United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT April 20, 2006
Charles R. Fulbruge III
Clerk
No. 05-40289
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN FERNANDEZ–CUSCO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
Having pleaded guilty to illegal re–entry, in violation of 8
U.S.C. § 1326(a) & (b), Juan Fernandez–Cusco contests: (1) the
constitutionality of 8 U.S.C. § 1326(b)(1) & (2) (prohibiting
aliens convicted of certain criminal behavior from reentering the
United States); (2) his previous state–felony conviction for
third–degree criminal sexual conduct being classified as the
requisite “crime of violence” for imposing a 16–level sentencing
enhancement under Sentencing Guideline § 2L1.2(b)(1)(A)(ii); and
(3) being required to cooperate in the collection of his DNA as a
condition of supervised relief. AFFIRMED IN PART and DISMISSED IN
PART.
I.
Fernandez–Cusco, a citizen of Ecuador, pleaded guilty in 1995
in Minnesota to criminal sexual conduct in the third degree, a
felony. In July 2004, he was deported and notified he could not
return to the United States without permission. That October,
federal agents found him in Texas, after he reentered the United
States illegally. That November, he pleaded guilty to illegal
reentry, in violation of 8 U.S.C. § 1326(a) & (b).
The 2004 version of the now–advisory Sentencing Guidelines was
in effect when Fernandez-Cusco was sentenced in February 2005 for
his illegal–reentry conviction. His base offense level of 8 was
increased by 16 levels, pursuant to Sentencing Guideline §
2L1.2(b)(1)(A)(ii), the district court adopting the recommendation
in the Presentence Investigation Report (PSR) that Fernandez-
Cusco’s previous Minnesota sexual–conduct crime was a “crime of
violence”. After a three–level acceptance–of–responsibility
reduction, his total offense level was 21, with an advisory
guideline range of 46 to 57 months. Fernandez–Cusco was sentenced
to 46 months in prison, followed by a two–year supervised release.
II.
As described, Fernandez–Cusco raises three issues. The
principle issue concerns the crime–of–violence ruling. He concedes
the other two issues are foreclosed by our precedent.
A.
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Concerning his conviction and sentence, Fernandez-Cusco
contends the “felony” and “aggravated felony” provisions of 8
U.S.C. § 1326(b) are unconstitutional. This issue is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).
Although Fernandez–Cusco maintains Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court would
overrule it in the light of Apprendi v. New Jersey, 530 U.S. 466
(2000), our court has repeatedly rejected this contention on the
basis that Almendarez-Torres remains binding. See United States v.
Garza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S. Ct.
298 (2005). Fernandez–Cusco concedes this claim is foreclosed; he
raises it only to preserve it for further review.
B.
Fernandez–Cusco was sentenced a few weeks after the Sentencing
Guidelines were held in January 2005 to be only advisory. United
States v. Booker, 543 U.S. 220 (2005). Nevertheless, post–Booker,
district courts must still consider, and properly apply, the
Guidelines. E.g., United States v. Villegas, 404 F.3d 355, 359
(5th Cir. 2005); United States v. Mares, 402 F.3d 511, 518 (5th
Cir.), cert. denied, 126 S. Ct. 43 (2005).
Fernandez–Cusco claims his prior guilty-plea conviction for
criminal sexual conduct is not a crime of violence under the 2004
Guideline § 2L1.2(b)(1)(A)(ii). He did not, however, object in
district court to this enhancement.
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1.
Before engaging in the resulting plain–error review, we note
that, although the Government does not claim Fernandez-Cusco waived
this contention, review of the PSR and Fernandez–Cusco’s objections
to it suggests he may have done so. He objected to his PSR by
requesting “a downward departure for criminal history over-
representation”. Specifically, he “concede[d] the serious nature
of [the prior Minnesota sex] offense, [but claimed] such
seriousness is already considered by the 16–level enhancement”. In
short, he indicated the enhancement was proper.
