Free Sentencing Memorandum - District Court of Arizona - Arizona

1 JON M. SANDS Federal Public Defender 2 District of Arizona 3 850 W. Adams Street, Ste. 201 Phoenix, Arizona 85007 4 Telephone: (602) 382-2753 5 Donna Lee Elm, #12127 Asst. Federal Public Defender 6 Attorney for Defendant [email protected] 7 8 9 10 11 12 13 14 15 16 17 18 vs. Juan Perez-Robles, Defendant. Juan Perez-Robles, through undersigned counsel, respectfully provides United States of America, Plaintiff, No. CR-03-1267-PHX-FJM DEFENDANT'S SENTENCING MEMORANDUM (ON REMAND) IN THE UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

19 this Court with the following Sentencing Memorandum for its consideration in 20 deciding the appropriate sentence for Mr. Perez-Robles. It is based upon his right to 21 a fundamentally fair sentencing process pursuant to the Due Process clause of the 22 Fifth Amendment of the U.S. Constitution as well as his right to a reasonable 23 sentence pursuant to the Sixth Amendment and United States v. Booker, 543 U.S. 220 24 (2005), and 18 U.S.C. § 3553. His request for a substantially reduced sentence is 25 specifically premised on United States v. Lopez-Solis, __ F.3d __, 2006 WL 1360075 26 27 / / / 28 / / /

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1 (9th Cir. May 19, 2006) and Valencia v. Gonzales, 439 F.3d 1046 (9th Cir. 2006). It 2 is supported by the following Memorandum of Points and Authorities. 3 Respectfully submitted: June 21, 2006. 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
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JON M. SANDS Federal Public Defender s/Donna Lee Elm DONNA LEE ELM Asst. Federal Public Defender

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MEMORANDUM The Court is no doubt aware that in a remand for re-sentencing when the

3 Defendant has not preserved the Sixth Amendment issue, the District Court is to 4 resort to the procedures outlined in Ameline III. On the other hand, when a defendant 5 adequately preserved his Sixth Amendment issues ­ as did Mr. Perez-Robles ­ then 6 the District Court will engage in a re-sentencing just as in any other appeal remand 7 8 for re-sentencing. Note that the limited remand under Ameline III applied to "plain 9 error review," and asks the District Court to decide the appellate question of whether 10 remand for re-sentencing is called for. However, when the review was de novo (as 11 in this case, where Mr. Perez-Robles preserved his issue properly), the Ninth Circuit 12 decides whether there will be a re-sentencing. It has done so, and thus this case 13 necessarily undergoes a re-sentencing on remand. 14 I. Review of Prior Sentencing 15 Mr. Perez-Robles plead guilty to the charge of Illegal Re-Entry, in 16 17 violation of 8 U.S.C. § 1326(a & b(2)), without resort to any plea agreement. In its 18 pre-sentence report, the Probation Department determined that he would have an 19 Offense Level of 21, calculated as follows: 20 Base Offense Level

8 21 Specific Offense Characteristic + 16 Acceptance of Responsibility - 3 22 Offense Level 21 23 The Defense does not here challenge the Criminal History Category of IV. The Court 24 25 adopted the pre-sentence report calculations, resulting in a Sentencing Guidelines 26 range of 57-71 months. Mr. Perez-Robles was sentenced to the low end, i.e., 57 27 months of imprisonment. He has served the bulk of that sentence. 28
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His sole complaint on appeal was that, under the Sixth Amendment, he

2 was entitled to a jury finding that his prior conviction constituted a "crime of 3 violence" for sentencing enhancement purposes. That particular argument was 4 5 6 7 8 foreclosed by United States v. Quintana-Quintana, 383 F.3d 1052 (9th Cir. 2004), and the Defense no longer advances it. Nonetheless, Mr. Perez-Robles remains entitled to a re-sentencing, and has a viable issue under recent case law developments. Significantly, Mr. Perez-Robles's sixteen-level Offense Level

9 enhancement was based on "a felony conviction for a crime of violence: unlawful 10 sexual intercourse with a minor," as set forth in USSG § 2L1.2(b)(1)(A)(ii). Hence 11 if his prior statutory rape conviction from California did not constitute a "crime of 12 violence" for USSG § 2L1.2 purposes, he would have only the eight-level 13 enhancement for having a prior "aggravated felony." 14 II. Governing Sentencing Guidelines 15 The timing of Mr. Perez-Robles's arrest has some bearing on this issue. 16 17 As confirmed in the pre-sentence report, Mr. Perez-Robles was arrested for the crime 18 of Illegal Re-Entry on October 21, 2003. The 2003 changes in the Sentencing 19 Guidelines did not go into effect until November 5, 2003; he was, therefore, subject 20 to the 2002 version of the Guidelines. Lopez-Solis, 2006 WL 1360075 at *1. 21 22 23 24 In 2003, USSG § 2L1.2 was amended. It had previously in 2002 defined "crime of violence"simply by use of force. See Exhibit A, USSG § 2L1.2 (2002). Revisions occurring in 2003 included a listing of specific crimes that were

