United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 23, 2005
______________________ Charles R. Fulbruge III
Clerk
No. 03-41751
______________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSE BONILLA-MUNGIA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before GARWOOD, JONES, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
Jose Bonilla-Mungia (“Bonilla”) pleaded guilty to being
unlawfully present in the United States following deportation and
was sentenced to 41 months’ imprisonment. He now appeals the
sentence imposed by the district court, asserting that the court
plainly erred by enhancing his sentence sixteen levels for a
prior “crime of violence.” He also appeals his conviction by
challenging the constitutionality of the “felony” and “aggravated
felony” enhancement provisions of 8 U.S.C. § 1326(b). For the
reasons stated below, we affirm Bonilla’s conviction, vacate his
sentence, and remand for development of the record.
1
I.
On June 7, 2003, Bonilla pleaded guilty to being unlawfully
present in the United States after being previously deported, in
violation of 8 U.S.C. § 1326(a) and (b). In the presentence
report (“PSR”), the probation officer recommended a base offense
level of eight pursuant to the U.S. Sentencing Guidelines Manual
(“U.S.S.G.”) § 2L1.2(a) (2002). The PSR also included a
recommendation for a sixteen-level enhancement under U.S.S.G. §
2L1.2(b)(1)(A)(ii) on the ground that Bonilla’s 2000 conviction
for sexual battery in California was a prior “crime of violence.”
After a three-level reduction for acceptance of responsibility,
the probation officer recommended a sentencing range of 57 to 71
months. The district court adopted the recommendations contained
in the PSR, applied a two-level downward departure for Bonilla’s
cooperation with the Government, and sentenced him to 41 months’
imprisonment. Bonilla timely appealed.
II.
A.
Bonilla argues that his conviction must be overturned
because the felony and aggravated felony provisions contained in
8 U.S.C. § 1326 are unconstitutional. He concedes that this
argument is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224 (1998), but argues that Almendarez-Torres has been cast
into doubt by Apprendi v. New Jersey, 530 U.S. 466 (2000).
2
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489–90; United States v. Dabeit, 231 F.3d, 984 (5th
Cir. 2000). And, as Bonilla concedes, this court must follow
Almendarez-Torres “unless and until the Supreme Court itself
determines to overrule it.” Hopwood v. State of Texas, 84 F.3d
720, 722 (5th Cir. 1996). Therefore, his constitutional
challenge to § 1326(b) fails, and we affirm his conviction.
B.
Bonilla also argues that the district court improperly
enhanced his sentence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) by
classifying his 2000 California conviction for sexual battery as
a crime of violence. Because he failed to raise this issue in
the district court, we review for plain error.
The Government urges us to refrain from addressing this
issue on the ground that Bonilla waived any objection to his
crime-of-violence enhancement at sentencing. However, the
Government did not raise this waiver argument in its brief.
Rather, it addressed the merits of Bonilla’s enhancement under a
plain error standard of review. After the parties filed their
briefs, we decided United States v. Calderon-Pena, 383 F.3d 254
(5th Cir. 2004), which held that a defendant’s prior Texas
conviction of child endangerment was not a crime of violence for
sentence-enhancement purposes because it did not require the use
of force as an element. Therefore, we asked the parties for
3
supplemental briefing about, among other things, the impact of
Calderon-Pena on this case. In response to that question, the
Government asserted that “Calderon-Pena is inapplicable here
because Bonilla waived his objection to the 16-level sentencing
enhancement” in the district court. The Government then
dedicated two pages of its nine-page letter brief to its new
argument about waiver.
We reject the Government’s waiver argument for two reasons:
it is unresponsive to our questions on supplemental briefing, and
it was untimely. Just as we will not entertain issues first
raised by an appellant in his reply brief, United States v.
Brown, 305 F.3d 304, 307 n.4 (5th Cir. 2002), we will not
consider new arguments first raised by an appellee in
supplemental briefing on unrelated issues. Accordingly, the
Government has waived its waiver argument,1 and we proceed with
our review of Bonilla’s crime-of-violence enhancement.
