United States v. Reyes, No. 10-1400 (2d Cir. 2012)
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Defendant pleaded guilty to one count of bank robbery and the district court sentenced him as a career offender under U.S.S.G. 4B1.1(a). At issue on appeal was whether a district court could rely on a Presentence Report's (PSR) description of a defendant's pre-arrest conduct that culminated in a prior conviction to determine whether that prior conviction constituted one for a "crime of violence" under U.S.S.G. 4B1.2(a)(1), where the defendant made no objection to the PSR's description. The court held that it could not. Therefore, the court vacated the sentence imposed by the district court and remanded for further proceedings.
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10-1400-cr United States v. Reyes 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011 (Argued: March 8, 2012 Decided: August 29, 2012) Docket No. 10-1400-cr UNITED STATES OF AMERICA, Appellee, v. RAUL REYES, AKA RAOUL REYES, AKA RICO REYES, AKA PAUL REYES, AKA RAUL VASQUEZ REYES, AKA RAULI REYES, AKA JAIME COLON, AKA JAIME RODRIGUEZ, Defendant-Appellant. Before: KATZMANN, WESLEY, Circuit Judges, UNDERHILL, District Judge.* Appeal from a judgment of the United States District Court for the Southern District of New York (Preska, J.), entered on April 12, 2010, pursuant to which the defendantappellant was sentenced to a term of imprisonment of 188 months. VACATED and REMANDED. * The Honorable Stefan R. Underhill, United States District Judge for the District of Connecticut, sitting by designation. Page 1 of 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 MARY ANNE WIRTH, Bleakley Platt & Schmidt, LLP, White Plains, NY, for Defendant-Appellant. JENNIFER E. BURNS, Assistant United States Attorney (Justin Anderson, Assistant United States Attorney, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY. PER CURIAM: Defendant-Appellant Raul Reyes pleaded guilty to one 17 count of bank robbery in violation of 18 U.S.C. § 2113. 18 district court sentenced Reyes as a career offender under 19 United States Sentencing Guideline ( U.S.S.G. or 20 Guidelines ) § 4B1.1(a). 21 district court adopted inconsistent findings in the 22 Probation Department s Presentence Report ( PSR ) regarding 23 Reyes s prior convictions. 24 first impression in our Circuit whether a district court may 25 rely on a PSR s description of a defendant s pre-arrest 26 conduct that culminated in a prior conviction to determine 27 whether that prior conviction constitutes one for a crime 28 of violence under U.S.S.G. § 4B1.2(a)(1), where the 29 defendant makes no objection to the PSR s description. The In doing so, however, the This case raises an issue of Page 2 of 18 We 1 hold that it may not. 2 imposed by the district court and remand for proceedings 3 consistent with this opinion. We therefore vacate the sentence 4 Background 5 The facts are largely undisputed. On July 28, 2008, 6 Reyes robbed a bank in Manhattan. 7 employee with what appeared to be an explosive device, Reyes 8 absconded with approximately $14,000. 9 of a plea agreement, Reyes pleaded guilty to one count of 10 bank robbery in violation of 18 U.S.C. § 2113(a) and (d). 11 After threatening an Without the benefit Shortly before Reyes pleaded guilty, the government 12 submitted a letter pursuant to United States v. Pimentel, 13 932 F.2d 1029, 1034 (2d Cir. 1991). 14 the government s position on the application of the 15 Guidelines to Reyes s case. 16 government stated that, in its view, Reyes was a career 17 offender under U.S.S.G. § 4B1.1(a) because he had been 18 convicted of two previous crimes of violence battery on a 19 law enforcement officer in violation of Florida Statute 20 section 784.07, and robbery in violation of Florida Statute 21 section 812.13. 22 prior crimes of violence and facing a charge that carried a That letter outlined As relevant here, the As a career offender convicted of two Page 3 of 18 1 maximum of 25 years imprisonment, Reyes would have his 2 offense level elevated to level 34. 3 reduction for acceptance of responsibility under U.S.S.G. 4 § 3E1.1 and that Reyes would be placed in Criminal History 5 Category VI, the government advocated for a Guidelines range 6 of 188 to 235 months imprisonment. 7 Contemplating a 3-level The Probation Department prepared a PSR in advance of 8 Reyes s sentencing. 9 the government s Pimentel letter and its conclusion that The PSR begins by correctly summarizing 10 Reyes was a career offender under U.S.S.G. § 4B1.1. 11 paragraph 47 of the report, however, the PSR states 12 inarticulately that Reyes was a career offender because he 13 had at least two prior felony convictions of either a crime 14 of violence. 