Of course, a defendant does not waive plain–error review
simply by “fail[ing] to object to the characterization of his prior
offense as a crime of violence”. United States v. Alfaro, 408 F.3d
204, 207 n.1 (5th Cir.) (internal quotation omitted), cert. denied,
126 S. Ct. 271 (2005). Fernandez–Cusco, however, did more than
fail to object to the crime–of–violence enhancement; he
affirmatively recognized it was being applied and indicated it was
proper. That acknowledgment arguably constitutes invited error.
Nevertheless, out of an abundance of caution, we will review for
plain error.
2.
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Under plain–error review, Fernandez–Cusco must show a “clear”
or “obvious” error affected his substantial rights. E.g., United
States v. Castillo, 386 F.3d 632, 636 (5th Cir.), cert. denied, 543
U.S. 1029 (2004). Even then, we retain discretion to correct plain
error. Generally, we will do so only if “it affects the fairness,
integrity, or public reputation of judicial proceedings”. Id. For
the following reasons, there was no plain error.
A person convicted of illegal reentry or of being found
unlawfully present in the United States, after deportation, is
subject to a 16–level enhancement if, prior to deportation, he had
a felony conviction for a “crime of violence”. U.S.S.G. §
2L1.2(b)(1)(A)(ii). A crime of violence is “murder, manslaughter,
kidnapping, aggravated assault, forcible sex offenses, statutory
rape, sexual abuse of a minor ... or 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”. Id. §
2L1.2 cmt. n.1(B)(iii)(2004) (emphasis added).
The Government contends Fernandez-Cusco’s guilty–plea
conviction in Minnesota constitutes a forcible sex offense, one of
the enumerated crimes for the Guideline section at issue. Because
“the enhancement provision does not specifically define [forcible
sex offense], we must define it according to its ‘generic
contemporary meaning’” to determine whether the Minnesota offense
constitutes a forcible sex offense. United States v. Dominguez-
5
Ochoa, 386 F.3d 639, 642-43 (5th Cir. 2004) (quoting Taylor v.
United States, 495 U.S. 575, 598 (1990)), cert. denied, 543 U.S.
1131 (2005); see also United States v. Izaguirre–Flores, 405 F.3d
270, 275 (5th Cir.) (considering “sexual abuse of a minor as ...
understood in its ordinary, contemporary, [and] common meaning”
(internal quotation marks omitted)), cert. denied, 126 S. Ct. 253
(2005). In 2004, interpreting a previous Guidelines version for
the crime–of–violence section at issue (that, unlike the 2004
version used in this case, did not include statutory rape as an
enumerated offense), our court held the term forcible sex offense
“denotes a species of force that either approximates the concept of
forcible compulsion or, at least, does not embrace some of the
assented–to–but–not–consented–to conduct at issue” for statutory
rape. United States v. Sarmiento-Funes, 374 F.3d 336, 344 (5th
Cir. 2004).
In the light of this generic, contemporary meaning, whether
the prior offense was a forcible sex offense is determined by
examining the Minnesota statute under which Fernandez–Cusco was
convicted, not by evaluating his specific conduct in committing the
offense. See Izaguirre-Flores, 405 F.3d at 275. If that statute
allows for convictions in circumstances that do not constitute
forcible sex offenses, the crime of violence enhancement would be
improper, regardless of his conduct in committing the offense. See
Alfaro, 408 F.3d at 209 (vacating sentence where underlying statute
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did not qualify as crime of violence and stating “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” (internal quotation marks omitted)); see also Sarmiento-
Funes, 374 F.3d at 345 (refusing to uphold crime–of–violence
enhancement when not all of the conduct criminalized by the
underlying statute could be considered forcible sex offenses).
For this determination, the subdivision of the criminal sexual
conduct statute under which Fernandez–Cusco was convicted may be
considered. If he was convicted under a specific subdivision, the
crime–of–violence enhancement would be valid if that subdivision
can be violated only in a manner that constitutes a forcible sex
offense, regardless of whether the entire statute requires such
force. See Izaguirre-Flores, 405 F.3d at 273 n.6 (stating that,
because defendant was convicted under one subsection of applicable
statute, the court did not need to consider whether conviction
under another subsection would constitute sexual abuse of a minor,
an enumerated crime of violence).
