IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 01-41171
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANTIAGO MEDINA-ANICACIO,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
For the Southern District of Texas
___________________________________________________
March 24, 2003
Before EMILIO M. GARZA and CLEMENT, Circuit Judges, and DAVIS,* District Judge.
EDITH BROWN CLEMENT, Circuit Judge:
Medina-Anicacio appeals his enhanced sentence pursuant to his violation of 8 U.S.C. §
1326(a)-(b)(2), illegal reentry subsequent to an aggravated felony conviction, arguing that: (1)
possession of a deadly weapon is not an aggravated felony under the federal sentencing guidelines;
and (2) his sentence should have been reduced for acceptance of responsibility. We affirm in part,
and reverse and remand in part.
*
District Judge of the Eastern District of Texas, sitting by designation.
I. FACTS AND PROCEEDINGS
On April 4, 2001, United States Border Patrol agents apprehended Santiago Medina-Anicacio
(“Medina”) as he was walking west of the Border Patrol checkpoint near Freer, Texas. Medina
admitted to agents that he was a Mexican citizen, that he did not have documents allowing him to
enter and remain in the United States, and that he had entered the United States by crossing
International Bridge No. 2 in Laredo, Texas, with a group of tourists. An investigation revealed that
Medina had previously been ordered removed from the United States on February 3, 1998, following
the revocation of his probation and the imposition of a 16-month sentence in the Superior Court of
California, Lo s Angeles County, for the felony offense of possession of a deadly weapon. The
weapon was an adjustable dagger that was found during a pat down of Medina’s person.
The government charged Medina by a three-count indictment with, inter alia, being illegally
present in the United States after deportation subsequent to an aggravated felony conviction. Medina
entered a plea of guilty. After his guilty plea, the U.S. Probation Office prepared a pre-sentence
investigation report (“PSR”), which calculated Medina’s base offense level at eight. Because of
Medina’s California felony conviction for possession of a deadly weapon, which the Probation Office
determined to be an aggravated felony, the Probation Office added sixteen points to his offense level
pursuant to United States Sentencing Guidelines (“U.S.S.G.”) § 2L1.2(b)(A). The Probation Office
declined to adjust Medina’s offense level downward under U.S.S.G. § 3E1.1, because Medina had
not accepted responsibility for the offense to the probation officer.
Medina filed a written objection to the PSR on the ground that possession of a deadly weapon
was not an aggravated felony. Medina also objected on the ground that the court should sentence
him under the proposed version of the sentencing guidelines that was to go into effect on November
2
1, 2001. He argued that under the 2001 version, only an eight-level increase was appropriate for his
prior conviction. Medina only raised the “proposed guidelines” argument at the sentencing hearing.
The district court overruled the objection and sentenced him to 100 months in prison and a three-year
term of supervised release. Medina filed a timely notice of appeal, and argues that: (1) possession
of a deadly weapon is not an aggravated felony under the federal sentencing guidelines; and (2) his
sentence should have been reduced for acceptance of responsibility.
II. DISCUSSION
A. Preservation of the Aggravated Felony Issue for Appeal
As an initial matter, we must determine whether Medina preserved for appeal his claim that
the district court erred in finding that his prior conviction for the California concealed dagger offense
is a conviction for a “crime of violence” qualifying as an “aggravated felony” under § 2L1.2 of the
2000 sentencing guidelines. Medina’s written objection to the PSR stated:
The defendant objects to paragraph 12 of the Pre-Sentence Report (PSR). The
defendant believes the offenses [sic] listed in Paragraphs 12 [the concealed dagger
offense] is not an ‘aggravated felony’ and therefore he should not be given a sixteen
level upward adjustment pursuant to Section 2L1.2(b)(1)(A) of the proposed
amendment to the Sentencing Guidelines. The proposed amendment to Part L,
Offenses Involving Immigration, Naturalization and Passports employs a graduated
scale increasing a defendant’s base offense level depending on the classification of the
offense. In the instant case, paragraph 25 Possession of a Deadly Weapon, the
offense used to increase the defendant’s base offense level 16 points, [the concealed
dagger offense,] would under the proposed amendments only be a 8 level increase
in the base offense level.
(emphasis added). At sentencing, Medina’s counsel renewed his objections:
Your Honor, I filed some objections. It’s the same as the previous case, to see if the
Court would go by the proposed guidelines. I think it’s scored differently under the
proposed guidelines. And also we ask the Court—or we believe that this is once
again an over-representation of his criminal history.
3
The court overruled Medina’s objections, but did not specifically address whether Medina’s concealed
dagger offense qualifies as an “aggravated felony” under § 2L1.2 of the 2000 sentencing guidelines.1
The Government now argues that Medina effectively waived his “aggravated felony” claim
of error by arguing in the district court that he should receive only an eight-level increase2 under the
proposed amendments to the sentencing guidelines (that were to go into effect on November 1,
2001), rather than the 2000 edition of the sentencing guidelines, which applied at the time of
Medina’s sentencing.
