APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Carmen Consuelo Cerezo, U.S. District Judge.
Raul S. Mariani-Franco for appellant.
Francisco A. Besosa-Martí nez, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, were on brief, for appellee.
Before Thompson, Lipez, and Barron, Circuit Judges. LIPEZ, Circuit Judge, concurring.
BARRON, Circuit Judge.
Wilson Serrano-Mercado contends the District Court made two mistakes in sentencing him for a federal gun crime. First, he argues the District Court erred in counting more than one of his prior convictions for Puerto Rico criminal offenses as a conviction for a " crime of violence" under the Sentencing Guidelines. Second, he contends the District Court gave too much significance under those same guidelines to the existence of an obliterated serial number on the frame of the firearm he was convicted of possessing, when the serial number on the slide was unaltered. We hold the District Court did not commit reversible error in either respect and thus affirm the sentence imposed.
In District Court, Serrano pled guilty to being a felon in knowing possession of a firearm -- a 9mm pistol. 18 U.S.C. § § 922(g)(1), 924(a)(2). The Sentencing Guidelines specify a suggested sentencing range for such a conviction. U.S.S.G. § § 2K2.1, 5A. Serrano rests his challenge to his sentence on the two errors that he
claims the District Court made in identifying the proper range. And thus, it is helpful to provide some background about how, in general, such ranges are identified, and then how, in particular, the range was identified here.
Under the guidelines, two variables provide the basis for the sentencing range. The first variable is called the offense level. It is expressed in terms of a point score. Id. § 5A. The score is a function, initially, of what is known as the base offense level. Id. § 2 introductory cmt. The base offense level is generally calculated with reference to the nature of the crime of conviction. The guidelines then add points to or subtract points from the base offense level for various enhancing or mitigating factors that may or may not be present in a defendant's case. The result is the total offense level.
The second variable is a defendant's criminal history category. Id. § 5A. The guidelines assign criminal sentences certain point values. Id. § 4A1.1. These points are then translated into one of six criminal history categories, represented by the use of a Roman numeral from I to VI. Id. § 5A. The more severe the criminal history a defendant has on the basis of the points assigned, the higher the category.
On the basis of these two variables, the guidelines then set forth suggested sentencing ranges in a chart. Id. One axis of the chart lists possible total offense levels. The other axis lists possible criminal history categories. At the intersection of every possible value for these two variables, the chart sets forth a suggested range of sentences.
Before actually imposing a sentence, a district court often receives input from various actors about how to calculate the defendant's guidelines sentencing range. If there is a plea agreement, as there was here, the agreement will often recommend a range. And, in setting forth that recommendation, the agreement will often set forth certain facts that bear on the calculation of the base offense level, the total offense level, and the criminal history category. See Fed. R. Crim. P. 11(c)(1).
The district court will also have the benefit -- as, again, was true here -- of a probation officer's pre-sentence report, which is based on that officer's investigation. That report, too, will set forth facts bearing on the sentencing guidelines calculation. And that report may, in light of those facts, suggest a calculation different from the plea agreement. See Fed. R. Crim. P. 32(d).
The district court need not accept the calculations in the plea agreement or the pre-sentence report. Nor must the district court choose a sentence that falls within the range the district court's own guidelines calculation yields, though the sentence must comply with additional substantive and procedural limitations. See 18 U.S.C. § 3553; United States v. Booker, 543 U.S. 220, 245, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). But if the district court errs in making the guidelines calculation, the sentence may be reversed even though that calculation does not directly compel the sentence.
See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Tavares, 705 F.3d 4, 25 (1st Cir. 2013). And that is what Serrano argues must happen here.
