United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 12, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-40804
United States of America,
Plaintiff-Appellee,
versus
JULIO SANCHEZ-RUEDAS,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before GARWOOD, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
GARWOOD, Circuit Judge:
Julio Sanchez-Ruedas was convicted of illegally reentering the
United States after having been deported, in violation of 8 U.S.C.
§ 1326. He appeals his sentence, including the application of a
sixteen-level crime-of-violence enhancement and the denial of a
two-level acceptance-of-responsibility reduction, on the following
grounds: (1) the district court erroneously concluded that his 1995
conviction under Cal. Penal Code § 245(a)(1) constitutes
“aggravated assault,” an enumerated “crime of violence” under
section 2L1.2 of the Sentencing Guidelines; (2) the district court
erroneously determined that because he put the government to its
burden of proof at trial, he failed to accept responsibility for
his crime; and (3) the sentence-enhancement provisions in 8 U.S.C.
§ 1326(b) are unconstitutional. We affirm.
FACTS AND PROCEEDINGS BELOW
On October 31, 2004, Sanchez-Ruedas (Sanchez) was arrested by
boarder patrol agents on a levee of the Rio Grande near
Brownsville, Texas. Against advice of counsel, Sanchez refused to
plead guilty to re-entry, insisting instead on a jury trial. The
judge warned him that by putting the government to its burden, he
was forfeiting his reduction for acceptance of responsibility,
cautioning,
"Mr. Sanchez, you understand what your counsel, Mr.
Casas, and the government's counsel have just explained
to the court, that they've talked to you about the chance
that if you are convicted of this—in a jury trial of this
violation of our immigration laws, that you'll be looking
at much more time than you will be if you plead guilty?
You understand that?
Sanchez insisted on a jury trial, during which his defense counsel
made several arguments for acquittal on the facts, suggesting, for
example, that Sanchez might have just been out for jog. Sanchez
also testified on his own behalf, explaining that he had crossed
the river only to see his five children, who were American
citizens. During cross-examination, Sanchez suddenly expressed
surprise when he realized the nature of the charge against him,
2
stating that if he had known that he was accused merely of being
present in the country, he would have pleaded guilty. The jury
returned a guilty verdict.
The Presentence Investigation Report (PSR), applying the 2004
guidelines, assessed Sanchez a base-offense level of eight, and
increased it by sixteen levels to a total of twenty four, pursuant
to U.S.S.G. § 2L1.2(b)(1)(A), because Sanchez's 1995 California
conviction for Assault with a Deadly Weapon1 was a crime of
violence.2 The PSR did not specify whether it classified
Sanchez's prior conviction as a crime of violence based on one of
the enumerated crimes, such as "aggravated assault," or based on
the residual clause, "has as an element the use . . . of physical
force." Sanchez on April 8, 2005 filed two relevant objections to
the PSR. First, he objected to the sixteen-level crime-of-violence
1
The charging document (information) on which this prior
conviction was rendered (which Sanchez does not deny) alleges
that “On or about January 11, 1995, in the County of Los Angeles,
the crime of ASSAULT GREAT BODILY INJURY AND WITH DEADLY WEAPON,
in violation of PENAL CODE SECTION 245(a)(1), a Felony, was
committed by JULIO RUEDAZ SANCHEZ, who did willfully and
unlawfully commit an assault upon TYLER REINOHL with a deadly
weapon, to wit, knife, and by means of force likely to produce
great bodily injury.”
2
For the purposes of section 2L1.2(b)(1), the term "crime of
violence" is defined as "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." U.S.S.G. § 2L1.2,
cmt. n.1(B)(iii) (2004).
3
enhancement, arguing that his prior conviction did not necessarily
have as an element the intentional use of force. Later, at his
sentencing hearing on May 17, 2005, Sanchez also addressed the
enumerated crimes-of-violence section of the definition, arguing
"[i]t was not an aggravated assault. . . . This was just regular
assault." In his second objection to the PSR, Sanchez argued that
he should receive a two-level reduction for acceptance of
responsibility because although he put the government to its burden
at trial, he did so only after admitting all elements of his
offense. Finally, Sanchez objected at sentencing that the
sentence-enhancement provisions of 8 U.S.C. § 1326(b) are
unconstitutional, an objection that he concedes is foreclosed by
Almendarez-Torres.3 The district court overruled Sanchez's
relevant objections and adopted the PSR without change.
DISCUSSION
I. The Crime of Violence Enhancement
Sanchez first appeals from his sixteen-level crime-of-violence
enhancement, principally contending that his prior conviction did
not necessarily have as an element the intentional use of force.
Only in a conclusory fashion does Sanchez also contend that his
prior conviction is not "aggravated assault," one of the enumerated
crimes of violence listed in U.S.S.G. § 2L1.2, cmt. n.1(B)(iii).
