United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 30, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-40090
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUSTINO DE JESUS TORRES-DIAZ, Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before GARWOOD, CLEMENT, and PRADO, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant Justino DeJesus Torres-Diaz (Torres) was
convicted, pursuant to his guilty plea, of illegally reentering the
United States after deportation in violation of 8 U.S.C. § 1326(a)
and (b). Torres challenges his 33-month sentence, principally
contending that the district court erred in holding that his prior
Connecticut conviction was for a crime of violence under U.S.S.G.
§ 2L1.2. We affirm.
FACTS AND PROCEEDINGS BELOW
Torres pled guilty to an indictment charging that he was an
alien found unlawfully in the United States on August 7, 2004,
after having previously been deported and not having obtained
consent to reapply for admission into the United States contrary to
8 U.S.C. §§ 1326(a) and 1326(b).1
The Presentence Report (PSR) reflects that Torres, a native
and citizen of Guatemala, had lived in Connecticut with his wife
and child, and, in a separate arrangement, with a girlfriend he
kept on the side. Bridgeport, Connecticut police and medical
personnel responded to a domestic violence report on April 2, 2002,
which indicated that defendant had raped his girlfriend Gloria
Maldonado, and then, when she ran to the phone to dial 911, had hit
her over the head with a bottle, leaving her half nude and
1
The written plea agreement included the following:
“The defendant, by entering this plea, also waives any
right to have facts that the law makes essential to the
punishment either (1) charged in the indictment or (2)
proven to a jury or (3) proved beyond a reasonable
doubt. The defendant explicitly consents to be
sentenced pursuant to the applicable Sentencing
Guidelines. The defendant explicitly acknowledges that
his plea to the charged offense(s) authorizes the court
to impose any sentence authorized by the Sentencing
Guidelines, up to and including the statutory maximum
under the relevant statute(s).
The Government will recommend:
(a) that the offense level decrease by 2 levels
pursuant to U.S.S.G. § 3E1.1(a) if the defendant
clearly demonstrates acceptance of responsibility:
(b) that the defendant be sentenced at the low end of
the applicable guideline range; and
(c) that the defendant receive an additional 2 level
downward departure pursuant to U.S.S.G. § 5K3.1
for early disposition.”
2
unresponsive on a sofa when the police arrived. As a result,
Torres was charged with sexual assault in a spousal or cohabiting
relationship, Conn. Gen. Stat. § 53a-70b (“Sexual assault in
spousal or cohabiting relationship: Class B felony”) and with
assault in the second degree, Conn. Gen. Stat. § 53a-60. Torres
was represented by counsel. On June 26, 2003, the charge of sexual
assault was dismissed, and, as the PSR states, “the defendant was
convicted of the offense of assault 2nd degree, wherein he was
sentenced to 5 years’ incarceration, suspended for 3 years’
probation, in the Fairfield, Connecticut Judicial District Court,
Docket Number FBT-CR02-0178143-T.” As reflected by Torres’s
testimony at the sentencing hearing below, he agreed that
“everything” in his PSR was “factually correct” and that his June
26, 2003 conviction was pursuant to his plea of guilty.
As a result of this June 26, 2003 conviction, Torres was
deported to Mexico on May 7, 2004. He illegally reentered the
United States on August 7, 2004.