25 thereafter considered "crimes of violence," including statutory rape. Note, however, 26 that that change took effect after Mr. Perez-Robles committed his offense, and cannot 27 apply retroactively without violating the Ex Post Facto clause. Id. Hence whether 28
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1 his 1990 conviction for statutory rape under California law constitutes a "crime of 2 violence" determines the applicability of the sixteen-level enhancement. 3 III. Analysis under the Recent Changes in Case Law 4 5 6 7 8 A. Categorical Analysis The Ninth Circuit Court of Appeals recently qualified its position on this specific enhancement in Lopez-Solis and Valencia. Lopez-Solis had been sentenced for conviction of Illegal Re-Entry,

9 enhanced by a prior statutory rape conviction from Tennessee, resulting in the 10 identical sixteen-level increase that the Defendant had. As in Mr. Perez-Robles's 11 case, that enhancement was applied because the sentencing judge found that statutory 12 rape constituted a "crime of violence." The Lopez-Solis Court noted, however, that 13 not all statutory rape would be considered a "crime of violence." The Tennessee 14 statute in question defined statutory rape as sexual contact with a minor between the 15 16 ages of seventeen and eighteen. Id. at *2. The Court applied a categorical analysis 17 of the elements of the crime, pursuant to Taylor v. United States, 495 U.S. 575 18 (1990), finding the Tennessee statute overbroad for these federal sentencing purposes. 19 Id. at *2-4. 20 The Valencia case was not a criminal prosecution for an immigration 21 offense, but a civil immigration case, though it turned on similar issues. Precisely 22 like Mr. Perez-Robles, Valencia had previously been convicted of statutory rape 23 under the very same California penal statute as Mr. Perez-Robles, i.e., Cal. Penal 24 25 Code § 261.5. The Ninth Circuit applied a categorical analysis to it to determine 26 whether it was overbroad when it was being considered a "crime for violence" for 27 civil immigration purposes. Note that Cal.P.C. § 261.5 defined statutory rape as 28
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1 unlawful intercourse with a female (not the wife of the perpetrator) under the age of 2 eighteen. See copy of Cal. Penal Code 261.5 (1990), attached as Exhibit B. It was, 3 therefore, similar to the Tennessee statute treated in Lopez-Solis in the breadth of its 4 5 6 7 8 9 10 11 12 13 14 language. The Ninth Circuit concluded: The full range of conduct prescribed by California Penal Code section 261.5© includes consensual sexual intercourse between a twenty-one-year-old and a minor one day shy of eighteen. Since a minor of this age if "fully capable of freely and voluntarily consenting to sexual relation," Michael M. [v. Superior Court], 25 Cal.3d [608] at 614, 159 Cal.Rptr. 340, 601 P.2d 572 [(1979), aff'd by 450 U.S. 464 (1981)], the minor's deemed incapacity does not suggest a risk that force may be used in committing the offense. Therefore, we hold that a violation of section 261.5© does not, "by its nature involve [] a substantial risk that [violent] physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 16(b); Ye, 214 F.3d at 1133. Accordingly, a violation of 261.5© is not categorically a crime of violence under § 16(b).

15 Valencia, 439 F.3d at 1052. 16 Until Lopez-Solis, arguably this analysis of Cal. Penal Code 261.5 could 17 18 19 20 be interpreted as applying only to immigration cases, not criminal prosecutions. However, the Lopez-Solis Court used the same analysis to reach the same conclusion about the similar Tennessee statutory rape statute; moreover, it cited to Valencia in

21 its opinion. See Lopez-Solis, 2006 WL 1360075 at *3 n.31. Hence we can take the 22 Valencia holding as precedent applying to this criminal case's interpretation of "crime 23 of violence" under the Sentencing Guidelines. Consequently, the same statutory rape 24 statute that Mr. Perez-Robles was previously convicted under is not categorically a 25 "crime of violence" for purposes of the sixteen-level enhancement provided under 26 27 28 USSG § 2L1.2. ...
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B. Modified Categorical Analysis When a statue is overbroad for these purposes, the Court next considers

