IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 10, 2009
No. 08-40292 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
CARLOS ORTIZ-GOMEZ,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before DAVIS, SMITH, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
Carlos Ortiz-Gomez appeals his sentence, contending that his prior
conviction under Pennsylvania law for a terroristic threat was not a crime of
violence within the meaning of the federal Sentencing Guidelines. We vacate
and remand for resentencing.
I
Ortiz-Gomez was convicted in Pennsylvania of making a terroristic threat
in violation of title 18 Pennsylvania Consolidated Statutes § 2706(a). Following
this conviction and resulting incarceration, he was removed from York,
Pennsylvania, to Mexico, and days later, in October 2007, he was apprehended
in Texas. He pleaded guilty to being found in the United States without
No. 08-40292
permission after deportation. At sentencing, the district court increased Ortiz-
Gomez’s base offense level of eight by sixteen levels based on his prior
Pennsylvania conviction. Ortiz-Gomez’s adjusted offense level of twenty-four
was reduced by three levels for acceptance of responsibility, resulting in a total
offense level of twenty-one. With a criminal-history category of V, Ortiz-Gomez’s
advisory sentencing guidelines range was seventy to eighty-seven months of
imprisonment.
Ortiz-Gomez filed an objection to the sixteen-level enhancement, arguing
that his prior terroristic-threats conviction was not a crime of violence because
it did not have as an element “the use, attempted use, or threatened use of
physical force against the person of another.” 1 The district court overruled Ortiz-
Gomez’s objection and sentenced him to seventy months of imprisonment and
three years of supervised release. Ortiz-Gomez filed a timely notice of appeal.
II
A “crime of violence,” as that term is used in § 2L1.2(b)(1)(A)(ii) of the 2007
Sentencing Guidelines, means any of the following:
murder, manslaughter, kidnapping, aggravated assault, forcible sex
offenses, statutory rape, sexual abuse of a minor, robbery, arson,
extortion, extortionate extension of credit, burglary of a dwelling, 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.2
Because making terroristic threats is not an enumerated offense, it is a “crime
of violence” under this provision of the Sentencing Guidelines only if it “has as
an element the use, attempted use, or threatened use of physical force against
the person of another.”3
1
U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 cmt. n.1(B)(iii) (2007).
2
Id.
3
Id.
2
No. 08-40292
We review de novo a district court’s determination that a defendant was
previously convicted of a crime of violence.4 When the Guidelines require that
an offense must have a particular element, “[w]e examine the elements of the
offense, rather than the facts underlying the conviction or the defendant’s actual
conduct, to determine whether an offense meets the definition of a COV [(crime
of violence)].” 5
Pennsylvania’s terroristic-threats statute, under which Ortiz-Gomez was
convicted, provides:
(a) Offense defined - A person commits the crime of terroristic
threats if the person communicates, either directly or indirectly, a
threat to:
(1) commit any crime of violence with intent to terrorize
another;
(2) cause evacuation of a building, place of assembly or facility
of public transportation; or
(3) otherwise cause serious public inconvenience, or cause
terror or serious public inconvenience with reckless disregard of the
risk of causing such terror or inconvenience.6
This statute defines multiple offenses, and it is apparent from its face that
one or more of those offenses do not have as an element the use, attempted use,
or threatened use of physical force against the person of another. In such
circumstances, we may consider documents establishing a conviction to “pare
4
United States v. Dominguez, 479 F.3d 345, 347 (5th Cir. 2007).
5
Id. (citing United States v. Calderon-Pena, 383 F.3d 254, 257-58 (5th Cir. 2004) (en
banc)). See generally United States v. Hayes, No. 07-608, 2009 WL 436680, at *3 (U.S. Feb. 24,
2009) (holding that although the government must establish beyond a reasonable doubt that
the underlying offense was committed against a person with a specified domestic relationship,
18 U.S.C. § 922(g)(9) does not require the predicate offense to have the specified domestic
relationship as an element).
6
18 PA . CONS . STAT . § 2706(a) (2000).
3
No. 08-40292
down a statute” 7 to determine if the offense for which the defendant was
convicted constitutes a crime of violence even if there are other means of
violating the statute that would not qualify as a crime of violence. The charging
document and the trial court’s plea/sentence form are part of the record in the
present case and may be considered in determining if Ortiz-Gomez’s conviction
was based on one of the subsections of the Pennsylvania statute.8 Count two of
the Criminal Information (Information) alleged that Ortiz-Gomez violated
section 2706(a)(1) by “threaten[ing] to commit any crime of violence with intent
to terrorize another, to wit Alfonso Perez.” Additionally, the Pennsylvania
court’s plea/sentence form reflects that Ortiz-Gomez pleaded guilty to violating
section 2706(a)(1) as stated in count two of the Information. These documents
demonstrate that Ortiz-Gomez pleaded guilty to and was convicted of violating
section 2706(a)(1), and we do not have any record of a plea agreement or colloquy
that would indicate what “crime of violence” Ortiz-Gomez threatened to commit.
