[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 6, 2011
No. 10-15360
JOHN LEY
________________________
CLERK
D. C. Docket No. 2:10-cr-00081-WKW-WC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE ARTURO MARTINEZ-GONZALEZ,
a.k.a. Adrian Cortez,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(December 6, 2011)
Before DUBINA, Chief Judge, COX, Circuit Judge, and HUNT,* District Judge.
PER CURIAM:
*
Honorable Willis B. Hunt, Jr., Senior United States District Judge for the Northern District
of Georgia, sitting by designation.
Jose Arturo Martinez-Gonzalez appeals the sentence he received for his
conviction for illegal reentry after deportation by an alien previously convicted of a
felony in violation of 8 U.S.C. § 1326(b)(1). Martinez-Gonzalez argues that his
sentence is excessive because (1) the district court erred in treating an earlier
conviction for possession of forged documents as an aggravated felony, resulting in
an eight-level increase to his base offense level under the Sentencing Guidelines and
(2) the district court failed to appropriately consider the 18 U.S.C. § 3553(a)
sentencing factors.
Having considered the parties’ arguments, we affirm.
I. BACKGROUND
Martinez-Gonzalez is a Mexican national who initially entered the United
States approximately eleven years ago. In 2008, in the Circuit Court of Montgomery
County, Alabama, he was convicted of two counts of possession of forged
instruments – a forged permanent resident card and a forged Social Security card –
with the intent to defraud in violation of Ala. Code § 13A-9-6 (1975). He received
a two-year sentence, most of which was suspended, and he was subsequently deported
to Mexico. He returned to the United States without the permission of the Attorney
General and was ultimately convicted after his guilty plea in this case of illegally re-
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entering the United States in violation of 8 U.S.C. §§ 1326(a), which imposes
criminal penalties on any alien who has been deported and who thereafter “enters,
attempts to enter, or is at any time found in, the United States” without receiving
permission of the Attorney General.
According to § 2L1.2(a) of the Sentencing Guidelines, the base offense level
for illegally re-entering the United States is eight. However, “[i]f the defendant
previously was deported, or unlawfully remained in the United States, after . . . a
conviction for an aggravated felony,” the base offense level is increased by eight
levels. According to Application Note 3(A) of U.S.S.G. § 2L1.2(b), “‘aggravated
felony’ has the meaning given that term in [8 U.S.C. § 1101(a)(43)], without regard
to the date of conviction for the aggravated felony.” The definition of aggravated
felony under § 1101(a)(43) includes “an offense relating to . . . forgery . . . for which
the term of imprisonment is at least one year.”
At the sentencing hearing, the district court concluded that Martinez-Gonzalez’
conviction for possession of a forged instrument with the intent to defraud constituted
an aggravated felony and, over Martinez-Gonzalez’ objection, increased the base
offense level by eight levels. After reductions for acceptance of responsibility and
for substantial assistance to the Government, the district court arrived at an offense
level of 12 and a criminal history category of IV, resulting in a guidelines range of
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21 to 27 months in prison. Martinez-Gonzalez argued for a downward departure and
a sentence of time-served because the guidelines range for his sentence was too harsh
and because his criminal history category overstated his criminal background. The
district court declined to grant a downward departure and imposed a sentence of 24
months after a discussion of the relevant sentencing factors set out at 18 U.S.C.
§ 3553(a).
Martinez-Gonzalez now argues that the district court erred in concluding that
his convictions for mere possession of a forged document constituted offenses
“relating to” forgery under 8 U.S.C. § 1101(a)(43)(R). According to
Martinez-Gonzalez, “forgery,” as that term is historically understood at common law,
means the manufacture or production of forged items, and merely possessing forged
documents does not amount to committing a crime relating to forgery. He further
asserts that § 1101(a)(43)(R) is ambiguous and that the rule of lenity thus requires
that the ambiguity be construed in his favor. Martinez-Gonzalez finally argues that
his sentence was not substantively reasonable because the district court did not
properly consider the § 3553(a) sentencing factors.
