IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50603
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RAFAEL MORENO-ARREDONDO, also known
as RAFAEL MORENO,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Texas
--------------------
June 19, 2001
BEFORE DAVIS, WIENER, and STEWART, Circuit Judges.
WIENER, Circuit Judge:
Plaintiff-Appellant Rafael Moreno-Arredondo (“Moreno”) was
convicted on his plea of guilty to one count of illegal re-entry
into the United States in violation of 8 U.S.C. § 1326. The
government sought and obtained enhancement of Moreno’s sentence
under § 1326(b)(2) based on pre-deportation convictions in Texas on
two counts of committing the aggravated felony of Indecency with a
Child. On appeal, Moreno asserts two claims: (1) His indictment
was fatally defective for failing to allege his prior felony
convictions as an element of the offense; and (2) the district
court erred in calculating his sentence when it determined that the
two prior child indecency sentences were for offenses that (a) did
not occur on the same occasion and (b) were not consolidated for
trial, and thus were not “related” as that term is used in
determining his criminal history score under sentencing guideline
§ 4A1.2(a)(2). We reject Moreno’s attack on his indictment, which
he concedes is foreclosed by the Supreme Court’s ruling in
Almendarez-Torres v. United States1 that § 1326(b)(2) does not
create a separate criminal offense but instead sets out a
sentencing factor.2 Agreeing with Moreno, however, that the state
convictions for which he was sentenced more than a decade earlier
were for offenses that “occurred on the same occasion”3 and thus
were “related” for purposes of § 4A1.2.(a)(2), we vacate his
sentence and remand to the district court for resentencing.
I. Facts and Proceedings
A. Background
As noted, Moreno pleaded guilty to one count of illegal re-
entry into the United States in violation of 8 U.S.C. § 1326. The
government sought an enhanced penalty under § 1326(b), contending
that Moreno had been deported subsequent to convictions in a state
court in Texas of two aggravated felonies. The facts underlying
the Texas convictions are not altogether clear and are internally
inconsistent and contradictory, to say the least. There is no
1
523 U.S. 224, 235 (1998).
2
Moreno expressly acknowledges that he raises the Almendarez-
Torres claim solely to preserve it for further review on the basis
of the Supreme Court’s opinion in Apprendi v. New Jersey, 530 U.S.
466 (2000) which expressed doubt about the correctness of its
Almendarez-Torres decision.
3
U.S. Sentencing Guidelines Manual § 4A1.2(a)(2), cmt., n.3
(2000).
2
question, though, that in 1988 Moreno was indicted for, charged
with, and convicted of indecency with Monica and Marsha Garza, two
minor daughters (respectively eight and nine years old at the time)
of Moreno’s then-girlfriend, Virginia Garza, in whose home he, she,
and her children resided. The discrete facts underlying the
convictions are less certain. According to the contemporaneous
testimony of the two young girls, Moreno touched each of them
inappropriately —— within moments; on the same day (while their
mother was out shopping “for just a little while”); without ever
leaving his seat on a couch in the front room of their house.
Initially, Monica testified that Moreno had not touched her, after
which she was excused from the witness stand and sent to sit with
her mother in the rear of the courtroom while her sister, Marsha,
testified. Marsha said that she had come into the front room of
the house and had seen Monica sitting on the couch next to Moreno.
According to Marsha, Monica then got up and left, and she (Marsha)
went to the couch and sat next to Moreno, who then touched her
inappropriately. At the conclusion of Marsha’s testimony, Monica
was recalled to the stand, and she testified that in fact Moreno
had touched her. The sisters’ testimony was inconsistent as to the
sequence of the disputed touchings: Each girl testified that she
had been touched first and had then left the room when the other
entered.
In addition to that testimony, the prosecution introduced a
statement prepared by a police officer and signed by Moreno while
in custody following his arrest. In that statement Moreno admitted
touching the girls, but said that both were present at the
3
beginning of the episode and that he had touched Monica first and
Marsha second. Moreno’s counsel unsuccessfully challenged the
admission of the statement on the basis of involuntariness.
