United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
November 29, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
05-41498
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SERGIO GUADALUPE MARTINEZ-VEGA,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Texas
Before BARKSDALE, BENAVIDES, and OWEN, Circuit Judges.
BENAVIDES, Circuit Judge:
The principal issue on this direct criminal appeal is whether
the district court plainly erred in assessing a 16-level
enhancement to Appellant’s sentence based on the determination that
Appellant’s prior state conviction for sexual assault was a crime
of violence under the sentencing guidelines. Finding no plain
error, we AFFIRM.
Appellant Sergio Guadalupe Martinez-Vega pleaded guilty to
illegal reentry in violation of 8 U.S.C. § 1326. Appellant’s base
offense level was eight. Pursuant to U.S.S.G. §
2L1.2(b)(1)(A)(ii), the district court increased his offense level
by 16 levels based on a prior conviction for a “crime of violence.”
An offense qualifies as a crime of violence if it includes an
element of force or constitutes an enumerated offense. U.S.S.G. §
2L1.2, comment. (n.1(B)(iii)). Section 2L1.2 includes among the
enumerated offenses the crimes of “statutory rape” and “sexual
abuse of a minor.” Id. The guidelines, however, “do not define
the enumerated crimes of violence,” and therefore, “this court
adopts a ‘common sense approach,’ defining each crime by its
‘generic, contemporary meaning.’” United States v. Sanchez-Ruedas,
452 F.3d 409, 412 (5th Cir.) (citations omitted), cert. denied, ___
S.Ct. ___, (No. 06-5932) 2006 WL 2387388 (Oct. 2, 2006).
The presentence report (PSR) stated that, in 1994, Appellant
had pleaded guilty to “sexual assault, a lesser included offense”
in Hidalgo County, Texas. The PSR further stated that the
conviction stemmed from his sexual abuse of his four-year-old
daughter. At the sentencing hearing, Appellant responded
affirmatively to the court’s question whether “everything in the
report [was] correct?” After a reduction for acceptance of
responsibility, Appellant’s sentencing range was 37 to 46 months.
The district court sentenced Appellant to 37 months. He now
appeals.
For the first time on appeal, Appellant challenges the 16-
level enhancement, arguing that the district court record does not
2
establish that his prior sexual assault conviction is a crime of
violence under § 2L1.2(b)(1)(A)(ii). Before an appellate court can
correct an error not raised below, there must be (1) error; (2)
that is plain; and (3) that affects substantial rights. United
States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 1777-78
(1993). If all three prerequisites are met, the court may exercise
its discretion to correct a forfeited error, but only if the error
seriously affects the fairness, integrity, or public reputation of
the judicial proceedings. 507 U.S. at 735-37, 113 S.Ct. at 1778-
79. Further, the Supreme Court has made clear that we determine
whether the error was plain at the time of appellate
consideration—not at the time of trial. See United States v.
Johnson, 117 S.Ct. 1544, 1549 (1997) (holding that the intervening
change in the law made the error plain on appeal).
Although the parties agree that Appellant’s sexual assault
conviction was in violation of Tex. Penal Code § 22.011, they do
not agree as to the particular subsection of the statute. In
determining which subsection of a statute has been violated, courts
are limited to relying on the following records: the “‘charging
document, written plea agreement, transcript of the plea colloquy,
and any explicit factual finding by the trial judge to which the
defendant assented.’” United States v. Gonzalez-Chavez, 432 F.3d
334, 337-38 (5th Cir. 2005) (quoting Shepard v. United States, 544
U.S. 13, 16, 125 S.Ct. 1254, 1257 (2005)). Here, the district
3
court’s sole reliance on the PSR to determine that the prior
conviction was a crime of violence constituted clear and obvious
error under Supreme Court and Fifth Circuit precedent. United
States v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir. 2006). However,
as previously set forth, the question is whether there is plain
error at the time of appellate consideration.
Appellant contends that the record is insufficient to
demonstrate that his prior conviction for sexual assault
constituted a “crime of violence” under § 2L1.2.1 Subsequent to
the filing of Appellant’s opening brief, this Court granted the
government’s motion to supplement the record on appeal with the
indictment and the judgment pertaining to Appellant’s prior
conviction for sexual assault in Texas.2 The charge in the
indictment read as follows:
SERGIO VEGA MARTINEZ hereinafter styled Defendant, on or
about the 23rd day of June A.D., 1993, and before the
presentment of this indictment, in Hidalgo County, Texas,
did then and there, intentionally and knowingly cause his
sexual organ to penetrate the mouth of Jasmin Crystal
Martinez, the victim, a child younger than 17 years of
age and not the spouse of the defendant, and the victim
was then and there younger than 14 years of age.
