United States v. Antonio-Agusta

FILED
United States Court of Appeals
Tenth Circuit

March 7, 2012
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 11-1008
JOSE ANTONIO-AGUSTA, also
known as Ricardo Jose Artiaga,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 1:10-CR-00297-MSK-1)

Howard A. Pincus, Assistant Federal Public Defender (Raymond P. Moore,
Federal Public Defender, with him on the briefs), Denver, Colorado, for
Defendant-Appellant.

Ryan T. Bergsieker, Assistant United States Attorney (John F. Walsh, United
States Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.

Before MURPHY, HARTZ, and TYMKOVICH, Circuit Judges.

MURPHY, Circuit Judge.
I. Introduction

Jose Antonio-Agusta appeals the district court’s application of U.S.S.G.

§ 2L1.2(b)(1)(A)(ii)’s sixteen-level sentence enhancement in calculating his

advisory Guidelines range. 1 He argues the district court erred in relying on the

indictment underlying his prior Arizona convictions to conclude those convictions

constitute felony crimes of violence, warranting the enhancement. The district

court did not err, however, because the indictment was incorporated by reference

in the judgment and is therefore reliable evidence of the elements of Antonio-

Agusta’s prior convictions. Furthermore, the indictment, plea agreement, and

judgment reveal Antonio-Agusta was convicted under parts of Arizona’s

aggravated assault statutes that constitute crimes of violence. Accordingly,

exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), this court

affirms the sentence imposed by the district court.

II. Background

Antonio-Agusta pleaded guilty to one count of unlawful re-entry after

removal. 8 U.S.C. § 1326(a). The Presentence Investigation Report (“PSR”)

1
Antonio-Agusta also appealed the district court’s denial of his request for
a variance based on an assertedly unwarranted disparity in the sentences of
similarly situated defendants in fast-track and non-fast-track districts. At oral
argument, however, Antonio-Agusta conceded we must reject his argument
because he failed to provide any evidence “a defendant charged with the same
crime in a fast-track district would qualify for fast-track programs.” United
States v. Lopez-Macias, 661 F.3d 485, 494 (10th Cir. 2011). Antonio-Agusta
preserves this issue solely for review by the en banc court or the United States
Supreme Court.

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treated Antonio-Agusta’s prior Arizona convictions for aggravated assault as

felony crimes of violence and applied a sixteen-level sentence enhancement under

U.S.S.G. § 2L1.2(b)(1)(A)(ii). 2 In so doing, the PSR relied on the indictment

underlying Antonio-Agusta’s Arizona convictions, which revealed he used a

dangerous weapon, i.e., a knife, in connection with those convictions.

At sentencing, the district court also relied on the indictment in concluding

that Antonio-Agusta’s Arizona convictions constituted felony crimes of violence,

warranting the sentence enhancement. With the enhancement, the advisory

guidelines range was fifty-one to seventy-one months. The district court varied

downward and sentenced Antonio-Agusta to forty-six months’ imprisonment.

The Arizona indictment charged Antonio-Agusta with three counts of

felony aggravated assault. Each of the counts was identical, except for the name

of the victim:

[Jose Antonio-Agusta], on or about the 7th day of June, 2006,
using a knife, a deadly weapon or dangerous instrument, intentionally
placed [victim] in reasonable apprehension of imminent physical
injury, in violation of A.R.S. §§ 13-1203, 13-1204, 13-701, 13-702,
13-702.01, and 13-1801.

The State of Arizona further alleges that the offense charged in
this count is a dangerous felony because the offense involved the

2
Antonio-Agusta was sentenced pursuant to the 2010 version of the
Sentencing Guidelines. All further references to the Guidelines are to the 2010
version.

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 discharge, use, or threatening exhibition of a knife, a deadly weapon
or dangerous instrument and/or the intentional or knowing infliction
of serious physical injury upon [victim], in violation of A.R.S.
§ 13-604(P).

