Medina-Anicacio appeals his enhanced sentence pursuant to his violation of 8 U.S.C. § 1326(a)-(b)(2), illegal reentry subsequent to an aggravated felony conviction, arguing that: (1) possession of a deadly weapon is not an aggravated felony under the federal sentencing guidelines; and (2) his sentence should have been reduced for acceptance of responsibility. We affirm in part, and reverse and remand in part.
I. FACTS AND PROCEEDINGS
On April 4, 2001, United States Border Patrol agents apprehended Santiago Medina-Anicacio ("Medina") as he was walking west of the Border Patrol checkpoint near Freer, Texas. Medina admitted to agents that he was a Mexican citizen, that he did not have documents allowing him to enter and remain in the United States, and that he had entered the United States by crossing International Bridge No. 2 in Laredo, Texas, with a group of tourists. An investigation revealed that Medina had previously been ordered removed from the United States on February 3, 1998, following the revocation of his probation and the imposition of a 16-month sentence in the Superior Court of California, Los Angeles County, for the felony offense of possession of a deadly weapon. The weapon was an adjustable dagger that was found during a pat down of Medina's person.
The government charged Medina by a three-count indictment with, inter alia, being illegally present in the United States after deportation subsequent to an aggravated felony conviction. Medina entered a plea of guilty. After his guilty plea, the U.S. Probation Office prepared a pre-sentence investigation report ("PSR"), which calculated Medina's base offense level at eight. Because of Medina's California felony conviction for possession of a deadly weapon, which the Probation Office determined to be an aggravated felony, the Probation Office added sixteen points to his offense level pursuant to United States Sentencing Guidelines ("U.S.S.G.") § 2L1.2(b)(1)(A). The Probation Office declined to adjust Medina's offense level downward under U.S.S.G. § 3E1.1, because Medina had not accepted responsibility for the offense to the probation officer.
Medina filed a written objection to the PSR on the ground that possession of a deadly weapon was not an aggravated felony. Medina also objected on the ground that the court should sentence him under the proposed version of the sentencing guidelines that was to go into effect on November 1, 2001. He argued that under the 2001 version, only an eight-level increase was appropriate for his prior conviction. Medina only raised the "proposed guidelines" argument at the sentencing hearing. The district court overruled the objection and sentenced him to 100 months in prison and a three-year term of supervised release. Medina filed a timely notice of appeal, and argues that: (1) possession of a deadly weapon is not an aggravated felony under the federal sentencing guidelines; and (2) his sentence should have been reduced for acceptance of responsibility.
A. Preservation of the Aggravated Felony Issue for Appeal
As an initial matter, we must determine whether Medina preserved for appeal his claim that the district court erred in finding that his prior conviction for the California concealed dagger offense is a conviction for a "crime of violence" qualifying as an "aggravated felony" under § 2L1.2 of the 2000 sentencing guidelines. Medina's written objection to the PSR stated:
(emphasis added). At sentencing, Medina's counsel renewed his objections:
The court overruled Medina's objections, but did not specifically address whether Medina's concealed dagger offense qualifies as an "aggravated felony" under § 2L1.2 of the 2000 sentencing guidelines.
The Government now argues that Medina effectively waived his "aggravated felony" claim of error by arguing in the district court that he should receive only an eight-level increase
Preliminarily, we must decide whether Medina's counsel stated his objection to the PSR clearly enough to allow the district court an opportunity to rule on his objection that the California concealed dagger offense is not an "aggravated felony". Medina's written objection to the PSR claimed that Medina's concealed dagger offense was "not an aggravated felony," and Medina's counsel renewed, although clumsily, this claim of error at sentencing by stating that "we believe this [sentence] is once again an over-representation of [Medina's] criminal history." Even if Medina's counsel had not renewed the objection at the sentencing hearing, once a party raises an objection in writing, if he subsequently fails to lodge an oral on-the-record objection, the error is nevertheless preserved for appeal. Bender v. Brumley, 1 F.3d 271, 277 (5th Cir. 1993). Consequently, we conclude that Medina's objection was clear enough to provide the district court with opportunity to rule on it.
