United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit May 18, 2007
Charles R. Fulbruge III
Clerk
No. 06-40812
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
SABINO JAVIER MARTINEZ, also known as Wilfredo Ayguasbiba
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(05-CR-1059)
Before KING, DAVIS and BARKSDALE, Circuit Judges.
PER CURIAM:*
The only significant issue presented in this case is whether
the district court erred by enhancing the defendant’s sentence by
16 levels for crimes of violence under U.S. Sentencing Guideline
2L1.2 based upon his prior convictions for kidnaping and rape in
Massachusetts. We affirm.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I.
Without a written plea agreement, Martinez pleaded guilty to
Count I of an indictment charging him with attempting to illegally
enter the United States after having been deported and after having
been convicted of an aggravated felony. The district court
accepted the probation officer’s recommendation to impose a 16
level increase for prior convictions of crimes of violence under
USSG 2L.1 based on his 1998 Massachusetts convictions of rape and
kidnaping. After giving Martinez a 3 level reduction for
acceptance of responsibility, Martinez’s total offense level was 21
and criminal history category was 5, which combined for a Guideline
imprisonment range of 70 to 87 months. The court sentenced
Martinez to 72 months in prison plus a three year term of
supervised release.
Martinez objected to the PSR recommendation of a 16 level
crime of violence enhancement. He objected “for the following
reasons:
1. The offenses involved are not crimes of violence,
2. There is no judgment and conviction [as] required
under Shepherd [v. U.S., 544 U.S. 13 (2005)].”1
The probation officer responded to the objection by asserting that
both rape and kidnaping offenses are enumerated crimes of violence.
The probation officer also asserted that copies of Martinez’s 1998
1
At sentencing counsel simply said: “In regard to my objection,
first of all, it deals with the nature of the offense being a crime
of violence under 2L1.2.”
2
plea colloquy from Massachusetts revealed that Martinez was
convicted of rape, kidnaping, threatening and assault and battery,
all from a single episode and that these convictions resulted
following a guilty plea accepted by the Massachusetts court in a
single proceeding.
At sentencing, the prosecutor stated that:
And if the court looks at all four counts committed on
the same day, it indicates that this individual not only
raped, kidnaped, but she [sic] also threatened and
assaulted the victim because they all appear to be
charging him out of the same incident. So, clearly this
was a forcible rape, and clearly kidnaping is an
enumerated offense.
II.
U.S. Sentencing Guideline 2L1.2(b)(1)(a)(ii)calls for a 16
level sentence enhancement if, prior to his deportation, the
defendant has been convicted of a felony that is a crime of
violence, which is defined as follows: “‘Crime of violence’ means
any of the following: . . . kidnaping . . . forcible sex offenses.
. . , 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 of another.” U.S.S.G. § 2L1.2, comment.
(n.(1)(B)(iii)).
In this case, if either prior conviction qualifies as a crime
of violence either as an enumerated offense or under the residual
“has as an element” clause, the sentencing enhancement was proper
and Martinez’s sentence can be affirmed. Martinez argues that
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neither his conviction for rape nor his conviction for kidnaping
under Massachusetts law is a qualifying “crime of violence” under
either methodology. We disagree. We do not consider whether
Martinez’s convictions for kidnaping and rape match the enumerated
offenses of a kidnaping or forcible sex offense under § 2L1.2,
because we conclude that the rape conviction has “as an element,
the use, attempted use, or threatened use of physical force against
the person of another” as is required by the catch-all prong of the
crime of violence definition.
“‘When determining whether a prior offense is a crime of
violence because it has as an element the use, attempted use, or
threatened use of force, district courts must employ the
categorical approach established in Taylor v. United States, 495
U.S. 575, 602 . . . (1990).’” United States v. Hernandez-
Rodriguez, 467 F.3d 492, 494 (5th Cir. 2006) (citations omitted).
Under this standard, the court must analyze the prior offense’s
statutory definition and not the defendant’s underlying conduct.
United States v. Velasco, 465 F.3d 633, 638 (5th Cir. 2006). “If
any set of facts would secure a conviction under the statute
without proof of the intentional use of force against the person of
another, then the offense cannot be characterized as a crime of
violence for sentence-enhancement purposes.” Id. However, where
a conviction can be obtained under alternative theories and proof,
courts have limited authority to look outside the statute to
determine which alternative was pursued by the prosecutor to obtain
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the conviction.
If a statute contains multiple, disjointed subsections,
courts may look beyond the statute to certain conclusive
records made or used in adjudicating guilt in order to
determine which particular statutory alternative applies
to the defendant’s conviction. These records are
generally limited to 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.
Hernandez-Rodriguez, 467 F.3d at 494 (citations and internal
quotation marks omitted); see Shepard v. United States, 544 U.S.
13, 16 (2005)).
At the time of Martinez’s May 5, 1998, guilty-plea conviction,
Massachusetts’s rape statute read in pertinent part as follows:
“Whoever has sexual intercourse . . . with a person, and compels
such person to submit by force and against his will, or compels
such person to submit by threat of bodily injury” shall be
imprisoned. MASS. GEN. LAWS ch. 265, § 22 (1997). The disjunctive
Massachusetts rape statute can thus be violated in two different
ways: (a) “by force and against [one’s]will” or (b) “by threat of
bodily injury.”
Martinez relies on Massachusetts’ decisions which have
construed the term “force” as not necessarily referring to
“physical force”. See Commonwealth v. Caracciola, 569 N.E.2d 744,
776-77 (Mass. 1991). We read this caselaw as introducing another
statutory alternative means by which rape may be committed under
Massachusetts law. Under the force prong, the force may be
physical force or constructive force.
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In order to determine which particular statutory alternative
applies to the defendant’s conviction we look to the charging
instruments in Martinez’s prior conviction. The charging
instrument for the rape states that Martinez “on January 8, 1995,
[Martinez] did assault [the victim] with intent to commit rape; and
did commit rape upon the said [victim].” “Assault” under
Massachusetts law is “an offer or attempt to do a battery”.
Commonwealth v. Cohen, 771 N.E.2d 176-177 (Mass. Ct. App. 2002).
Because a battery is defined as either a physically harmful
touching or an offensive, non-consensual touching, an attempt to
commit a battery does not necessarily require proof of the use of
physical force. However as the record shows, the State of
Massachusetts also charged Martinez with physically beating the
victim in a separate count arising out of the rape and kidnaping.
This related count states: “on January 8, 1995 [Martinez] did
assault and beat one [victim].” When we read the facts alleged in
the four charging instruments asserting the facts surrounding the
rape, it is apparent that the state charged that the rape was
forcible, in that the defendant used physical force to subdue the
victim. When considered in this light, we have no difficulty in
concluding that the rape charged in this case has as an element the
use, attempted use or threatened use of physical force. The
district court therefore did not err in imposing the 16 level crime
of violence enhancement.
III.
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Martinez also challenges the constitutionality of § 1326(b)’s
treatment of prior felony and aggravated felony convictions as
sentencing factors rather than elements of the offense that must be
found by a jury in light of Apprendi v. New Jersey, 530 U.S. 466
(2000). Martinez’s argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998), in which the Supreme Court
held that treatment of prior convictions as sentencing factors in
§ 1326(b)(1) and (2) was constitutional. This issue is foreclosed.
AFFIRMED.
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