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II. DISCUSSION1
A. Crimes “Relating to" Forgery under 8 U.S.C. § 1101(a)(43)(R)
We hold that the violation of a state law proscribing the possession of a forged
document with the intent to defraud is a crime related to forgery under
§ 1101(a)(43)(R). The other circuits considering this question – either in this context
or in the context of an alien challenging an order of removal – agree. United States
v. Chavarria-Brito, 526 F.3d 1184, 1186 (8th Cir. 2008) (“conviction for the
possession of a false document with the intent to perpetrate a fraud” constitutes an
aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C)); Richards v. Ashcroft, 400 F.3d
125, 130 (2d Cir. 2005); Albillo-Figueroa v. INS, 221 F.3d 1070 (9th Cir. 2000). In
addition, both the Fifth and Third Circuits have issued unpublished opinions reaching
the same conclusion. United States v. Martinez-Valdez, 419 Fed. Appx. 523 (5th Cir.
2011) (affirming the application of the § 2L1.2(b)(1)(C) eight-level enhancement
because of criminal defendant’s conviction for possessing a forged document);
Apanpa v. Attorney General of U.S., 276 Fed. Appx. 227, 229 (3d Cir. 2008)
(immigration petitioner’s “conviction for criminal possession of a forged instrument
in the second degree is an offense relating to forgery” under § 1101(a)(43)(R)).
1
“We review a district court’s application of the guidelines to the facts de novo.” U.S. v.
Kinard, 472 F.3d 1294, 1297 n.3 (11th Cir. 2006).
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Indeed, Martinez-Gonzalez has not cited to, and we could not independently locate,
a case holding that possession of a forged document was not a crime related to
forgery.
Martinez-Gonzalez’ argument that precedent from civil immigration cases
should not guide us is unavailing. Section 2L1.2(b) of the Guidelines references and
specifically adopts the civil standard from the deportation provisions of the
Immigration and Nationality Act. Thus § 2L1.2(b) requires courts in criminal actions
to apply the same standard it would in a civil immigration case.
We further conclude that the rule of lenity2 does not require a different result.
While the phrase “relating to” may be open to some interpretation, the rule of lenity
is “not invoked by a grammatical possibility.” Caron v. United States, 524 U.S. 308,
316, 118 S. Ct. 2007, 2012, 141 L. Ed. 2d 303 (1998). Rather, we must first apply
the traditional tools of statutory construction to interpret § 1101(a)(43)(R) before
resorting to the rule of lenity. United States v. Shabani, 513 U.S. 10, 17, 115 S. Ct.
382, 386, 130 L. Ed. 2d 225 (1994). Only if, “after seizing everything from which aid
can be derived, . . . we can make no more than a guess as to what Congress intended”
2
See United States v. Santos, 553 U.S. 507, 514, 128 S. Ct. 2020, 170 L. Ed. 2d 912 (2008)
(“The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants
subjected to them”).
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do we apply the rule. Muscarello v. United States, 524 U.S. 125, 118 S. Ct. 1911,
1919, 141 L. Ed. 2d 111 (1998) (citations and internal quotation marks omitted).
A common sense reading of § 1101(a)(43)(R) leads us to the conclusion that
the statute is not ambiguous in the context of this case. Congress enacted the
provision with the obvious intent of curbing the use of forged documents by aliens,
which is what Martinez-Gonzalez was convicted of doing. Further, even if we were
to concede some ambiguity in determining whether a particular state law crime
related to forgery, we would next apply the categorical approach adopted by the
Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed.
2d 607 (1990); see United States v. Palomino Garcia, 606 F.3d 1317, 1336 (11th Cir.
2010) (“Generally, we apply Taylor’s categorical approach in determining whether
a prior conviction is a qualifying offense for sentencing enhancement purposes.”).
