under the mandatory
guidelines regime supplanted by United States v. Booker, 125 S.
Ct. 738 (2005). We VACATE Alfaro’s sentence and REMAND for
resentencing.
I. Factual and Procedural Background
On August 7, 2003, Border Patrol agents found Alfaro, a
citizen of El Salvador, in Freer, Texas, after he had illegally
entered the United States by crossing the Rio Grande River.
Previously, on September 26, 1997, Alfaro was removed from the
United States. Because he had not obtained permission to re-
enter the country after being deported in 1997, he was indicted
for being illegally present in the United States following
deportation. He pled guilty to this charge.
Prior to sentencing, the district court instructed the
probation officer to prepare a presentence report (“PSR”) for
Alfaro. In this PSR, the probation officer, relying on the 2002
version of the Sentencing Guidelines, stated that Alfaro’s base
offense level was eight. He then wrote that Alfaro was convicted
in 1994 in Fairfax, Virginia of shooting into an occupied
dwelling, in violation of VA. CODE ANN. § 18.202-79 (1993). On
the basis of this prior conviction, the probation officer
recommended that Alfaro receive a sixteen-level enhancement under
2
U.S.S.G. § 2L1.2(b)(1)(A)(ii) for previously being convicted of a
“crime of violence,” which would result in an offense level of
twenty-four. After including a three-level reduction for
acceptance of responsibility, Alfaro’s offense level, as set
forth in the PSR, was twenty-one. The probation officer
additionally determined that Alfaro had a criminal history
category of III.
Alfaro was originally scheduled to be sentenced on January
9, 2004. At sentencing, Alfaro’s counsel objected to the use of
his 1994 Virginia conviction to enhance his sentence because
Alfaro was seventeen at the time of the offense. The district
court continued the sentencing proceeding to allow counsel to
determine whether Alfaro had been certified as an adult with
respect to his 1994 Virginia conviction. On February 5, 2004,
the district court received proof that Alfaro had been certified
as an adult with respect to this conviction. Alfaro acknowledged
the validity of this finding, and he did not further challenge
the sixteen-level enhancement. Accordingly, the district court
accepted the probation officer’s offense score, which resulted in
a guidelines imprisonment range of forty-six to fifty-seven
months. The district court sentenced Alfaro to a fifty-month
term of imprisonment, a three-year term of supervised release,
and a $100 special assessment. Alfaro now appeals his sentence.
II. ANALYSIS
3
A. The Sixteen-Level Enhancement
Alfaro argues that the district court committed plain error
by applying a sixteen-level enhancement for previously committing
a “crime of violence” under U.S.S.G. § 2L1.2 on the basis of his
1994 Virginia conviction for shooting at an occupied dwelling.
Specifically, Alfaro argues that shooting into an occupied
dwelling is not a “crime of violence” under U.S.S.G.
§ 2L1.2 because: (1) it is not a conviction for one of the
qualifying offenses enumerated in § 2L1.2; and (2) the statute of
conviction, VA. CODE ANN. § 18.2-279, does not have as an element
the use, attempted use, or threatened use of physical force
against the person of another.
Alfaro additionally states that his substantial rights were
violated because, at most, he should have been subject only to an
eight-level enhancement under § 2L1.2(b)(1)(C) for being
convicted of an “aggravated felony.” This would have produced a
Guidelines sentencing range of at most fifteen to twenty-one
months, far less than the fifty months he received.
Because Alfaro did not object below to the district court’s
imposition of the sixteen-level increase, this court reviews the
district court’s imposition of the enhancement for plain error.1
1
In a Rule 28(j) letter, the government argues for the
first time that Alfaro has waived, rather than forfeited, his claim
that the district court improperly imposed the sixteen-level
enhancement because Alfaro acquiesced at the February 5, 2004
sentencing hearing to the district court’s finding that the
probation officer had properly calculated his offense level. Prior
4
See United States v. Villegas, No. 03-21220, 2005 WL 627963, at
*2 (5th Cir. Mar. 17, 2005); United States v. Olano, 507 U.S.
725, 732-37 (1993); United States v. Knowles, 29 F.3d 947, 951
(5th Cir. 1994). This court finds plain error when: (1) there
was an error; (2) the error was clear and obvious; and (3) the
error affected the defendant’s substantial rights. Olano, 507
U.S. at 732-37. When these three conditions are all met, this
court may exercise its discretion to correct the error only if
the error “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Mares, No.