Preliminarily, we must decide whether Medina’s counsel stated his objection to the PSR
clearly enough to allow the district court an opportunity to rule on his objection that the California
concealed dagger offense is not an “aggravated felony”. Medina’s written objection to the PSR
claimed that Medina’s concealed dagger offense was “not an aggravated felony,” and Medina’s
counsel renewed, although clumsily, this claim of error at sentencing by stating that “we believe this
[sentence] is once again an over-representation of [Medina’s] criminal history.” Even if Medina’s
counsel had not renewed the objection at the sentencing hearing, once a party raises an objection in
writing, if he subsequently fails to lodge an oral on-the-record objection, the error is nevertheless
preserved for appeal. Bender v. Brumley, 1 F.3d 271, 277 (5th Cir. 1993). Consequently, we
conclude that Medina’s objection was clear enough to provide the district court with opportunity to
1
While the district court did not address Medina’s “aggravated felony” argument at the
hearing, it accepted the PSR’s finding that the California felony conviction qualified as an
aggravated felony.
2
Medina does not pursue the eight-level enhancement argument on appeal. Unless the
proscription on ex post facto laws is implicated, a defendant is to be sentenced under the version
of the sentencing guidelines in effect at the time of sentencing. See United States v. Mills, 9 F.3d
1132, 1136 n.5 (5th Cir. 1993). Thus, the district court correctly applied the 2000 version of the
guidelines.
4
rule on it.
The Government contends that Medina conceded that his prior felony conviction constituted
an aggravated felony by arguing that the proposed 2001 version of the sentencing guidelines should
have applied. Although Medina contended that possession of a deadly weapon was not an aggravated
felony, he requested that the eight-level increase from the 2001 version of the sentencing guidelines
apply to his sentence, which is the upward enhancement applied for aggravated felonies. U.S.S.G.
§ 2L1.2(b)(1)(A). The Government contends that Medina’s insistence that the eight-level 2001
sentencing guideline apply was a concession that the California weapon possession charge was, in
fact, an aggravated felony.3 Thus, the Government maintains that this Court should review the
question of whether the weapon possession charge is an aggravated felony under plain error review
because the district court never had the opportunity to rule on Medina’s claim.
Generally, this Court reviews the district court’s application of the Sentencing Guidelines de
novo and its findings of fact for clear error. United States v. Landeros-Arreola, 260 F.3d 407, 410
(5th Cir. 2001); United States v. Salter, 241 F.3d 392, 394 (5th Cir. 2001). Arguments raised for
the first time on appeal are subject to the plain error standard. Salter, 241 F.3d at 394. When a
defendant objects to his sentence on grounds different from those raised on appeal, we review the
new arguments raised on appeal for plain error only. See United States v. Cabral-Castillo, 35 F.3d
182, 188-89 (5th Cir. 1994).
Here, Medina’s written objection to the PSR clearly stated his position that his concealed
3
Under the 2001 guidelines, only an eight-level upward enhancement applies to crimes that
are considered aggravated felonies. See U.S.S.G. § 2L1.2(b)(1)(C) (2001). The Government
further notes that the definitions of “aggravated felony” under the 2000 guidelines and the 2001
guidelines were identical.
5
dagger offense was “not an ‘aggravated felony’” under the proposed 2001 version of the sentencing
guidelines. Because the 2000 and 2001 versions of the guidelines both incorporate § 1101(a)(43)’s
definition of “aggravated felony”, Medina has raised the issue of whether his concealed dagger
offense is an “aggravated felony” within the meaning of 8 U.S.C. § 1101(a)(43). Moreover, the
addendum to the PSR specifically addressed Medina’s objection, stating that “Possession of a Deadly
Weapon is an aggravated felony by definition,” and that “Possession of a Deadly Weapon meets the
definition of ‘crime of violence’ since possessing the weapo n creates a substantial risk of physical
force against the person or property of another.” The district court, therefore, considered whether
Medina’s concealed dagger offense constituted an “aggravated felony” under 8 U.S.C. § 1101(a)(43).
Medina’s request for an eight-level increase is more properly construed as an argument in the
alternative: if the court were to find that the prior California conviction was an aggravated felony,
then Medina argued that it should only result in an eight-level increase under the 2001 sentencing
guidelines instead of a 16-level increase under the 2000 sentencing guidelines. Accordingly, we
review the district court’s resolution of the “aggravated felony” issue de novo.
B. Possession of a Deadly Weapon as an Aggravated Felony
On appeal, Medina contends that the district court erred in concluding that his conviction for
possession of a deadly weapon was an aggravated felony.
