                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                          UNITED STATES COURT OF APPEALS
                                                                              November 10, 2005
                                      TENTH CIRCUIT
                                                                                  Clerk of Court

  UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                               No. 05-1139
  v.                                                          (D. Colorado)
                                                      (D.C. No. 04-CR-00275-MSK)
  ISRAEL MORALES-CHAVEZ,

            Defendant-Appellant.


                                   ORDER AND JUDGMENT*


Before McWILLIAMS, BALDOCK, and BRORBY, Senior Circuit Judges.**



       Israel Morales-Chavez, (the defendant), was charged in a one-count indictment

filed in the United States District Court for the District of Colorado pursuant to 8 U.S.C.

§§ 1326(a) and (b)(2), with having been “found” in the State of Colorado on or about June

9, 2004, after he had been deported and removed from the United States as an “illegal


        *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

        After examining the briefs and appellate record, this panel has determined
        **

unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument.
alien” subsequent to his having been convicted for the commission of three aggravated

felonies.1 According to the indictment, the defendant had been previously convicted of

unlawful entry into the United States on or about January 29, 1993, a matter with which

we are not here concerned. The second felony in question was for Forgery in the Second

Degree in Colorado on or about May 7, 1991, with which we are not here directly

concerned. The third prior felony alleged in the complaint, with which we are concerned,

is his prior conviction on or about April 17, 2003, in the state district court in the Tenth

Judicial District of Colorado, for assault in the third degree in Case No. 02-CR-905.

       8 U.S.C. § 1326(a) provides that any alien who has been deported and thereafter

enters or attempts to enter shall be fined under Title 18, or imprisoned for not more than

two years, or both. 8 U.S.C. § 1326(b)(2) goes on to provide that not withstanding the

provision of 8 U.S.C. § 1326(a), an alien, whose removal from the U.S. was subsequent to

a conviction for the commission of an aggravated felony, shall be fined under Title 18,

imprisoned for not more than twenty years, or both.

       As concerns the present case, U.S.S.G. § 2L1.2 provides as follows:

Unlawfully Entering or Remaining in the United States

              (a)    Base Offense Level: 8

              (b)    Specific Offense Characteristic



        8 U.S.C. §1101(43)(F) provides that the term “aggravated felony” means . . . a
        1

crime of violence (as defined in Section 16 of Title 18, but not including a purely political
offense) for which the term is imprisonment for at least one year.

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                     (1) Apply the Greatest:

                            If the defendant previously was deported, or unlawfully
                            remained in the United States, after–

                            (A) a conviction for a felony that is (i) a drug trafficking
                            offense for which the sentence imposed exceeded 13
                            months; (ii) a crime of violence; (iii) a firearms offense;
                            (iv) a child pornography offense; (v) a national security or
                            terrorism offense; (vi) a human trafficking offense; or (vii)
                            an alien smuggling offense, increase by 16 levels;

                             ...

                            (C) a conviction for an aggravated felony, increase by 8 levels;

       U.S.S.G. § 2L1.2(b)(1), Application Note 1 (B) (iii) reads as follows:

              (iii) “Crime of violence” means any of the following: murder,
              manslaughter, kidnaping, aggravated assault, forcible sex
              offenses, statutory rape, sexual abuse of a minor, robbery,
              arson, extortion, extortionate extension of credit, burglary of a
              dwelling, or any offense under federal, state, or local law that
              has as an element the use, attempted use, threatened use of
              physical force against the person of another. (Emphasis
              added.)

       Colo. Rev. Stat. § 18-3-204 reads as follows:

              § 18-3-204. Assault in the third degree

              A person commits the crime of assault in the third degree if he knowingly or
              recklessly causes bodily injury to another person or with criminal negligence
              the person causes bodily injury to another person by means of a deadly
              weapon. Assault in the third degree is a class 1 misdemeanor.

       As indicated, the indictment alleged that prior to his last deportation, defendant had,

inter alia, been convicted of an aggravated felony in the district court in Pueblo County,


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Colorado, of “Assault in the Third Degree, on or about April 17, 2003, in the District

Court, 10th Judicial District, Pueblo, Colorado, Case No. 12-CR-905.”

       Pursuant to a plea agreement, the defendant pled guilty of the crime charged and

was sentenced to 70 months imprisonment. In the plea agreement, the defendant admitted,

inter alia, that he sustained a prior conviction for second degree forgery, a felony, and also

admitted to a prior conviction for third degree assault, a misdemeanor. As permitted by

the plea agreement, defendant appeals his sentence.