Under the categorical approach, “we consider the offense as defined by the law, rather
than considering the facts of the specific violation.” United States v. Archer, 531
F.3d 1347, 1350 (11th Cir. 2008). Our goal is to “determine whether the convicted
crime falls within the generic, federal definition of the enumerated offense,” United
States v. Ramirez-Garcia, 646 F.3d 778, 782 (11th Cir. 2011), which is not limited
by the traditional common law definition for that offense. Taylor, 495 U.S. at 598,
110 S. Ct. at 2158.
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Ala. Code § 13A-9-6 – the statute under which Martinez-Gonzalez was
convicted – states that “[a] person commits the crime of criminal possession of a
forged instrument in the second degree if he possesses or utters any forged instrument
. . . with knowledge that it is forged and with intent to defraud.” Martinez-Gonzalez
points out that the traditional common law definition of forgery is the manufacture
of forged instruments and argues that his conviction for possessing a forged
instrument should thus not qualify as a crime “relating to” forgery. However, in
modern usage, the concept of forgery is broader. For example, the Model Penal Code
states that a “person is guilty of forgery if , with purpose to defraud . . . the actor . .
. utters any writing which he knows to be forged.” Model Penal Code § 224.1(1)(c).
Additionally, Chapter 25 of Title 18 of the United States Code contains numerous
statutes that criminalize various acts of forgery and counterfeiting, with each code
section referring to specific types of documents or counterfeiting tools. 18 U.S.C.
§ 470 et seq. This Court has reviewed those statutes, and the vast majority of them
proscribe uttering and/or possessing forged instruments or the equipment used to
create those instruments. E.g., 18 U.S.C. §§ 470, 472, 473, 474, 474A, 475, 477, 479,
480, 481, 483, 485, 486, 487, 488, 489, 490, 493, 494, 495, 496, 497, 498.
8
On a related topic, Martinez-Gonzalez’ arguments regarding 8 U.S.C. §
1101(a)(43)(P) actually weigh in the Government’s favor. That provision
characterizes as an aggravated felony
an offense (i) which either is falsely making, forging, counterfeiting,
mutilating, or altering a passport or instrument in violation of section
1543 of title 18, United States Code, or is described in section 1546(a)
of such title (relating to document fraud) and (ii) for which the term of
imprisonment is at least 12 months . . . .
While the first code section that § 1101(a)(43)(P) references, 18 U.S.C. § 1543,
relates to the actual manufacture of a forged passport or other document, the other
referenced statute, § 1546(a) is probably the federal crime most analogous to the one
committed by Martinez-Gonzalez. It is a felony under 18 U.S.C. § 1546(a) for
anyone who
utters, uses, attempts to use, possesses, obtains, accepts, or receives any
such visa, permit, border crossing card, alien registration receipt card,
or other document prescribed by statute or regulation for entry into or as
evidence of authorized stay or employment in the United States,
knowing it to be forged, counterfeited, altered, or falsely made, or to
have been procured by means of any false claim or statement, or to have
been otherwise procured by fraud or unlawfully obtained . . . .
All of these federal forgery statutes generally mirror Ala. Code § 13A-9-6 in
every material way, and, under the categorical approach required by Taylor, we can
conclude only that Martinez-Gonzalez’ conviction was related to forgery such that
the increased offense level under U.S.S.G. § 2L1.2(b) applies.
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B. Reasonableness of Martinez-Gonzalez’ Sentence under 18 U.S.C. § 3553(a)
Having resolved Martinez-Gonzalez’ assertion of a procedural error in
calculating his sentence, we now consider his claim that the sentence was
substantively unreasonable. In making this determination, we consider the factors
outlined in 18 U.S.C. § 3553(a) and the district court’s reasons for imposing the
sentence. United States v. Williams, 435 F.3d 1350, 1355 (11th Cir. 2006). In
applying the § 3553(a) factors to a sentence, “[t]he weight to be accorded any given
§ 3553(a) factor is a matter committed to the sound discretion of the district court,
and we will not substitute our judgment in weighing the relevant factors.” United
States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007) (quotation marks, alterations,
and citation omitted).