The PSR, applying U.S.S.G. § 2L1.2, assessed a base offense
level of 8, and increased it by 8 levels to a total of 16, under
section 2L1.2(b)(1)(C), because the Connecticut conviction was “an
aggravated felony.” The government on October 21, 2004 filed an
objection to the PSR, contending that the Connecticut conviction
was for “a crime of violence” and hence the base offense level
should be increased by 16 (rather than 8) levels under U.S.S.G. §
3
2L1.2(b)(1)(A)(ii).2 In support, the government filed a copy of
the charging document in the Connecticut case, the second (and
final) count of which alleges:
that at the city of Bridgeport, Fairfield County, on the
7th day of April, 2002, at or about 1:00 a.m., at 163
Laurel Avenue, 2nd floor, the said DEGESUS TORRES, with
intent to cause physical injury to one GLORIA MALDONADO,
2
Section 2L1.2(b)(1) provides for base offense level
increases as follows:
“(1) Apply the Greatest:
If the defendant previously was deported, or unlawfully
remained in the United States, after –
(A) a conviction for a felony that is (i) a drug
trafficking offense for which the sentence
imposed exceeded 13 months; (ii) a crime of
violence; (iii) a firearms offense; (iv) a
child pornography offense; (v) a national
security or terrorism offense; (vi) a human
trafficking offense; or (vii) an alien
smuggling offense, increase by 16 levels;
(B) a conviction for a felony drug trafficking
offense for which the sentence imposed was 13
months or less, increase by 12 levels;
(C) a conviction for an aggravated felony,
increase by 8 levels;
(D) a conviction for any other felony, increase
by 4 levels, or;
(E) three or more convictions for misdemeanors
that are crimes of violence or drug
trafficking offenses, increase by 4 levels.”
The PSR, the district court and the parties below applied
the 2003 guidelines, although at sentencing the 2004 version was
in effect. Here, we quote from the 2004 version. There are no
differences between the two which affect any of the issues in
this appeal.
4
caused such injury to GLORIA MALDONADO by means of a
dangerous instrument, to wit: a glass bottle, in
violation of Section 53a-60(A)(2) of the Connecticut
General Statutes.”3
The government contended that this offense – a “violation of
section 53a-60(a)(2) of the Connecticut General Statutes” – as a
matter of law constitutes the generic offense of “aggravated
assault” and is hence a crime of violence under the provision of
U.S.S.G. § 2L1.2 note 1.(B)(iii) that, for purposes of section
2L1.2(b)(1),
“‘Crime of violence’ 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.”
Torres filed a response to the government’s objection and his
own objection to the PSR, contending that his conviction was
neither a crime of violence nor an aggravated felony, and stating
that he “objects to the Government’s attempts to introduce into
evidence the underlying judgment” [sic: apparently referring to the
charging document] because “[i]t is improper for the Court to
review the underlying judgment because it does not fit within the
3
The first count charges defendant with having committed,
at the same time and place, the offense of sexual assault in a
cohabiting relationship contrary to 53a-70b of the Connecticut
General Statutes by compelling his cohabitator to engage in
sexual intercourse by the use of force against such other
cohabitator. As noted, this count was dismissed on June 26,
2003.
5
narrow exception to the categorical approach set forth in Taylor
[v. United States, 110 S.Ct. 2143 (1990)].”
The sentencing hearing began November 23, 2004, and recessed
until December 21, to allow the defense to further address whether
the Connecticut conviction was for an “aggravated assault” within
the meaning of section 2L1.2 note 1.(B)(iii). Defense counsel at
these hearings (as in its response to the government’s objection to
the PSR) took the position that the Connecticut “Assault in the
second degree” statute under which defendant was convicted, Conn.
Gen. Stat. § 53a-60(a), was neither a crime of violence nor an
aggravated assault; and, further, that “any consideration of the
indictment under the Taylor approach, your Honor, we do not believe
it falls under any kind of exception to the categorical approach,”
and that “we have objected to the government’s attempts to admit
that indictment. We believe categorical approach means you don’t
even go there, especially since there was no jury finding in this
case.”4 The district court overruled these objections to
consideration of the charging document.
The district court addressed Conn. Gen. Stat. § 53a-60, which
provides:
Ҥ 53a-60. Assault in the second degree: Class D felony
(a) A person is guilty of assault in the second degree
4
The district court and the parties below refer to the
charging document as the “indictment.” Actually, it appears to
be an information.
6
when: (1) With intent to cause serious physical injury to
another person, he causes such injury to such person or
to a third person; or (2) with intent to cause physical
injury to another person, he causes such injury to such
person or to a third person by means of a deadly weapon
or a dangerous instrument other than by means of the
discharge of a firearm; or (3) he recklessly causes
serious physical injury to another person by means of a
deadly weapon or a dangerous instrument; or (4) for a
purpose other than lawful medical or therapeutic
treatment, he intentionally causes stupor,
unconsciousness or other physical impairment or injury to
another person by administering to such person, without
his consent, a drug, substance or preparation capable of
producing the same; or (5) he is a parolee from a
correctional institution and with intent to cause
physical injury to an employee or member of the Board of
Pardons and Paroles, he causes physical injury to such
employee or member.