3 whether the behavior that the defendant was actually convicted of falls within the 4 ambit of a "crime of violence" or "sexual abuse of a minor." Lopez-Solis, 2006 WL 5 1360075 at *5. Although the Defense does not have the actual documentation to rely 6 upon, the information gleaned by the pre-sentence investigating probation officer 7 8 suggested that the victim of Mr. Perez-Robles's statutory rape was sixteen years of 9 age, and he was twenty-three. She was his girlfriend, and she ran away from home 10 to stay with him. Nothing whatsoever suggests use of force or abuse. Moreover, she 11 was sufficiently mature and sophisticated that physical and psychological injury (as 12 might occur with a young teen) would not be presumed.1 Id. at *3-4. Therefore, even 13 under the modified categorical approach, Mr. Perez-Robles's prior conduct in his 14 statutory rape conviction would not constitute "abuse" nor indicate any "use of 15 16 force." 17 18 C. Outcome of Analysis Paraphrasing the Lopez-Solis Court: Because the statute under which

19 Mr. Perez-Robles was convicted is overbroad, and the record does not establish that 20 his conviction was for conduct actually constituting "abuse," the district court erred 21 22 23 24 25 26 27 28 Note that Lopez-Solis refers throughout to a statutory rape victim aged seventeen-eighteen. That is, of course, because it was discussing the Tennessee statutory rape law pertaining to persons of that specific age. However, the Ninth Circuit is not thereby indicating that a child under the age of seventeen, i.e. sixteen, would be too young to consent or would necessarily be harmed by consensual sexual relations. Indeed in Lopez-Solis, the Court mentioned "This circuit has consistently held that statutory rape laws prohibiting sexual contact with a minor under 16 proscribe conduct constituting `sexual abuse of a minor.'" Id. at *2 (citing United States v. Pereira-Salmeron, 337 F.3d 1148, 1155 (9th Cir. 2003)).
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1 when it punished him for conduct that does not satisfy the enhancement. Id. at *5. 2 This Court is not being criticized, as that was a reasoned decision under the then3 existing law; but given the clarification of the law by the Ninth Circuit in these past 4 5 6 7 few months, it is clear now that that ruling was mistaken. As a result, the Court now should re-sentence Mr. Perez-Robles in conformity with Lopez-Solis and Valencia, and apply only the eight-level enhancement for an "aggravated felony" provided

8 under USSG § 2L1.2. 9 IV. Conclusion 10 Given the clarification of the law since his original sentencing, the 11 Court should now reducing Mr. Perez-Robles's Offense Level under the Guidelines 12 as follows: 13 Base Offense Level: 8 14 Specific Offense Characteristic: + 8 15 Adjusted Offense Level: 16 16 17 18 19 Acceptance of Responsibility: Total Offense Level: -3 13

With an undisputed Criminal History Category of IV, his sentencing

20 range is 24-30 months. The Court sentenced him previously to the low end of his 21 available Sentencing Guidelines range, and there is nothing that has occurred in the 22 intervening years to change the aggravation/mitigation analysis that led to a "low 23 end" decision. Therefore, the Court should re-sentence him to the low end of his 24 25 given Guidelines range: twenty-four (24) months. Mr. Perez-Robles has served 26 ... 27 28
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1 more time than that already, 2 and so he also asks the Court to order him released 2 from custody immediately upon his re-sentencing. He will, of course, be turned 3 over to INS for deportation proceedings at that point. 4 5 6 7 8 9 s/Donna Lee Elm DONNA LEE ELM Asst. Federal Public Defender Respectfully submitted: June 21, 2006. JON M. SANDS Federal Public Defender

10 Copy of the foregoing transmitted by ECF this 21st day of June, 2006, to: 11 12 CLERK'S OFFICE Sandra Day O'Connor Courthouse 13 401 W. Washington, Suite 160 Phoenix, Arizona 85003 14 JACKI IRELAND 15 Assistant United States Attorney Square 16 Two RenaissanceAvenue 40 North Central 17 Suite 1200 Phoenix, Arizona 85004-4408 18 Copy faxed to: 19 KELLY HEITKAM 20 United States Probation 21 Sandra Day O'Connor U.S. Courthouse 401 W. Washington Street 22 Suite 410 Phoenix, Arizona 85003 23 24 25 26 27 By the time of his re-sentencing, he will have served approximately 28 thirty-three months time.
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1 Copy mailed to: 2 JUAN PEREZ-ROBLES 3 Defendant 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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s/Donna Lee Elm 5 DONNA LEE ELM

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