Antonio-Agusta pleaded guilty to an amended version of these three counts. The

plea agreement sets out the manner in which the counts were amended: “The State

agrees to dismiss the allegation of dangerousness,” in exchange for Antonio-

Agusta pleading guilty to “Counts 1-3, as amended, Aggravated Assault, Class 3

nondangerous felonies, in violation of A.R.S. §§ 13-1203, 13-1204, 13-701,

13-702.01, and 13-801.” The plea agreement also states it “serves to amend the

complaint or information, to charge the offense to which the defendant pleads,

without the filing of any additional pleading.” Finally, the judgment states

Antonio-Agusta is guilty of:

OFFENSE: Counts 1, 2, and 3 Amended Aggravated Assault
Class 3 felonies.
A.R.S. [§]§ 13-1203, 1204, 701, 702, 702.01, 801
Date of Offense: 06/07/2006
Non Dangerous - Non Repetitive

III. Discussion

This court reviews de novo a district court’s interpretation of the

Guidelines and its determination that a prior conviction is a crime of violence.

United States v. Perez-Vargas, 414 F.3d 1282, 1284 (10th Cir. 2005). 3

3
The Government incorrectly asserts the abuse-of-discretion standard of
review applies in this case. This court reviews sentences for reasonableness
under an abuse-of-discretion standard. United States v. Martinez, 610 F.3d 1216,
(continued...)

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 U.S.S.G. § 2L1.2(b)(1)(A)(ii) requires the sentencing court to add sixteen

levels to a defendant’s offense level if the defendant was previously removed

following a conviction for a felony that is a crime of violence. A crime of

violence includes an “aggravated assault” and “any other 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, app.

n.1(B)(iii). 4

In determining whether a prior conviction is a crime of violence, courts

employ a “formal categorical approach, looking only to the statutory definitions

of the prior offenses, and not to the particular facts underlying those convictions.”

Perez-Vargas, 414 F.3d at 1284 (quotation omitted). If the statute is ambiguous,

however, “or broad enough to encompass both violent and nonviolent crimes, a

court can look beyond the statute to certain records of the prior proceeding, such

as the charging documents, the judgment,” and “the terms of a plea agreement or

transcript of colloquy between judge and defendant.” Id. (quotations omitted).

This approach is commonly referred to as the modified categorical approach.

3
(...continued)
1223 (10th Cir. 2010). We have made clear, however, that “we review the district
court’s legal conclusions regarding the Guidelines de novo.” Id. (quotation
omitted).
4
“Commentary in the Guidelines Manual that interprets or explains a
guideline is authoritative unless it violates the Constitution or a federal statute, or
is inconsistent with, or a plainly erroneous reading of, that guideline.” United
States v. Torres-Ruiz, 387 F.3d 1179, 1181 (10th Cir. 2004) (quotation omitted).

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United States v. Zuniga-Soto, 527 F.3d 1110, 1119-20 (10th Cir. 2008). By

reviewing the documents underlying a prior conviction, the sentencing court can

determine whether the defendant was necessarily convicted of an offense that

warrants a sentence enhancement. Shepard v. United States, 544 U.S. 13, 26

(2005). The parties agree a conviction under the Arizona aggravated assault

statutes is not categorically a crime of violence and the modified categorical

approach applies.

Using the modified categorical approach, the district court reviewed the

indictment, plea agreement, and judgment underlying Antonio-Agusta’s Arizona

convictions and concluded the convictions qualified as crimes of violence. The

first paragraph of each of the counts in the indictment charged that Antonio-

Agusta “using a knife, a deadly weapon or dangerous instrument, intentionally

placed [victim] in reasonable apprehension of imminent physical injury, in

violation of A.R.S. §§ 13-1203, 13-1204, 13-701, 13-702, 13-702.01, and

13-1801.” Relying on this language, the district court determined Antonio-Agusta

was convicted under the following parts of Arizona’s aggravated assault statutes:

“A person commits aggravated assault if the person commits assault as defined in

section 13-203 . . . us[ing] a deadly weapon or dangerous instrument,” Ariz. Rev.

Stat. Ann. § 13-1204(A)(2); and “A person commits assault by . . . [i]ntentionally

placing another person in reasonable apprehension of imminent physical injury.”

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Ariz. Rev. Stat. Ann. § 13-1203(A)(2). 5 The court concluded these provisions

correspond with the generic definition of “aggravated assault” and also constitute

an “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, app. n.1(B)(iii). Thus, the court applied the sixteen-level

sentence enhancement for a crime of violence under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii).