(b) Assault in the second degree is a class D felony.”5
The court concluded that any violation of section 53a-60(a)
categorically constituted “aggravated assault” under note 1.(B)
(iii) to section 2L1.2. Alternatively, the court found that Torres
had been convicted of violating section 53-60(a)(2) and ruled that
any violation of section 53-60(a)(2) categorically constituted
“aggravated assault” under note 1.(B)(iii).6 The court thus
5
Conn. Gen. Stat. § 53a-35a provides that the sentence of
imprisonment for a class D felony shall be not less than one year
nor more than five years (with respect to certain offenses not
involved here the minimum term is greater than one year).
6
The district court made no express determination as to
whether Torres’s conviction was for an “offense . . . that has as
an element the use, attempted use, or threatened use of physical
force against the person of another” within the final clause of
note 1.B(iii).
Torres argued below (and argues here) that merely showing a
conviction under § 53a-60(a) without showing the particular
subdivision thereof involved, does not satisfy the “has as an
7
determined that Torres, prior to his deportation and reentry, had
been convicted of a felony that is a crime of violence, and
accordingly increased his base offense level by 16 levels under
section 2L1.2(b)(1)(A)(ii). This ultimately resulted, after other
unchallenged adjustments, in a guideline sentencing range of 33 to
41 months’ imprisonment. Torres was sentenced to 33 months.
DISCUSSION
I. Crime of Violence
Torres admits his conviction was for second degree assault
under Conn. Gen. Stat. § 53a-60(a). He contends, however, that
such a conviction, without a showing of the particular subdivision
of section 53a-60(a) violation of which the conviction was for,
does not constitute an “aggravated assault” within the meaning of
note 1.(B)(iii). This is so, he contends, because at least
subdivision (4) of section 53a-60(a) (relating to causing a stupor
by administering a drug without consent and not for lawful
treatment) does not constitute “aggravated assault.” He further
contends that the record does not suffice to support the district
court’s finding that he was convicted under subdivision (2) of
section 53a-60(a). The government contends that the record
element” concluding clause of note 1.B(iii) because, for example,
force is not an element under subdivision (4) of § 53a-60(a).
The government does not contend otherwise. We do not reach that
question. Nor do we reach the question, not addressed before us
by either party, whether conviction for violating subdivision (2)
of § 53a-60(a) satisfies the “has as an element” concluding
clause of note 1.B(iii).
8
adequately supports the district court’s finding that Torres was
convicted under subdivision (2) of section 53a-60(a), and that such
an offense is an “aggravated assault” within the meaning of note
1.(B)(iii) and is hence a “crime of violence” justifying the 16
level enhancement to Torres’s base offense level under section
2L1.2(B)(1)(A)(ii). We agree with the government.7
The allegations in the charging document, to wit, that Torres
“with intent to cause physical injury to one Gloria Maldonado,
caused such injury to Gloria Maldonado by means of a dangerous
instrument, to wit: a glass bottle, in violation of Section 53a-
60(a)(2) of the Connecticut General Statutes,” not only expressly
charge a violation of, and only of, subdivision (2) of section 53-
60(a), but the facts charged exactly fit the offense denounced in
subdivision (2)8 and are not sufficient to allege an offense under
any of the other subdivisions of section 53-60(a).9
7
We hence do not reach the question of whether, for
example, subdivision (4) of § 53a-60(a) constitutes the offense
of “aggravated assault.”
8
Section 53a-60(a)(2) provides in relevant part “A person
is guilty of assault in the second degree when: (1) . . . .; or
(2) with intent to cause physical injury to another person, he
causes such injury to such person or to a third person by means
of a deadly weapon or a dangerous instrument other than by means
of the discharge of a firearm; or (3) . . .; or (4) . . .; or (5)
. . . .”