15 states that Reyes is a career offender under the Guidelines 16 because he has prior felony convictions involving a crime 17 of violence and a controlled substance offense. 18 The PSR later repeats this statement in its recommendation 19 section. 20 PSR ¶ 47. In Then, in paragraph 86, the PSR PSR ¶ 86. Although the PSR never explicitly identifies the prior 21 convictions on which it relies to classify Reyes as a career 22 offender, it lists the following, among several other Page 4 of 18 1 convictions, in detailing Reyes s criminal history: (1) a 2 January 2009 conviction in Puerto Rico for a controlled 3 substance offense ; (2) a May 2005 Florida conviction for 4 robbery; and (3) a May 2005 Florida conviction for battery 5 on a law enforcement officer. 6 description of the conduct underlying Reyes s 2005 battery 7 conviction. 8 was detained at Falkenburg Road Jail when he caused a 9 disturbance in the pod. The PSR also provides a It states, On March 19, 2004, the defendant A detention deputy responded and 10 spoke with the defendant. 11 deputy in the nose with a closed fist. 12 does not provide the source of this information. 13 The defendant then struck the PSR ¶ 73. The PSR On April 7, 2010, Reyes appeared before the district 14 court for sentencing. 15 counsel did not object to the facts contained in the PSR, 16 the PSR s classification of Reyes as a career offender, or 17 the PSR s calculation of the Guidelines range. 18 the sentencing hearing, Reyes s counsel noted that he had 19 [n]o objections to the facts or the [G]uidelines 20 calculations set forth in the PSR. 21 absence of an objection, the district court accepted the 22 PSR s findings, including those that contained inaccuracies In his sentencing memorandum, Reyes s Page 5 of 18 App. 47. Indeed, at In the 1 and inconsistencies regarding which crimes served as 2 predicates for the career offender enhancement. 3 The government noted that Reyes had a very long and 4 very violent criminal history and highlighted for the 5 district court a number of Reyes s prior offenses, including 6 both his 2005 robbery conviction and his 2005 conviction for 7 battery on a law enforcement officer. 8 district court then sentenced Reyes to 188 months 9 incarceration. App. 50. The The court characterized Reyes s very 10 lengthy and very violent criminal history as the driving 11 force behind the sentence. 12 did not, however, specifically discuss Reyes s status as a 13 career offender. 14 App. 52. The district court Reyes timely appealed the district court s judgment. 15 In January 2011, Reyes filed an appellate brief in this 16 Court. 17 committed plain error in adopting the PSR s conclusions 18 regarding his status as a career offender under U.S.S.G. 19 § 4B1.1. 20 a prior conviction for a controlled substance offense that 21 counts towards his classification as a career offender;(2) 22 under the Supreme Court s decision in Johnson v. United In his brief, he claims that the district court Specifically, he argues that (1) he does not have Page 6 of 18 1 States, 130 S. Ct. 1265 (2010), a Florida battery conviction 2 does not necessarily constitute a crime of violence ; and 3 (3) there was insufficient evidence in the record to 4 determine whether his particular battery conviction 5 constituted a conviction for a crime of violence. 6 support of the latter point, Reyes contends that the 7 district court was not entitled to rely on the PSR s 8 uncontested description of his pre-arrest conduct that 9 resulted in his conviction for battery of a law enforcement In 10 officer to determine whether the battery was a crime of 11 violence. 12 in United States v. Rosa, 507 F.3d 142, 156 (2d Cir. 2007). 13 In April 2011, the government moved to remand for He notes that this Court left open that question 14 resentencing in light of Johnson. 15 rebuffed the government s request. 16 government to file a brief addressing 17 18 19 20 21 22 23 24 25 26 27 28 A panel of this Court The panel directed the (1) whether Reyes s failure to object to the facts contained in his [PSR] describing the offense conduct underlying his prior conviction for battery of a law enforcement officer constituted an admission of those facts; (2) whether a sentencing court may use such an admission to find that a prior offense constitutes a crime of violence under U.S.S.G. § 4B1.2(a)(1); and (3) if so, whether the district court committed plain error in adopting the PSR s conclusion that Reyes qualified as a career offender. Page 7 of 18 1 United States v. Reyes, No. 10-1400-cr (2d Cir. Aug. 2, 2 2011) (motion order). 