Antonio-Agusta does not dispute the indictment underlying his prior

convictions reveals he was charged with three offenses that qualify as crimes of

violence. Instead, he argues the district court erred by relying on the indictment

to reach its conclusion because Arizona law makes clear the indictment is not

reliable evidence of the elements of his prior convictions. In particular, he argues

the indictment was not incorporated by reference in the judgment. He further

argues the plea agreement and judgment amended the indictment, making it

unclear whether he was convicted under parts of Arizona’s aggravated assault

statutes that constitute crimes of violence.

A. Whether the Indictment was Incorporated by Reference in the
Judgment

Under Arizona law, a charging document is reliable evidence of the

elements of a prior conviction only if it is incorporated by reference in the

5
We refer to these parts of the Arizona Revised Statutes as they existed in
June 2006 when Antonio-Agusta committed his offenses.

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judgment. State v. Joyner, 158 P.3d 263, 272 (Ariz. Ct. App. 2007); State v.

Thompson, 924 P.2d 1048, 1051 (Ariz. Ct. App. 1996). 6 In Thompson the Arizona

Court of Appeals held a judgment specifying “that the conviction was pursuant to

Count I of the Information . . . effectively incorporated Count I of the charging

document by reference.” 924 P.2d at 1051. Thus, the sentencing court properly

considered both the information and the judgment in determining whether the

defendant’s prior conviction constituted a felony for purposes of an Arizona

sentence enhancement provision. Id. A judgment that did not “refer to the

charging document in any respect,” however, did not incorporate the charging

document by reference, and the charging document could not be relied upon to

determine the nature of the defendant’s prior conviction. Id. An Arizona

charging document is only reliable evidence of the elements of a prior conviction

if it is incorporated by reference in the judgment because, under Arizona law,

“initial charges can be amended at trial or in change of plea proceedings.” Id. at

1051-52 (citing Ariz. R. Crim. P. 13.5(b)).

The judgment underlying Antonio-Agusta’s Arizona convictions states he

was convicted of “Counts 1, 2, and 3 Amended Aggravated Assault.” While the

judgment describes Counts 1, 2 and 3 as aggravated assaults it does not set forth

6
The government does not dispute Antonio-Agusta’s position that we are
bound by Arizona law in this regard. As a consequence, we apply Arizona law
here without deciding whether it is binding on this court, noting, however, that
the application of the modified categorical approach is generally a matter of
federal, not state, law.

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the counts themselves or otherwise indicate their elements. Thus, the judgment

must refer to another document that sets forth the counts in their entirety, like a

charging document. In this case, the only documents in the record that do so are

the complaint, dated June 12, 2006, and the indictment, dated June 16, 2006,

which are identical in all relevant respects. Thus, the indictment superceded the

complaint as the charging document and the judgment must refer to the

indictment. See State v. Bojorquez, 535 P.2d 6, 10 (Ariz. 1975) (“An intervening

indictment arising from the same activity may supercede the filing of a prior

complaint.”). Indeed, the indictment sets forth three counts of aggravated assault

and therefore corresponds with the truncated description of the offense provided

in the judgment. Aside from not actually using the words “the indictment,” the

language of the judgment in this case is otherwise similar to the language of the

judgment in Thompson, where the charging document was incorporated by

reference. 924 P.2d at 1051.

The judgment also states, “Counts 1, 2, and 3 Amended,” indicating the

counts were amended, but does not explain how. Thus, the judgment must also

refer to something that reveals how the counts were amended. In this case, that

must be the plea agreement because nothing else in the record sets forth the

manner in which the counts were amended. Further, Antonio-Agusta makes no

argument that the indictment was amended by anything other than the plea

agreement. By referring to the indictment and plea agreement, the judgment

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necessarily incorporated those documents by reference. Thus, the indictment

underlying Antonio-Agusta’s prior convictions, as amended by the plea

agreement, was incorporated by reference in the judgment.

B. How the Indictment was Amended by the Plea Agreement

Antonio-Agusta argues the plea agreement underlying his prior convictions

amended the indictment, making it unclear whether he was convicted under parts

of Arizona’s aggravated assault statutes that constitute crimes of violence.