The Government contends that Medina conceded that his prior felony conviction constituted an aggravated felony by arguing that the proposed 2001 version of the sentencing guidelines should have applied. Although Medina contended that possession of a deadly weapon was not an
Generally, this Court reviews the district court's application of the Sentencing Guidelines de novo and its findings of fact for clear error. United States v. Landeros-Arreola, 260 F.3d 407, 410 (5th Cir.2001); United States v. Salter, 241 F.3d 392, 394 (5th Cir.2001). Arguments raised for the first time on appeal are subject to the plain error standard. Salter, 241 F.3d at 394. When a defendant objects to his sentence on grounds different from those raised on appeal, we review the new arguments raised on appeal for plain error only. See United States v. Cabral-Castillo, 35 F.3d 182, 188-89 (5th Cir.1994).
Here, Medina's written objection to the PSR clearly stated his position that his concealed dagger offense was "not an `aggravated felony'" under the proposed 2001 version of the sentencing guidelines. Because the 2000 and 2001 versions of the guidelines both incorporate § 1101(a)(43)'s definition of "aggravated felony", Medina has raised the issue of whether his concealed dagger offense is an "aggravated felony" within the meaning of 8 U.S.C. § 1101(a)(43). Moreover, the addendum to the PSR specifically addressed Medina's objection, stating that "Possession of a Deadly Weapon is an aggravated felony by definition," and that "Possession of a Deadly Weapon meets the definition of `crime of violence' since possessing the weapon creates a substantial risk of physical force against the person or property of another." The district court, therefore, considered whether Medina's concealed dagger offense constituted an "aggravated felony" under 8 U.S.C. § 1101(a)(43). Medina's request for an eight-level increase is more properly construed as an argument in the alternative: if the court were to find that the prior California conviction was an aggravated felony, then Medina argued that it should only result in an eight-level increase under the 2001 sentencing guidelines instead of a 16-level increase under the 2000 sentencing guidelines. Accordingly, we review the district court's resolution of the "aggravated felony" issue de novo.
B. Possession of a Deadly Weapon as an Aggravated Felony
On appeal, Medina contends that the district court erred in concluding that his conviction for possession of a deadly weapon was an aggravated felony.
Section 2L1.2 of the 2000 sentencing guidelines incorporates 8 U.S.C. § 1101(a)(43)'s definition of "aggravated felony." Section 1101(a)(43) lists multiple acts that constitute "aggravated felonies," including "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment at [sic] least one year." 8
18 U.S.C. § 16. The district court accepted the PSR's conclusion that Medina's conviction for the concealed dagger offense qualifies as a prior conviction for a crime of violence.
Medina argues that to be an aggravated felony, possession of a deadly weapon would have to constitute a crime of violence under 8 U.S.C. § 1101(a)(43). See U.S.S.G. § 2L1.2, comment n. 1. Because California law only requires that the offender knowingly possess and conceal the weapon, Medina argues that possession of a deadly weapon is: (1) not a crime of violence because it does not have as an element the use, attempted use or threatened use of physical force against the person or property of another; and (2) the crime, by its nature, does not present a substantial risk that the perpetrator will intentionally use force against the person or property of another in the course of perpetrating the offense. See 18 U.S.C. § 16.
We agree with Medina that the California concealed dagger offense is not a crime of violence under § 16(a), because it does not have as an element the "use, attempted use, or threatened use of physical force against the person or property of another." See 18 U.S.C. § 16(a). Whether the California concealed dagger offense qualifies as a crime of violence under § 16(b), however, is a closer question.