Moreno took the stand and denied inappropriately touching the
girls at all, stating that he had confessed only because police
officers told him several times while he was being processed
following his arrest that “it would go better for [him]” and that
if he did not confess “it would go very badly.” Both Moreno and
the interviewing police officer testified that Moreno had initially
denied touching the girls or at least was equivocal about his
involvement, and that only after he was being led from the
interview to be locked up did he agree to sign the statement. In
the end, the jury convicted Moreno on both counts.
Moreno had been charged in two separate indictments under
separate cause numbers, but was tried on both charges in the same
proceeding. He was also sentenced at one proceeding which
culminated in the state trial court’s assessing 20-year consecutive
sentences. Moreno was released on parole in 1991, then deported to
Mexico. Some time later, he re-entered the United States
illegally.
B. The Instant Proceedings
In 1997, Moreno was arrested in Texas on a charge of
endangering a child by driving while intoxicated. While in jail on
that charge, Moreno was discovered by officials of the Immigration
and Naturalization Service, and the instant prosecution for illegal
re-entry was initiated in federal district court. Thereafter, his
4
parole on the Texas indecency convictions was revoked, and he was
sentenced to serve 40 years in state prison.
Following Moreno’s conviction based on his guilty plea to the
charge of illegal re-entry, the probation department prepared a
Presentence Investigation Report (PSR). As Moreno had been
deported following conviction for committing an aggravated felony,
his base offense level was adjusted upward pursuant to §
2402(b)(1)(A). As a result, his base offense level of eight was
increased by 16, to 24, from which it was reduced three points for
acceptance of responsibility, producing a final level of 21.
In calculating Moreno’s criminal history score, the probation
officer added six points —— three for each of the two prior
sentences for Indecency with a Child —— pursuant to guideline §
4A1.2(a)(2) after concluding that the cases were not related. This
produced a final criminal history score of ten, resulting in a
Criminal History Category of V. Moreno’s sentencing guideline
range was determined to be 70-87 months based on his offense level
of 21 and his Criminal History Category of V.
Moreno filed a motion for a downward departure, contending
that he was wrongfully convicted of the indecency charges, as
confirmed by current statements of the alleged victims (now adults)
who recanted the testimony that they had given as minors during his
state court trial. Now adults, the girls explain that their
grandmother, with whom they had been placed by “child protective
services,” had coerced them into falsely accusing Moreno of
touching them. According to Marsha and Monica, their grandmother
had told them that the only way they could return to live with
5
their mother was to “get her away from [Moreno]....” Twenty-one
year-old Marsha, now married and the mother of two, testified at
Moreno’s federal sentencing hearing that she and her sister had
falsely testified against Moreno in his state child indecency trial
under pressure from their grandmother. Monica, who was pregnant
and in labor at the time of Moreno’s sentencing and thus unable to
attend, filed a letter that states essentially the same thing.
Moreno also objected to the PSR’s calculation of his criminal
history score. He argued that his two state indecency sentences
should have been treated as resulting from “related” cases for
purposes of guideline § 4A1.2(a)(2), not from separate cases. If
they had been treated as related, his criminal history score would
have been increased by only three points, not six, which would have
placed him in the lower Criminal History Category of IV, in turn
producing a lower sentencing range.
The district court refused to depart downwardly and overruled
Moreno’s objection to the calculation of his criminal history score
on the basis of separate rather than related convictions. The
court imposed a 70-month sentence of imprisonment, the bottom of
Moreno’s guideline range. Moreno timely filed a notice of appeal,
and this review ensued.
II. Analysis
A. Issues Presented for Appeal
In the district court, Moreno advanced complaints about (1)
his indictment, (2) the court’s refusal to grant a downward
departure based on the invalidity of his prior state indecency
6
convictions, (3) the continued application of Almendarez-Torres,4
and (4) the calculation of his Criminal History Category on the
basis of two unrelated prior sentences, contending they were
related because they resulted from offenses that (a) occurred on
the same occasion, (b) were part of a single common scheme or plan,
and (c) were consolidated for both trial and sentencing. On
appeal, however, Moreno presses only the Almendarez-Torres
complaint and the criminal history issue implicating “related
cases” for purposes of Guideline § 4A1.(2)(a)(2). Moreover, in
pursuing the criminal history issue, Moreno relies on only two
grounds for finding that the two Texas indecency sentences are
related: that the offenses occurred on the same occasion and that
they were consolidated for trial; he no longer contends that these
offenses were part of a single common scheme or plan or that they
were consolidated for sentencing. We shall address these remaining
appellate issues in turn.