Specifically, he argues the plea agreement does not indicate the precise manner in

which the counts were amended. Moreover, he argues both the plea agreement

and judgment indicate it was the offenses themselves, set forth in the first

paragraph of each count, that were amended. Thus, Antonio-Agusta argues it is

unclear whether he pleaded guilty to the offenses as originally charged in the

indictment and, therefore, the indictment is not reliable evidence of the elements

of his prior convictions.

The first paragraph of each of the counts sets forth the offense with which

Antonio-Agusta was charged. The second paragraph alleges the offense was

committed in a dangerous manner, which would serve to enhance Antonio-

Agusta’s sentence under Ariz. Rev. Stat. Ann. § 13-604(P). See Montero v.

Foreman, 64 P.3d 206, 209 (Ariz. Ct. App. 2003). The enhancement set forth in

§ 13-604(P) is commonly referred to as an allegation of dangerousness. State v.

Joyner, 158 P.3d 263, 272 n.10 (Ariz. Ct. App. 2007); Montero, 64 P.3d at 209.

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 In Montero, the Arizona Court of Appeals held that a plea agreement that

dismissed an allegation of dangerousness served merely to remove the possibility

of an enhanced sentence under § 13-604(P) but did not affect the charged offense.

64 P.3d at 209-10. The defendant in Montero pleaded guilty to disorderly

conduct “with the agreement that the State dismiss the ‘dangerous’ designation

that it had alleged with the crime” pursuant to § 13-604(P). Id. at 207 & n.1. The

defendant argued that because the allegation of dangerousness was dismissed

pursuant to his plea agreement, his disorderly conduct conviction was not a

violent crime for purposes of a different Arizona sentencing provision. Id. at 209.

The court rejected this argument. Id. at 209-10. It noted that in agreeing to

dismiss the allegation of dangerousness “the State made no representation that the

offense would not be considered ‘violent’ for purposes of [the Arizona sentencing

provision].” Id. “[T]hat the State did not elect to seek an enhanced sentence for

Montero’s disorderly conduct conviction based on its ‘dangerousness’ does not

mean that the crime was not a ‘violent crime.’” Id. at 209-10.

The plea agreement underlying Antonio-Agusta’s Arizona convictions

shows he pleaded guilty to “Counts 1-3 as amended.” The only amendment the

plea agreement makes to Counts 1, 2 and 3 is a dismissal of “the allegation of

dangerousness.” Montero makes clear this amendment served to dismiss the

allegation of dangerousness set forth in the second paragraph of each count of the

indictment. Neither the plea agreement nor the judgment indicate any amendment

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was made to the offense set forth in the first paragraph of Counts 1, 2, or 3 of the

indictment. See id. at 209-10. Thus, the indictment and plea agreement

underlying Antonio-Agusta’s Arizona convictions make clear he pleaded guilty to

the charges as set forth in the indictment.

Contrary to Antonio-Agusta’s assertions, the Arizona Court of Appeals’s

decision in Joyner does not cast doubt on this conclusion. The issue in Joyner

was whether the defendant’s prior convictions for armed robbery under Arizona

law constituted violent felonies for purposes of the same Arizona sentencing

provision at issue in Montero. 158 P.3d at 265-67. Under Arizona law, armed

robbery could be committed with a deadly weapon or dangerous instrument or

with a simulated deadly weapon. Id. at 266-67. If committed with a deadly

weapon or dangerous instrument the prior conviction constituted a violent felony.

Id. If committed with a simulated deadly weapon it did not. Id. The charging

documents underlying Joyner’s prior convictions indicated he used a gun, i.e., a

deadly weapon. Id. at 267. The court held, however, that the charging documents

in that case were “not reliable evidence of the elements established by his

convictions because they were not incorporated by reference in the judgments of

conviction.” Id. at 272 (citing Thompson, 924 P.2d at 1051).

Antonio-Agusta points to the following passage from Joyner, claiming it

supports his argument the indictment is not reliable evidence of the elements of

his prior Arizona convictions:

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 [A]s reflected in Joyner’s plea agreements and judgements for both
cases, his prior convictions were for “nondangerous” offenses, and
Joyner’s plea agreements “serve[d] to amend” the charging
documents to conform to his guilty pleas. As a result, the charging
documents are not reliable evidence of the elements of Joyner’s
convictions.