1
See United States v. Menesses, 962 F.2d 420, 425–56 (5th
Cir. 1992) (holding that the Government waived its waiver
argument by failing to brief the issue and raising it for the
first time at oral argument); see also Tokatly v. Ashcroft, 371
F.3d 613, 618 (9th Cir. 2004) (holding that the Government waived
its waiver argument by addressing the issue on the merits in its
reply brief); United States v. Quiroz, 22 F.3d 489, 490–91 (2d
Cir. 1994) (holding that the Government waived its waiver
argument by raising it for the first time in a petition for
rehearing); United States v. Beckham, 968 F.2d 47, 54 n.5 (D.C.
Cir. 1992) (noting that the Government waived any waiver argument
it might have made by failing to raise the issue in its appellate
brief); Fagan v. Washington, 942 F.2d 1155, 1157 (7th Cir. 1991)
(same, listing Seventh Circuit cases).
4
Section 2L1.2(b)(1)(A)(ii) of the Guidelines provides for a
sixteen-level enhancement of a defendant’s sentence if the
defendant was previously deported or remained in the United
States after “a conviction for a felony that is . . . a crime of
violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2002).2 The
commentary to § 2L1.2 defines a “crime of violence” as follows:
A “crime of violence”
(I) means 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; and
(II) includes murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses
(including sexual abuse of a minor), robbery,
arson, extortion, extortionate extension of
credit, and burglary of a dwelling.
U.S.S.G. § 2L1.2, cmt. n.1(B)(ii)(I) & (II) (2002) (emphasis
added).
Bonilla contends that his California conviction for sexual
battery does not constitute a crime of violence under U.S.S.G. §
2L1.2 because it does not have as an element the use, attempted
use, or threatened use of physical force against the person of
another; and it is not equivalent to a “forcible sex offense.”3
When determining whether a prior offense is a crime of
violence because it has as an element the use, attempted use, or
2
In determining Bonilla’s sentence, the district court
applied the 2002 version of the Guidelines.
3
The only enumerated offense under U.S.S.G. § 2L1.2, cmt.
n.1(B)(ii)(II) that might describe California’s offense of sexual
battery is “forcible sex offense.”
5
threatened use of force, district courts must employ the
categorical approach established in Taylor v. United States, 495
U.S. 575, 602 (1990). Calderon-Pena, 383 F.3d at 257–58; see
also United States v. Alfaro, 408 F.3d 204, 208 (5th Cir. 2005);
United States v. Gracia-Cantu, 302 F.3d 308, 309 (5th Cir. 2002).
Under that approach, courts determine the elements to which a
defendant pleaded guilty by analyzing the statutory definition of
the offense, not the defendant’s underlying conduct. Calderon-
Pena, 383 F.3d at 257 (citing United States v. Vargas-Duran, 356
F.3d 598, 606 (5th Cir. 2004) (en banc)). If a statute contains
multiple, disjunctive 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. See
United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005)
(discussing the parameters of our review under Taylor). 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.” Shepard v. United States, --- U.S. ----, 125 S.Ct.
1254, 1257 (2005).4
4
In cases where the defendant did not plead guilty but was
convicted by a jury, courts may also consider the jury
instructions in order to determine whether an enhancement is
implicated under the Guidelines. See Taylor, 495 U.S. at 602.
6
Thus, to decide whether the district court’s crime-of-
violence enhancement was proper, we must answer the following
questions: First, what particular offense was Bonilla convicted
of? Second, does that offense require proof of the use,
attempted use, or threatened use of physical force; or can it be
categorized as a forcible sex offense?