B. The Almendarez-Torres Issue
Concededly advanced to preserve the issue for future review in
light of the Supreme Court’s decision in Apprendi v. New Jersey,5
Moreno argues that his prior aggravated-felony conviction is an
element of his illegal re-entry offense, not merely a sentence-
enhancing factor. He notes that § 1326(a) specifies that an alien
convicted of illegal re-entry following deportation faces a maximum
prison sentence of only two years, but that § 1326(b)(2) specifies
4
523 U.S. 224 (1998).
5
530 U.S. 466 (2000).
7
a maximum sentence of 20 years if the alien was deported subsequent
to a conviction for an aggravated felony. After holding in
Almendarez-Torres that § 1326(b)(2) does not create a separate
criminal offense but rather is a sentencing factor,6 the Supreme
Court in Apprendi expressed misgivings about the propriety of its
Almendarez-Torres holding. Only the hope that the Court might
eventually revisit and reverse its position prompted Moreno to
lodge the issue here and thereby preserve it. As Almendarez-Torres
remains good law, however,7 we cannot grant relief to Moreno on
this claim.
C. Calculation of Criminal History Score: “Related Cases”
1. Standard of Review.
“We accept district court findings relating to sentencing
unless clearly erroneous, but we review de novo application of the
guidelines.”8 “We review district court determinations about []
relatedness de novo,”9 at least as to offenses asserted to have
occurred on the same occasion.10
6
Almendarez-Torres, 523 U.S. at 235.
7
See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.
2000)(per curiam).
8
United States v. Huskey, 137 F.3d 283, 285 (5th Cir. 1998).
9
United States v. Fitzhugh, 984 F.2d 143, 146-47 (5th Cir.
1993), cert denied, 510 U.S. 895 (citing United States v. Garcia,
962 F.2d 479 (5th Cir. 1992) (noting absence of express holding on
this subject and opting for de novo review).
10
U.S. Sentencing Guidelines Manual § 4A1.2, cmt., n.3 (2000).
Although de novo review of the “same occasion” prong of the
guidelines’ test for relatedness remains applicable under Huskey,
supra, n.8, Fitzhugh, supra, n.9, and Garcia, supra, n.9, the
Supreme Court’s recent opinion in Buford v. United States, ___ U.S.
___, 121 S.Ct. 1276 (2001) requires “deferential review” of the
8
2. Same Occasion.
Moreno does not question that, in the sentencing calculus of
the guidelines, his criminal history score must include points for
prior sentences, pursuant to § 4A1.2. He complains only that the
points by which his criminal history score is increased for prior
sentences —— specifically, for those sentences imposed by the State
of Texas for Indecency with a Child —— should total only three for
sentencing court’s determination of the “consolidated for trial or
sentences” prong, at least when the question is “functional
consolidation.” See Buford, 121 S.Ct. at 1279 (quoting United
States v. Buford, 201 F.3d 937, 940 (7th Cir. 2000) (Easterbrook,
J.)). The Supreme Court’s opinion in Buford affirms the holding of
the Seventh Circuit in the case of the same name, which, after an
exhaustive review of the jurisprudence on the question of the
consolidation prong of the relatedness test, analogizes the issue
to one of mixed fact and law and ultimately rejects de novo review
in favor of “deferential review.” And, although the Supreme
Court’s Buford opinion does not specify the degree of deference to
be accorded to the sentencing court on the question of “functional
consolidation,” the Seventh Circuit’s Buford opinion ( which the
Court affirmed) does: After rejecting de novo review in favor of
deferential review, the Seventh Circuit concluded that “[t]he
district judge did not commit a clear error in finding that the
joint sentencing was a matter of administrative convenience rather
than a ‘consolidation for sentencing.’” Buford, 201 F.3d at 942
(emphasis added). Judge Easterbrook’s opinion thus expressly
applies the “clearly erroneous” standard, which is more deferential
than de novo but less deferential than abuse of discretion.
