                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-19-2008

USA v. Lechuga
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2505




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008

Recommended Citation
"USA v. Lechuga" (2008). 2008 Decisions. Paper 1202.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1202


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 07-2505


                          UNITED STATES OF AMERICA

                                           v.

                                JORGE AVILA LECHUGA
                                 a/k/a VICTOR TWOMEY

                                  Jorge Avila Lechuga,
                                                 Appellant




                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                         (D.C. Crim. No. 0314-1:06-cr-00141)
                        District Judge: Hon. Sylvia H. Rambo




                                  Argued May 8, 2008

           Before: SLOVITER, JORDAN and STAPLETON, Circuit Judges

                                  (Filed: May 19, 2008)


James V. Wade
       Federal Public Defender
Frederick W. Ulrich (Argued)
       Assistant Federal Public Defender
Harrisburg, PA 17101

      Attorneys for Appellant
Thomas A. Marino
       United States Attorney
Theodore B. Smith, III (Argued)
       Assistant United States Attorney
James T. Clancy
Chief, Criminal Appeals
United States Attorney’s Office
Harrisburg, PA 17108

       Attorneys for Appellee


                                          OPINION


SLOVITER, Circuit Judge.

       Jorge Avila Lechuga (“Lechuga”) appeals the District Court’s grant of the

government’s motion in limine seeking to exclude certain evidence at trial and the Court’s

application of a sixteen-level enhancement under section 2L1.2(b)(1)(A)(ii) of the United

States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”).

                                             I.

       Lechuga is a native and citizen of Mexico, who apparently entered the United

States in or around 1975. On January 28, 1985, he was convicted in the Superior Court of

California of sexual battery pursuant to Cal. Penal Code § 243.4. The state court

sentenced Lechuga to two years in prison but suspended the sentence and imposed a

three-year probationary period instead. Additionally, the court stated that “[a]t the end of

the probationary period, assuming the defendant has no violations and has otherwise

complied with the terms and conditions of probation, the court will reduce the charge to a

                                             2
misdemeanor and the record will so reflect that this judge will. I can’t speak for my

successors.” App. at 36. In 1988, a different Superior Court judge ordered Lechuga’s

probation to be continued on the same terms and conditions, and stated that “[t]he court

takes the matter off calendar, no report having been received.” App. at 39.

       Lechuga had three additional encounters with the California court system before

being removed from the United States on June 5, 1998. Lechuga subsequently re-entered

the United States without permission in 2000. On March 27, 2006, Harrisburg City

Police informed Immigration and Customs Enforcement (“ICE”) officials that they had

charged Lechuga with receiving stolen property. On April 12, 2006, a federal grand jury

returned a one-count indictment charging Lechuga with illegally reentering the United

States after having been deported, in violation of 8 U.S.C. § 1326(a) and (b)(2). Lechuga

pled not guilty to the indictment.

       Prior to his scheduled trial, the government filed a motion in limine to preclude

Lechuga from introducing evidence at trial regarding the status of his prior conviction for

sexual battery. Lechuga sought to introduce a September 13, 2006 nunc pro tunc order

issued by yet a third California Superior Court judge granting Lechuga’s motion to reduce

his 1985 conviction from a felony to a misdemeanor.1 Accordingly, the state court




                    1
                       The nunc pro tunc order provides: “It appearing to the
             court that through inadvertence the minute order of January 28,
             1985 . . . does not properly reflect the court’s order, said minute
             order is amended nunc pro tunc as of that date . . . .” App. at 40.

                                             3
deemed the offense to be a misdemeanor, deleted the suspended two-year state prison

sentence, and added that “[i]mposition of sentence is suspended.” App. at 40. Because

Lechuga was also indicted under § 1326(b)(2), which increases the statutory maximum

sentence from two to twenty years if the alien was previously removed subsequent to a

conviction for an aggravated felony, Lechuga sought to introduce the nunc pro tunc order

at trial to contest the existence of a prior felony conviction.

       The District Court granted the government’s motion in limine, concluding that the

Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998),

barred evidence at trial concerning the facts underlying a prior conviction. On January

16, 2007, Lechuga pled guilty to illegally reentering the United States as a previously

deported alien, conditioned on his ability to appeal the District Court’s grant of the

government’s motion in limine and on the understanding that his maximum punishment

was either two or twenty years imprisonment.

       At sentencing, Lechuga objected to the determination in the Pre-Sentence Report

(“PSR”) that a sixteen-level enhancement applied, pursuant to U.S.S.G. §

2L1.2(b)(1)(A)(ii), because he was deported following a conviction of a felony that is a

crime of violence. The District Court rejected Lechuga’s objection to the enhancement

and, on May 9, 2007, imposed a thirty-month sentence of imprisonment2 followed by two



                    2
                      This sentence represented a downward variance, made
             pursuant to 18 U.S.C. § 3553(a), from the 37- to 46-months
             Guidelines range of imprisonment that would have otherwise

                                               4
years supervised release.

