                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-3334
                                   ___________

United States of America,           *
                                    *
     Plaintiff - Appellee,          *
                                    * Appeal from the United States
     v.                             * District Court for the
                                    * District of South Dakota.
Artemio Norberto Reyes-Solano,      *
                                    *
     Defendant - Appellant.         *
                               ___________

                             Submitted: May 13, 2008
                                Filed: September 26, 2008
                                 ___________

Before LOKEN, Chief Judge, BYE and COLLOTON, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

       Artemio Norbert Reyes-Solano pleaded guilty to violating 8 U.S.C. § 1326(a)
by illegally reentering the country following deportation. At sentencing, the district
court agreed with the government that Reyes-Solano’s extensive criminal history
included “three or more convictions for misdemeanors that are crimes of violence”
and imposed a four-level increase under U.S.S.G. § 2L1.2(b)(1)(E), resulting in an
advisory guidelines sentencing range of 15-21 months in prison. The court applied
an upward variance under United States v. Booker, 543 U.S. 220 (2005), and
sentenced Reyes-Solano to twenty-two months in prison. He appeals that sentence,
challenging the four-level increase and the district court’s calculation of criminal
history points. Reviewing these issues of law de novo, we conclude that the district
court erred in applying Shepard v. United States, 544 U.S. 13 (2005), to Reyes-
Solano’s prior Mississippi convictions for domestic assault and assault of a police
officer, an error that undermines the § 2L1.2(b)(1)(E) four-level increase. See United
States v. Gomez-Hernandez, 300 F.3d 974, 977 (8th Cir. 2002) (standard of review),
cert. denied, 537 U.S. 1138 (2003). Though the district court’s upward variance
suggests this guidelines error may have been harmless, the four-level increase
substantially impacted the advisory guidelines range. Therefore, we conclude it is
prudent to remand for resentencing.

                                           I.

       Reyes-Solano came to the United States in 1980. He lived and worked in
several States, had repeated run-ins with the law, and was deported in 2004. The
Presentence Investigative Report (PSR) listed ten pre-removal convictions in four
States; six included assault, domestic abuse, or resisting arrest offenses. After
illegally reentering, Reyes-Solano pleaded guilty to aggravated assault for stabbing
a man in the stomach after a fight. A South Dakota state court sentenced him to ten
years in prison. This federal illegal reentry prosecution followed.

       Congress has prescribed greatly increased maximum sentences for aliens who
are convicted of illegal reentry if they were removed after committing an aggravated
felony (twenty years), a felony other than an aggravated felony (ten years), or three
or more misdemeanors involving drugs or crimes against the person (ten years). See
8 U.S.C. §§ 1326(b)(1), (2). In most other cases, the maximum sentence is two years.
§ 1326(a). Reflecting this statutory progression, § 2L1.2(b)(1) of the now-advisory
Sentencing Guidelines provides a sliding scale of offense level increases for these
types of prior convictions, beginning with a sixteen-level increase for the most serious
felonies, and ending in subpart (E) with a four-level increase for “three or more
convictions for misdemeanors that are crimes of violence.” “Crime of violence” is
defined as including twelve enumerated offenses (none at issue in this case), “or any

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other federal, state, or local law that has as an element the use, attempted use, or
threatened use of physical force against the person of another.” § 2L1.2, comment.
(n.1(B)(iii)).1

       The PSR initially recommended a four-level increase under § 2L1.2(b)(1)(E)
based upon Reyes-Solano’s three pre-removal convictions in Washington State for
“Assault 4th Degree.” Reyes-Solano objected that this offense was not a crime of
violence. The Probation Officer agreed and lowered the recommended offense level
by four levels, which resulted in a recommended advisory guidelines range of 6-12
months in prison. The government’s pre-sentencing Memorandum reluctantly
conceded that “without more” the record would not establish that Reyes-Solano’s
prior convictions were crimes of violence; it urged the court to consider an upward
Booker variance because Reyes-Solano’s recent aggravated assault conviction and his
many pre-removal convictions demonstrate that he is “an extremely dangerous
individual.”

       Just before sentencing, the prosecutor obtained, disclosed to defense counsel,
and introduced at the hearing a Spanish-language plea document from one of the
Washington State fourth degree assault convictions. This court record included a
handwritten note in English stating, “I offensively touched another person, not in self
defense and [without] their consent. I threw a chair at my friend.” At the hearing,
Reyes-Solano testified in support of his contention that four Mississippi convictions
should not be counted as criminal history points because he was not provided an
interpreter, which rendered his guilty pleas not knowing and voluntary. On cross
exam, Reyes-Solano admitted that a 1998 Mississippi conviction for fourth degree
domestic assault was based on an altercation in which he struck one of his roommates,
and a 1999 assault conviction was for striking or attempting to strike a police officer.


      1
      For an explanation of why this sliding scale was adopted, see U.S.S.G. App.
C amend. 632 (eff. Nov. 1, 2001).

                                          -3-
The government argued that the Washington State court document and Reyes-
Solano’s testimony regarding the two Mississippi convictions met the government’s
burden to prove that he has three pre-removal misdemeanor convictions for crimes of
violence. The district court agreed and imposed a four-level increase under
§ 2L1.2(b)(1)(E). The court also rejected Reyes-Solano’s criminal history point
contention, and it imposed a one-month upward Booker variance.