Because we agree with the government's contention that Sanchez's
3
523 U.S. 224, 235 (1998).
4
1995 conviction for assault with a deadly weapon under California
Penal Code § 245(a)(1) constitutes aggravated assault, we affirm
the district court's sixteen-level enhancement.
Sanchez does not dispute the fact of his prior conviction,
only its legal characterization as a crime of violence under
U.S.S.G. § 2L1.2, a characterization that we review de novo.
United States v. Calderon-Pena, 383 F.3d 254, 256 (5th Cir. 2004)
(en banc). Because the guidelines do not define the enumerated
crimes of violence, this court adopts a "common sense approach,"
defining each 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). See also United States v. Murillo-Lopez, 444 F.3d 337,
344 (5th Cir. 2006) (“Applying a common sense approach and the
ordinary, contemporary and common meaning . . .”). For sources of
generic contemporary meaning, we consider, inter alia, the Model
Penal Code, Professors LaFave and Scott's treatise, modern state
cases, and dictionaries. Dominguez-Ochoa, 386 F.3d at 643;
Izaguirre-Flores, 405 F.3d at 275. See also Taylor v. United
States, 110 S.Ct. 2143, 2149, 2158 (1990). Moreover, "[t]his court
endorses a categorical approach to evaluating the correspondence
between generic contemporary meaning and the statutory definition
of the prior offense. We look to the elements of the prior offense
of conviction, not to the defendant's prior conduct; to the
5
underlying law, not to the underlying facts." United States v.
Torres-Diaz, 438 F.3d 529, 536 (5th Cir. 2006) (citation omitted).
In Torres-Diaz, this court held that the defendant's prior
Connecticut conviction for second-degree assault constituted the
enumerated offense of "aggravated assault" under U.S.S.G. § 2L1.2,
cmt. n.1(B)(iii), the same section of the guidelines at issue in
this appeal. For the generic, contemporary meaning, Torres-Diaz
relied in large part upon the Model Penal Code's definition of
aggravated assault, 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."
Model Penal Code § 211.1(2).
The California criminal statute under which Sanchez-Ruedas was
convicted, Cal. Penal Code § 245(a)(1), at the time of his offense,
provided:
“Any person who commits an assault[4] upon the person of
another with a deadly weapon or instrument other than a
firearm or by any means of force likely to produce great
bodily injury shall be punished by imprisonment in the
state prison for two, three, or four years, or in a
4
Cal. Penal Code § 240 (1995) ("An assault is an unlawful
attempt, coupled with a present ability, to commit a violent
injury on the person of another.").
6
county jail not exceeding one year, or by a fine not
exceeding ten thousand dollars ($10,000), or by both the
fine and imprisonment.”
Cal. Penal Code § 245(a)(1)(1995).
This California Penal Code provision is sufficiently similar
to the generic contemporary definition of aggravated assault to
qualify categorically as an enumerated crime of violence. As an
initial matter, we note that the Model Penal Code's definition of
aggravated assault comprises both the traditional crime of assault
(an inchoate battery) as well as the crime of battery itself.
California, on the other hand, maintains the traditional
distinction between the crimes of battery and assault, requiring
physical contact for the former and not for the latter. See People
v. Colantuono, 865 P.2d 704, 709 (Cal. 1994). This difference does
not effect our result because the more narrow California statute is
subsumed by the broader definition in the Model Penal Code, and,
besides, on this point the California definition itself more
closely resembles the "common sense" definition of aggravated
assault. See 2 W. R. LaFave & A. Scott, Substantive Criminal Law,
§ 16.1 (2d ed. 2005) (noting that the Model Penal Code "defines
assault to include both assault . . . and battery" while arguing
that "it is more accurate to distinguish between the two separate
crimes."); Black's Law Dictionary 105 (6th ed. 1991) ("Assault.
Any willful attempt or threat to inflict injury . . . .") (emphasis
added).
7
We turn next to the two remaining differences between the
California statute and the Model Penal Code, both of which are
easily resolved. First, we note that the California statute
proscribes the use of a "deadly weapon or instrument," while the
Model Penal Code proscribes the use only of a "deadly weapon." We
need not parse and compare the definitions of these two terms, as
both are typical of aggravating factors associated with aggravated
assault. In the context of the crime of battery, for example,
Professor LaFave explains, "Often the specified aggravating factor
is . . . any weapon or, much more commonly, by what is variously
called a ‘deadly weapon,' ‘dangerous weapon,' ‘dangerous
instrumentality,' or ‘deadly weapon or dangerous instrumentality.'"
2 W. R. LaFave & A. Scott, Substantive Criminal Law, § 16.2(d) (2d
ed. 2005).
