                                                                            FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       May 20, 2008
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                         Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 07-1382
          v.                                             (D. Colorado)
 ARCADIO MATIAS-MEDINA, also                  (D.C. No. 1:06-CR-00177-WDM)
 known as Martin El Korita,

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before PORFILIO, ANDERSON, and BRORBY, Circuit Judges.



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

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      Defendant and appellant Arcadio Matias-Medina pled guilty to unlawful

reentry of a previously deported alien, in violation of 8 U.S.C. § 1326(a) and (b). 1

He was sentenced to sixty months’ imprisonment. He appeals his sentence, which

we reverse and remand for resentencing.



                                  BACKGROUND

      The following facts were stipulated in the Plea Agreement and Statement of

Facts Relevant to Sentencing, and later incorporated into the Presentence Report

(“PSR”) prepared by the United States Probation Office and utilized by the court

when sentencing Matias-Medina under the United States Parole Commission,

Guidelines Manual (“USSG”) (2006). On March 29, 2006, Immigration and

Customs Enforcement (“ICE”) authorities arrested Matias-Medina for suspected

counterfeiting of an alien registration card, in violation of 18 U.S.C. § 1546. ICE

authorities determined that Matias-Medina had been deported three times

previously: once in 2005, following his conviction in New Mexico federal

district court for violating 8 U.S.C. § 1326(a)(1) and (2); once in 1998 for

criminal impersonation in violation of C.R.S. § 18-5-113(1)(e), a felony under

Colorado law and an “aggravated felony” pursuant to 8 U.S.C. § 1101(a)(43); and


      1
        He was also charged with fraud and misuse of visas, permits and other
documents, in violation of 18 U.S.C. § 1546. He was arrested on the immigration
violation because he was the subject of an investigation into the production of
false identity documents.

                                          -2-
on another occasion following his conviction for third degree assault, a Class 1

misdemeanor under Colorado law and a “felony that is a crime of violence”

pursuant to USSG § 2L1.2(b)(1)(A)(ii). 2 Matias-Medina has never received

authority to enter the United States legally.

      In calculating the applicable advisory Guidelines range, the PSR

determined that Matias-Medina’s base offense level was eight, pursuant to USSG

§2L1.2(a). That offense level was then increased by sixteen points pursuant to

USSG §2L1.2(b)(1)(A)(ii), because, the PSR concluded, one of Matias-Medina’s

prior deportations occurred following a conviction for a crime of violence (the

third degree assault, which is a felony Class 1 misdemeanor under Colorado law,

but a “felony that is a crime of violence” under USSG §2L1.2(b)(1)(A)(ii)).

Matias-Medina’s acceptance of responsibility entitled him to a further three-point

reduction, resulting in a total adjusted offense level of twenty-one. With fifteen

criminal history points, an offense level of twenty-one yielded a Guidelines

advisory range of seventy-seven to ninety-six months’ imprisonment.

      After the PSR was prepared, Matias-Medina filed a sentencing statement

and memorandum, arguing that the sixteen-level enhancement under USSG

2L1.2(b)(1)(A)(ii) overstated the seriousness of, and effectively double-counted,


      2
      As the discussion below will demonstrate, the PSR assumed that the
Colorado crime of third degree assault qualifies as a “crime of violence” under
USSG §2L1.2(b)(1)(A)(ii), although the issue is not as straightforward as that
may seem.

                                         -3-
his “relatively minor offense” of third degree assault. He argued that the actual

conduct underlying that offense was so trivial that his six-month jail term and

$500 fine were suspended. At sentencing, Matias-Medina’s defense counsel did

not object to the PSR, but did note that he had filed the motion for the variance.

The district court then “incorporated by reference [the PSR] as part of [its]

findings and conclusions.” Tr. of Sent. Hr’g at 3, R. Vol. III. After starting at

offense level eight, moving up sixteen for the crime of violence, then down three

for acceptance of responsibility, the court arrived at the net level of twenty-one.

The court then observed:

               The defendant has an extensive criminal record. In addition to
      the assault charge mentioned there are numerous drinking and . . .
      under the influence[] driving. There are also several convictions
      related to identity and unlawful re-entry. He also was on supervised
      release at the time of the instant offense and it was also committed
      within two years of his release from custody, all of which results in
      . . . total criminal history points of 15 which places him in Criminal
      History Category VI.
               The custody range is 77 to 96 months according to the
      guidelines, supervised release of two to three years.