03-21035, 2005 WL 503715, at *8 (5th Cir. Mar. 4, 2005) (quoting
United States v. Cotton, 535 U.S. 625, 631 (2002)).
In reviewing Alfaro’s claim of plain error, we begin by
determining whether the district court committed an error and
to the sentencing hearing, Alfaro objected to the enhancement on
the ground that he was a juvenile when convicted of the Virginia
offense. At the sentencing hearing, Alfaro withdrew this objection
after being provided with proof that he was prosecuted as an adult.
He did not, however, waive the entirely different objection that he
was not convicted of a “crime of violence.” See United States v.
Aguilar-Delgado, No. 04-40309, 2004 WL 2801794, at *1 n.2 (5th
Cir. Dec. 7, 2004) (unpublished) (holding that the withdrawal of an
unrelated factual objection to a prior conviction did not waive the
defendant’s right to plain-error review of his claim that this same
conviction was not for a “crime of violence” under § 2L1.2).
Additionally, Alfaro’s failure to object to the characterization of
his prior offense as a “crime of violence” did not constitute a
waiver of this objection. See United States v. Gomez-Vargas, No.
03-40966, 2004 WL 2309703, at *1 (5th Cir. Oct. 14, 2004) (per
curiam) (unpublished) (rejecting the government’s argument that the
defendant waived his right to object to the characterization of his
prior offense as a “crime of violence” by not objecting to the
PSR). Accordingly, Alfaro is entitled to plain-error review on
this issue.
5
whether that error was plain. Villegas, 2005 WL 627963, at *2-5.
In resolving his claim that the district court erred by
misapplying § 2L1.2(b)(1)(A)(ii), we review the district court’s
interpretation and application of the Guidelines de novo. Id.
Under U.S.S.G. § 2L1.2(b)(1)(A)(ii), an alien convicted of
unlawfully re-entering, or being unlawfully present in, the
United States after previously being deported, faces a sixteen-
level enhancement under the Sentencing Guidelines if, prior to
his deportation, he had “a conviction for a felony that is . . .
a crime of violence . . . .” The term “crime of violence”
includes “murder, manslaughter, kidnaping, 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). Additionally, it includes any 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.” Id.
Under the categorical approach set forth in United States v.
Taylor, 495 U.S. 575, 602 (1990), a district court looks to the
elements of a prior offense, rather than to the facts underlying
the conviction, when classifying a prior offense for sentence
enhancement purposes. See also United States v. Gracia-Cantu,
302 F.3d 308, 309 (5th Cir. 2002). In United States v. Calderon-
Pena, 383 F.3d 254, 257 (5th Cir. 2004), this court addressed
6
exactly what a district court should consider when determining if
a “crime of violence” under § 2L1.2 was committed, writing:
Although the actual conduct described in the indictments
could be construed to involve the use of physical force
against the person of another, that is irrelevant
. . . . The inquiry [when determining if a “crime of
violence” was committed] looks to the elements of the
crime, not to the defendant’s actual conduct in
committing it. This rule springs directly from the
language of the “crime of violence” definition itself,
which states that a “crime of violence” is an offense
that “has as an element” the use of force. The elements
of an offense of course come from the statute of
conviction, not from the particular manner and means that
attend a given violation of the statute. Prior decisions
of this court have accordingly held that the statute of
conviction, not the defendant’s underlying conduct, is
the proper focus.
383 F.3d at 257 (internal citations omitted). Similarly, in
United States v. Vargas-Duran, 356 F.3d 598, 605-06 (5th Cir.
2004), this court held that an inquiry of this sort is limited to
looking at the elements of the statute of conviction, writing
that “[if] any set of facts would support a conviction without
proof of that component, then the component most decidedly is not
an element--implicit or explicit--of the crime.”
In the present case, the statute of conviction, VA. CODE ANN.
§ 18.2-279, provides:
If any person maliciously discharges a firearm within any
building when occupied by one or more persons in such a
manner as to endanger the life or lives of such person or
persons, or maliciously shoots at, or maliciously throws
any missile at or against any dwelling house or other
building when occupied by one or more persons, whereby
the life or lives of any such person or persons may be
put in peril, the person so offending shall be guilty of
a Class 4 felony. In the event of the death of any
person, resulting from such malicious shooting or
7
throwing, the person so offending shall be guilty of
murder, the degree to be determined by the jury or the
court trying the case without a jury.