In this case, the plea agreement recommended a sentencing range tied to a base offense level of 22. The agreement made that calculation because it stated that Serrano had been convicted of one prior felony for a " crime of violence" at the time of his unlawful firearm possession. U.S.S.G. § § 2K2.1(a)(3), 4B1.2(a). The plea agreement did not identify any of Serrano's prior convictions. The plea agreement thus
did not specify which one qualified as the crime of violence that warranted that base offense level of 22. The plea agreement's calculation also did not include a four-point increase under the guidelines' enhancement that applies when the firearm involved in a felon-in-possession charge has " an altered or obliterated serial number." Id. § 2K2.1(b)(4).
The probation officer's pre-sentence report, as amended, departed from the plea agreement's guidelines calculation. And it did so in two respects.
First, the amended pre-sentence report suggested a base offense level of 24, rather than 22. The report used that higher base offense level because it stated that Serrano actually had more than one prior felony conviction for a " crime of violence." Id. § § 2K2.1(a)(2), 4B1.2(a). The report did not expressly identify which of Serrano's prior convictions qualified as a crime of violence. The report thus did not identify the ones the report relied upon in setting the base offense level at 24.
The report did list, however, a number of prior convictions for Serrano. These convictions included a 2006 Puerto Rico conviction for assault that the parties both appear to agree does qualify as a conviction for a crime of violence. These convictions also included a 2005 Puerto Rico conviction under Article 3.1 of Law 54, Puerto Rico's Domestic Abuse Prevention and Intervention Act, P.R. Laws Ann. tit. 8, § 631, which the government on appeal now contends also qualifies but which Serrano argues does not. And, finally, the list included an earlier 2004 conviction that the government does not argue qualifies.
The second respect in which the pre-sentence report differed from the plea agreement concerned the serial-number enhancement. Unlike the plea agreement, the report concluded the enhancement did apply. The report thus increased its calculation of the total offense level by four points. U.S.S.G. § 2K2.1(b)(4).
The District Court adopted the pre-sentence report's recommendations regarding the guidelines calculation. The District Court stated Serrano had " two domestic violence convictions and one assault conviction which meet the guidelines criteria for crimes of violence." The District Court thus started from a base offense level of 24 because it had found, contrary to the representation in the plea agreement, that Serrano had been convicted of more than one offense that qualified as a crime of violence. The District Court then applied the four-point serial-number enhancement. Finally, and consistent with the plea agreement and the pre-sentence report, the District Court subtracted three points for the defendant's acceptance of responsibility, U.S.S.G. § 3E1.1 cmt. 3, due to the plea.
The District Court thus arrived at a total offense level of 25. The District Court also determined Serrano had a criminal history category of V. These calculations then combined to set Serrano's guidelines sentencing range between 100 and 125 months. The District Court imposed a sentence at the lower bound of that range: 100 months.
On appeal, Serrano argues for the first time that his base offense level should have been 22, not 24. He contends that
the lower base offense level is the right one because his 2006 felony conviction for assault is the only one of his prior convictions that qualifies as a crime of violence under the guidelines. Serrano also argues, as he did below, that the serial-number enhancement cannot apply because even though one serial number on the gun's frame was obliterated, another serial number on the slide remained unaltered. For that reason, he contends the District Court erred in adding four points to his total offense level.
If the District Court had used a base offense level of 22 and had not applied the serial-number enhancement, then, after the deduction for acceptance of responsibility, Serrano's total offense level would have been 19. With his criminal history category of V, his guidelines sentencing range would have been 57 to 71 months in prison. U.S.S.G. § 5A. Under the District Court's actual guideline calculation, by contrast, the range was 100- to 125-months.
Serrano's first challenge is to the District Court's conclusion that his base offense level was 24 because he had two prior felony convictions that counted under the guidelines as convictions for a " crime of violence." We start by describing how we usually decide whether a prior conviction is for a crime of violence. We then explain the problem with using that same approach here, given Serrano's failure to preserve the argument by properly raising it below.