1
In Appellant's opening brief, he argues that his conviction
did not involve use of force, and, therefore, the enhancement
constituted plain error. However, this Court has held that even if
an enumerated offense does not include an element of force, it is
nonetheless a crime of violence because it is enumerated. United
States v. Rayo-Valdez, 302 F.3d 314, 317 (5th Cir. 2002).
2
Appellant opposed supplementation of the record with the
indictment but not the judgment.
4
The indictment specifically provided that the charge was first
degree aggravated sexual assault. Although the indictment did not
provide a cite for the statute, it is Texas Penal Code §
22.021(a)(2)(B). Appellant did not plead guilty to that charge.
Instead, the state court judgment provides that Appellant pleaded
guilty to “the lesser charge contained in the Indictment.”
(emphasis added). The judgment specifically referred to the
conviction as the second degree offense of sexual assault. As
previously stated, although the parties agree that Appellant
pleaded guilty to sexual assault in violation of Texas Penal Code
§ 22.011, they dispute which subsection.
Relying on the indictment and judgment, the government
asserts Appellant was convicted of sexual assault of a child in
violation of Tex. Penal Code § 22.011(a)(2). As set forth
previously, sexual abuse of a minor is one of the enumerated
offenses under § 2L1.2 that constitute a crime of violence. This
Court has held that:
Gratifying or arousing one’s sexual desires in the actual
or constructive presence of a child is sexual abuse of a
minor. Taking indecent liberties with a child to gratify
one’s sexual desire constitutes “sexual abuse of a minor”
because it involves taking undue or unfair advantage of
the minor and causing such minor psychological-if not
physical-harm.
United States v. Izaguirre-Flores, 405 F.3d 270, 275-76 (5th Cir.)
(footnotes omitted), cert. denied, ___ U.S. ___, 126 S.Ct. 253
(2005). If gratifying one’s sexual desires while in the presence
5
of a minor constitutes sexual abuse of a minor, then sexual assault
of a child certainly constitutes sexual abuse of a minor.
Nonetheless, relying on United States v. Turner, Appellant
argues that this Court may not rely on the state court indictment
to determine whether the offense constituted a crime of violence.
349 F.3d 833 (5th Cir. 2003). Turner involved the question of
whether a prior conviction constituted a crime of violence under a
different guideline, § 2K2.1(a)(4)(A). Id. at 835. In that case,
we found the district court erred in relying on the indictment
because the defendant pleaded guilty to a lesser included offense
and was not reindicted on that count. Id. at 836. Unlike the
instant case, however, Turner was not limited to plain error
review. Here, the judgment provides that Appellant pleaded guilty
to “the lesser charge contained in the Indictment.” (emphasis
added). The lesser included charge in Appellant’s indictment was
sexual assault of a child under the age of seventeen. Appellant
argues that the above-quoted language was likely boiler plate and
that the judgment in Turner may have contained the same language.
That argument offers Appellant no succor. On this appeal, he has
the burden of demonstrating plain error.
Moreover, at his sentencing hearing, Appellant, through an
interpreter, indicated to the judge that: (1) he had reviewed the
PSR with his attorney; (2) he had no questions regarding the
report; and that (3) “everything in the report [was] correct.” As
6
previously set forth, the PSR provided that the victim of his prior
conviction for sexual assault was his four-year-old daughter. A
“district court can use all facts admitted by the defendant in
determining whether the prior conviction qualifies as an enumerated
offense under § 2L1.2.” United States v. Mendoza-Sanchez, 456 F.3d
479, 483 (5th Cir. 2006). We recognize that Appellant’s admission
of the correctness of the contents of the PSR was a rather broad
admission.3 Nonetheless, we are confident that, in view of this
admission, combined with the state court judgment’s reference to
“the lesser included charge contained in the Indictment,” which was
sexual assault of a minor, Appellant has failed to demonstrate that
the error was clear or obvious. See United States v. Fernandez-
Cusco, 447 F.3d 382, 388 (5th Cir.) (holding that “[i]n the light
of this record, including as supplemented on appeal, the
crime-of-violence enhancement constitutes neither ‘clear’ nor
‘obvious’ error”), cert. denied, ___ S.Ct. ___, (No. 06-5017) 2006
WL 1880951, (Oct 02, 2006). Thus, he has failed to show that the
3
To be clear, reliance on a PSR to determine whether a prior
conviction constitutes a crime of violence is clear and obvious
error. Ochoa-Cruz, 442 F.3d at 867. Here, however, we are relying
on Appellant’s admission of facts that happen to be in the PSR–not
the PSR in and of itself. In her concurring opinion, Judge Owen
construes Martinez-Vega’s admission to be that the PSR correctly
set forth the contents of the Sheriff’s Office offense report. We
do not believe we are precluded from relying on the admission to
bolster our conclusion that Appellant has failed to shoulder his
burden of proving plain error. See Mendoza-Sanchez, 456 F.3d at
483.