                                            II.

       In determining whether a pre-removal conviction based on a guilty plea was for
a crime of violence under § 2L1.2(b)(1), we apply the “categorical approach”
prescribed in Shepard, 544 U.S. at 26. Under this approach, we must “look to the
elements and the nature of the offense of conviction, rather than to the particular facts
relating to [Reyes-Solano’s pre-removal] crime.” Leocal v. Ashcroft, 543 U.S. 1, 7
(2004). However, “[i]f the statute criminalizes both conduct that would qualify as a
crime of violence and conduct that would not, the court may consider the terms of the
charging document or plea agreement as well as a transcript in which the defendant
confirmed the factual basis for his plea in order to determine whether the prior
conviction was for a crime of violence.” United States v. Lopez-Zepeda, 466 F.3d
651, 653 (8th Cir. 2006); see United States v. Vazquez-Garcia, 449 F.3d 870, 873 (8th
Cir. 2006), cert. denied, 127 S. Ct. 1149 (2007).

       In this case, the government argues that Reyes-Solano’s admissions under oath
at the sentencing hearing met its burden to prove that two Mississippi misdemeanor
assault convictions were crimes of violence. However, this argument focuses on the
second step of the categorical approach, a step that is limited to “a narrow range of
cases” where analysis of the elements of the offense is inconclusive because the
statute is overinclusive. Shepard, 544 U.S. at 17 (quotation omitted). Here, the
government could not obtain any court records of the Mississippi convictions, and
therefore the record before the district court does not identify the state statutes or local

                                            -4-
ordinances that Reyes-Solano pleaded guilty to violating. As the elements of the
offenses are unknown, the district court erred in concluding that those offenses were
crimes of violence applying the categorical approach of Shepard. Absent state court
records identifying the offense of conviction, from which the elements of that offense
may be determined, the testimony of Reyes-Solano at sentencing is not sufficient
proof that actual, attempted, or threatened use of force was an element of the offense
and not merely conduct incidental to an offense whose essential elements did not
include the use of force. Accordingly, on this record the four-level increase under
§ 2L1.2(b)(1)(E) was improperly imposed.2

       Reyes-Solano further contends that the district court erred in including the
Washington State fourth degree assault conviction because the plea document
establishes that he was convicted of “offensive touching,” an offense that does not
include the element of force, even if the particular facts of his violation included the
use of force. The government responds that the statute is overinclusive, triggering the
modified categorical approach approved in Shepard, and that the English notation, “I
threw a chair at my friend,” establishes that he pleaded guilty to a crime of violence.
We conclude that we need not consider this issue because, with the two Mississippi
assault convictions excluded, the government has in any event failed to prove the three
pre-removal crimes of violence required to impose the four-level increase. For cases
in other circuits that have discussed whether Washington State assault convictions
were crimes of violence, see United States v. Sanchez-Torres, 136 F. App’x 644, 647-
48 (5th Cir. 2005) (unpublished), and United States v. Pimentel-Flores, 339 F.3d 959,
969 (9th Cir. 2003).




      2
       In its brief on appeal, the government identified current Mississippi statutes
defining various assault offenses. See Miss. Code Ann. §§ 97-3-7(1)-(4). For many
reasons, this showing was both inadequate and untimely.

                                          -5-
                                          III.

      Finally, Reyes-Solano argues that the district court erred in counting his
Mississippi convictions as criminal history points because he was not represented by
counsel, and the state courts’ failures to appoint Spanish language interpreters
rendered his guilty pleas not knowing and voluntary. The district court rejected this
contention on the ground that Mississippi law afforded Reyes-Solano the right to
counsel, and he waived that right. We agree.

       Deprivation of the constitutional right to counsel is the only ground upon which
a prior conviction used to enhance a federal sentence may be collaterally attacked.
Custis v. United States, 511 U.S. 485, 487 (1994). Reyes-Solano had the burden to
demonstrate by a preponderance of the evidence that his uncounseled convictions
were constitutionally invalid. United States v. Stapleton, 316 F.3d 754, 756 (8th Cir.
2003). He testified that he does not understand court proceedings in English and was
not provided an interpreter in the Mississippi proceedings. But he admitted that he
understood the charges to which he pleaded guilty, and he did not testify that he was
unaware of his right to counsel or that his waiver of that right was constitutionally
infirm. On this record, the district court did not err in ruling that Reyes-Solano failed
to prove a deprivation of the right to counsel and in counting these convictions, which
placed Reyes-Solano in criminal history category IV. See U.S.S.G. § 4A1.2,
comment. (backg’d) (“Prior sentences, not otherwise excluded, are to be counted in
the criminal history score, including uncounseled misdemeanor sentences, where
imprisonment was not imposed.”); United States v. Thomas, 20 F.3d 817 (8th Cir.
1994) (en banc).

      We vacate the judgment of the district court and remand for resentencing.
                      ______________________________




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