United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 3, 2006
Charles R. Fulbruge III
Clerk
No. 04-40607
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AURELIO MERAZ-ENRIQUEZ,
Defendant-Appellant.
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Appeals from the United States District Court
for the Southern District of Texas
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Before JOLLY, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:
Aurelio Meraz-Enriquez appeals his sentence following his
guilty plea for illegal reentry subsequent to deportation, a
violation of 8 U.S.C. § 1326. Meraz argues that the district court
erred by increasing his base offense level on the basis of his
prior conviction for attempted aggravated sexual battery, an
offense that the court deemed to be a ‘crime of violence’ within
the meaning of U.S.S.G. § 2L1.2.1 Because the defendant did not
object below, this court reviews the district court's
1
United States Sentencing Guideline § 2L1.2 states that the
base offense level for unlawfully entering the United States is
eight, subject to a sixteen level increase if the defendant was
previously deported after a conviction for a crime of violence.
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interpretation of the guidelines for plain error. See United
States v. Villegas, 404 F.3d 355, 358-59 (5th Cir. 2005). Under
the plain error standard, a party must show that: 1) there is an
error; 2) that the error is clear or obvious; and 3) that the error
affects the defendant’s substantial rights. Id. at 358. The
erroneous imposition of a sixteen-level enhancement would affect
the defendant’s substantial rights and the integrity of judicial
proceedings, and the only question here is whether this imposition
was in error. United States v. Gracia-Cantu, 302 F.3d 308, 313
(5th Cir. 2002).
An offense can be a ‘crime of violence’ either because it has
the use of force against another as an element of the offense or
because it fits within an enumerated list, which includes “forcible
sex offenses”. U.S.S.G. § 2L1.2, comment. (n.1(B)(iii)). Under
the "categorical approach" delineated by the U.S. Supreme Court in
Taylor v. United States, 495 U.S. 575, 602 (1990) courts look "only
to the fact of conviction and the statutory definition of the prior
offense." In other words, “the statute of conviction, not the
defendant’s underlying conduct, is the proper focus.” United
States v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2004)(en
banc).2
2
This court has held that if “a statute provides a list of
alternative methods of commission . . . [the court] may look to
the charging papers to see which of the various statutory
alternatives are involved in the particular case.” Calderon-Pena,
383 F.3d at 258. The amended information to which Meraz pled no
contest is not part of the record; we therefore look only to the
statute of conviction.
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In United States v. Sarmiento-Funes, 374 F.3d 336, 339-45 (5th
Cir. 2004), this court held that a violation of a Missouri sexual
assault statute was not a crime of violence because “some (though
not all) methods of violating the Missouri statute do not require
the use of physical force against the victim.” In particular, the
Missouri statute reached “intercourse to which the victim assents,
though that assent is a legal nullity, such as when it is the
product of . . . a judgment impaired by intoxication.” Id. at 341.
Meraz was convicted of violating a Kansas statute, KAN. STAT.
ANN. § 21-3518, that likewise provides for some methods of
commission that do not require the use of force.3 In a recent
unpublished opinion, we held that, under the reasoning of
Sarmiento-Funes, a violation of § 21-3518 is not a crime of
3
At the time of Meraz’s offense, Kansas defined aggravated
sexual battery as follows:
(a) Aggravated sexual battery is the intentional touching of
the person of another who is 16 or more years of age and who does
not consent thereto, with the intent to arouse or satisfy the
sexual desires of the offender or another under any of the
following circumstances:
(1) when the victim is overcome by force or fear;
(2) when the victim is unconscious or physically powerless;
(3) when the victim is incapable of giving consent because
of mental deficiency or disease, or when the victim is
incapable of giving consent because of the effect of any
alcoholic liquor, narcotic, drug or other substance, which
condition was known by, or was reasonably apparent to, the
offender.
KAN. STAT. ANN. § 21-3518 (2000)
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violence. See United States v. Matute-Galdamez, No. 03-41728 (5th
Cir. Oct. 6, 2004)(unpublished). Although Matute-Galdamez is an
unpublished opinion and is not precedential, it is persuasive
authority, see 5TH CIR. R. 47.5.4, and we adopt its reasoning and
holding. Accordingly, we conclude that Meraz’s prior conviction
was not for a ‘crime of violence’ as defined by the guidelines.
Thus, the district court erred in applying the sixteen-level
enhancement.
Meraz also argues that any sentence above the two-year maximum
of 8 U.S.C. § 1326(a) is unconstitutional under Apprendi v. New
Jersey, 530 U.S. 466 (2000), because he did not admit the fact of
his prior aggravated felony conviction. The Supreme Court held in
Almendarez -Torres v. United States, 523 U.S. 224, 235 (1998), that
8 U.S.C. § 1326(b)(2), which increases the statutory maximum
penalty to twenty years for aliens who reenter following
deportation subsequent to an aggravated felony conviction, sets
forth a sentencing factor and not a separate criminal offense.
Therefore, none of the requirements of § 1326(b)(2), including the
fact that the defendant has a prior aggravated felony conviction,
need be alleged in the indictment nor proven as an element of the
offense. Almendarez-Torres was not overruled by Apprendi. See
Sarmiento-Funes, 374 F.3d at 346. Thus, this court has
consistently rejected Meraz’s position. See, e.g., Id. at 346
(citing United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
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For the foregoing reasons, the defendant’s sentence is VACATED
and the case is REMANDED to the district court for resentencing.