Bonilla was convicted of sexual battery under the 1998
version of California Penal Code § 243.4, which lists three
discrete methods of committing felony sexual battery.5
5
Section 243.4 provides as follows:
(a) Any person who touches an intimate part of another
person while that person is unlawfully restrained
by the accused or an accomplice, and if the
touching is against the will of the person touched
and is for the purpose of sexual arousal, sexual
gratification, or sexual abuse, is guilty of sexual
battery[;]
(b) Any person who touches an intimate part of another
person who is institutionalized for medical
treatment and who is seriously disabled or
medically incapacitated, if the touching is against
the will of the person touched and is for the
purpose of sexual arousal, sexual gratification, or
sexual abuse, is guilty of sexual battery[;]
(c) Any person who, for the purpose of sexual arousal,
sexual gratification, or sexual abuse, causes
another, against that person’s will while that
person is unlawfully restrained either by the
accused or an accomplice, or is institutionalized
for medical treatment and is seriously disabled or
medically incapacitated, to masturbate or touch an
intimate part of either of those persons or a third
person, is guilty of sexual battery[.]
CAL. PENAL CODE § 243.4 (West 1998). Section 243.4(d) sets forth
the offense of misdemeanor sexual battery. That subsection is
inapplicable to our analysis here because Bonilla’s two-year
prison sentence indicates that he was convicted of felony sexual
battery. CAL. PENAL CODE § 243.4 (West 1998).
7
Unfortunately, the record does not tell us which subsection of §
243.4 applies to Bonilla’s conviction. The PSR contains facts
pertaining to Bonilla’s alleged conduct in committing the
underlying offense. We will not consider these facts, however,
because they are not explicit findings of the California court
made or used in adjudicating Bonilla’s guilt. Garza-Lopez, 410
F.3d at 274 (“[U]nder Shepard, a district court is not permitted
to rely on a PSR’s characterization of a defendant’s prior
offense for enhancement purposes.”). Moreover, the record
contains no other documents——such as an indictment, information,
plea agreement, or transcript of the plea colloquy from
California——that we may rely on to determine whether Bonilla’s
conviction constituted a crime of violence.
In United States v. Martinez-Paramo, we were presented with
a similar predicament. 380 F.3d 799 (5th Cir. 2004). In that
case, Martinez-Paramo appealed a § 2L1.2 enhancement for a prior
crime of violence. The relevant Pennsylvania “terroristic
threats” statute consisted of three distinct subsections, but the
record did not reflect which subsection applied to Martinez-
Paramo’s conviction. Id. at 802. We concluded that without any
reliable indication in the record of which precise offense
Martinez-Paramo pleaded guilty to, we could not determine whether
his conviction warranted the crime-of-violence enhancement. Id.
at 805. Consequently, we vacated and remanded to the district
8
court for inclusion of the charging documents into the record,
and for resentencing. Id. at 803, 805–06.
Likewise, on the record before us, we cannot identify with
legal certainty which portion of the sexual battery statute
Bonilla was convicted under. We are therefore unable to
determine whether his crime-of-violence enhancement is
sustainable; that is, whether Bonilla’s conviction required proof
of the use of force, or whether it can be categorized as a
forcible sex offense under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
Accordingly, we remand to the district court for supplementation
of the record.6
C.
On remand, the district court should order the Government to
supplement the record with documents that might establish which
elements Bonilla pleaded guilty to. See Martinez-Paramo, 380
F.3d at 805–06; see also United States v. Turner, 305 F.3d 349
(5th Cir. 2002) (remanding for resentencing where the court could
not determine whether the defendant’s prior offense was a crime
of violence because the charging document was not in the record).
Once the record has been supplemented, the district court should
6
Bonilla also argues in supplemental briefing that the
district court erred by mandatorily applying the Guidelines,
which the Supreme Court held to be merely advisory in United
States v. Booker, 125 S.Ct. 738 (2005). Because we vacate
Bonilla’s sentence and remand on other grounds, it is unnecessary
to decide this issue. Alfaro, 408 F.3d at 210 n.2.
9
reconsider whether a sixteen-level sentence enhancement for a
crime of violence is warranted. See id. In making this
determination, the court will no longer be bound by the
Guidelines. It must nonetheless consider the applicable offense
category and sentence range under the Guidelines and our caselaw,
and should clearly state its reasons for the sentence it
ultimately assesses.
III. CONCLUSION
Accordingly, we VACATE Bonilla’s sentence and REMAND for
resentencing consistent with this opinion.
VACATED and REMANDED.
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