Section 2L1.2 of the 2000 sentencing guidelines incorporates 8 U.S.C. § 1101(a)(43)’s
definition of “aggravated felony.” Section 1101(a)(43) lists multiple acts that constitute “aggravated
felonies,” including “a crime of violence (as defined in section 16 of Title 18, but not including a
purely political offense) for which the term of imprisonment at [sic] least one year.” 8 U.S.C. §
1101(a)(43)(F). Section 16 states that a “crime of violence” is:
6
(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; or (b) any other offense that
is a felony and that, by its nature involves a substantial risk that physical force against
the person or property of another may be used in the course of com mitting the
offense.
18 U.S.C. § 16. The district court accepted the PSR’s conclusion that Medina’s conviction for the
concealed dagger offense qualifies as a prior conviction for a crime of violence.
Medina argues that to be an aggravated felony, possession of a deadly weapon would have
to constitute a crime of violence under 8 U.S.C. § 1101(a)(43). See U.S.S.G. § 2L1.2, comment n.1.
Because California law only requires that the offender knowingly possess and conceal the weapon,
Medina argues that possession of a deadly weapon is: (1) not a crime of violence because it does not
have as an element the use, attempted use or threatened use of physical force against the person or
property of another; and (2) the crime, by its nature, does not present a substantial risk that the
perpetrator will intentionally use force against the person or property of another in the course of
perpetrating the offense. See 18 U.S.C. § 16.
We agree with Medina that the California concealed dagger offense is not a crime of violence
under § 16(a), because it does not have as an element the “use, attempted use, or threatened use of
physical force against the person or property of another.” See 18 U.S.C. § 16(a). Whether the
California concealed dagger offense qualifies as a crime of violence under § 16(b), however, is a
closer question.
While a state’s treatment of a felony conviction does not constrain this Court when examining
federal sentence enhancements, state law has been found to aid this Court’s analysis of the effect of
a state court’s conviction on a defendant’s federal sentence. Landeros-Arreola, 260 F.3d at 410.
Both parties agree that Medina was convicted under California Penal Code § 12020(a). The PSR
7
does not specify the date upon which Medina committed his offense, but it indicates that the
California court sentenced him on November 12, 1996. At that time, California law provided that
“[a]ny person in this state who . . . carries concealed upon his or her person any dirk or dagger is
punishable by imprisonment in a county jail not exceeding one year or in the state prison.” CAL.
PENAL CODE § 12020(a) (West 1995). Under California law, a “defendant’s intended use of the
instrument is neither an element of the offense nor a defense.” People v. Rubalcava, 1 P.3d 52, 60
(Cal. 2000) (holding that the intent to use a dagger as a stabbing weapon is not an express element
of California Penal Code § 12020(a)).4 As the Government points out, however, in defining a “dirk”
or “dagger”, the California legislature described it as a “knife or other instrument . . . that is capable
of ready use as a stabbing weapon that may inflict great bodily injury or death.” People v. Sisneros,
67 Cal. Rptr. 2d 782, 783 (Cal. Ct. App. 1997) (citing CAL. PENAL CODE § 12020(c)(24)) (emphasis
in original).
In United States v. Chapa-Garza, 243 F.3d 921, 924-27 (5th Cir. 2001), a case upon which
Medina heavily relies, this Court held that a Texas conviction for driving while intoxicated (“DWI”)
did not constitute a crime of violence under 18 U.S.C. § 16(b), and therefore a court could not
consider it as an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(A). Because § 16(b) contains
the language “by its nature” to modify “felony”, this Court held that it was required to apply a
categorical approach in determining whether an offense is a crime of violence. Chapa-Garza, 243
F.3d at 924. Thus, this Court examines “whether a particular defined offense, in the abstract, is a
4
In Rubalcava, the court also noted that the California Legislature made the offense of
carrying a concealed dirk or dagger a “‘general intent crime’ and expressly stated that ‘[n]o
intent for unlawful use would be required for violations of the prohibition on the concealed
possession upon the person of an otherwise lawful dirk or dagger.’” 1 P.3d at 58 (emphasis in
original).
8
crime of violence,” regardless of the actual underlying facts of the case. Id. Accordingly, to be a
crime of violence, § 16(b) requires “recklessness as regards the substantial likelihood that the offender
will intentionally employ force against the person or property of another in order to effectuate the
commission of the offense.” Id. at 927 (emphasis added). The Chapa-Garza court noted that,
because t he offender commits the Texas crime of felony DWI when he begins operating a vehicle
while intoxicated after two prior DWI convictions, intentional force against the person or property
of another is virtually never used to commit the offense. Id. Consequently, this Court held that felony
DWI is not a crime of violence as contemplated by § 16(b).