While a state's treatment of a felony conviction does not constrain this Court when examining federal sentence enhancements, state law has been found to aid this Court's analysis of the effect of a state court's conviction on a defendant's federal sentence. Landeros-Arreola, 260 F.3d at 410. Both parties agree that Medina was convicted under California Penal Code § 12020(a). The PSR does not specify the date upon which Medina committed his offense, but it indicates that the California court sentenced him on November 12, 1996. At that time, California law provided that "[a]ny person in this state who ... carries concealed upon his or her person any dirk or dagger is punishable by imprisonment in a county jail not exceeding one year or in the state prison." cCAL. PENAL CODE § 12020(a) (West 1995). Under California law, a "defendant's intended use of the instrument is neither an element of the offense nor a defense." People v. Rubalcava, 23 Cal.4th 322, 96 Cal.Rptr.2d 735, 1 P.3d 52, 60 (2000) (holding that the intent to use a dagger as a stabbing weapon is not an express element of California Penal Code § 12020(a)).
Chapa-Garza relied on United States v. Velazquez-Overa, 100 F.3d 418 (5th Cir.1996), for the proposition that § 16(b)'s "in the course of committing the offense" clause means that physical force may be used to carry out the offense, rather than the broader interpretation under U.S.S.G. § 4B1.2(a)
In United States v. Hernandez-Neave, 291 F.3d 296 (5th Cir.2001), a case similar to the case at hand, this Court employed de novo review to hold that the Texas felony crime of unlawfully carrying a firearm in an establishment licensed to sell alcoholic beverages, was not a crime of violence under § 16(b). This Court noted that one perpetrates the Texas possession offense once one steps over the threshold of an establishment licensed to sell liquor while carrying a firearm. Likewise, Medina perpetrated the California possession offense once he took possession and concealed the dagger. As such, it is clear that there cannot be a substantial risk of violence in the course of committing the offense,
In applying Chapa-Garza's abstract, categorical approach, this Court has further observed that "we do not look to either possible physical violence nor to any particular conduct by a defendant, violent or otherwise." Hernandez-Neave, 291 F.3d at 299. Accordingly, although violence may eventually result once the necessary elements are present for the offender to have perpetrated the weapon possession offense, that eventuality is outside the scope of our Chapa-Garza analysis. The dissent disregards this point by creating hypotheticals to illustrate its version of the law. The possibility that a "gang member" may be "emboldened to start a fight, knowing that the concealed dagger in his possession will enable him to overpower his unsuspecting victim," is a scenario that lies far afield from the categorical approach that Chapa-Garza dictates.
It is also important to note that the Court in Chapa-Garza construed § 16(b)'s phrase "in the course of committing the offense" to refer to the force necessary to effectuate the offense. 243 F.3d at 927. The Court did not construe this phrase to encompass force used while effectuating the offense. Consequently, even if this Court views possession of a concealed dagger as a "course of conduct", as the dissent suggests,
Furthermore, the dissent's suggestion that we look at the "continuing risk" of violence under § 16(b) ignores the careful distinction between the "crime of violence" definition in § 16(b), which is limited to the risk of violence "in the course of committing the offense" and the broader definition set forth in U.S.S.G. § 4B1.2(a)(2), which does not contain that limitation. Compare 18 U.S.C. § 16(b) ("... substantial risk that physical force against the person or property of another may be used in the course of committing the offense.") (emphasis added) with U.S.S.G. § 4B1.2(a)(2) ("... otherwise involves conduct that presents a serious potential risk of physical injury to another."). This Court has "made clear that § 16 and § 4B1.2(a) are different, and that what qualifies as a crime of violence under one does not necessarily qualify under the other." United States v. Charles, 301 F.3d 309, 312 (5th Cir.2002) (en banc) (footnote omitted). The dissent's analysis would conflate an important distinction between the two definitions, effectively reading the "in the course of" clause out of § 16(b).
Thus, because there is no substantial risk that an offender may use violence to perpetrate the weapon possession offense, Medina's California conviction does not constitute a crime of violence under § 16(b), and therefore is not an aggravated felony under § 1101(a)(43).