Section 2706(a)(1) does not define “crime of violence,” and that term has
varying definitions in Pennsylvania statutes.9 Under such circumstances
Pennsylvania law directs that the phrase is to be “construed according to the fair
7
Perez-Munoz v. Keisler, 507 F.3d 357, 361 (5th Cir. 2007) (citing Larin-Ulloa v.
Gonzales, 462 F.3d 456, 467-68 (5th Cir. 2006) and Calderon-Pena, 383 F.3d at 254).
8
See Shepard v. United States, 544 U.S. 13, 26 (2005) (holding that in determining if
an enhancement under the Armed Career Criminal Act applied when the defendant had
pleaded guilty a prior offense, “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 [ ] some comparable judicial record of this
information” could be used to establish the predicate offense); see also United States v.
Martinez-Paramo, 380 F.3d 799, 805 (5th Cir. 2004) (remanding to the district court to
determine, based upon the information, plea agreement, and plea colloquy, which subsection
of section 2706 applied).
9
Compare 42 PA . CONS . STAT . ANN . § 9714(g) (West, Westlaw through Reg. Sess. Act
2008-132 and 2007-2008 Sp. Sess. No. 1 Act 2) (pertaining to mandatory sentences), with 71
PA . CONS . STAT . ANN . § 299(h) (West, Westlaw through Reg. Sess. Act 2008-132 and 2007-2008
Sp. Sess. No. 1 Act 2) (pertaining to reprieves, commutations of sentences, and pardons).
4
No. 08-40292
import of [its] terms but when the language is susceptible of differing
constructions it shall be interpreted to further the general purposes stated in
this title and the special purposes of the particular provision involved.” 10 At
least one Pennsylvania court has concluded that the “special purpose of section
2706 . . . ‘is to impose criminal liability on persons who make threats which
seriously impair personal security or public convenience.’”11
Although we cannot identify with certainty every crime that might be
considered a “crime of violence” under section 2706, we have little difficulty in
concluding that the crimes listed in a Pennsylvania statute imposing mandatory
minimum sentences for second or subsequent offenders 12 fall within section
2706’s ambit. This mandatory sentencing statute 13 is referenced in several other
of the state’s laws for the operable definition of “crime of violence.”14
Section 9714(g) defines “crime of violence” as including “arson as defined
in 18 Pa.C.S. § 3301(a).” Section 3301(a) provides in pertinent part:
(a) Arson endangering persons.--
(1) A person commits a felony of the first degree if he
intentionally starts a fire or causes an explosion, or if
he aids, counsels, pays or agrees to pay another to cause
a fire or explosion, whether on his own property or on
that of another, and if:
10
18 PA . CONS . STAT . ANN . § 105 (West, Westlaw through Reg. Sess. Act 2008-132 and
2007-2008 Sp. Sess. No. 1 Act 2); see also Commonwealth v. Ferrer, 423 A.2d 423, 424 (Pa.
Super. Ct. 1980).
11
Ferrer, 423 A.2d at 425 (emphasis omitted) (quoting Commonwealth v. Sullivan, 409
A.2d 888, 889 (Pa. Super. Ct. 1979)).
12
See 42 PA . CONS . STAT . ANN . § 9714(g).
13
Id.
14
See id. § 9712(a) (citing 42 PA . CONS . STAT . ANN . § 9714(g) for the definition of crime
of violence); id. § 9713(a) (same); 61 PA . STAT . ANN . § 331.19 (West, Westlaw through Reg.
Sess. Act 2008-132 and 2007-2008 Sp. Sess. No. 1 Act 2) (same); 204 PA . CODE § 303.7(a)(1)
(West, Westlaw through Reg. Sess. Act 2008-132 and 2007-2008 Sp. Sess. No. 1 Act 2) (same).
5
No. 08-40292
(i) he thereby recklessly places another person in
danger of death or bodily injury, including but
not limited to a firefighter, police officer or other
person actively engaged in fighting the fire; or
(ii) he commits the act with the purpose of destroying
or damaging an inhabited building or occupied
structure of another.15
This statute defines “occupied structure” as “[a]ny structure, vehicle or place
adapted for overnight accommodation of persons or for carrying on business
therein, whether or not a person is actually present.” 16
The offense of arson under section 3301(a)(1) does not have as an element
“the use, attempted use, or threatened use of physical force against the person
of another.” The crime can be established by proving that a defendant started
a fire for the purpose of damaging a structure “adapted for overnight
accommodation” regardless of whether a person is present. Because arson can
be a predicate offense for the crime of terroristic threats, a conviction for
terroristic threats under section 2706(a)(1) that does not specify the predicate
offense does not qualify as a conviction for a crime of violence under
§ 2L1.2(b)(1)(A)(ii) of the federal Sentencing Guidelines.