       On appeal, counsel frames the one issue presented to this Court as follows:

              Whether the district court erred in finding that Mr. Morales-
              Chavez’s prior conviction for third-degree assault was a crime
              of violence under U.S.S.G. §2L1.2.


       By way of background, on June 9, 2004, the defendant was arrested in Morgan

County, Colorado, for driving under the influence of alcohol. When interviewed several

days later, he identified himself as a citizen of the Republic of Mexico and acknowledged

that he had previously been deported to Mexico by the United States and had then illegally

reentered the United States without the permission of the United States Attorney General.

Among his many previous convictions, the defendant had been convicted in Colorado of

Second Degree Forgery, a class five felony, in violation of Colo. Rev. Stat. § 18-5-103

(1)(e). He agrees that this conviction qualifies as an aggravated felony pursuant to

U.S.S.G. § 2L1.2(b)(1)(C). The defendant had also been convicted in Colorado of Third

Degree assault in violation of Colo. Rev. Stat. § 18-3-204, and in the district court, as in

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this Court, he argues that his conviction of a Third Degree assault does not qualify as a

“crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A).

       As above stated, pursuant to the plea agreement, the defendant pled guilty to the

crime as charged in the indictment, namely 8 U.S.C. §§1326(a) and (b)(2). At sentencing,

it was agreed that under U.S.S.G. § 2L1.2, the base offense level for a conviction under 8

U.S.C. § 1326(a) and (b)(2) was eight. Under the guidelines, a defendant’s base offense

level is to be raised by eight levels if he had, before his deportation, been convicted of an

aggravated felony (in defendant’s case, forgery), and should be enhanced by 16 levels if he

had been convicted of a crime of violence, whichever enhancement is “the greatest.” As

stated, defendant agrees that his base offense level of eight should be increased by eight

levels because of his previous conviction for forgery. However, defendant argued in the

trial court, as he does here, that his base offense level should not have been increased by

16 levels because of a previous conviction for Third Degree Assault, contending that his

conviction for Third Degree Assault was not a “crime of violence” for purposes of

U.S.S.G. § 2L1.2(b)(1)(A)(ii). The District Court disagreed with that argument. After

raising defendant’s base offense level of 8 by 16 levels for his Third Degree Assault

conviction, and then reducing his adjusted base offense level of 24 by three levels for his

acceptance of responsibility, defendant’s base offense level was 21. The guideline range

for an offense level of 21, when coupled with a criminal history category of V, resulted in

a guideline range of imprisonment for 70 to 87 months. As mentioned, defendant was


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sentenced to imprisonment for 70 months. If defendant’s base level was raised by only 8

levels, instead of 16, his adjusted base bevel would have been 16 and not 24. If the base

offense level of 16 had been lowered for his acceptance of responsibility to 13 levels,

when combined with his criminal history category of V, his guideline range would have

been 30 to 37 months imprisonment.

       The record before us shows that a “criminal information” was filed in July, 2002, in

the District Court of Pueblo County, Colorado, charging one Jose Martinez, an alias used

by the defendant, in Count 1 with menacing with a deadly weapon in violation of Colo.

Rev. Stat. § 18-3-206 (Class Five Felony) and in a second count with assault in the Third

Degree in violation of Colo. Rev. Stat. § 18-3-204 (Class One Misdemeanor). Attached to

that complaint was an affidavit for a warrantless arrest by one Matthew A. Hernandez, a

police officer for the Pueblo Police Department, in which he outlined in detail the facts

and circumstances surrounding the charges against the defendant. It would appear that the

defendant was later convicted of violating the second count in that indictment, which was

a misdemeanor and that he was sentenced to imprisonment for one year.