Chapa-Garza relied on United States v. Velazquez-Overa, 100 F.3d 418 (5th Cir. 1996), for
the proposition that § 16(b)’s “in the course of committing the offense” clause means that physical
force may be used to carry out the offense, rather than the broader interpretation under U.S.S.G. §
4B1.2(a)5 that there is a risk that physical injury could be a result of the offense. In Velazquez-Overa,
this Court held that the crime of indecency with a child involving sexual contact was a crime of
violence as defined in § 16(b) because, in the course of committing the offense, it was likely that it
would be necessary to use physical force to “ensure the child’s compliance” and “perpetrate the
crime.” Chapa-Garza, 243 F.3d at 927 (citing Velazquez-Overa, 100 F.3d at 422). Possession of
5
U.S.S.G. § 4B1.2(a) reads:
(a) The term “crime of violence” means any offense under federal or state law, punishable
by imprisonment for a term exceeding one year, that –
(1) has as an element the use, attempted use, or threatened use of physical force against
the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to another.
(emphasis added).
9
a concealed dagger is not analogous to such an offense. Because an offender perpetrates the crime
once he takes possession of and conceals the dirk or dagger, it is unlikely that any physical force
would be used in the process.
In United States v. Hernandez-Neave, 291 F.3d 296 (5th Cir. 2001), a case similar to the case
at hand, this Court employed de novo review to hold that the Texas felony crime of unlawfully
carrying a firearm in an establishment licensed to sell alcoholic beverages, was not a crime of violence
under § 16(b). This Court noted that one perpetrates the Texas possession offense once one steps
over the threshold of an establishment licensed to sell liquor while carrying a firearm. Likewise,
Medina perpetrated the California possession offense once he took possession and concealed the
dagger. As such, it is clear that there cannot be a substantial risk of violence in the course of
committing the offense, and therefore, § 16(b) does not apply.6
In applying Chapa-Garza’s abstract, categorical approach, this Court has further observed
that “we do not look to either possible physical violence nor to any particular conduct by a defendant,
violent or otherwise.” Hernandez-Neave, 291 F.3d at 299. Accordingly, although violence may
eventually result once the necessary elements are present for the offender to have perpetrated the
weapon possession offense, that eventuality is outside the scope of our Chapa-Garza analysis. The
6
The dissent’s attempt to distinguish Hernandez-Neave from this case is not convincing.
In Hernandez-Neave, the Texas statute at issue provides that “if a person intentionally,
knowingly, or recklessly carries on or about his person a handgun on any premises licensed or
issued a permit by the state of Texas for the sale of alcoholic beverages, he has committed a third
degree felony.” 291 F.3d at 298 (citing TEX. PENAL CODE § 46.02(c)). Thus, the intent element
goes to the carrying of a handgun—a non-violent act. Similarly, the general intent element of §
12020(c)(24) relates to the act of carrying a concealed dagger—a non-violent act. Rubalcava, 1
P.3d at 58 (noting that the “dirk or dagger portion of section 12020 criminalizes ‘traditionally
lawful conduct,’” and thus construed § 12020 to contain a knowledge element). As such, it is not
clear that the cases can be distinguished on the basis that the intent element in this case applies to
conduct that is “violent by nature”.
10
dissent disregards this point by creating hypotheticals to illustrate its version of the law. The
possibility that a “gang member” may be “emboldened to start a fight, knowing that the concealed
dagger in his possession will enable him to overpower his unsuspecting victim,” is a scenario that lies
far afield from the categorical approach that Chapa-Garza dictates.7
It is also important to note that the Court in Chapa-Garza construed § 16(b)’s phrase “in the
course of committing the offense” to refer to the force necessary to effectuate the offense. 243 F.3d
at 927. The Court did not construe this phrase to encom pass force used while effectuating the
offense. Consequently, even if this Court views possession of a concealed dagger as a “course of
conduct”, as the dissent suggests,8 possession of a concealed dirk or dagger would still not be a crime
of violence under Chapa-Garza. In any event, it is difficult to imagine how one would use force
“against the person or property of another,” 18 U.S.C. § 16(b), with the dirk or dagger if it is still
7
Hernandez-Neave is instructive here as well. In that case, this Court noted that “the
Texas legislature passed this law to limit the risk of mixing guns and alcohol,” likely because of
the high probability that violence could result. 291 F.3d at 299. Yet, as the Court recognized,
“unlawfully carrying a firearm or other weapon identified in Tex. Penal Code § 46.02 into a place
licensed or permitted to sell alcoholic beverages is not a ‘crime of violence’ even though a
subsequent shooting would leave the shooter open to other felony charges which would be in the
crime of violence category.” Id. at 300.