If any such act be done unlawfully but not maliciously,
the person so offending shall be guilty of a Class 6
felony; and, in the event of the death of any person
resulting from such unlawful shooting or throwing the
person so offending shall be guilty of involuntary
manslaughter. If any person willfully discharges a
firearm within or shoots at any school building whether
occupied or not, he shall be guilty of a Class 4 felony.
Under § 2L1.2, shooting into an occupied dwelling in violation of
this statute is not one of the enumerated offenses that qualify
as a “crime of violence.” Additionally, VA. CODE ANN. § 18.2-279
does not have, as a necessary element, the use, attempted use, or
threatened use of force against another. As Alfaro correctly
notes, a defendant could violate this statute merely by shooting
a gun at a building that happens to be occupied without actually
shooting, attempting to shoot, or threatening to shoot another
person. Similarly, an individual could be convicted under this
statute for discharging a firearm within an unoccupied school
building without actually shooting, attempting to shoot, or
threatening to shoot another person. Even if we accept (as the
parties appear to) that Alfaro was convicted of committing one of
the Class 4 felonies enumerated in VA. CODE ANN. § 18.2-279, his
conviction still did not require the use, threatened use, or
attempted use of force against the person of another.
Accordingly, the first prong of the plain-error test is met
because the district court erred when it concluded that Alfaro’s
8
conviction under VA. CODE ANN. § 18.2-279 was for a “crime of
violence.” See U.S.S.G. 2L1.2; Calderon-Pena, 383 F.3d at 257.
The second prong of the plain-error test is also met because
this court has consistently held that when a district court errs
in concluding that a defendant was convicted of a “crime of
violence,” the error is plain. See, e.g., United States v.
Insaulgarat, 378 F.3d 456, 471 (5th Cir. 2004); Gracia-Cantu, 302
F.3d at 313; United States v. Aguilar-Delgado, No. 04-40309, 2004
WL 2801794 (5th Cir. Dec. 7, 2004) (unpublished); United States
v. Lopez-Hernandez, No. 02-21078, 2004 WL 2428675, at *1 (5th
Cir. Oct. 28, 2004) (per curiam) (unpublished). With respect to
the third and fourth prongs of the plain-error test, we must
determine “whether the defendant can show a reasonable
probability that, but for the district court’s misapplication of
the Guidelines, [the defendant] would have received a lesser
sentence.” Villegas, 2005 WL 627963, at *7. In Villegas, the
court stated that absent the enhancement, the defendant’s
“sentencing range would have been reduced from between twenty-one
and twenty-seven months to between ten and sixteen months.” Id.
at *7. It then held that “[b]ecause these two sentencing ranges
do not overlap, the district court’s error necessarily increased
[the defendant’s] sentence and thus affected his substantial
rights.” Id.; see also Insaulgarat, 378 F.3d at 468 n.17
(holding that because the district court’s error resulted in the
imposition of a sentence substantially greater than the maximum
9
otherwise permitted under the Sentencing Guidelines, the error
affected the defendant’s substantial rights and the fairness of
the judicial proceedings); Gracia-Cantu, 302 F.3d at 312 (same).
In the present case, without the sixteen-level enhancement for
committing a “crime of violence,” Alfaro at most would have been
subject to an eight-level enhancement under § 2L1.2(b)(1)(C) for
being convicted of an “aggravated felony.” Accordingly, he would
have faced a sentencing range of, at most, fifteen to twenty-one
months, far less than the fifty-month sentence he received.
Thus, the district court’s error in the present case resulted in
the imposition of a sentence that was substantially greater than
would otherwise have been permitted under the Sentencing
Guidelines, thereby affecting Alfaro’s substantial rights and the
fairness of the judicial proceedings. See, e.g., Villegas, 2005
WL 627963, at *7; Insaulgarat, 378 F.3d at 468 n.17; Gracia-
Cantu, 302 F.3d at 312. Accordingly, we conclude that the
district court committed plain error when it imposed the
sixteen-level sentence enhancement pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(ii), and we vacate Alfaro’s sentence and remand
for resentencing.2 See Villegas, 2005 WL 627963, at *7.