Ordinarily, we use what the precedents call a " categorical approach" to decide if a defendant's prior felony conviction was for a crime of violence. United States v. Jonas, 689 F.3d 83, 86 (1st Cir. 2012). Under this approach, the conviction counts as one for a crime of violence if the elements of the conviction fit the guidelines' definition of a crime of violence. Id. at 86-87. Otherwise, the conviction does not count, no matter what the facts show the defendant actually did in committing the crime -- even, that is, if those facts show he acted violently. Id. at 86.
This focus on the elements of the conviction -- rather than the underlying conduct -- fits with the text of the Sentencing Guidelines, which makes the base offense level for the felon-in-possession offense turn on prior " convictions of . . . a crime of violence," not on prior conduct. U.S.S.G. 2K2.1(a)(2),(3) (emphasis added);
see Descamps v. United States, 133 S.Ct. 2276, 2287, 186 L.Ed.2d 438
(2013). And this approach also ensures present sentences are not based on documents that could be quite old, might be uncertain or disputed, and may contain factual allegations the defendant did not contest at the time for any of a number of reasons unrelated to the accuracy of the allegations. Descamps, 133 S.Ct. at 2289.
In some cases, though, this categorical approach runs into a potential obstacle. That obstacle arises when the conviction is for a crime set forth in a statute that is " divisible." A divisible statute is one that " sets out one or more elements of the offense in the alternative -- for example, stating that burglary involves entry into a building or an automobile." Id. at 2281. The problem such a statute poses is that these alternative elements may create distinct offenses, each of which may or may not itself be a crime of violence.
To deal with this wrinkle, we employ what the precedents call -- not surprisingly -- a " modified categorical approach." Under this approach, we look to limited materials, often called Shepard documents, from the convicting court, such as charging documents, plea agreements, plea colloquies, and jury instructions. Id. at 2281, 2284 (relying on Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). We do so not to determine the conduct the defendant engaged in while committing an offense, as such conduct is of no relevance. We instead inspect these materials in order to identify (if such identification is possible) the actual offense of conviction from among the distinct offenses set forth in a divisible statute. Id. at 2281.
Once we identify the distinct offense of conviction by consulting the materials, we then return to the categorical approach. We consider whether the elements of that distinct offense meet the definition of a " crime of violence."
All of which brings us to the final stage in this process: the analysis of how the elements of the offense of conviction match up with the guidelines' definition of a " crime of violence." A conviction for an offense qualifies as a conviction for a crime of violence if the elements of the underlying offense satisfy either (or both) of two clauses set forth in the relevant guideline and that offense is punishable by more than a year in prison. U.S.S.G. § 4B1.2(a); see also U.S.S.G. § 2K2.1 cmt. 1 (cross-referencing the definition in § 4B1.2 to determine the base offense level of the felon-in-possession crime).
The guideline's first clause provides that a crime of violence is " any offense under federal or state 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. § 4B1.2(a)(1). This so-called " force clause" requires that the offense of conviction include as an element " violent force," that is, " force capable of causing physical pain or injury to another person." Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). If the offense of conviction does not involve the " use, attempted use, or threatened use" of such violent physical force -- as may be the case with an offense of common-law battery, whose force element can " be satisfied by even the slightest offensive touching" -- then that offense does not meet the requirements of the force clause. Id. at 139.
The guideline's second clause provides that a prior felony conviction qualifies as a crime of violence if it is for " any offense under federal or state law . . . that . . . is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2). Even if an offense does not fall under the force clause, therefore, that offense qualifies as a crime of violence if it matches one of these enumerated crimes or otherwise satisfies the requirements of the guideline's so-called " residual clause."
In applying this framework, we begin by noting the parties agree that Serrano's 2006 conviction for assault under Puerto Rico law does count as a conviction for a crime of violence. We also note that Serrano does not dispute that the District Court counted the 2005 conviction for domestic violence under Article 3.1 in finding that Serrano had more than one conviction for a crime of violence. Serrano's challenge to the District Court's use of the base offense level of 24 can succeed, therefore, only if Serrano can show the District Court erred in counting that Article 3.1 ...