Important for today’s consideration, the Supreme Court’s ruling in
Buford —— dealing as it does with the consolidation prong only ——
does not mandate a change in our circuit precedent —— which has
consistently specified de novo review of the district court’s
determination of relatedness —— for consideration of the “same
occasion” prong of the test. Moreover, the distinctions and
reasoning of Buford, both in the Supreme Court and in the Seventh
Circuit, relative to consolidation are inapplicable to the
guidelines test’s disjunctive “same occasion” prong, which is
purely fact-based and, more importantly, is determined by the
district court’s review of the same cold record of prior
convictions and sentencing that the appellate court considers on
appeal. And, because we decide today’s “related case” issue solely
on the basis of the “same occasion” prong, we need not and
therefore do not address the consolidation prong which, after
Buford, we would be constrained to review under the more
deferential clear error standard.
9
both sentences, not three for each as assessed by the sentencing
court. This is so, he insists, because the state sentences were
imposed in related cases.
The operable provision of the guidelines is the disjunctive
test of the second sentence of application note 3 in the Commentary
accompanying § 4A1.2, which note reads in its entirety:
Related Cases. Prior sentences are not
considered related if they were for offenses
that were separated by an intervening arrest
(i.e., the defendant is arrested for the first
offense prior to committing the second
offense). Otherwise, prior sentences are
considered related if they resulted from
offenses that (A) occurred on the same
occasion, (B) were part of a single common
scheme or plan, or (C) were consolidated for
trial or sentencing (emphasis added).
As Moreno does not pursue prong (B), and we do not reach prong (C),
our determination whether Moreno’s prior sentences for Indecency
with a Child are “related” turns on whether the offenses that
produced these sentences “occurred on the same occasion” within the
intendment of prong (A) of application note 3.
The guidelines do not define “related,” “occurred,” or
“occasion,” for purposes of § 4A1.2 in general or application note
3 in particular. Black’s Law Dictionary does not define “related.”
It does define “occur” (the verb of which “occurred” is the past
form) as, inter alia, “to happen,” “to take place,” and “to arise”;
and it does define the noun form of “occasion” as inter alia, “that
which provides an opportunity for the causal agency to act,” and
“meaning not only particular time but carrying idea of opportunity,
necessity, or need, or even cause in a limited sense.” The 1986
10
edition of Webster’s Third New International Dictionary,
Unabridged, defines “related” as inter alia, “connected by reason
of an established or discoverable relation,” or “having similar
properties”; defines the verb “occur” as inter alia, “to be present
or met with,” “exist,” “come to pass,” and “take place”; and
defines the noun “occasion,” as inter alia, a situation or set of
circumstances favorable to a particular purpose or development,” “a
circumstance, occurrence, or state of affairs that provide ground
or reason for something,” and “a particular time at which something
takes place: a time marked by some happening.” The upshot of all
this etymology is that we get no conclusive determination from
legal or general dictionaries, so we must apply the widely-used and
frequently-encountered words —— “related,” “occurred,” and
“occasion” —— in their common sense, conversational meanings. They
simply are not terms of art.
Given Moreno’s Dickensian experiences at the hands of his
paramour, his “common law mother-in-law,” and the paramour’s young
daughters at a time when they appear to have been mere pawns of
their grandmother, in the context of the jails, courts, and prisons
of Texas, together with his as yet unrequited redemption at the
hands of his recanting former accusers, it is no simple task to
determine “the facts” to which we must apply the “occurred on the
same occasion” prong of the guidelines’ test for related cases.
Only by engaging in the “willing suspension of disbelief”11 can we
11
Samuel Taylor Coleridge, Biographia Literaria, ch. 14,
reprinted in John Bartlett, Familiar Quotations 529 (14th ed.
1968).
11
settle on the appropriate facts to be factored into the test. When
we do so, however, we conclude that the facts and inferences on
which the state jury based its verdict of guilty on two counts of
Indecency with a Child have the following “sameness”: (1) The
offenses are precisely the same (indecency with a child); (2) they
occurred at precisely the same location (the couch in the front
room of the house shared by the defendant and the victims); (3)
they occurred not only on precisely the same day and during
precisely the same hour, but within minutes of each other; and (4)
they occurred without interruption, i.e., without the perpetrator’s
turning aside to any other activity. The only “separateness” in
the purported commission of the two offenses is the absence of
simultaneity and the existence of separate victims. Indeed, unless
only one small girl had been the “victim” of these two touchings,
or unless two young girls had been seated on the couch at the same
time and had been touched simultaneously by an ambidextrous
perpetrator, no more “related” occurrence on the same occasion can
be imagined. The case law bears this out.