C. Reduction of Sentence for Acceptance of Responsibility
Medina also argues, for the first time on appeal, that the district court erred in failing to award an adjustment for his acceptance of responsibility. Whether a defendant has sufficiently demonstrated an acceptance of responsibility is a question of fact. United States v. Spires, 79 F.3d 464, 467 (5th Cir.1996). "The defendant bears the burden of demonstrating that he is entitled to the reduction, and [we] review the sentencing court's determination with even more deference than the pure `clearly erroneous' standard." United States v. Flucas, 99 F.3d 177, 180 (5th Cir.1996) (citation omitted). Nevertheless, we review the sentencing court's judgment for plain error because Medina failed to object to the PSR's recommendation against a reduction in the offense level for acceptance of responsibility.
Under the plain error analysis, this Court may only reverse based on a forfeited error when there is: (1) an error; (2) that is clear or obvious; and (3) that affects the appellant's substantial rights. United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.1994) (en banc) (citing United States v. Olano, 507 U.S. 725, 732, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). If the appellant establishes these factors, this Court may exercise its discretion to correct the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Olano, 507 U.S. at 732, 113 S.Ct. 1770.
Section 3E1.1 of the sentencing guidelines directs the sentencing court to reduce a defendant's offense level "[i]f the defendant clearly demonstrates acceptance of responsibility for his offense[.]" U.S.S.G. § 3E1.1(a). "The entry of a guilty plea does not entitle a defendant to a reduction as a matter of right." Flucas, 99 F.3d at 180; see § 3E1.1, comment n. 3. If a defendant enters a guilty plea prior to trial, truthfully admits the conduct comprising the offense, and admits, or at least does not falsely deny, any additional relevant conduct for which he is accountable, the court may find significant evidence of the defendant's acceptance of responsibility. United States v. Salinas, 122 F.3d 5, 7 (5th Cir.1997).
The PSR indicates that, at the time of his arrest, Medina admitted that he illegally entered the United States. Medina also admitted the facts of his offense at his guilty-plea hearing. Yet, according to the PSR, Medina "declined to provide a statement for acceptance of responsibility" when his attorney was present. Because Medina had not "accepted responsibility for the offense to the probation officer," the PSR declined to recommend a reduction in the offense level.
"A reduction in sentence for acceptance of responsibility requires a showing of sincere contrition on the defendant's behalf." United States v. Nguyen, 190 F.3d 656, 658 (5th Cir.1999) (internal quotation and citation omitted). A court evaluating the sincerity of a defendant's claim of responsibility may consider a defendant's refusal to elaborate on the circumstances surrounding his offense to the probation officer. United States v. Nevarez-Arreola, 885 F.2d 243, 244, 246 (5th Cir. 1989) (affirming, under the "clearly erroneous" standard, the district court's denial of an acceptance of responsibility reduction where the defendant "failed to elaborate on the circumstances surrounding the offense to the probation officer" and did not exercise his right of allocution, and where there was no statement of record "expressing remorse or contrition").
At the sentencing hearing, when given an opportunity for allocution, Medina stated: "coming in illegally ... has become a very serious crime, but my intentions were not to come into this country and to remain here to work, but I was only passing through. Because my main goal was to go to Canada because I wanted to study some French." Medina claimed that he had some childhood friends living in Cuvet, Canada, but he could not explain how it would have been possible for him to legally enter Canadian territory.
Medina's statements at the sentencing hearing are more in the nature of an attempt to mitigate his conduct than a sincere expression of remorse, and certainly fall short of showing "sincere contrition" for his offense. Nguyen, 190 F.3d at 658. A review of the record has not revealed any other statement indicating remorse or contrition. Moreover, Medina's refusal to talk with the probation officer calls his sincerity into question. See Nevarez-Arreola, 885 F.2d at 246. Consequently, we hold that the district court did not plainly err in declining to award Medina a downward adjustment in his sentence for acceptance of responsibility.
