United States Court of Appeals, Eighth Circuit.
United States of America, Appellant v United States. Rodolfo Lopez-Zepeda, appellant.
Decision date: October 24, 2006
District Judges before MURPHY, HANSEN and RILEY. Villa Guadalupe, Virginia, Assistant. Federal Public Defender, Minneapolis, MN (Laura Schultz, Clerk, Office of the Public Defender, Profile), representing the appellant. Erika Mozangue, assistant. United States Attorney, Minneapolis, Minnesota, representing the appeal. Rodolfo Lopez-Zepeda, Leavenworth, KS, pro se.
Rodolfo Lopez-Zepeda appeals 46-month sentence imposed by District Court1After pleading guilty to one count of illegal entry as a deported alien. See 8 U.S.C. § 1326(a), (b)(2) (2000). Lopez-Zepeda argued that the district court erroneously added 16 steps to his sentencing with the counseling guidelines after determining that his previous state court conviction constituted a "violent crime." See the US Sentencing Guidelines (USSG) §‹2L1.2(b)(1)(A)(ii) (2005). It also argued that the added maximum penalty provision in § 1326(b)(2) was unconstitutional. we declare.
In 2001, Lopez-Zepeda pleaded guilty in a Minnesota court to one count of third-degree sexual misconduct. See Minn.Stat. §‹609.344(1)(c) (2000) (defining the offense as sexual penetration with another person using "force or coercion to effect penetration"). He was then deported to Mexico on February 2, 2004. Lopez-Zepeda returned to the United States illegally and was found living in Minnesota in November 2004.
A single federal indictment charges Lopez-Zepeda with illegal re-entry after deportation for a serious crime, in violation of 8 U.S.C. §‖1326(a) and (b)(2). Lopez-Zepeda reached a plea bargain with the government, admitting that he had unlawfully returned to the United States, but questioned the possibility of adding a 16-degree sentence to the prior "violent crimes" guidelines, USSG §‹2L1.2 b)(1)(A) (ii). The settlement acknowledges that §1326(b)(2) provides for the maximum available sentence of 20 years. Defense attorneys claimed a constitutional challenge to the sentencing statute, arguing that the increased maximum sentence to 20 years violated the Sixth Amendment's right to a jury to fact-finding all increases that would apply to the maximum sentence. However, defense lawyers acknowledged that the Supreme Court ruled that §1326(b)(2) was constitutional. See Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L. Ed. 2d 350 (1998).
In sentencing, Lopez-Zepeda argued that aggravating his previous offense by 16 levels on the basis that it was a "violent crime" was unjustified because his previous offense did not contain the necessary element of force. In particular, he argued that his testimony at the state court hearings regarding the use of force was inconclusive and therefore could not constitute a factual basis for reinforcement. The District Court took into account common court convictions and statutory definitions of crimes, as well as defense hearings. The court found that Lopez-Zepeda explicitly admitted to forcing the victim to have sex with her against her will. Concerning the possible ambiguity of the alleged defense attorney's testimony, the district court noted that Lopez-Zepeda had repeatedly admitted to forcing the victim to have sexual intercourse with another person, despite some claims to the contrary. (See Sent. Tr. p. 19) ("She admits to forcing her to have sex. ․ Of course not ․"). Considering the entire record, the district court found the 2001 Minnesota conviction to be a "violent crime" within the meaning of USSG §2L1.2(b)(1)(A)(ii) and added a 16-class extended calculation guidelines accordingly. The Magistrates' Court imposed an indicative penalty of 46 months at the bottom of the consultation range. Lopez-Zepeda appeals.
When considering the district court's interpretation and application of sentencing guidelines, we apply an ab initio review and review findings of fact for obvious errors. United States v. Urbina-Mejia, 450 F.3d 838, 839 (8th Cir.2006). Lopez-Zepeda first challenged the district court's ruling on his counseling guideline, claiming that the court wrongly raised his base crime rate by 16 because of his previous "violent crime" conviction. USSG §2L1.2(b)(1)(A)(ii). The Guidelines define “violent crimes” as including but not limited to “coercive sex crimes”․ or any crime under federal, state or local law, including the use, attempted use or threatened use of force against another person. USSG §2L1.2, Commentary (n.1(B)(iii)).
We generally use a categorical approach to determine whether a defendant's prior conviction is a "violent crime" under USSG §2L1.2(b)(1)(A)(ii). United States v. Vasquez-Garcia, 449 F.3d 870, 872 (8th Cir.2006). In this approach, the District Court may consider the facts of the conviction and the statutory definition of prior offences. ID. If the law provides for the criminalization of both an act that could constitute a violent crime and an act that is not, the court may consider the terms of the charge or settlement document and the transcript in which the accused confirms the factual basis of his charge to determine whether whether a previous conviction This is a violent crime. ID. (Quoting Shepard v. United States, 544 U.S. 13, 21, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) and Taylor v. United States, 495 U.S. 575, 602, 110 S. Ct 2143, 109 L.Ed.2d 607 (1990)).