3 government argues that vacatur of Reyes s sentence is 4 inappropriate and that his sentence should be affirmed. Following our directive, the 5 6 Discussion Because Reyes failed to object below to his 7 classification as a career offender under U.S.S.G. § 4B1.1, 8 we review his classification as such for plain error only. 9 See United States v. Morris, 350 F.3d 32, 36 (2d Cir. 2003). 10 Plain error exists where (1) the district court committed 11 error; (2) the error is plain; (3) the error affects the 12 defendant s substantial rights; and (4) the error seriously 13 affects the fairness, integrity or public reputation of 14 judicial proceedings. 15 608, 612 (2d Cir. 2011). 16 17 18 19 20 21 22 23 24 25 26 27 United States v. Greer, 631 F.3d Pursuant to U.S.S.G. § 4B1.1(a), a defendant is a career offender if: (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior convictions of either a crime of violence or a controlled substance offense. Page 8 of 18 1 As is relevant here, the Guidelines define a crime of 2 violence as an offense punishable by imprisonment exceeding 3 one year that has as an element the use, attempted use, or 4 threatened use of physical force against the person of 5 another. 6 convictions must be sustained prior to the defendant 7 committing the offense for which he is being sentenced. 8 U.S.S.G. § 4B1.2(c). 9 U.S.S.G. § 4B1.2(a)(1). The crime of violence Here, the district court committed an error that was 10 plain it adopted findings in the PSR that conclude that 11 Reyes is a career offender because he has convictions for 12 both a crime of violence and a controlled substance offense. 13 PSR ¶ 86. 14 after he committed the instant offense. 15 conviction was not a proper predicate offense for the 16 application of the career offender enhancement. 17 U.S.S.G. § 4B1.2(c). 18 Reyes sustained the controlled substance offense Therefore, that See But to prevail on plain error review, Reyes must do 19 more than show that the district court committed an obvious 20 error. 21 his substantial rights i.e., that it affected the outcome 22 of the district court proceedings. He must further demonstrate that the error affected Page 9 of 18 United States v. 1 Marcus, 628 F.3d 36, 42 (2d Cir. 2010) (internal quotation 2 marks omitted). 3 Florida conviction for battery on a law enforcement officer 4 constitutes a conviction for a crime of violence under the 5 Guidelines. 6 sentencing court may rely on a PSR s uncontested description 7 of Reyes s pre-arrest conduct that resulted in his prior 8 conviction for battery on a law enforcement officer to 9 decide that the prior conviction is one for a crime of That decision turns on whether Reyes s 2005 And that inquiry is determined by whether a 10 violence under U.S.S.G. § 4B1.2(a)(1). 11 12 13 not. 14 committed on a law enforcement officer. 15 occurs when a person (1) [a]ctually and intentionally 16 touches . . . another person against the will of the other ; 17 (2) intentionally . . . strikes another person against the 18 will of the other ; or (3) [i]ntentionally causes bodily 19 harm to another person. 20 slightest unwanted intentional physical contact constitutes 21 battery under Florida law. 22 (citing State v. Hearns, 961 So.2d 211, 218 (Fla. 2007)). 23 Therefore, battery on a law enforcement officer, if We hold that it may Florida Statute section 784.07 criminalizes battery In Florida, battery Fla. Stat. § 784.03(1)(a). The Johnson, 130 S. Ct. at 1269-70 Page 10 of 18 1 accomplished only by actually and intentionally 2 touch[ing], does not constitute a crime of violence under 3 U.S.S.G. § 4B1.2 because it does not involve the use of 4 physical force, as that phrase is interpreted by the 5 Supreme Court. 6 Id. at 1269-73.1 To ascertain whether Reyes s conviction for battery on 7 a law enforcement officer constitutes a conviction for a 8 crime of violence, we employ a two-step modified 9 categorical approach. See Walker, 595 F.3d at 443; United 10 States v. Savage, 542 F.3d 959, 964 (2d Cir. 2008). 11 first step requires the court to determine whether the 12 statute of the prior conviction criminalizes conduct that 13 falls exclusively within the Guidelines definition of 14 crime of violence. 15 the inquiry ends. 16 criminalizes conduct that does not fall within the See Savage, 542 F.3d at 964. The If so, But if the statute of conviction also 1 Johnson dealt with sentence enhancements under the Armed Career Criminal Act ( ACCA ). The ACCA s definition of violent felony is identical in all material respects to U.S.S.G § 4B1.2(a) s definition of crime of violence. See United States v. Walker, 595 F.3d 441, 443 n.1 (2d Cir. 2010); United States v. Palmer, 68 F.3d 52, 55 (2d Cir. 1995). Therefore, cases interpreting the ACCA s definition of violent felony are highly persuasive in interpreting the Guidelines definition of crime of violence. Walker, 595 F.3d at 443 n.1. Many of the cases cited in this opinion deal with the ACCA, not the Guidelines. Page 11 of 18 1 Guidelines definition of a crime of violence, the 2 government must demonstrate that the conviction 3 necessarily rested on facts identifying the conviction as 4 one for a crime of violence. 