7
error is plain at the time of appellate consideration.4 This claim
affords him no relief.5
The district court’s judgment is AFFIRMED.
ENDRECORD
4
In light of his failure to satisfy the first two prongs of
the plain error test, we need not reach the remaining prongs.
Additionally, because we conclude that Appellant has failed to
satisfy the plain error test, we need not reach the question of
whether Appellant’s admission constituted invited error.
5
Finally, Appellant argues that the "felony" and "aggravated
felony" provisions of 8 U.S.C. § 1326(b)(1) and (2) are
unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466,
120 S.Ct. 2348 (2000). Appellant preserved this claim by objecting
in the district court. Although Appellant has briefed the issue,
he admits that it is foreclosed in this Court and raises it solely
for possible Supreme Court review.
8
PRISCILLA RICHMAN OWEN, Circuit Judge, concurring.
I concur in the court’s opinion with the exception of its
reliance on Martinez-Vega’s admission that “everything in the
[presentence] report [was] correct.”
The issue before us is whether Martinez-Vega had
previously been convicted of assaulting a child under the age
of seventeen. The state-court judgment of conviction at issue
recites that Martinez-Vega “pled GUILTY to the LESSER charge
contained in the Indictment.”1 The lesser charge in the
indictment stated that Martinez-Vega “did then and there,
intentionally and knowingly cause his sexual organ to penetrate
the mouth of [JCM], the victim, a child younger than 17 years
of age and not the spouse of the defendant.”2 We need look no
1
Emphasis in original.
2
The grand jury’s indictment stated in full:
THE GRAND JURY, for the County of Hidalgo, State of
Texas, duly selected, impaneled, sworn, charged and
organized as such at the July Term A.D. 1993 of the 275th
Judicial District Court for said County, upon their oaths
9
further.
Reliance on Martinez-Vega’s admission regarding the
content of the presentence report (PSR) is problematic for a
number of reasons, one of which is that the PSR simply
summarizes what a Hidalgo County, Texas Sheriff’s Office
offense report said in connection with the prior conviction.3
present in and to said court at said term that SERGIO
VEGA MARTINEZ hereinafter styled Defendant, on or about
the 23rd day of June A.D., 1993, and before the
presentment of this indictment, in Hidalgo County, Texas,
did then and there, intentionally and knowingly cause his
sexual organ to penetrate the mouth of [JCM], the victim,
a child younger than 17 years of age and not the spouse
of the defendant, and the victim was then and there
younger than 14 years of age.
3
The PSR says, in pertinent part:
According to the offense report from the Hidalgo County Sheriff’s Office, on June 23,
1993, the female victim, age 4, woke up her mother, Rosa Velasquez, and told her
that the defendant was in her room and was putting his penis in her mouth. It is noted
that the defendant is the victim’s father, but did not reside in the residence with the
child and mother. The mother immediately got up and confronted the defendant
about the child’s allegation, which he denied. She demanded that the defendant take
her and the child to the hospital for a check-up. The defendant hesitated, but
eventually agreed to take them to the hospital. At the hospital, the child admitted to
such and that the same had also occurred 15 days prior. An officer questioned the
defendant and observed that he was intoxicated. The defendant denied the allegation
and stated that Ms. Velasquez was just being spiteful. The officer arrested the
defendant for public intoxication after he noted that the defendant was having
difficulty standing. Later at the police station, the defendant again denied the
allegation, but stated that he would be willing to plead to a reduced charge because
it would mean less time that he would have to serve. The officer asked the defendant
why he would plead guilty if he denied the allegation. The defendant became upset
and refused to answer further questions. The disposition of the public intoxication
charge was undetermined.
On September 23, 1993, Ms. Velasquez submitted a case dismissal request citing that
10
When Martinez-Vega agreed that the “everything in the report
[was] correct,” he admitted only that the PSR accurately
recounted what was in the sheriff’s office report, not that he
actually performed any or all of the conduct described in that
report.
Even if Martinez-Vega now admits that he sexually
assaulted his daughter when she was four years old, which he
has not done, that is not the same as admitting he was
convicted of assaulting a four-year-old child. As we have
seen, the record of conviction reflects that he was convicted
of sexually assaulting a child younger than seventeen but he
was not convicted of sexually assaulting a child younger than
fourteen. Because of Martinez-Vega’s guilty plea to the lesser
included offense, the government was never required to prove
the greater offense.
The district court may certainly consider any admission by
Martinez-Vega that he did in fact sexually assault his daughter
when she was four years old in deciding whether an upward
departure is warranted, but such an admission cannot be the
she did not want to traumatize her daughter further through continued questioning.
Obviously, the charges were not dismissed, but the defendant was allowed to plead
guilty to the lesser charge of sexual assault. The Indictment indicates that the
defendant was originally charged with aggravated sexual assault, 1st degree felony.
11
basis for an enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
12