According to Lopez-Zepeda of Minnesota, the Minnesota statute defines third-degree criminal sexual conduct as sexual penetration "by force or coercion." § 609.344(1)(c) (emphasis added), thus argues that it is unclear whether an element of force was necessary for conviction. See State v. Leake, 699 N.W.2d 312, 323-24 (Minnesota) (possession of a third degree sexual offense may be committed "only by force, by force alone, or by force and coercion"), evidence. Rejected, --- United States ----, 126 S.Ct. 745, 163 L.Ed.2d 583 (2005). Government responds that Lopez-Zepeda's earlier conviction was a violent crime under the Minnesota Guidelines for Use of Force and the Minnesota definition of "coercion"2falls within the guideline definition of a "violent crime" and the facts presented in the state court's plea support the district court's finding that force was an element of a prior crime.
We believe that there is currently no need to determine whether the Minnesota definition of "coercion" meets the guidelines' definition of "violent crime" because the district court's decision in this case was based on prosecution documents and panel evidence that Lopez- Zepeda used force, committed a crime. previous crime. The victim, a 16-year-old girl, reported drinking beer in an apartment with Lopez-Zepeda and a man named Juan Jose Hernandez. She said that when she tried to leave, Hernandez grabbed her by the neck and forcibly led her into the bedroom, where two men forcibly undressed her and repeatedly had sex with her against her will. Hernandez threatened to kill her if she told anyone, and Hernandez pulled her hair, she said, and eventually ran into the lobby of the apartment building and started knocking on the door asking for help.
Transcripts of Lopez-Zepeda's confession in state court confirm that the three drank together in the apartment, that Lopez-Zepeda undressed the victim, had sex with her after she refused, and that he continued to socialize against her consent. Lopez-Zepeda testified that Hernandez also raped her, then Hernandez grabbed her hair and dragged her to the bathroom, where she ran out and fled down the hall. Specifically, Lopez-Zepeda was asked, "[A]fter she refused, you forced her to have sex, didn't you?" Through an interpreter, he replied, "Yes." (The complainant's address is B-15). In the taped statement, Lopez-Zepeda replied that he had told the officers the truth. He admitted in a taped statement that he and Hernandez used force to get the victim to have sex. Later in talks over the allegations, Lopez-Zeped backed off a bit, saying that Hernandez threw her on the bed, pinned her hand and threatened her, but he (Lopez-Zeppe up) did not use force. (Ibid., p. 18.) However, when asked directly again, "Do you understand that a confession today is an admission that you collaborated with Mr. Hernandez to force her to have sex?" He replied through the interpreter: "Yes" (ibid., p. 19).
Based on this record, the district court did not manifestly err in finding that Lopez-Zepeda's previous state court conviction was a "violent crime" within the meaning of the Guidelines because the crime involved the use of force and the threat of force. Accordingly, the 16-step extension of USSG §2L1.2(b)(1)(A)(ii) has been appropriately applied to calculate the extent of the penalty under the Advisory Guidelines.
Lopez-Zepeda also claimed that the increased 20-year maximum sentence of 8 U.S.C. § 1326(b)(2), imposed on his previous aggravated felony conviction, violated his Sixth Amendment rights, even though he was in conviction found that Supreme Court precedent eliminated this argument. Nevertheless, on appeal he argued that the statute unconstitutionally required the district court to conduct an investigation to determine whether his previous conviction qualifies as an aggravated crime under § 1326(b)(2). We are re-examining constitutional issues. United States v. Clemons, 461 F.3d 1057, 1061 (8th Cir.2006).
We have repeatedly rejected such claims based on Supreme Court jurisprudence, and we are doing so again today. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ("In addition to the fact of the prior judgment, the facts of the judgment must be presented to the jury and proven beyond reasonable doubt.") (emphasis added); Almendarez-Torres, 523 U.S., 226-27, 118 S.Ct. 1219 (believing that §1326(b)(2) is a sentencing factor, not a separate felony, a felony that must be named in the indictment). "While the statement that a prior conviction for an offense classified as an 'aggravated' fact may increase the defendant's sentence beyond the originally prescribed maximum sentence, Apprendi's simple language precludes the fact of a prior conviction." United States v. Kempis-Bonola, 287 F. 3d 699, 702 (8th Cir.), certificate rejected, 537 U.S. 914, 123 S.Ct. 295, 154 L.Ed.2d 196 (2002). See, for example, United States v. Carrillo-Beltran, 424 F.3d 845, 848 (8th Cir.2005), certificate. Refused, --- United States ----, 126 S.Ct. 1384, 164 L. Ed. 2d 89 (2006); United States v. Marcussen, 403 F.3d 982, 984 (8th Cir.2005), Certificate Rejected, --- United States ----, 126 S.Ct. 457, 163 L.Ed.2d 347 (2005). Moreover, we previously "rejected the argument that the nature of the prior conviction should be treated differently from the facts of the prior conviction." Marcussen, 403 F.3d at 984. For these reasons, the Lopez-Zepeda Sixth Amendment challenge to § 1326(b)(2) failed.
We therefore uphold the judgment of the District Court.
1The Honorable John R. Tunheim, United States District Judge for the District of Minnesota.
2The Minnesota statute defines "coercion" as: words or circumstances that give the complainant reason to fear that the contractor will physically harm or entrap the complainant or others, or force the complainant to consent to sexual penetration or sexual contact, provided that the contractor does not no evidence of coercion Evidence of specific behavior or threats is required. state min. §609.341(14).
Hanson, District Judge.