Id. at 272 (citation omitted). Antonio-Agusta argues this passage indicates that if

the plea agreement and judgment provide that the offense is not dangerous, and

the plea agreement served to amend the charging document, then the offense

itself, as set forth in the charging document, may have been amended to conform

to the guilty plea. See id. at 272. If so, Antonio-Agusta asserts, the charging

document is not reliable evidence of the elements of the defendant’s prior

conviction. Antonio-Agusta asserts that, like in Joyner, the plea agreement and

judgment underlying his Arizona convictions show they were for nondangerous

offenses. Further, like in Joyner, the plea agreement served to amend the

indictment to conform to his guilty pleas. Thus, he argues Joyner shows the

offenses he was charged with, as set forth in the first paragraph of each count of

the indictment, may have been amended. He therefore argues the indictment

underlying his prior convictions, like the charging documents in Joyner, is not

reliable evidence of the elements of his prior convictions.

A careful reading of Joyner, however, indicates otherwise. In Joyner, the

charging documents contained no § 13-604(P) allegation of dangerousness. Id. at

272 n.10. Thus, however the plea agreements in Joyner served to amend the

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charging documents, it was not to eliminate a specific § 13-604(P) allegation of

dangerousness. The plea agreements and judgments in Joyner were therefore in

conflict with the charging documents: the plea agreements and judgments

specifically stated the defendant’s prior convictions were not for dangerous

offenses while the charging documents showed they were for dangerous offenses,

i.e., that the defendant committed armed robbery with a deadly weapon. Thus,

the passage from Joyner on which Antonio-Agusta relies simply suggests that if a

plea agreement and judgment conflict with the charging document, and the plea

agreement serves to amend the charging document, the charging document is not

reliable evidence of the elements of the defendant’s prior convictions. In this

case, there is no such conflict between the indictment and the plea agreement and

judgment. Moreover, unlike in Joyner, the indictment underlying Antonio-

Agusta’s Arizona convictions was incorporated by reference in the judgment. See

id. at 272 & n.10.

Finally, relying on this court’s decision in United State v. Bennett, 108 F.3d

1315, 1318 (10th Cir. 1997), Antonio-Agusta argues that, if there is any

possibility he pleaded guilty to an offense that does not merit a sentence

enhancement the government has not met its burden of showing the enhancement

applies. Antonio-Agusta’s reliance on Bennett is misplaced. Unlike in Bennett,

this court has before it documents that enable us to determine whether Antonio-

Agusta’s Arizona convictions warrant an enhancement as felony crimes of

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violence. Cf. 108 F.3d at 1317-19. Moreover, a review of those documents

reveals precisely how the plea agreement amended the indictment. Thus, unlike

in Bennett, the record of the prior proceeding in this case does not inject any

doubt that Antonio-Agusta was convicted of felony crimes of violence. The

government has met its burden of showing, by a preponderance of the evidence,

Antonio-Agusta’s prior Arizona convictions constitute felony crimes of violence.

See United States v. Torres-Romero, 537 F.3d 1155, 1158 (10th Cir. 2008).

IV. Conclusion

The indictment underlying Antonio-Agusta’s Arizona convictions is

reliable evidence of the elements of those convictions. Further, a review of the

indictment, plea agreement and judgment reveals he pleaded guilty to three counts

of aggravated assault as set forth in the first paragraph of each of the counts in the

indictment. Because Antonio-Agusta does not dispute the indictment charges him

with three offenses that qualify as crimes of violence, the district court did not err

in imposing a sixteen-level sentence enhancement pursuant to U.S.S.G.

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§ 2L1.2(b)(1)(A)(ii). 7 For the foregoing reasons, Antonio-Agusta’s sentence is

affirmed.

7
As part of his plea agreement in this case Antonio-Agusta reserved the
right to dispute whether he was convicted of an aggravated felony before his prior
removal for purposes of 8 U.S.C. § 1326(b)(2). He does not assert that right in
this appeal. But even if he did, our holding that the district court did not err in
concluding his Arizona convictions for aggravated assault constituted felony
crimes of violence forecloses any argument that the Arizona convictions do not
constitute aggravated felonies under 8 U.S.C. § 1326(b)(2). See 8 U.S.C.
§ 1101(a)(43)(F), (O); 18 U.S.C. § 16.

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