                                              II.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We exercise plenary

review over the District Court’s interpretation of constitutional questions and the

Guidelines, and we review the District Court’s factual findings for clear error. United

States v. Lennon, 372 F.3d 535, 538 (3d Cir. 2004).

A.     Motion in Limine

       Lechuga was convicted under 8 U.S.C. § 1326, which prohibits an alien from

reentering the United States after being deported. The maximum penalty for this

conviction is two years in prison. See id. § 1326(a). The maximum penalty increases to

twenty years in prison, however, if the defendant has previously been convicted of an

aggravated felony. See id. § 1326(b)(2).3 Lechuga argues that the District Court violated


            applied.
                   3
                       The relevant provisions of this statute provide:

                   (a) In general
                   Subject to subsection (b) of this section, any alien who–
                           (1) has been denied admission, excluded, deported,
                           or removed or has departed the United States while
                           an order of exclusion, deportation, or removal is
                           outstanding, and thereafter
                           (2) enters, attempts to enter, or is at any time found
                           in, the United States . . .
                   shall be fined under Title 18, or imprisoned not more
                   than 2 years, or both.

                                               5
his Fifth, Sixth and Fourteenth Amendment rights by precluding him from presenting

evidence at trial regarding the status of his prior conviction. He maintains that the fact of

an aggravated felony conviction must be proven to a jury beyond a reasonable doubt

because that fact increases the statutory maximum.

       This issue is controlled by Almendarez-Torres, 523 U.S. at 239-43, 247, where the

Supreme Court held that a prior conviction that increases the statutory maximum for a

reentry offense pursuant to § 1326(b)(2) is not an element of the offense and may be

decided by the district court by a preponderance of the evidence. The Supreme Court

again expressly exempted prior convictions from its holding in Apprendi v. New Jersey,

530 U.S. 466, 490 (2000), where it held that “[o]ther than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt.” See also United

States v. Booker, 543 U.S. 220, 244 (2005).

       We addressed the issue of prior convictions in United States v. Ordaz, 398 F.3d

236, 240 (3d. Cir. 2005), where we relied on Almendarez-Torres to hold that a defendant



                    (b) Criminal penalties for reentry of certain removed aliens
                    Notwithstanding subsection (a) of this section, in the case
                    of any alien described in such subsection– . . .
                           (2) whose removal was subsequent to a conviction
                           for commission of an aggravated felony, such alien
                           shall be fined under such Title, imprisoned not more
                           than 20 years, or both.

             8 U.S.C. § 1326(a), (b)(2).

                                              6
has no constitutional right to a jury determination regarding the fact of a prior conviction.

We noted “a tension between the spirit of Blakely [v. Washington, 542 U.S. 296 (2004),]

and Booker that all facts that increase the sentence should be found by a jury and the

Court’s decision in Almendarez-Torres, which upholds sentences based on facts found by

judges rather than juries.” Id. at 241. Notwithstanding that tension, we concluded that

“[t]he holding in Almendarez-Torres remains binding law, and nothing in Blakely or

Booker holds otherwise.” Id.

       Lechuga’s argument that Justice Thomas’ concurrence in Shepard v. United States,

544 U.S. 13, 27-28 (2005), which was decided two weeks after our decision in Ordaz,

erodes the precedential weight of Almendarez-Torres is mistaken. We have rejected an

argument similar to that raised by the defendant, and held that although the various

opinions in Shepard appear to agree that “the door is open for the Court one day to limit

or overrule Almendarez-Torres . . . that day has not yet come, and we are well aware of

the Supreme Court’s admonition that [i]f a precedent of [the Supreme] Court has direct

application in a case, yet appears to rest on reasons rejected in some other line of

decisions, the Court of Appeals should follow the case which directly controls, leaving to

[the Supreme] Court the prerogative of overruling its own decisions.” United States v.

Coleman, 451 F.3d 154, 161 (3d Cir. 2006) (alterations in original) (citations and internal

quotations omitted). We are therefore bound by Almendarez-Torres and hold that the

District Court did not err in precluding Lechuga from presenting evidence at trial



                                              7
regarding his prior conviction for sexual battery.