9
The offenses under subdivisions (1) and (3) each require,
inter alia, “serious physical injury” (emphasis added), which is
not alleged in the charging document; subdivision (4) requires,
inter alia, “administering” of “a drug, substance or
preparation,” which is not alleged; and subdivision (5), the sole
9
Below, Torres’s only objection to consideration of the
charging document was that “it does not fit within the narrow
exception to the categorical approach set forth in Taylor [v.
United States];” “under the Taylor approach . . . we do not believe
it falls under any kind of exception to the categorical approach;”
and, “the categorical approach means you don’t even go there,
especially since there was no jury finding.”
This objection is plainly without merit, as is clear from the
opinion in United States v. Calderon-Pena, 383 F.3d 254 (5th Cir.
2004) (en banc), which expressly states that looking to the
charging papers is proper for this purpose, viz:
“. . . whenever a statute provides a list of alternative
methods of commission – just as the statute in Taylor
referred to burglaries of several different types of
structures, 495 U.S. at 578 n.1, 110 S.Ct. 2143 – we may
look to charging papers to see which of the various
statutory alternatives are involved in the particular
case. We agree that such a use of the indictment . . .
is permissible. Cf. United States v. Landeros-Gonzales,
262 F.3d 424, 426 (5th Cir. 2001) (using allegations from
an indictment to determine which of several statutory
subsections the defendant had violated.)” Id. at 258.10
remaining subdivision, applies only to one who “is a parolee from
a correctional institution” and injures “an employee or member of
the Board of Pardons and Paroles,” none of which is alleged.
10
See also id. at 258 n.5:
“Many sentencing provisions lack the ‘as an element’
language at issue here, and we have permitted broader
uses of charging papers in such cases. See, e.g.,
United States v. Rodriguez-Duberney, 326 F.3d 613, 616-
17 (5th Cir. 2003) (allowing for use of the indictment
and the underlying charged conduct to determine whether
a Travel Act violation under 18 U.S.C. § 1952 was a
drug trafficking offense that necessitated a sixteen-
10
Moreover, in Shepard v. United States, 125 S.Ct. 1254 (2005), the
Court, in reaffirming Taylor v. United States, 110 S.Ct. 2143
(1990), states that in Taylor:
“The Court held that generic burglary could be identified
only by referring to charging documents filed in the
court of conviction, or to recorded judicial acts of that
court limiting convictions to the generic category, as in
giving instruction to the jury.” Shepard at 1259
(emphasis added).11
That the objection made below in one instance stated “since there
was no jury finding” is meaningless. There was no jury finding
because Torres’s prior conviction was based on his plea of guilty.
The use of a charging document for this purpose plainly extends to
cases where the prior conviction was by guilty plea, as is
demonstrated by Calderon-Pena’s above reflected approving citation
of our opinions in Landeros-Gonzales and Rodriguez-Duberney, in
each of which the prior conviction was by guilty plea.12 Moreover,
level enhancement pursuant to § 2L1.2(b)(1)(A)(i)).”
(emphasis added).
11
It has never been disputed that what the government filed
below is a true copy of the charging document filed in the case
in the court of conviction, and no objection has ever been made
to its authenticity (or authentication).
12
See Landeros-Gonzales, 262 F.2d at 426 (“In the light of
Landeros’s criminal mischief indictment, it is clear that he
pleaded guilty to violating subsection (3) of the statute”);
Rodriguez-Duberney, 326 F.3d at 617 (“[I]n Duberney’s prior
conviction, he was charged with, and pleaded guilty to,
‘interstate transportation in aid of racketeering with the intent
to promote cocaine and marijuana trafficking.’ The district
court had only to look at the charging indictment to find that
the prior Travel Act violation was one involving drug
11
Shepard held that Taylor applied to prior guilty plea convictions.