       Based on the record before it, the district court in the instant case, concluded that

the defendant’s conviction of Third Degree assault in 2003 in Pueblo County, Colorado,

involved the “use of force” by the defendant which would qualify as a “crime of violence”

under U.S.S.G. § 2L1.2. Specifically, the district judge stated “I conclude that the prior

convictions for assault were for the purposes of §2L1.2 crimes of violence, requiring an


                                              -6-
increase of 16 levels as a special offense characteristic.” It was on that basis that the

district court increased defendant’s base offense level by 16 levels under U.S.S.G. §

2L.1.2. In thus concluding, the district court spoke as follows:

              An information filed on July 18, 2000, in The People of State of
       Colorado vs. Jose Martinez, which was a name apparently used by the
       defendant, charged him in another case with assault in the third degree in
       violation of 18-3-204 in conjunction with menacing with a deadly weapon.
       And attached to that information is a sworn affidavit of Matthew A.
       Hernandez, who states that he was employed as a police office for the
       Pueblo, Colorado Police Department and in that capacity he reported on a
       stabbing. On his arrival, he made contact with Jose Martinez, who was
       bleeding from wounds to his chest and shoulder. Mr. Martinez said, “I
       didn’t do anything, and my woman cut me.” Mr. Martinez later said while in
       the hospital that it was his fault; he did everything. After the officer
       asked him what happened, he did not elaborate. Vickie Martinez reported
       that she was driving with her boyfriend, Jose, home. She was accused of
       cheating on him. He punched her in the face a couple of times on the way
       home. He reached for a tool near the side of his car and tried to hit her on
       the head with a hammer that has a blade on it.

       We are in accord with the district court’s handling of this matter. In support of our

resolution of this case, in United States v. Farnsworth, 92 F.3d 1001, 1008 (10th Cir.

1996), we spoke as follows:

       For purposes of evaluating whether a prior offense constituted a crime of
       violence for purposes of § 4B1.2, we look first to the statutory basis of
       conviction. If the statute is ambiguous, or broad enough to encompass both
       violent and nonviolent crimes, “a court can look beyond the statutory count
       of conviction in order to resolve a patent ambiguity caused by a broad state
       statute.” The range of this extrastatutory examination is limited, however, to
       “the charging papers, judgment of conviction, plea agreement or other
       statements by the defendant for the record, presentence report adopted by
       the court, and findings by the sentencing judge.”(Citations omitted).

       The criminal information, with the attached affidavit of Matthew Hernandez, which

                                              -7-
was relied on by the district court in concluding that the defendant’s conviction in 2003

was for assault in the third degree and involved the intentional “use of force,” was

contained in the presentence report. As concerns the accuracy of those documents,

defendant’s counsel, at sentencing, in response to inquiry by the district court, indicated

that he had reviewed the entirety of the pre-sentence report and its addenda and that he did

not dispute the “factual contents” of that report, indicating that his objections to the pre-

sentence report were “a legal dispute, whether, in fact . . . ‘third degree assault’ is a crime

of violence . . . or not . . . ,” and were not “factual in nature.” We agree with the district

court that the affidavit of Officer Hernandez showed that in violating Colo. Rev. Stat. §18-

3-204, the charge of which the defendant was convicted, there was a “use of force” and

that it involved something more than a mere negligent “use of force.” In other words, the

defendant’s “use of force” was “knowing or reckless,” or “criminally negligent” and

caused bodily injury as denounced by Colo. Rev. Stat. §18-3-204. We are not persuaded

by the defendant’s further suggestion that we, under Tenth Circuit law, may, and should,

disregard Matthew Hernandez’s affidavit and hold that “the district court was limited to

analyzing the terms of the statute.”

       We believe that United States v. Perez-Vargas, 414 F.3d 1282, relied on by the

defendant, does not dictate a contrary result. We agree that under Perez-Vargas, Colo.

Rev. Stat. § 18-3-204 is not necessarily a crime of violence as defined the Guidelines.

However, in such instances, as the court stated in Perez-Vargas, a district court may


                                               -8-
examine the charging documents or court records of comparable reliability in order to

understand the exact nature of the conviction under Colo. Rev. Stat. § 18-3-204. Here, the

“charging papers,” including Officer Hernandez’ affidavit, clearly supports the district

court’s holding that the defendant’s conviction in Pueblo County, Colorado, in 2003 for

Third Degree Assault under Colo. Rev. Stat. § 18-3-204 included the “use of force,” as

required by U.S.S.G. § 2L1.2.

       Nor do we believe that United States v. Torres-Ruiz, 387 F.3d 1179 (10th Cir.

2004), also relied on by the defendant, dictates reversal in the present case. The “prior

conviction” in that case involved a California statute concerning driving a motor vehicle

while under the influence of intoxicating liquor and causing injury to another. In that case,

as in Perez-Vargas, there were no “charging papers” before the district court, as there were

in the instant case.

       Judgment affirmed.



                                                   ENTERED FOR THE COURT

                                                   Robert H. McWilliams
                                                   Senior Circuit Judge




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