B.     Sentencing

       Lechuga also argues that the District Court should not have applied the

sixteen-level sentencing enhancement because his prior conviction for sexual battery does

not constitute a felony offense under the Guidelines. The California sexual battery statute

under which Lechuga was convicted provides in relevant part:

       Any person who touches an intimate part of another person while that
       person is unlawfully restrained by the accused or an accomplice, and if the
       touching is against the will of the person touched and is for the purpose of
       sexual arousal, sexual gratification, or sexual abuse, is guilty of sexual
       battery. A violation of this subdivision is punishable by imprisonment in a
       county jail for not more than one year, and by a fine not exceeding two
       thousand dollars ($2,000); or by imprisonment in the state prison for two,
       three, or four years, and by a fine not exceeding ten thousand dollars
       ($10,000).

Cal. Penal Code § 243.4(a).

       The enhancement provision at issue in this case instructs a court to increase a

defendant’s base offense level by sixteen levels if the defendant was previously deported,

or remained unlawfully in the United States, after a conviction for a felony that is a crime

of violence. See U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii) (2006). The

Guidelines define a felony as any “federal, state, or local offense punishable by

imprisonment for a term exceeding one year.” Id. § 2L1.2 cmt. n.2. The use of the word

“punishable” makes clear that the definition of felony turns on the maximum sentence

that could result from a conviction for that offense, “irrespective of the actual sentence



                                              8
imposed.” United States v. Hernandez-Garduno, 460 F.3d 1287, 1293 (10th Cir. 2006);

see also United States v. Murillo, 422 F.3d 1152, 1153-54, 1155 (9th Cir. 2005)

(continuing to hold, after Blakely, that “in determining whether a state conviction is

punishable for more than one year’s imprisonment for purposes of a federal criminal

statute predicated on a prior felony conviction or for federal sentencing purposes, we look

to the maximum penalty allowed by statute”); United States v. Rivera-Perez, 322 F.3d

350, 352 (5th Cir. 2003) (holding that “a crime is a ‘felony’ for purposes of U.S.S.G. §

2L1.2(b)(1) . . . if, by the terms of the criminal statute, a conviction exposes a defendant

to a sentence of imprisonment of more than one year,” regardless whether defendant was

sentenced to more than one year). Because Lechuga is currently being sentenced for a

federal offense under the Guidelines, federal law governs the definition of “felony.” See

United States v. Moore, 420 F.3d 1218, 1223 n.5 (10th Cir. 2005) (“[W]hether a state

conviction counts as a predicate offense for a guidelines enhancement is a question of

federal law . . . .”).

        The sexual battery offense for which Lechuga was convicted has a maximum

sentence of four years in state prison. Cal. Penal Code § 243.4(a). Therefore, Lechuga

was convicted of an offense punishable by imprisonment for a term exceeding one year,

i.e., a felony. Cf. United States v. Dorsey, 174 F.3d 331, 332 (3d. Cir. 1999) (second

degree misdemeanor that is punishable by a prison term of more than one year is a felony

for purposes of U.S.S.G. § 4B1.1, which defines a felony as an offense punishable by a



                                              9
term exceeding one year). The fact that Lechuga’s sentence was suspended or

subsequently labeled as a misdemeanor has no bearing on whether the conviction was a

felony for purposes of section 2L1.2(b)(1)(A)(ii).4 See United States v.

Hernandez-Castillo, 449 F.3d 1127, 1130-31 (10th Cir. 2006) (defendant who received

suspended sentence of 157 days in jail was convicted of felony because California law

provided for sentence of up to three years imprisonment); cf. United States v.

Garcia-Lopez, 375 F.3d 586, 588-89 (7th Cir. 2004) (inquiry is whether defendant was

convicted of felony crime of violence at time of deportation; subsequent vacated

conviction irrelevant unless vacated because of actual innocence or constitutional error).




                   4
                      In any event, it is clear from the state court record that
            Lechuga had pled guilty to a felony in 1985. When the defense
            attorney attempted to categorize the offense as a misdemeanor, the
            prosecutor promptly called the court’s attention to the felony status.
            That portion of the dialog was as follows:

                   [District Attorney]: Excuse me. This was a no
                   immediate state prison which would mean that if he
                   violates probation – this is felony 243.4.

                   [Defense Attorney]: But also a lesser included
                   misdemeanor, Your Honor.

                   [District Attorney]: We did, however, indicate that it
                   was being taken as a felony.

                   THE COURT: All right.

            App. at 35. Although the two-year prison sentence was suspended,
            the record makes clear that Lechuga pled guilty to a felony.

                                             10
Therefore, the District Court did not err in concluding that Lechuga’s prior conviction

was a felony crime of violence.5

                                            III.

       For the above stated reasons, we will affirm the judgment of sentence.




                   5
                    Lechuga does not dispute that his prior conviction for
            sexual battery is a “forcible sex offense,” and therefore constitutes
            a “crime of violence” for purposes of section 2L1.2(b)(1)(A)(ii).
            See U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n.1(B)(iii)
            (2006).
                                                 11