8
While it is plausible to view the offense of possessing a concealed dirk or dagger as a
“course of conduct”, it is not relevant to our analysis. In Chapa-Garza, this Court stated without
citing any authority that an offender commits felony DWI once he begins driving. 243 F.3d at
927. Yet, one may view DWI as a continuum: once the individual begins to drive the vehicle, he
is guilty of the offense, but the offense continues as long as he continues to drive. United States
v. Chapa-Garza, 262 F.3d 479, 483-84 (5th Cir. 2001) (Barksdale, J., dissenting from denial of
rehearing en banc). In Hernandez-Neave, this Court similarly stated without citing any authority
that an offender commits the felony crime of unlawfully carrying a firearm onto a premises
licensed to sell alcoholic beverages when he carries a firearm onto a premises licensed to sell
alcoholic beverages. 291 F.3d at 299. In both cases, this Court did not find it relevant that one
could consider both offenses as continuing courses of conduct. Because the continuum argument
was irrelevant in Chapa-Garza and Hernandez-Neave, it is no more relevant here.
11
“concealed upon his or her person,” CAL. PENAL CODE § 12020(a).9
Furthermore, the dissent’s suggestion that we look at the “continuing risk” of violence under
§ 16(b) ignores the careful distinction between the “crime of violence” definition in § 16(b), which
is limited to the risk of violence “in the course of committing the offense” and the broader definition
set forth in U.S.S.G. § 4B1.2(a)(2), which does not contain that limitation. Compare 18 U.S.C. §
16(b) (“. . . substantial risk that physical force against the person or property of another may be used
in the course of committing the offense.”) (emphasis added) with U.S.S.G. § 4B1.2(a)(2) (“. .
.otherwise involves conduct that presents a serious potential risk of physical injury to another.”). This
Court has “made clear that § 16 and § 4B1.2(a) are different, and that what qualifies as a crime of
violence under one does not necessarily qualify under the other.” United States v. Charles, 301 F.3d
309, 312 (5th Cir. 2002) (en banc) (footnote omitted). The dissent’s analysis would conflate an
important distinction between the two definitions, effectively reading the “in the course of” clause out
of § 16(b).
Thus, because there is no substantial risk that an offender may use violence to perpetrate the
weapon possession offense, Medina’s California conviction does not constitute a crime of violence
under § 16(b), and therefore is not an aggravated felony under § 1101(a)(43).
C. Reduction of Sentence for Acceptance of Responsibility
Medina also argues, for the first time on appeal, that the district court erred in failing to award
9
The dissent makes much of the fact that Chapa-Garza involved a non-violent instrument.
It is clear, however, that a car in the hands of a drunk driver can be a violent instrument.
Moreover, Hernandez-Neave, which applies the Chapa-Garza framework, involved a firearm.
The Court did not regard the fact that the Texas possession offense involved a potentially violent
instrument as a dispositive factor in its analysis of whether it was a crime of violence, nor do we
here.
12
an adjustment for his acceptance of responsibility. Whether a defendant has sufficiently demonstrated
an acceptance of responsibility is a question of fact. United States v. Spires, 79 F.3d 464, 467 (5th
Cir. 1996). “The defendant bears the burden of demonstrating that he is entitled to the reduction, and
[we] review[] the sentencing court’s determination with even more deference than the pure ‘clearly
erroneous’ standard.” United States v. Flucas, 99 F.3d 177, 180 (5th Cir. 1996) (citation omitted).
Nevertheless, we review the sentencing court’s judgment for plain error because Medina failed to
object to the PSR’s recommendation against a reduction in the offense level for acceptance of
responsibility.10 Salter, 241 F.3d at 394; Cabral-Castillo, 35 F.3d at 188-89.
Under the plain error analysis, this Court may only reverse based on a forfeited error when
there is: (1) an error; (2) that is clear or obvious; and (3) that affects the appellant’s substantial rights.
United States v. Calverly, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc) (citing United States v.
Olano, 507 U.S. 725, 732, 734 (1993)). If the appellant establishes these factors, this Court may
exercise it s discretion to correct the error if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Olano, 507 U.S. at 732.
Medina contends that he is entitled to the two-level adjustment under U.S.S.G. § 3E.1.1(a)
because he admitted the facts of his offense and his relevant conduct at the time of his arrest and
entered a timely plea of guilty. He further maintains that he is entitled to an additional one-point
reduction under § 3E1.1(b).
Section 3E1.1 of the sentencing guidelines directs the sentencing court to reduce a
defendant’s offense level “[i]f the defendant clearly demonstrates acceptance of responsibility for his
10
The PSR declined to recommend a reduction in the offense level for acceptance of
responsibility because Medina “ha[d] not accepted responsibility for the offense to the probation
officer.”
13
offense[.]” U.S.S.G. § 3E1.1(a). “The entry of a guilty plea does not entitle a defendant to a
reduction as a matter of right.” Flucas, 99 F.3d at 180; see § 3E1.1, comment n.3. If a defendant
enters a guilty plea prior to trial, truthfully admits the conduct comprising the offense, and admits,
or at least does not falsely deny, any additional relevant conduct for which he is accountable, the
court may find significant evidence of the defendant’s acceptance of responsibility. United States v.
Salinas, 122 F.3d 5, 7 (5th Cir. 1997).