Nevertheless, the two terms, "deadly weapon" and "deadly
weapon or instrument," are in fact nearly identical in this
context. 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 to be capable of producing death or
serious bodily injury." Model Penal Code § 210.0(4). And, the
Supreme Court of California has held that, "as used in section 245,
subdivision (a)(1), a ‘deadly weapon’ is ‘any object, instrument,
or weapon which is used in such a manner as to be capable of
8
producing and likely to produce, death or great bodily injury."
People v. Aguilar, 945 P.2d 1204, 1207 (Cal. 1997) (citation
omitted). Furthermore, that same court has generally treated the
phrase "deadly weapon or instrument" as a whole, rejecting, for
example, the contention that the clause be read disjunctively. Id.
at 1209–10.
The final difference between the California statute and the
Model Penal Code is in their treatment of aggravated assault
committed without a weapon. The Model Penal Code proscribes an
attempt to cause serious bodily injury, and accordingly the mens
rea attaches to the "serious bodily injury" requirement itself.
The California statute, on the other hand, proscribes “willfully or
purposefully” attempting "violent injury" (which California defines
as "the least touching") committed by any means of force likely to
produce great bodily injury. Colantuono, 865 P.2d at 709. Thus,
in California, the defendant need not specifically intend great
bodily injury, but need only intentionally engage in conduct that
will likely produce that. Id. “The gravamen of the crime defined
by . . . section 245 is the likelihood that the force applied or
attempted to be applied will result in great bodily injury.” Id.
at 711 (internal quotation marks and emphasis omitted).
This subtle difference between the aggravating factors in
these two statutes, California's focus on the defendant's
intentional conduct in contrast to the Model Penal Code's focus on
9
the defendant's intentional result, is not enough to remove the
California statute from the family of offenses commonly known as
"aggravated assault."
Finally, although it is not alone of determinative
significance, we note that the California courts refer to section
245 as their "aggravated assault" statute. See, e.g., People v.
Turner, 36 Cal.Rptr.3d 888, 889 (Cal.App. 1 Dist. 2005); In re
Peter F., 34 Cal.Rptr.3d 52, 53 (Cal.App. 4 Dist. 2005). And,
indeed, that is obviously what it is. We hold that Sanchez's prior
California conviction pursuant to California Penal Code section
245(a)(1) is a conviction for an offense that is categorically a
crime of violence under the relevant definition provided in section
2L1.2 cmt. n.1(B)(iii) of the Sentencing Guidelines since that
California conviction falls within the common sense definition of
the enumerated offense of “aggravated assault” in its generic,
contemporary meaning. We therefore affirm the district court’s
application of a sixteen-level crime-of-violence enhancement.
II. The Acceptance of Responsibility Reduction
Sanchez-Ruedas also contends that the district court erred in
denying him a two-level reduction for acceptance of responsibility.
A district court's determination as to whether a defendant has
accepted responsibility is afforded great deference on review.
United States v. Chapa-Garza, 62 F.3d 118, 122 (5th Cir. 1995)
(citing United States v. Franks, 46 F.3d 402, 405 (5th Cir. 1995));
10
U.S.G.G. § 3E1.1 n.5. Indeed, the ruling “should not be disturbed
unless it is without foundation." United States v. Roberson, 872
F.2d 597, 610 (5th Cir. 1989). Moreover, the defendant bears the
burden of proving entitlement to a decrease in offense level for
acceptance of responsibility. United States v. Tello, 9 F.3d 1119,
1124 (5th Cir. 1993).
The relevant sentencing guideline provision, section 3E1.1,
provides for reduction of the offense level "if the defendant
clearly demonstrates acceptance of responsibility for his offense."
The commentary to that section advises that "this adjustment is not
intended to apply to a defendant who puts the government to its
burden of proof at trial by denying the essential factual elements
of guilt, is convicted, and only then admits guilt and expresses
remorse." U.S.S.G. § 3E1.1(a) cmt. n.2. This court has
accordingly only reversed a district court's denial of this award
in cases where the defendant never contested factual guilt. See,
e.g., United States v. Washington, 340 F.3d 222 (5th Cir. 2003)
(reversing where the defendant signed a confession and was
attempting only to suppress evidence).
In this case, Sanchez had a trial on the merits and a bite at
the acquittal cherry. Moreover, he was warned by both the district
court and his attorney that proceeding to trial would cost him the
very reduction he now seeks on appeal. Because there is some
foundation for the district court's ruling, we affirm the denial of
11
the reduction.5
CONCLUSION
The judgment of the district court is
AFFIRMED.
5
Sanchez also brings a constitutional challenge to 8 U.S.C.
§ 1326(b), a challenge which he acknowledges is foreclosed by
Almendarez-Torres, 523 U.S. 224, 235 (1998), and which he raises
here solely to preserve for Supreme Court review.
12