The Government argues that the Third Circuit in Bovkun v. Ashcroft17 held
that section 2706(a) requires a threat to use physical force against the person of
another. However, Bovkun addressed whether the Pennsylvania terroristic-
threats offense was a crime of violence within the meaning of 18 U.S.C. § 16(a),18
which defines a crime of violence to include threatened use of physical force
15
18 PA . CONS . STAT . ANN . § 3301(a) (West, Westlaw through Reg. Sess. Act 2008-132
and 2007-2008 Sp. Sess. No. 1 Act 2).
16
Id. § 3301(j).
17
283 F.3d 166 (3d Cir. 2002).
18
Id. at 170.
6
No. 08-40292
against property.19 The federal Sentencing Guidelines section at issue, § 2L1.2,
does not include crimes pertaining to property in describing the non-enumerated
offenses that constitute a crime of violence. The force must be against a person.
The decision in Bovkun is distinguishable from the present case on this basis.
We do not consider today whether our court’s decision in United States v.
Villegas-Hernandez 20 is in tension with Bovkun. We held in Villegas-Hernandez
that a subsection of a Texas statute defining an assault offense did not have
actual, attempted, or threatened use of force against the person of another as an
element.21 A definition of aggravated assault under Pennsylvania law is similar
to the Texas statute 22 at issue in Villegas-Hernandez.
The generic terroristic-threat offense of which Ortiz-Gomez was convicted
is not a crime of violence. There is a realistic probability 23 that Pennsylvania
courts would hold that a threat to commit arson with intent to terrorize another
would constitute a violation of section 2706(a)(1). That crime does not have as
19
See 18 U.S.C. § 16(a) (“The term ‘crime of violence’ means--(a) an offense that has as
an element the use, attempted use, or threatened use of physical force against the person or
property of another . . . .”).
20
468 F.3d 874 (5th Cir. 2006).
21
Id. at 882.
22
Compare 18 PA . CONS . STAT . ANN . § 2702(a)(1) (West, Westlaw through Reg. Sess. Act
2008-132 and 2007-2008 Sp. Sess. No. 1 Act 2) (stating that aggravated assault has been
committed when a person “attempts to cause serious bodily injury to another, or causes such
injury intentionally, knowingly or recklessly under circumstances manifesting extreme
indifference to the value of human life”), with TEX . PENAL CODE ANN . § 22.01(a)(1) (Vernon
Supp. 2008) (stating that assault has been committed when a person “intentionally,
knowingly, or recklessly causes bodily injury to another”).
23
See generally James v. United States, 127 S. Ct. 1586, 1597 (2007) (“[T]o find that a
state statute creates a crime outside the generic definition of a listed crime in a federal statute
requires more than the application of legal imagination to a state statute’s language. It
requires a realistic probability, not a theoretical possibility, that the State would apply its
statute to conduct that falls outside the generic definition of a crime.” (alteration in original)
(quoting Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 822 (2007))).
7
No. 08-40292
an element the use, attempted use, or threatened use of force against a person,
and the district court erred in applying a sixteen-level enhancement. This error
was not harmless because absent the enhancement, Ortiz-Gomez’s total offense
level would have been six,24 which, with a criminal history category of V, would
have resulted in an advisory sentencing range of nine to fifteen months under
the Sentencing Guidelines—far less than the seventy-month sentence imposed.
There is no indication in the record that the district court would have imposed
seventy months of imprisonment even if the enhancement were inapplicable.
III
Ortiz-Gomez also challenges the constitutionality of 8 U.S.C. § 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.25 Ortiz-Gomez’s argument is foreclosed by
Almendarez-Torres v . United States, in which the Supreme Court held that
treatment of prior convictions as sentencing factors was constitutional.26 As
Ortiz-Gomez readily concedes, “[t]his court has repeatedly rejected arguments
like the one made by [Ortiz-Gomez] and has held that Almendarez-Torres
remains binding despite Apprendi.”27
* * *
For the foregoing reasons, we VACATE and REMAND for resentencing.
24
See U.S.S.G. § 3E1.1 (stating that acceptance of responsibility decreases the offense
level by three levels only if the offense level is sixteen or greater; otherwise, the offense level
is decreased by two levels).
25
530 U.S. 466 (2000).
26
523 U.S. 224, 235 (1998).
27
United States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir. 2005).
8