2
Because we vacate Alfaro’s sentence, we need not address
his argument that the district court committed error under Booker
by sentencing him under a mandatory guidelines regime. On remand
the district court will not be bound by the Guidelines, but it must
consider them, including, inter alia, “the sentencing range
established for . . . the applicable category of offense committed
by the applicable category of defendant as set forth in the
[G]uidelines,” all in the light of this opinion. 18 U.S.C.
10
B. Alfaro’s Criminal History Category
With respect to Alfaro’s argument that the district court
erred in assigning a criminal history point under U.S.S.G.
§ 4A1.2(c)(1) for his Texas state misdemeanor conviction for
evading arrest, we note that both Alfaro and the government
agree that the district court erred. As the government admits,
under § 4A1.2(c)(1), a criminal history point should have been
assigned to Alfaro’s prior conviction for evading arrest only if
the conviction resulted in a sentence of probation for a year or
more or imprisonment for thirty days or more. See U.S.S.G.
§ 4A1.2(c)(1); United States v. Moore, 997 F.2d 30, 33 (5th Cir.
1993). Alfaro only received a sentence of ten days imprisonment
for his evading arrest conviction. Thus, the district court
erred in assigning a criminal history point for this offense.
Because we vacate Alfaro’s sentence based on the sixteen-level
enhancement, however, we need not address whether the court’s
erroneous imposition of the criminal history point is plain error
requiring reversal.
C. The Constitutionality of 8 U.S.C. § 1326(b)
Finally, Alfaro argues that the “felony” and “aggravated
§ 3553(a); United States v. Booker, 125 S. Ct. 738, 764-65 (2005);
United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005), petition
for cert. filed (Mar. 31, 2005) (No. 04-9517). That done, if the
resulting sentence is appealed, it will be reviewed for
reasonableness, as mandated by Booker.
11
felony” provisions of 8 U.S.C. §§ 1326(b)(1) and (2) are
unconstitutional.3 While Alfaro notes that this argument appears
to be foreclosed by the Supreme Court’s decision in Almendarez-
Torres v. United States, 523 U.S. 224, 235 (1998), he contends
that Almendarez-Torres was wrongly decided. In support of his
argument, he claims that Justice Thomas, who provided a critical
fifth vote in Almendarez-Torres, now appears to have repudiated
his position in Almendarez-Torres. Thus, Alfaro concludes that
five members of the Supreme Court now appear to be of the view
that Almendarez-Torres was incorrectly decided.
Because Alfaro made no objection to the alleged
constitutional error below, we review his claim for plain error.
Olano, 507 U.S. at 732-37; Knowles, 29 F.3d at 951. In this
circuit, “[i]t is self-evident that basing a conviction on an
3
These sections state:
(b) Criminal penalties for reentry of certain removed aliens
Notwithstanding subsection (a) of this section, in the
case of any alien described in such subsection--
(1) whose removal was subsequent to a conviction for
commission of three or more misdemeanors involving drugs,
crimes against the person, or both, or a felony (other
than an aggravated felony), such alien shall be fined
under Title 18, imprisoned not more than 10 years, or
both;
(2) whose removal was subsequent to a conviction for
commission of an aggravated felony, such alien shall be
fined under such Title, imprisoned not more than 20
years, or both . . . .
8 U.S.C. §§ 1326(b)(1) and (2).
12
unconstitutional statute is both ‘plain’ and ‘error’ . . . .”
Knowles, 29 F.3d at 951. Alfaro’s argument that §§ 1326(b)(1)
and (2) are unconstitutional, however, fails in light of
Almendarez-Torres and Fifth Circuit precedent. As Alfaro
recognizes, in Almendarez-Torres, the Supreme Court effectively
rejected his argument. See Almendarez-Torres, 523 U.S. at 235.
Almendarez-Torres has not been overruled and is still good law.
Additionally, this court has repeatedly rejected arguments like
the one made by Alfaro as being foreclosed by Almendarez-Torres.
See, e.g., United States v. Mendez-Villa, 346 F.3d 568, 570-71
(5th Cir. 2003) (per curiam) (holding that Almendarez-Torres
remains binding despite Apprendi v. New Jersey, 530 U.S. 466
(2000)); United States v. Delgado-Nunez, 295 F.3d 494, 498 (5th
Cir. 2002) (same). Accordingly, Alfaro’s argument that
§§ 1326(b)(1) and (2) are unconstitutional fails.
III. CONCLUSION
For the foregoing reasons, we VACATE Alfaro’s sentence and
REMAND for resentencing consistent with this opinion.
13