“In our evaluation of a sentence for reasonableness, we recognize that there is
a range of reasonable sentences from which the district court may choose, and when
the district court imposes a sentence within the advisory Guidelines range, we
ordinarily will expect that choice to be a reasonable one.” United States v. Talley,
431 F.3d 784, 788 (11th Cir. 2005). Because the district court imposed a sentence
within the Guidelines range, the court need only “set forth enough to satisfy the
appellate court that he has considered the parties’ arguments and has a reasoned basis
for exercising his own legal decisionmaking authority.” Rita v. United States, 551
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U.S. 338, 356, 127 S. Ct. 2456, 2468, 168 L. Ed. 2d 203 (2007). To determine
whether the district court has properly considered Martinez-Gonzalez’ arguments and
the § 3553(a) factors, we review the court’s statements at the sentencing hearing. See
Williams, 435 F.3d at 1355.
Martinez-Gonzalez argues that his sentence is substantively unreasonable
because the court failed to appropriately consider (1) that Martinez-Gonzalez has
been incarcerated in local jails since 2009, (2) that Martinez-Gonzalez’ immigration
status extended his time in state custody, (3) that at the conclusion of his sentence,
Martinez-Gonzalez will be separated from his family and face financial hardship
when he is deported to Mexico, and (4) that he will be confined by the immigration
services after his release from prison until he is deported.3
In imposing the sentence, however, the judge specifically discussed the
§ 3553(a) factors in determining the sentence. According to the judge, the sentence
was appropriate given “the nature and circumstances of the offense and the history
and characteristics of this defendant,” and was necessary
to reflect the seriousness of the offense and to promote respect, as the
Government said, for immigration law and for our criminal laws of the
3
In a footnote, Martinez-Gonzalez engages in a lengthy discussion of the disparity of
sentences between criminal aliens inside and outside of “fast-track” jurisdictions. As Martinez-
Gonzalez acknowledges, however, any claim regarding this disparity is squarely foreclosed by our
decision in United States v. Vega-Castillo, 540 F.3d 1235 (11th Cir. 2008).
11
United States and to provide just punishment for the offense . . . and to
afford adequate deterrence to criminal conduct and to avoid unwarranted
sentence disparities among defendants.
(Sentencing Transcript at 51-52).
The district court disagreed with Martinez-Gonzalez’ arguments that the
criminal history category overstated his record because he presented no evidence to
the contrary. (Id. at 49). Indeed, the district court found that Martinez-Gonzalez’
history of arrests and convictions was “compelling evidence of [his] propensity to
recidivate.” (Id.).
The record further demonstrates that the district court considered Martinez-
Gonzalez’ personal circumstances. The court noted the absence of evidence that
Martinez-Gonzalez paid income taxes or child support while he was working and
pointed out the fact that “the evidence with respect to his family is not good. I have
three domestic assaults, the last of which was that he was intoxicated and struck his
– the mother of his children in the face.” (Id. at 49-50). The court summarized by
stating,
So what I have is . . . evidence of disrespect for women, including the
mother of his own children; I have drunkenness; I have possession of
forged instruments; lying to police officers; possession of one pill, at
least, illegally; being in a vehicle with a switched tag; and entering or
reentering the country illegally at least four times, the last time after
having been deported, and coming back in only a few months.
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(Id. at 50-51).
Given the foregoing, it appears that the district court amply supported its
sentencing decision in the record and that the sentence imposed was reasonable and
well within the judge’s discretion. In summary, there appears to be no basis upon
which to vacate Martinez-Gonzalez’ sentence.
III. CONCLUSION
For the above stated reasons, we affirm Martinez-Gonzalez’ sentence.
AFFIRMED.
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