Because we conclude that the district court erred in ruling that Medina's California
EMILIO M. GARZA, Circuit Judge, dissenting:
By focusing on the trees, the majority opinion has lost sight of the forest. The majority opinion focuses so narrowly on one aspect of the panel opinion in United States v. Chapa-Garza, 243 F.3d 921 (5th Cir.2001), that it loses sight of the text of 18 U.S.C. § 16(b) as well as the message in the California statute under which Medina was previously convicted. The purpose of that state statute is, simply, to outlaw carrying a deadly instrument of violence: a concealed dagger "capable of ready use as a stabbing weapon that may inflict great bodily injury or death." CAL.PENAL CODE §§ 12020(a), (c)(24). The only purpose of possessing a concealed dagger is the application of "physical force ... against the person of another" when the need arises. See 18 U.S.C. § 16(b) (defining "crime of violence" as an offense that, "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense"). Thus, contrary to the majority opinion's conclusion, Medina's prior conviction for unlawfully carrying a concealed dagger ("the concealed dagger offense") qualifies as a crime of violence under § 16(b).
I agree with the majority opinion that we are guided in our interpretation of § 16(b) by Chapa-Garza. But a careful application of Chapa-Garza's logic demonstrates that the possession of a concealed dagger qualifies as a crime of violence. Chapa-Garza held that, to constitute a crime of violence under § 16(b), the crime must involve "reckless disregard for the probability that intentional force may be employed." 243 F.3d at 924 (interpreting § 16(b)'s "substantial risk that physical force ... may be used" language). My conclusion (that the possession of a concealed dagger is a crime of violence) accords with this central holding. In fact, the concealed dagger offense involves more than simple recklessness: it requires that the offender "knowingly and intentionally" carry the concealed dagger. People v. Rubalcava, 23 Cal.4th 322, 96 Cal.Rptr.2d 735, 1 P.3d 52, 57 (2000).
The majority opinion sidesteps the clear import of Chapa-Garza by focusing too narrowly on a single section of the opinion. As the majority opinion observes, Chapa-Garza suggested that the phrase "in the course of committing the offense" in § 16(b) implies "force that may be used to perpetrate the offense." Chapa-Garza, 243 F.3d at 927. The majority opinion mechanically applies this alleged gloss on the meaning of § 16(b) to conclude that the concealed dagger offense is not a crime of violence. According to the majority opinion, Chapa-Garza dictates that the concealed dagger offense does not qualify as a crime of violence under § 16(b) because the offender "perpetrates the crime once he takes possession of and conceals the dirk or dagger," making it "unlikely that any physical force would be used in the process."
This continuing risk of physical violence distinguishes the concealed dagger offense from the offense of unlawfully carrying a firearm into an establishment licensed to sell liquor, the offense that was the subject of our decision in United States v. Hernandez-Neave, 291 F.3d 296 (5th Cir.2001). In Hernandez-Neave, we applied Chapa-Garza and reasoned that the Texas felony offense of unlawfully carrying a firearm into an establishment licensed to sell alcoholic beverages was not a crime of violence under § 16(b). The court reasoned that physical force is not needed to "complete" this crime, since "the crime is completed by simply stepping over a threshold while carrying such a weapon." Id. at 299. There is no "threshold" requirement for "completing" the concealed dagger offense, as there is for the offense of unlawfully carrying a firearm into an establishment
The majority opinion's rigid reliance on a few sentences in Chapa-Garza indicates that the majority opinion overlooks the substantial differences between the offenses at issue in Chapa-Garza and the present case. Chapa-Garza involved a non-violent instrument — a vehicle; this case involves a violent instrument — a concealed dagger.
If the majority opinion is correct that Chapa-Garza's interpretation of § 16(b) compels the conclusion that the concealed dagger offense is not a crime of violence, then the logic of Chapa-Garza is inconsistent with the plain language of § 16(b). Section 16(b) defines a crime of violence as an offense "that, by its nature, involves a substantial risk that physical force against
For the foregoing reasons, I cannot agree with the majority opinion that Chapa-Garza compels the conclusion that carrying a concealed dagger is not a crime of violence under 18 U.S.C. § 16(b). If, however, the majority opinion is correct that Chapa-Garza dictates this result, then I believe that en banc reconsideration is necessary to bring our jurisprudence in line with the plain language of § 16(b). I, therefore, respectfully dissent from the majority's decision to overturn the district court's sound judgment that Medina's concealed dagger offense qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43).