Id. at 3. When the court asked for any further argument from defense counsel,

defense counsel stated:

            I really don’t have anything more to add to the motion for
      variance. I think it lays out the problem and kind of the double
      whammy that’s befallen Mr. Matias-Medina by virtue of this
      conviction back in 1995 for third-degree assault. He has got two
      criminal history points for that and then this huge and . . . the most
      serious upward adjustment for the underlying crime. Had that crime
      not counted, . . . he would have had plus eight rather than a plus 16.


                                          -4-
             And this is a problem that comes up because third-degree
      assault statute in Colorado is a misdemeanor under Colorado law, but
      becomes a felony under most definitions of what a felony is because
      it’s punishable by more than a year in jail. . . And so, . . . the
      underlying facts of the case I would submit are really not relevant to
      the decision making process because it’s about three degrees of
      hearsay when it gets to the report before the Court, but I think the
      Court can look at the fact that he was allowed to plead guilty to the
      third-degree assault which is a crime that requires a knowing or
      reckless mental state and bodily injury to the vehicle.

Id. at 4. Defense counsel then stated, “certainly when you look at the other

crimes in the guideline that qualify for the 16-level enhancement, it is the most

minor of any of those.” Id. at 5.

      The district court sentenced Matias-Medina, explaining that it was

considering “the guidelines as one of the factors under 3553(a)”; noting that

“there is . . . merit in the argument made by defendant that what ends up being in

essence a misdemeanor charge has significant ramifications, essentially more than

doubles the custody recommended by the guidelines;” but “looking at the nature

and circumstances, considering all of the 3553 factors,” the court agreed with the

government “that . . . this is an individual who has been deported three times, this

will be the fourth time. And therefore, it’s more [the court] views his history to

be a predictor that he will continue to violate.” Id. at 8-10. The court went on to

consider “the history and characteristics of the defendant” [including] “[h]is

[extensive] criminal history,” noting Matias-Medina “certainly constitutes a threat

to the public with his repeated driving violations mixed with alcohol.” Id. The


                                         -5-
court further explained that Matias-Medina had “not learned his lesson and he

displays a lack of respect for the law and a lengthier sentence is appropriate, also

to provide deterren[ce]” against continued criminal conduct. The court finally

concluded:

             In my judgment the nature of the crime that is the predicate for
      the 16-level increase does result in placing this defendant in the same
      category as those who have committed much more serious crimes, so
      I am sympathetic that the guideline range may be too excessive. On
      the other hand, the argument of defendant that he just simply be
      treated as if it were an aggravated felony and reduce the range to 33
      to 41 . . . seems to me to be too much of a reduction.
             I am comfortable that a reasonable sentence for this defendant
      under these circumstances taking into account his bad record,
      disregard for the law and threat to society should be a serious but not
      as serious as the guidelines would otherwise recommend.

Id. at 8-11. The court accordingly sentenced Matias-Medina to sixty months.



                                   DISCUSSION

      It appears in this case as if everyone assumed that a prior conviction for

third degree assault in Colorado qualifies as a “crime of violence” for purposes of

USSG §2L1.2(b)(1)(A)(ii). The parties simply disagreed on whether this was a

fair result, given that the assault involved a relatively lower degree of violence

than many crimes. Matias-Medina argued that the Guidelines unfairly double-

counted the effect of that prior assault conviction and also accorded it the greatest

enhancement effect (sixteen levels), although he characterizes the actual offense

underlying that enhancement as fairly trivial. The government stood behind the

                                         -6-
crime of violence characterization, and the district court, realizing that the

Guidelines were advisory only, determined that inclusion of the full sixteen-point

enhancement suggested a sentence that was too long, in light of the 18 U.S.C.

§ 3553(a) factors. The court thus exercised its discretion to vary downward and

imposed a sixty-month sentence. No one, however, seemed aware that there is a

question under our cases whether a Colorado conviction for third-degree assault

necessarily or categorically qualifies as a crime of violence under USSG

§ 2L1.2(b)(1)(A)(ii), or whether there are circumstances in which such a

conviction is properly not considered a crime of violence.

      We review a sentence for reasonableness, assessing whether it was imposed

in a procedurally reasonable way, and whether it is substantively reasonable. “A

sentence is procedurally unreasonable if the court failed to calculate (or

improperly calculated) the Guidelines range, treated the Guidelines as mandatory,

failed to consider the § 3553(a) factors, selected a sentence based on clearly

erroneous facts, or failed to adequately explain the chosen sentence.” United

States v. Ellis, 2008 WL 2004276, at *3 (10 th Cir. May 12, 2008) (internal

alterations and quotations omitted). “A sentence is substantively unreasonable if,

considering the factors set forth in 18 U.S.C. § 3553(a), the sentence is

unreasonable in length.” Id.