There is not a surfeit of jurisprudence construing the “same
occasion” prong of the test for relatedness, but most opinions on
the subject emphasize the temporal aspect and rely only to a lesser
degree on the geographical or spatial aspect. In United States v.
Johnson,12 we construed the predecessor guideline phrase, “occurred
on a single occasion”13 and held that three offenses occurring on
12
961 F.2d 1188 (5th Cir, 1992).
13
The “single occasion” language (see U.S. Sentencing
Guidelines Manual § 4A1.2, cmt., n.3 (1990)) was replaced,
12
the same day —— DWI; driving with a suspended license; failure to
identify himself to a police officer —— all occurred on a single
occasion.14 Even though the DWI and suspended license charges were
moving violations and transpired simultaneously, the defendant had
ceased to drive, thereby terminating both moving violations, before
he committed the third offense, failure to identify himself.15
Expressly relying on the close temporal proximity of the commission
of the three offenses (and implicitly relying to a lesser degree on
the spatial proximity of the defendant’s presence in the car and
the car’s relatively short journey; and implicitly rejecting as
irrelevant or immaterial the fact that the defendant likely did not
form the mens rea to commit the failure-to-identify offense until
after he had ceased to commit the two prior offenses, thereby
purportedly completing one “occasion” before starting another), the
Johnson court had no trouble concluding that “[i]t seems evident”
that Johnson’s three offenses occurred on the same occasion.16
True, Johnson was convicted for committing three victimless
offenses as compared to Moreno’s convictions on two counts of
violating the same offense but with different victims for each
count; however, in both Johnson and Moreno, offenses were committed
effective November 1, 1999, with “same occasion” (see U.S.
Sentencing Guidelines Manual, app. C, amend. 382) (2000)) without
indicated or apparent change in the substantive meaning of the
phrase. If anything, “same occasion” impresses us as being
slightly broader and more flexible than “single occasion.”
14
Johnson, 961 F.2d at 1188.
15
Id.
16
Id. at 1189.
13
sequentially, albeit with but momentary temporal separations in
each case. Moreover, there was at least a little geographical
separation between the locations where Johnson committed his
offenses but none with Moreno’s, both of which took place in
precisely the same, small space: the same seat, on the same couch,
in the same room, in the same house. Some additional Johnson
support for a same-occasion conclusion for Moreno lies in the fact
that his two offenses were one and the same whereas Johnson
committed three separate and distinct offenses.
As Moreno correctly notes in his reply brief, the government
neither discusses nor cites Johnson, this circuit’s principal
jurisprudential authority —— an omission that is usually a sign of
weakness in an advocate’s position. And, even when relying solely
on authorities from other circuits, as it does here, the government
fails either to mention or cite the Seventh Circuit’s opinion in
United States v. Connor.17 The Connor court, like this court in
Johnson, relied largely on temporal proximity as the controlling
factor of the “same occasion” prong of the test when it found that
the defendant’s possession of weapons and possession of stolen
goods “on the same date” occurred on the same occasion.18
Rather than squarely addressing the close temporal relation of
the commission of the offenses in question, the government would
make much of the absence of simultaneity, contending that because
Moreno did not touch the little girls at precisely the same
17
950 F.2d 1267 (7th Cir. 1991).
18
Id. at 1270-71.
14
instant, the offense did not occur on the same occasion. As
observed by Moreno, however, the government’s reliance on the
Eleventh Circuit’s opinion in United States v. Jones19 to support
its simultaneity contention is misplaced. Jones does not stand
for the proposition that offenses must occur simultaneously to meet
the “same occasion” criterion; rather, Jones relies on the temporal
aspect, holding that offenses occurring one-and-one-half hours
apart in different geographic locations were “temporally distinct”20
and therefore did not occur on the same occasion.21
The government’s reliance on United States v. Williams22 is
likewise misplaced. The “same occasion” prong of § 4A1.2(a)(2)
was neither discussed in nor implicated by Williams because the
statute at issue there was the Armed Career Criminal Act (ACCA),23
and we have held that the “occasions different from one another”
provision of the ACCA is entirely different from the “same
19
899 F.2d 1097 (11th Cir. 1990), overruled on other grounds
by United States v. Morrill, 984 F.2d 1136 (11th Cir. 1993)(en
banc).