Before this court, Torres argues not that the charging
document may not be considered, as he did below, but rather
contends, for the first time, that it alone is not sufficient to
show that Torres was convicted under subdivision (2) of section
53a-60(a) because the record does not exclude the theoretical
possibility that he pled guilty to something other than that
charging document, such as a new or amended charging document or
oral allegations at a plea hearing. But it is not argued that this
actually happened – only that the record does not exclude the
theoretical possibility that it did (and even that was not argued
below). There is no dispute that Torres pled guilty. And, at the
December 21, 2004 sentencing hearing when Torres stated “when I
pled guilty, the attorney was one that told me that I should plead
guilty” and his counsel interjected “He’s referring to his
Connecticut case,”13 there was no suggestion (then or at any other
time) that Torres had pled to anything other than the charging
document which had been before the court since October and had been
the subject of discussion earlier during the December hearing as
well as at the November sentencing hearing. And, it is not, and
has never been, questioned that Torres was convicted of assault in
trafficking.”) (emphasis added).
13
The court then asked “And who was the victim in that case?
Some other person, not his spouse?”, to which defense counsel
responded “That’s correct.”
12
the second degree in violation of Conn. Gen. Stat. § 53a-60(a), not
of some other or lesser offense.14
We recognize that “[t]he burden is on the party,” here, the
prosecution, “seeking to adjust the sentence level,” United States
v. Herrera-Solorzano, 114 F.3d 48, 50 (5th Cir. 1997). We hold
that for purposes of determining which one of the various
alternative subdivisions of the statute of a prior conviction is
involved, the charging document filed in the prior case
unambiguously identifying the one particular subdivision charged
suffices to carry that burden, absent anything in the record
affirmatively casting doubt on, or creating an ambiguity
respecting, that conclusion. At the very least, this is so where,
as here, no claim is made before the district court that the prior
conviction was in actuality under a different subdivision than that
reflected in the charging instrument or in actuality the conviction
was based on some other, materially different charging document.15
See, e.g., Calderon-Pena, 383 F.3d at 258; Landeros-Gonzales, 262
F.3d at 426; Rodriguez-Duberney, 326 F.3d at 617.
Torres relies before this court on our decision in United
States v. Turner, 349 F.3d 833 (5th Cir. 2003). Turner, however,
14
As stated in Torres’s opening brief in this appeal “The
parties did not dispute that Mr. Torres-Diaz had been convicted
of second-degree assault under Conn. Gen. Stat. § 53a-60.”
15
The defendant, of course, may be assumed to know enough
concerning what he was convicted of to inform his counsel. If
counsel has doubts he may request a continuance to investigate.
13
is inapplicable as there the record reflected that “Turner pleaded
guilty to a lesser included offense, and was not reindicted on that
lesser count” and “there is no document actually charging him with
the offense for which he was ultimately convicted,” so that
“therefore, the indictment is not applicable to the analysis of
whether the conviction was a conviction of a crime of violence.”
Id. at 836 (emphasis added).16 Here, it is undisputed that Torres
was charged with and convicted of violating Conn. Gen. Stat. § 53a-
60(a), not any other or lesser included offense.
16
We note that Turner, id. at 836, relies in part on United
States v. Martin, 215 F.3d 470 (4th Cir. 2000). In Martin the
defendant was indicted for bank robbery and found guilty of the
lesser included offense of bank larceny, and the court held that
the allegations in the indictment could not be used to establish
that defendant was convicted of taking the money from the person
of any bank employee for purposes of determining whether the
conviction was for a crime of violence under U.S.S.G. §
4B1.2(a)(2) under either the has force “as an element” or the
presents a serious “risk of physical injury to another” tests.
Id. at 472-74.
In United States v. Martinez-Paramo, 380 F.3d 799 (5th Cir.
2004), we considered whether the prior conviction met the force
“as an element” prong of the crime of violence definition under
U.S.S.G. § 2L1.2. For this purpose, we held that, where the
record did “not contain an information or indictment,” and the
district court determined that “the criminal complaint was not a
charging document” and did not determine which statutory
subsection the prior conviction involved, we would not make that
determination ourselves simply on the basis of the complaint, but
would instead remand for further development, noting that “the
Government stated at oral argument that an information does
exist,” that “we cannot tell . . . if there was another document
[other than the complaint] which stated the charge(s) against
him” and that “we do not decide, however, whether an information
or indictment is the only document which could properly establish
that he pleaded guilty to a particular subsection . . . .” Id.
at 803, 805 (emphasis added). This language suggests that the
information alone would normally suffice.