      Matias-Medina argues that “the issue is not the proper calculation of the

advisory guideline imprisonment range, but how to fix the significant flaw in that

                                          -7-
calculation.” Appellant’s Br. at 5. We interpret this argument as a less-than-

articulate assertion that the district court committed a procedural error in

calculating the advisory Guidelines sentence. “In reviewing a sentence on appeal,

this court must first determine whether the sentence is procedurally reasonable.”

United States v. Munoz-Nava, 2008 WL 1947011, at *8 (10 th Cir. May 6, 2008).

“We review de novo the district court’s interpretation of the Guidelines and its

determination that [defendant’s] prior conviction . . . is a crime of violence.”

United States v. Perez-Vargas, 414 F.3d 1282, 1284 (10 th Cir. 2005).

      “When determining whether a prior conviction is a crime of violence, the

Supreme Court has instructed sentencing courts to take ‘a formal categorical

approach, looking only to the statutory definitions of the prior offenses, and not

to the particular facts underlying those convictions.’” Id. at 1284 (quoting Taylor

v. United States, 495 U.S. 575, 600 (1990)). If, however, the statute “is

ambiguous, or broad enough to encompass both violent and nonviolent crimes, a

court can look beyond the statute to certain records of the prior proceeding, such

as the charging documents, the judgment, any plea thereto and findings by the

sentencing court.” Id. (further quotations omitted). “According to the Supreme

Court, then, we must limit ourselves to (1) an examination of the language of the

statute under which [defendant] was convicted, (2) the charging document or

court records of comparable reliability, and (3) any admissions (including those

within the plea agreement) [defendant] made regarding the facts of his prior

                                          -8-
convictions.” Id. at 1285 (citing Taylor, 495 U.S. at 600; Shepard v. United

States, 544 U.S. 13, 26 (2005)).

      In Perez-Vargas, we held that “[a] prior conviction for third degree assault

in Colorado . . . is not categorically a crime of violence under USSG § 2L1.2.”

Id. at 1287. We stated that a reviewing court therefore could properly look

beyond an ambiguous assault statute to charging documents, the terms of the plea

agreement, or some comparable judicial record to determine on a case-by-case

basis whether an assault conviction qualifies as a crime of violence under

§ 2L1.2(b)(1)(A)(ii).

      To be sure, Perez-Vargas does not hold that a Colorado third-degree
      assault conviction can never be a crime of violence; rather, it
      clarifies that third-degree assault is not always a crime of violence.
      If the charging documents, plea agreement, transcript of a plea
      colloquy, or sentencing court findings of the prior state court
      conviction demonstrate that the third-degree assault did, in fact,
      involve the use, attempted use, or threatened use of physical force,
      then the particular defendant’s prior assault conviction qualifies as a
      crime of violence under § 2L1.2(b)(!)(A)(ii).

United States v. Hernandez-Garduno, 460 F.3d 1287, 1294 (10 th Cir. 2006).

      In both Perez-Vargas and Hernandez-Garduno, we lacked sufficient

information about the prior conviction, from the kind of sources approved by the

Supreme Court, so that we had to remand the matter and direct the district court

to inquire whether the prior conviction was, in fact, a crime of violence. We feel

compelled to follow the same course here. The record in this case contains none

of the charging documents describing the prior assault, nor any court records from

                                         -9-
that case, nor any explicit admission by Matias-Medina as to the facts of his prior

conviction. We only have the PSR, which quotes from a PSR from a prior federal

deportation proceeding. We simply “cannot evaluate whether the records [upon

which the prior PSR relied] would be acceptable under the strictures of Supreme

Court precedent.” Perez-Vargas, 414 F.3d at 1285. We accordingly remand this

case to the district court for it to make that evaluation. 3



                                    CONCLUSION

       For the foregoing reasons, we REMAND this case to the district court for

resentencing.

                                                  ENTERED FOR THE COURT


                                                  Stephen H. Anderson
                                                  Circuit Judge




       3
       Of course, whether or not the district court determines that the prior
conviction in Colorado qualifies as a crime of violence, it may of course be the
subject of an enhancement under some other Guidelines provision.

                                           -10-