5 (internal quotation marks omitted). 6 Walker, 595 F.3d at 444 When a court is required to look beyond the statutory 7 definition of a prior offense to determine whether it 8 constitutes a crime of violence, its inquiry is 9 circumscribed. Generally, a sentencing court must limit 10 itself to examining the statutory definition, charging 11 document, written plea agreement, transcript of plea 12 colloquy, and any explicit factual finding by the trial 13 judge to which the defendant assented. 14 States, 544 U.S. 13, 16 (2005); see Johnson, 130 S. Ct. at 15 1273. 16 inquiry is driven by U.S.S.G. § 4B1.1(a) s focus on the 17 defendant s prior conviction, rather than the conduct 18 underlying the conviction, as well as a need to avoid 19 collateral trials. 20 575, 600-01 (1990) (analyzing nearly identical language in 21 the ACCA); see also Shepard, 544 U.S. at 23 (same). 22 critical issue is whether the judicial record of the Shepard v. United This general limitation on the sentencing court s See Taylor v. United States, 495 U.S. Page 12 of 18 [T]he 1 defendant s prior conviction establishes that his guilty 2 plea necessarily admitted [facts demonstrating that his 3 conviction was for a crime of violence]. 4 Baker, 665 F.3d 51, 56 (2d Cir. 2012) (quoting Shepard, 544 5 U.S. at 26) (brackets in original). 6 United States v. The problem here is that the government submitted no 7 evidence demonstrating that Reyes s conviction for battery 8 on a law enforcement officer under Florida Statute section 9 784.07 necessarily rested on anything but the slightest 10 unwanted physical contact. 11 but seeks safe harbor in the defendant s failure to object 12 to the PSR s description of Reyes s pre-arrest conduct that 13 culminated in his conviction for battery of a law 14 enforcement officer. 15 source of its information that Reyes struck a detention 16 deputy in the face with a closed fist while incarcerated at 17 the Falkenburg Road Jail in Florida. 18 that because Reyes failed to object to that description, he 19 admitted facts that establish that his battery offense 20 involved the use of physical force and thus constituted a 21 crime of violence under U.S.S.G. § 4B1.2(a). The government admits as much, The PSR states without providing the 22 23 Page 13 of 18 The government argues 1 As a general matter, reliance on a federal PSR s 2 factual description of a defendant s pre-arrest conduct to 3 determine whether a prior offense constitutes a crime of 4 violence under U.S.S.G. § 4B1.2(a)(1) is prohibited. 5 Rosa, 507 F.3d at 156; Palmer, 68 F.3d at 59. 6 because a current presentence report prepared for a 7 sentencing court presented with the enhancement issue would 8 ordinarily be a surrogate for the elaborate factfinding 9 process regarding the defendant s prior offenses that was See This is 10 criticized in Taylor. 11 quotation marks omitted) (emphasis removed). 12 United States v. Rosa, this Court left open the question of 13 whether a sentencing court may look to a PSR prepared for 14 that case to determine the underlying facts of a previous 15 conviction when the defendant fails to object to the PSR s 16 findings in order to ascertain whether a defendant s prior 17 offense constituted a crime of violence. 18 156.2 Palmer, 68 F.3d at 59 (internal However, in 507 F.3d at 19 2 Rosa is an ACCA case, and thus the Rosa court was tasked with determining whether a prior offense constituted a violent felony, not a crime of violence. However, as noted in footnote 1, the ACCA s definition of violent felony and U.S.S.G. § 4B1.2(a) s definition of crime of violence are identical in all material respects. Page 14 of 18 1 The government urges us to hold that such reliance is 2 proper. 3 that uncontested descriptions of the circumstances 4 underlying prior convictions found in a PSR are similar to 5 the sources enumerated by the Shepard Court. 6 out that use of those descriptions does not implicate the 7 collateral trial or fairness concerns that animate the 8 limits inherent in the modified categorical approach. 9 Further, the government claims that reliance on an In support of its argument, the government contends It also points 10 uncontested portion of the PSR is permissible because it is 11 well established that undisputed portions of the PSR may be 12 accepted as fact by a sentencing court. 