20
Id. at 1101.
21
Neither did the Eleventh Circuit in Jones make any reference
to the government’s other argument, that the lapse of time provided
the defendant with an opportunity to form a separate criminal
intent. Likewise, the government’s reliance on Jones as supporting
“separate victims” as a criterion for finding separate occasions is
misleading: The number of victims is not relevant to testing for
the “same occasion”; the number of victims can play a role only in
the “common scheme or plan” prong of the test for relatedness, an
issue that Moreno abandoned on appeal.
22
187 F.3d 429 (4th Cir. 1999).
23
18 U.S.C. § 924(e)(1)(2001).
15
occasion” prong of the relatedness test for purposes of calculating
a criminal history under § 4A1.2.24
In sum, the pertinent case law from this circuit and others
makes clear that simultaneity might support relatedness but that
its absence is anything but fatal. The same is true for multiple
victims. Neither simultaneity nor plurality of victims is an
essential element of sameness by any stretch. It follows that as
neither is a prerequisite for finding sameness, sequential
commissions of offenses affecting different victims can comprise a
single occurrence: Only the extent of the temporal separation
between commissions can be controlling for purposes of the same-
occurrence prong, and even then such separation must be viewed in
light of other factors such as spatial separation, identity or non-
identity of offenses, and the like. In addition to applying the
primary yardstick of temporal separation in light of all pertinent
circumstances, it must be applied with a healthy serving of common
sense. Ultimately, the greater the common-sense differences in the
other, non-temporal aspects of the facts and circumstances, the
shorter the temporal attenuation needed to eschew sameness of
occurrence.
III. Conclusion
As must be obvious by now, we answer in the affirmative the
question whether Moreno’s two state sentences for indecency with a
child result from “related cases” for purposes of guideline §
4A1.2. And we reach the same answer irrespective of whether we
24
United States v. Medina-Gutierrez, 980 F.2d 980, 982-83 (5th
Cir. 1992).
16
review the issue de novo or under the more deferential clear error
standard. Applying section (A) of application note 3 in the
Commentary under § 4A1.2 —— which specifies that cases are related
if they produce sentences for offenses that “occurred on the same
occasion” —— we are convinced that Moreno’s Texas sentences for
purportedly touching Marcia and Monica Garza inappropriately within
a matter of minutes and without moving from his seat on the couch
in the front room of the house in which they resided unquestionably
resulted from cases that are “related.” Even though the two
offenses were not committed simultaneously (but they almost were)
and were not committed against the same victim (but the victims
were closely related to each other and had a relationship with the
defendant), they were the identical offense, were committed at the
identical geographic location, and were barely separated in time ——
literally by a matter of minutes. Emphasizing temporal proximity
but in pari materia with all other pertinent facts, we are firmly
convinced that the cases are “related” for purposes of § 4A1.2.
Failure to treat the two cases as related in calculating
Moreno’s Criminal History Category produced an erroneously high
sentencing range. Moreno’s criminal history score should have been
increased by only three points, not six, because his sentence
resulted from related cases. We therefore vacate Moreno’s sentence
and remand for resentencing within a sentencing range of 57-71
months, the range produced when a criminal history score of 7
17
rather than 10 is used to reach a Criminal History Category of IV,
and is applied in conjunction with his offense level of 21.25
SENTENCE VACATED; REMANDED FOR RESENTENCING.
25
Having thus found that the two prior sentences are related
because they resulted from cases that occurred on the same
occasion, we need not reach and therefore do not address Moreno’s
alternative argument that the state indecency convictions were
consolidated for purposes of trial.
18
United States v. Moreno-Arredondo
Court: Court of Appeals for the Fifth Circuit
Date filed: 2001-06-20
Citations: 255 F.3d 198
Copy CitationsCombined Opinion