The PSR indicates that, at the time of his arrest, Medina admitted that he illegally entered the
United States. Medina also admitted the facts of his offense at his guilty-plea hearing. Yet, according
to the PSR, Medina “declined to provide a statement for acceptance of responsibility” when his
attorney was present. Because Medina had not “accepted responsibility for the offense to the
probation officer,” the PSR declined to recommend a reduction in the offense level.
“A reduction in sentence for accept ance of responsibility requires a showing of sincere
contrition on the defendant’s behalf.” United States v. Nguyen, 190 F.3d 656, 658 (5th Cir. 1999)
(internal quotation and citation omitted). A court evaluating the sincerity of a defendant’s claim of
responsibility may consider a defendant’s refusal to elaborate on the circumstances surrounding his
offense to the probation officer. United States v. Nevarez-Arreola, 885 F.2d 243, 244, 246 (5th Cir.
1989) (affirming, under the “clearly erroneous” standard, the district court’s denial of an acceptance
of responsibility reduction where the defendant “failed to elaborate on the circumstances surrounding
the offense to the probation officer” and did not exercise his right of allocution, and where there was
no statement of record “expressing remorse or contrition”).
At the sentencing hearing, when given an opportunity for allocution, Medina stated: “coming
in illegally . . . has become a very serious crime, but my intentions were not to come into this country
14
and to remain here to work, but I was only passing through. Because my main goal was to go to
Canada because I wanted to study some French.” Medina claimed that he had some childhood friends
living in Cuvet, Canada, but he could not explain how it would have been possible for him to legally
enter Canadian territory.
Medina’s statements at the sentencing hearing are more in the nature of an attempt to mitigate
his conduct than a sincere expression of remorse, and certainly fall short of showing “sincere
contrition” for his offense. Nguyen, 190 F.3d at 658. A review of the record has not revealed any
other statement indicating remorse or contrition. Moreover, Medina’s refusal to talk with the
probation officer calls his sincerity into question. See Nevarez-Arreola, 885 F.2d at 246.
Consequently, we hold that the district court did not plainly err in declining to award Medina a
downward adjustment in his sentence for acceptance of responsibility.
III. CONCLUSION
Because we conclude that the district court erred in ruling that Medina’s California conviction
for possession of a concealed dagger was an aggravated felony, we REVERSE and REMAND with
regard to this part of the sentence. However, the district court did not plainly err in declining to
award Medina a reduction in his sentence for his acceptance of responsibility. Therefore, we
AFFIRM with respect to that part of his sentence.
15
EMILIO M. GARZA, Circuit Judge, dissenting:
By focusing on the trees, the majority opinion has lost sight of the forest. The majority
opinion focuses so narrowly on one aspect of the panel opinion in United States v. Chapa-Garza, 243
F.3d 921 (5th Cir. 2001), that it loses sight of the text of 18 U.S.C. § 16(b) as well as the message
in the California statute under which Medina was previously convicted. The purpose of that state
statue is, simply, to outlaw carrying a deadly instrument of violence: a concealed dagger “capable of
ready use as a stabbing weapon that may inflict great bodily injury or death.” CAL. PENAL CODE §§
12020(a), (c)(24). The only purpose of possessing a concealed dagger is the application of “physical
force . . . against the person of another” when the need arises. See 18 U.S.C. § 16(b) (defining “crime
of violence” as an offense that, “by its nature, involves a substantial risk that physical force against
the person or property of another may be used in the course o f committing the offense”). Thus,
contrary t o the majority opinion’s conclusion, Medina’s prior conviction for unlawfully carrying a
concealed dagger (“the concealed dagger offense”) qualifies as a crime of violence under § 16(b).
I agree with the majority opinion that we are guided in our interpretation of § 16(b) by
Chapa-Garza. But a careful application of Chapa-Garza’s logic demonstrates that the possession
of a concealed dagger qualifies as a crime of violence. Chapa-Garza held that, to constitute a crime
of violence under § 16(b), t he crime must involve “reckless disregard for the probability that
intentional force may be employed.” 243 F.3d at 924 (interpreting § 16(b)’s “substantial risk that
physical force . . . may be used” language). My conclusion (that the possession of a concealed dagger
is a crime of violence) accords with this central holding. In fact, the concealed dagger offense
involves more than simple recklessness: it requires that the offender “knowingly and intentionally”
carry the concealed dagger. People v. Rubalcava, 1 P.3d 52, 57 (Cal. 2000).