14
Having concluded that the record adequately supports the
district court’s finding that Torres was convicted of violating
Conn. Gen. Stat. § 53a-60(a)(2), we now turn to the purely legal
question of whether that offense constitutes “aggravated assault”
as used in n.1(B)(iii) and is hence a “crime of violence” under
U.S.S.G. § 2L1.2(b)(1)(A)(ii). See, e.g., Landeros-Gonzales, 262
F.3d at 426 (“For the purpose of defining a ‘crime of violence,’
the different subsections of . . . [the underlying statute of
conviction] should be treated as separate offenses”); Calderon-
Pena, 383 F.3d at 258. Because the guidelines do not define
“aggravated assault,” this court applies a “common sense approach,”
defining the enumerated crime by its “generic, contemporary
meaning.” United States v. Izaguirre-Flores, 405 F.3d 270, 275 &
n.16 (5th Cir. 2005); United States v. Dominguez-Ochoa, 386 F.3d
639, 642-43 (5th Cir.2004). As a source of generic contemporary
meaning, we turn to the Model Penal Code and to Professors LaFave
and Scott’s treatise, Substantive Criminal Law. Id. 386 F.3d at
643; Izaguirre-Flores, 405 F.3d at 275; Taylor, 110 S.Ct. at 2149,
2158. See also 2 W. R. LAFAVE & A. SCOTT, SUBSTANTIVE CRIMINAL LAW, §§
16.3 & 16.2(d) (2d ed. 2005).
This court endorses a categorical approach to evaluating the
correspondence between generic contemporary meaning and the
statutory definition of the prior offense. Calderon-Pena, 383 F.3d
at 257; Taylor, 110 S.Ct. at 2159-60. We look to the elements of
15
the prior offense of conviction, not to the defendant’s prior
conduct; to the underlying law, not to the underlying facts. Id.
Our primary source for the generic contemporary meaning of
aggravated assault is the Model Penal Code, which provides:
“Aggravated Assault. A person is guilty of aggravated assault
if he:
(a) attempts to cause serious bodily injury to another,
or causes such injury purposely, knowingly or recklessly
under circumstances manifesting extreme
indifference to the value of human life; or
(b) attempts to cause or purposely or knowingly causes
bodily injury to another with a deadly weapon.”
“Aggravated assault under paragraph (a) is a felony
of the second degree; aggravated assault under paragraph
(b) is a felony of the third degree.”
MODEL PENAL CODE § 211.1(2). We compare this generic statute with the
Connecticut statute violated by Torres, Conn. Gen. Stat. § 53a-
60(a)(2), which provides:
“(a) A person is guilty of assault in the second degree
when: (1) . . .; or (2) with intent to cause physical
injury to another person, he causes such injury to such
person or to a third person by means of a deadly weapon
or a dangerous instrument other than by means of the
discharge of a firearm; or (3) . . .; or (4) . . .; or
(5) . . . .
(b) Assault in the second degree is a class D felony.”
Subsection (2) of Connecticut’s second degree assault statute,
which requires physical injury by a deadly weapon or a dangerous
instrument, is very similar to Model Penal Code’s definition of
aggravated assault in its section 211.1(2)(b). There are two
16
differences. First, the Connecticut statute allows conviction if
the defendant causes injury “to such person or to a third person.”