Third–degree criminal sexual conduct in Minnesota can be
committed in ways that do not qualify as forcible sex offenses.
For example, under subdivision 1(h), a person is guilty of such
conduct if: (1) he or she is a psychotherapist; (2) the victim is
a patient; and (3) the offense occurred during a therapy session or
at any time a therapist–patient relationship existed. MINN. STAT.
7
§ 609.344, subd. 1(h) (1995). Again, the enhancement is valid only
if the specific subdivision of the statute under which
Fernandez–Cusco was convicted criminalizes only conduct
constituting forcible sex offenses.
To determine the subsection under which Fernandez-Cusco was
convicted, we may look “to the terms of the charging document, the
terms of a plea agreement or transcript of colloquy between judge
and defendant in which the factual basis for the plea was confirmed
by the defendant, or to some comparable judicial record of this
information”. Shepard v. United States, 544 U.S. 13, 125 S. Ct.
1254, 1263 (2005); see also United States v. Gutierrez–Ramirez, 405
F.3d 352, 357 (5th Cir.), cert. denied, 126 S. Ct. 217 (2005).
None of these documents, however, were introduced in district
court.
The Government claims: the probation officer who prepared the
PSR had this material in his files; and it would have been included
in the record had Fernandez-Cusco objected to the enhancement.
Accordingly, simultaneously with filing its brief, the Government
filed an unopposed motion to supplement the record on appeal with
the following documents pertaining to Fernandez–Cusco’s Minnesota
conviction: (1) complaint; (2) petition to enter plea of guilty;
(3) judgment; (4) stay of imposition of sentence and probation
order; and (5) report of adult corrections department and order of
the court for defendant’s arrest, detention, and hearing.
8
Although generally we will not expand the record on appeal, we
may do so. Gibson v. Blackburn, 744 F.2d 403, 405 n.3 (5th Cir.
1984); see also United States v. Palomares–Candela, 104 F. App’x
957, 959 n.1 (5th Cir. 2004) (granting defendant’s request to
supplement record with charging documents and judgment in
sentencing–enhancement challenge). In not opposing the motion,
Fernandez–Cusco stated he did not concede the documents could be
considered in, or were relevant to, the crime–of–violence
determination.
The motion was granted shortly after the Government’s brief
was filed. In the light of this enhancement issue’s being raised
for the first time on appeal, and especially in the light of this
issue’s arguably being invited error, the supplementation is
proper. See EEOC v. Int’l Longshoremen’s Ass’n, 511 F.2d 273, 276
n.5 (5th Cir. 1975) (stating merits panel has authority to overrule
motions decisions).
The Government contends this supplemental material
demonstrates Fernandez-Cusco was convicted of violating subdivision
1(c) of Minnesota Statute § 609.344, which provides a person is
guilty of criminal sexual conduct if he or she “uses force or
coercion to accomplish the penetration”. MINN. STAT. § 609.344,
subd. 1(c) (1995) (emphasis added). To affirm the
crime–of–violence enhancement, we must ensure the statute under
which Fernandez–Cusco was convicted can be violated only in a
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manner constituting a forcible sex offense. Therefore, we must
determine whether committing third–degree criminal sexual conduct
by coercion necessarily constitutes a forcible sex offense.
(Obviously, the use of force under the statute qualifies as a
forcible sex offense.) Minnesota law defines coercion as
words or circumstances that cause the
complainant reasonably to fear that the actor
will inflict bodily harm upon, or hold in
confinement, the complainant or another, or
force the complainant to submit to sexual
penetration or contact, but proof of coercion
does not require proof of a specific act or
threat.
Id. § 609.341, subd. 14 (1995).
Fernandez–Cusco’s reply brief maintains the supplemental
material does not allow this court to narrow his conviction to one
under subdivision 1(c) because, although he was charged with
violating 1(c), his guilty plea stated only that he pleaded guilty
to third–degree criminal sexual conduct. In other words, the plea
did not specify that he pleaded guilty to violating 1(c) as
charged.