The majority opinion sidesteps the clear import of Chapa-Garza by focusing too narrowly on
a single section of the opinion. As the majority opinion observes, Chapa-Garza suggested that the
phrase “in the course of committing the offense” in § 16(b) implies “force that may be used to
perpetrate the offense.” Chapa-Garza, 243 F.3d at 927. The majority opinion mechanically applies
this alleged gloss on the meaning of § 16(b) to conclude that the concealed dagger offense is not a
crime of violence. According to the majority opinion, Chapa-Garza dictates that the concealed
dagger offense does not qualify as a crime of violence under § 16(b) because the offender
“perpetrates the crime once he takes possession of and conceals the dirk or dagger,” making it
“unlikely that any physical force would be used in the process.”11
The majority opinion errs in concluding that a criminal completes the offense as soon as he
conceals the dagger. The unlawful possession of a dangerous weapon is an ongoing course of
conduct. See United States v. Walker, 27 F.3d 417, 419-20 (9th Cir. 1994) (holding that the
defendant’s offense of illegal possession of a firearm “would not have been completed until the date
set forth in the indictment or unt il he relinquished possession of the machine gun and silencer”);
United States v. Horodoner, 993 F.2d 191, 193 (9th Cir. 1993) (reasoning that gun possession is a
“course of conduct,” not an act); see also United States v. Fleischli, 305 F.3d 643, 658 (7th Cir.
2002) (“Possession of a firearm is a continuing offense which ceases only when the possession
stops.”); United States v. Finley, 245 F.3d 199, 207 (2d Cir. 2001) (holding that possession of
11
The majority opinion goes even one step further by concluding that the concealed
dagger offense does not qualify as a crime of violence “because it is difficult to imagine how one
would use force against the person or property of another with the dirk or dagger still concealed
upon his or her person.” (citations and internal quotation marks omitted). I fear that this assertion
trumps reality. One could easily envision a scenario where a gang member is emboldened to start
a fight, knowing that the concealed dagger in his possession will enable him to overpower his
unsuspecting victim. See infra note 5.
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shotgun is a continuing offense); United States v. Maxim, 55 F.3d 394, 397-98 (8th Cir. 1995)
(holding that criminal statutes prohibiting felons from possessing firearms and prohibiting possession
of machine guns are both continuing offenses that, by their nature, do not terminate until the date of
the indictment or the voluntary termination of the illegal activity). Thus, an individual continues to
commit the offense as long as he holds onto the weapon. And, as the California legislature
recognized, the entire time the individual possesses the concealed dagger, there is a substantial,
continuing risk that the offender will stab an unsuspecting victim.12
This continuing risk of physical violence distinguishes the concealed dagger offense from the
offense of unlawfully carrying a firearm into an establishment licensed to sell liquor, the offense that
was the subject of our decision in United States v. Hernandez-Neave, 291 F.3d 296 (5th Cir. 2001).
In Hernandez-Neave, we applied Chapa-Garza and reasoned that the Texas felony offense of
unlawfully carrying a firearm into an establishment licensed to sell alcoholic beverages was not a
crime of violence under § 16(b). The court reasoned that physical force is not needed to “complete”
12
This reasoning has support in our case law. We have held that the unlawful possession
of certain instruments of violence, such as an unregistered sawed-off shotgun or pipe bomb,
creates a substantial risk of violence during the course of possession. See United States v. Rivas-
Palacios, 244 F.3d 396, 397-98 (5th Cir. 2001) (holding that the Texas crime of possession of an
unregistered firearm (a sawed-off shotgun) is a crime of violence as defined in § 16(b), and
reasoning that “the unlawful possession of any unregistered firearm, a sawed-off shotgun in this
case, ‘involves a substantial risk that physical force against the person or property of another’ will
occur”); United States v. Jennings, 195 F.3d 795, 798-99 (5th Cir. 1999) (holding that possession
of an unregistered pipe bomb was a crime of violence that could serve as a predicate act for the
offense of carrying a firearm during and in relation to a crime of violence, in violation of 18
U.S.C. § 924(c), and reasoning that “possession of an unregistered pipe bomb, by its very nature,
creates a substantial risk of violence”). Although Rivas-Palacios did not apply the (then days-
old) Chapa-Garza framework for interpreting § 16(b), see United States v. Hernandez-Neave,
291 F.3d 296, 300 (5th Cir. 2001), and Jennings was decided before Chapa-Garza and did not
apply § 16(b), the reasoning in these two cases helps us assess whether possession of an
instrument of violence, such as a concealed dagger, creates a “substantial risk” of violence.
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this crime, since “the crime is completed by simply stepping over a threshold while carrying such a
weapon.” Id. at 299. There is no “threshold” requirement for “completing” the concealed dagger
offense, as there is for the offense of unlawfully carrying a firearm into an establishment licensed to
sell liquor. See id. Thus, contrary to the assertion of the majority opinion, our holding in Hernandez-
Neave does not dictate a particular outcome in this case.3
The majority opinion’s rigid reliance on a few sentences in Chapa-Garza indicates that the
majority opinion overlooks the substantial differences between the offenses at issue in Chapa-Garza
and the present case. Chapa-Garza involved a non-violent instrument—a vehicle; this case involves
a violent instrument—a concealed dagger.4 It is easy to see that carrying a concealed dagger gives
rise to a greater risk of intentional physical force than operating a vehicle while intoxicated. A
vehicle’s main purpose, even if driven by one who is intoxicated, is transportation, not violence. See
Chapa-Garza, 243 F.3d at 927 (“While the victim of a drunk driver may sustain physical injury from
physical force being applied to his body as a result of collision with the drunk driver’s errant
3
There is another significant difference between Hernandez-Neave and the present case.