Conn. Gen. Stat. § 53a-60(a)(2) (emphasis added). On its face,
this is broader than the Model Penal Code, which allows conviction
only if the defendant “attempts to cause or . . . knowingly causes
bodily injury to another . . . .” MODEL PENAL CODE § 211.1(2)(b)
(emphasis added). These clauses are not materially different,
however, because the Model Penal Code expressly adopts the
principle of transferred intent. Id. at § 2.03(2)(a).17
The second apparent difference between the statutes is that
while the Model Penal Code requires the use of a “deadly weapon,”
MODEL PENAL CODE § 211.1(2)(b), the Connecticut statute permits
conviction with the use of either a “deadly weapon” or a “dangerous
instrument.” Reference to the definition sections, however,
persuades us that this is essentially a difference of form, not of
substance. The Model Penal Code’s definition of “deadly weapon” is
broad enough to encompass Connecticut’s definitions of both “deadly
weapon” and “dangerous instrument.” The Model Penal Code defines
“deadly weapon” as “any firearm or other weapon, device,
instrument, material or substance, whether animate or inanimate,
which in the manner it is used or is intended to be used is known
17
A result is purposely or knowingly caused, notwithstanding
the actual result is not within the actor’s purpose or
contemplation, if (among other things) the only difference is
“that a different person . . . is injured.” Model Penal Code §
2.03(2)(a).
17
to be capable of producing death or serious bodily injury.” MODEL
PENAL CODE § 210.0(4). The Connecticut Penal Code defines a
“dangerous instrument” nearly the same way. It provides
“‘[d]angerous instrument’ means any instrument, article or
substance which, under the circumstances in which it is used or
attempted or threatened to be used, is capable of causing death or
serious physical injury . . . .” Conn. Gen. Stat. § 53a-3(7).18
With these apparent differences resolved, subsection (2) of
the Connecticut statute tracks the Model Penal Codes definition of
aggravated assault in its section 211.1(2)(b) almost exactly.19 For
purposes of section 2L1.2 of the sentencing guidelines,
Connecticut’s section 53a-60(a)(2) is a generic “aggravated
assault” and is hence unquestionably a crime of violence.
We reject Torres’s complaints concerning his prior Connecticut
felony conviction being found a crime of violence.
II. Other Issues
Torres, for the first time on appeal, argues that his sentence
is unconstitutional because it was imposed under a mandatory
18
A “deadly weapon” in Connecticut is defined narrowly and
it clearly falls within the Model Penal Code’s definition of
“deadly weapon.” Connecticut defines “deadly weapon” as “ any
weapon, whether loaded or unloaded, from which a shot may be
discharged, or a switchblade knife, gravity knife, billy,
blackjack, bludgeon, or metal knuckles.” Conn. Gen. Stat. §
53a-3(6).
19
Also, both offenses are felonies. It is not determinative
that the Connecticut offense is labeled “assault in the second
degree” rather than “aggravated assault.”
18
guideline scheme. The government argues that a provision in
Torres’s plea agreement (see note 1, supra), which was obviously
added in anticipation of Booker, bars this contention.20 Because
Torres cannot show that the unpreserved Fanfan error affected his
substantial rights, we need not reach the question of whether the
plea agreement precludes relief on this claim. Torres was
sentenced at the bottom of the applicable guideline range and the
district court recommended that the federal sentence run
concurrently to any state sentence. Even so, the record is
insufficient to show that the sentencing court likely would have
imposed a lower sentence had it used an advisory rather than
mandatory guideline scheme. See, e.g., United States v. Bringier,
405 F.3d 310, 317-18 n.4 (5th Cir. 2005); United States v. Mares,
402 F.3d 511 (5th Cir.2005).21
Torres also asks this court to hold the “felony” and
“aggravated felony” provisions of 8 U.S.C. §§ 1326(b)(1) and (b)(2)
unconstitutional on the same grounds the Supreme Court rejected in
Almendarez-Torres v. United States, 523 U.S. 224 (1998), but
acknowledges that this issue is foreclosed. See United States v.
20
The plea agreement does not use the word “appeal” (or
anything related or similar thereto) and at the Rule 11 hearing
there was no discussion of any possible waiver of the right to
appeal. See Rule 11(b)(1)(N).
21
See also, e.g., United States v. Martinez-Lugo, 411 F.3d
597, 601 (5th Cir. 2005); United States v. Creech, 408 F.3d 264,
271-72 (5th Cir. 2005); United States v. Holmes, 406 F.3d 337,
362-66 (5th Cir. 2005).
19
Rodriguez-Montelongo, 263 F.3d 429, 434 (5th Cir. 2001). We
likewise reject this complaint.
CONCLUSION
For the foregoing reasons, the judgment of the district court
is
AFFIRMED.
20