The charging document for Fernandez-Cusco’s 1995 Minnesota
conviction alleges he violated subdivision 1(c), by “engag[ing] in
sexual penetration ... using force or coercion to accomplish the
penetration”. As Fernandez-Cusco notes, his guilty-plea stated
only that he violated § 609.344, subd. 1; but, for purposes of our
plain–error review, nothing in the record suggests he was not
pleading guilty, as charged, to violating subdivision 1(c). As
10
discussed supra, other parts of §609.344, subd. 1 (1995), including
1(h) (sexual penetration between psychotherapist and patient), can
be violated in ways not constituting forcible sex offenses.
Subdivision 1(c), however, is the only one of the 12 subdivisions
that alone concerns “force or coercion to accomplish the
penetration”. The balance concern age or status or disability.
Subdivision 1(g) is the only other subdivision that has “force or
coercion to accomplish the penetration” (subdivision (g)(i)); it is
applicable, however, only if
the actor has a significant relationship to
the complainant, the complainant was at least
16 but under 18 years of age at the time of
the sexual penetration, and: (i) the actor or
an accomplice used force or coercion to
accomplish the penetration; (ii) the
complainant suffered personal injury; or (iii)
the sexual abuse involved multiple acts
committed over an extended period of time.
MINN. STAT. § 609.344, subd. 1(g) (1995).
As noted, because subdivision 1(c) allows for a conviction
when the defendant uses either force or coercion, we must determine
whether violating that statute through the use of coercion
necessarily constitutes a forcible sex offense. Fernandez–Cusco
relies on Sarmiento for the proposition that a forcible sex offense
requires physical force, not mere coercion. The Government, on the
other hand, claims Sarmiento need not control because it involved
an older version of the Guidelines and because its holding was
based on a concern about improperly characterizing certain crimes
11
like statutory rape as forcible sex offenses. (As noted, that
Guideline version did not include statutory rape in the enumerated
crimes of violence.) Instead, the Government urges reliance on
United States v. Remoi, 404 F.3d 789 (3d Cir.), cert. denied, 126
S. Ct. 467 (2005), where the Third Circuit declined to follow
Sarmiento, instead taking a broad approach that allows for
crime–of–violence enhancements for forcible sex offenses even in
the absence of physical force.
We need not decide whether the applied 2004 Guidelines edition
moots Sarmiento’s crime–of–violence interpretation. The
crime–of–violence issue was preserved in Sarmiento; therefore,
unlike here, our court was not reviewing only for plain error. In
any event, the concern in Sarmiento, that a crime–of–violence
sentencing enhancement could be given in cases where the victims
gave willful, but legally invalid, consent, is not present in this
instance. Pursuant to the above–quoted definition of “coercion”
under Minnesota law, the applicable subpart of the statute requires
the use of physical force or a threat that the defendant will harm
the victim, or hold the victim in confinement, or force the victim
to submit to sexual penetration or contact. In the light of this
record, including as supplemented on appeal, the crime–of–violence
enhancement constitutes neither “clear” nor “obvious” error.
C.
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Finally, for the first time on appeal, Fernandez-Cusco
challenges the following condition of his supervised release:
“cooperat[ing] in the collection of DNA as directed by the
probation officer”. He contends the district court erred by
subjecting him to such collection under 42 U.S.C. § 14135a because
the version of that statute in effect when he illegally reentered
the United States did not authorize DNA collection for such
conduct.
Therefore, Fernandez-Cusco claims collecting his DNA pursuant
to § 14135a violates the Constitution’s ex post facto prohibition.
U.S. CONST. art. I, § 9. cl. 3. In addition, he claims that, even
if the DNA collection is not considered punishment for ex post
facto purposes, it still runs afoul of “general principles of
nonretroactivity of substantive legislative enactments”.
As Fernandez-Cusco acknowledges in his reply brief, pursuant
to United States v. Riascos–Cuenu, 428 F.3d 1100 (5th Cir. 2005),
petition for cert. filed, (U.S. 9 Jan. 2006) (No. 05-8662), this
claim is not ripe for review. Restated, we lack jurisdiction to
review it and, therefore, dismiss it.
III.
For the foregoing reasons, we AFFIRM IN PART and DISMISS IN
PART.
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