The intent element of the offense in Hernandez-Neave, like the intent element of the offense in
Chapa-Garza, relates only to the offender’s non-violent act. See Hernandez-Neave, 291 F.3d at
299 (reasoning that the “intent portion of the crime” relates only to the offender’s intent to enter
the establishment while carrying a firearm, a non-violent act). In this case, by contrast, the intent
requirement relates to an act that is violent by nature: carrying a concealed dagger. One would
“knowingly and intentionally” carry a concealed dagger only to hide his willingness to use that
dagger to inflict “great bodily injury or death” if and when the opportunity presents itself. See
CAL. PENAL CODE § 12020(c)(24). Thus, it is clear that one who commits the concealed dagger
offense by “knowingly and intentionally” carrying a concealed dagger is being more than reckless
regarding the probability that he will intentionally use physical force in the course of his
possession of the dagger. See Chapa-Garza, 243 F.3d at 924.
4
A dagger is a close-in fighting weapon. An offender would need to get within arm’s
length of his victim before the dagger could be effectively used. Concealment is essential to lull
an unsuspecting victim into a false sense of security.
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automobile, it is clear that such force has not been intentionally ‘used’ against the other person by the
drunk driver at all, much less in order to perpetrate any crime, including the crime of felony DWI.”).
A concealed dagger, however, is fundamentally an instrument of violence. Its primary purpose under
the California statute is to inflict “great bodily injury or death.” CAL. PENAL CODE § 12020(c)(24).
Indeed, the carrying of a concealed dagger is closely associated with gang violence: the California
legislature broadly defined “dirk or dagger” because of its concern that gang members who carry
lethal knives hidden beneath their clothing would be immune from arrest and prosecution under any
other definition. See Rubalcava, 1 P.3d at 57 (citing Sen. Rules Com., 3d reading analysis of Assem.
Bill No. 1222 (1995-1996 Reg. Sess.), as am ended May 31, 1995, p. 4).5 Thus, the concealed
dagger offense, by its nature, involves a substantial risk of physical force.
If the majority opinion is correct that Chapa-Garza’s interpretation of § 16(b) compels the
conclusion that the concealed dagger offense is not a crime of violence, then the logic of Chapa-
Garza is inconsistent with the plain language of § 16(b). Section 16(b) defines a crime of violence
as an offense “that, by its nature, involves a substantial risk that physical force against the person or
property of another may be used in the course of committing the offense.” It is unrealistic to
conclude, as the majority opinion does, that carrying a dagger does not “involve[] a substantial risk
that physical force . . . may be used” when the entire purpose of the California statute is to punish
those who would use such a dagger to “cause great bodily injury or death.” By its very nature, the
act of unlawfully carrying a concealed dagger creates a substantial risk that physical violence “may
5
The majority opinion notes that the concealed dagger was “adjustable.” In fact, the PSR
explains that the dagger was “sharpened on both sides and was adjustable to be able to fit into a
fist or to be straightened out in a locked position.” Clearly, this type of weapon is intended for
gang violence.
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be used in the course of” the offense.6 Therefore, Medina’s prior California conviction for unlawfully
carrying a concealed dagger qualifies as a crime of violence under § 16(b).
For the foregoing reasons, I cannot agree with the majority opinion that Chapa-Garza
compels the conclusion that carrying a concealed dagger is not a crime of violence under 18 U.S.C.
§ 16(b). If, however, the majority opinion is correct that Chapa-Garza dictates this result, then I
believe that en banc reconsideration is necessary to bring o ur jurisprudence in line with the plain
language of § 16(b). I, therefore, respectfully dissent from the majority’s decision to overturn the
district court’s sound judgment that Medina’s concealed dagger offense qualifies as an aggravated
felony under 8 U.S.C. § 1101(a)(43).
6
Common sense tells us that a confrontation is more likely to escalate to violence when
one of the participants is carrying a concealed weapon. When a person is carrying a concealed
dagger, that may well embolden the person to instigate a violent confrontation. The individual
may use physical force (i.e., by striking an adversary) without ever drawing the weapon. In this
additional respect, carrying a concealed dagger creates a “substantial risk that physical force” will
be used while the individual is committing the offense.
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United States v. Medina-Anicacio
Court: Court of Appeals for the Fifth Circuit
Date filed: 2003-03-24
Citations: 325 F.3d 638
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