13 We have little trouble concluding that a sentencing 14 court may not rely on a PSR s description of a defendant s 15 pre-arrest conduct that resulted in a prior conviction to 16 determine that the prior offense constitutes a crime of 17 violence under U.S.S.G. § 4B1.2(a)(1), even where the 18 defendant does not object to the PSR s description. 19 true, as the government notes, that collateral trial 20 concerns are not implicated by that reliance. 21 collateral trial concerns are not the only concerns 22 animating the modified categorical approach. Page 15 of 18 It is But U.S.S.G. 1 § 4B1.1's language clearly focuses on the defendant s 2 conviction, not the defendant s conduct in a particular 3 case. 4 identical language in the ACCA). See Taylor, 495 U.S. at 600-01 (interpreting nearly 5 It is impossible on this record to know whether Reyes s 6 conviction necessarily rested on the intentionally strikes 7 or intentionally causes bodily harm prongs rather than the 8 intentionally touches prong of the battery statute. 9 most, the PSR s description tells us what Reyes did, not the At 10 specific provision of the Florida statute for which he was 11 convicted. 12 in the face, he could have pleaded guilty to battery on a 13 law enforcement officer by simply admitting that he touched 14 the corrections officer in an unwanted manner. 15 the case, the conviction would rest on facts not involving 16 the use of physical force and thus the offense would not 17 be a crime of violence under the Guidelines. 18 130 S. Ct. at 1269-73. 19 PSR s uncontested description of pre-arrest conduct that 20 resulted in a defendant s prior conviction to determine 21 whether that prior conviction constitutes one for a crime of 22 violence is improper. Even if Reyes did punch the corrections officer If that were See Johnson, For this reason, reliance on the Page 16 of 18 1 The district court s error in sentencing Reyes as a 2 career offender on this record affected his substantial 3 rights because it resulted in an elevated offense level 4 under the Guidelines. 5 by the district court and remand for proceedings consistent 6 with this opinion. 7 provide the government with an opportunity to introduce 8 evidence demonstrating that Reyes s battery conviction was a 9 crime of violence under U.S.S.G. § 4B1.2(a).3 We must vacate the sentence imposed On remand, the district court shall 10 3 The easiest way, and the only one explicitly approved by our case law, for the government to prove the nature of Reyes s prior battery conviction on remand is to use Shepard-approved sources. We leave for another day the question of whether Shepard-approved sources are the only kinds of evidence that may be introduced for such a purpose, or whether the parties may stipulate (either explicitly or by failing to object) to the nature of a prior conviction for Guidelines purposes. See, e.g., United States v. Aviles-Solarzano, 623 F.3d 470, 475 (7th Cir. 2010) (suggesting that parties may stipulate to the nature of a defendant s prior conviction for Guidelines purposes). In the event that the government is unable to establish that the career offender enhancement under U.S.S.G. § 4B1.1(a) is warranted (and thus Reyes s offense level is not automatically elevated to level 34), we note that the PSR incorrectly applied separate enhancements under U.S.S.G. § 2B3.1(b)(2)(E) for brandishing a dangerous weapon and U.S.S.G. § 2B3.1(b)(2)(F) for making a death threat during the offense. Only one enhancement under U.S.S.G. § 2B3.1(b)(2) may be employed. See United States v. Triplett, 104 F.3d 1074, 1082 (8th Cir. 1997); United States v. Farrier, 948 F.2d 1125, 1127 (9th Cir. 1991); see also United States v. Murray, No. 97-6735, 1999 WL 187192, at *4 (4th Cir. Apr. 6, 1999) (unpublished). Page 17 of 18 1 A final point. Although a sentencing court may not 2 rely on a PSR s description of pre-arrest conduct that 3 resulted in a prior conviction to determine whether that 4 prior conviction constitutes a crime of violence under the 5 Guidelines, a sentencing court can consider that conduct 6 under 18 U.S.C. § 3553(a) when fashioning the defendant s 7 sentence. 8 characteristics of the defendant. Such conduct may be probative of the history and 9 10 18 U.S.C. § 3553(a). Conclusion The district court s judgment of April 12, 2010, which 11 sentenced the defendant to 188 months imprisonment, is 12 hereby VACATED. 13 proceedings consistent with this opinion. The case is REMANDED for resentencing Page 18 of 18
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