                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-12-2007

USA v. Otero
Precedential or Non-Precedential: Precedential

Docket No. 05-3739




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                                    PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
              ___________

                  No. 05-3739
                  ___________

        UNITED STATES OF AMERICA

                       v.

              DEMETRIO OTERO,

                                Appellant
                  ___________

  On Appeal from the United States District Court
       for the Middle District of Pennsylvania
               (D.C. No. 03-cr-00196)
District Judge: The Honorable William W. Caldwell
                   ___________

            ARGUED JULY 11, 2007

        BEFORE: RENDELL, AMBRO,
        and NYGAARD, Circuit Judges.

           (Filed September 12, 2007)
                  ___________
Gerald C. Peterson, Esq.
Brian J. Wanamaker, Esq. (Argued)
Winston & Strawn
35 West Wacker Drive, Suite 4200
Chicago, IL 60601

       Counsel for Appellant

Theodore B. Smith, III, Esq. (Argued)
James T. Clancy, Esq.
Office of the United States Attorney
228 Walnut Street, PO Box 11754
220 Federal Building and Courthouse
Harrisburg, PA 17108

       Counsel for Appellee

                         ___________

                 OPINION OF THE COURT
                      ___________


NYGAARD, Circuit Judge.

       Demetrio Otero appeals from an order denying his pro se

petition for habeas corpus relief under 28 U.S.C. § 2255. Otero

alleged in his petition that his trial counsel was ineffective for



                                2
failing to object at his sentencing to a 16-point offense level

increase which resulted from an earlier conviction for simple

assault. He argued there, as here, that simple assault is not a

“crime of violence,” and, hence, his conviction does not support

the 16-point enhancement the District Court imposed. The

District Court denied his habeas petition. We will reverse.

                               I.

       Appellant Demetrio Otero, a citizen of Mexico, pleaded

guilty to one count of illegal re-entry into the United States by

an alien previously deported following a conviction for an

aggravated felony. See 8 U.S.C. § 1326 (a) and (b)(2).

       At sentencing, the District Court increased Otero’s

offense level by 16 levels under U.S.S.G. § 2L1.2(b)(1)(A)(ii),

because the court concluded that simple assault qualified as a

crime of violence under that provision. Otero was sentenced to

60 months’ imprisonment and did not file a direct appeal.

                               3
       Otero filed a pro se motion pursuant to 28 U.S.C. § 2255,

alleging that his sentence was excessive because the District

Court improperly used the simple assault conviction to increase

his offense level by 16 levels. Otero asserted that his trial

counsel was ineffective for failing to raise the issue or object to

the PSR. The District Court held that the 16-level increase was

properly imposed because the simple assault conviction so

qualified as an aggravated felony under § 2L1.2(b)(1)(A)(ii).

The District Court concluded that using the PSR to prove

Otero’s simple assault conviction (supporting the 16 increase)

was proper, and that Otero failed to meet his burden of

establishing ineffective assistance of counsel. Accordingly, the

District Court denied Otero’s § 2255 motion and refused a

certificate of appealability. Otero timely filed his notice of

appeal and request for a certificate of appealability. We granted




                                4
Otero's request for a certificate of appealability but limited the

issues on appeal as follows:

       [I]n addition to any other arguments they wish to
       present, the parties’ briefs should discuss whether
       counsel performed unreasonably in failing to
       make an argument concerning Appellant’s
       conviction for simple assault in light of prior
       cases such as Taylor v. United States, 495 U.S.
       575, 600 (1990), Jobson v. Ashcroft, 326 F.3d 367
       (2d Cir. 2003), United States v. Vargas-Duran,
       356 F.3d 598 (5th Cir. 2004), and the like. We
       also grant a certificate of appealability as to
       Appellant’s argument that there was insufficient
       proof of the prior conviction under Shepard v.
       United States, 125 S.Ct. 1254 (2005).1




       1.
         Although we granted a certificate of appealability on
two issues, we need not reach Otero’s claims under Shepard
because we will reverse on his ineffective assistance of counsel
claim, grant the writ, and remand the cause for re-sentencing.
We do not reach constitutional issues unnecessarily. See
Santana Products, Inc. v. Bobrick Washroom Equipment, Inc.,
401 F.3d 123, 130-31 (3d Cir. 2005) (citing Spicer v. Hilton,
618 F.2d 232, 239 (3d Cir. 1980)).

                                5
United States v. Otero, No. 05-3739 (November 17, 2005).2 We

will affirm.

                               II.

       The District Court had jurisdiction pursuant to 28 U.S.C.

§§ 1291 and 2253(a). Our jurisdiction is premised on 28 U.S.C.

§ § 1291, 2253, and 2255. Counsel was appointed for the




       2.
           Otero also contests whether an 8-level enhancement
for a prior aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C)
would be appropriate in this case. If the basis of that
enhancement was his prior conviction for simple assault, he is
correct. See U.S.S.G. § 2L1.2(b)(1)(C) app. note 2 (defining
“aggravated felony” by reference to 8 U.S.C. § 1101(a)(43));
Popal v. Gonzales, 416 F.3d 249 (3d Cir. 2005) (holding that a
conviction for simple assault under Pennsylvania law does not
qualify under 8 U.S.C. § 16(b), by way of 11 U.S.C
§ 1101(a)(43), as an ‘aggravated felony’). This, however, also
calls into question the Government’s argument here that the
predicate aggravated felony in fact was the simple assault.
Otero does not challenge the validity of his guilty plea, though,
and we note that he also has a prior conviction for Theft by
Unlawful Taking, which could serve as the predicate aggravated
felony. We leave it to the District Court on remand to sort
through the implications of this issue, if any.

                               6
Appellant pursuant to 28 U.S.C. § 1915(e)(1).3 Because the

issues identified by the COA are purely legal, our review is

plenary. See United States v. Coleman, 451 F.3d 154, 156 (3d

Cir. 2006).

                              III.

       It is now axiomatic that to prevail on a claim of

ineffective assistance of counsel, Otero must establish that (1)

the performance of counsel fell below an objective standard of

reasonableness; and, (2) counsel’s deficient performance

prejudiced the defense. See Strickland v. Washington, 466 U.S.

668, 687-88 (1984); Albrecht v. Horn, 485 F.3d 103, 127 (3d

Cir. 2007).




       3.
        The Court is grateful for the services rendered by
appointed counsel, Gerald C. Peterson, Esq. and Brian J.
Wanamaker, Esq., of the law firm of Winston & Strawn,
Chicago, Illinois.

                               7
       Although Otero did not articulate specifically in his

petition that simple assault does not qualify as a crime of

violence, we construe pro se pleadings liberally. See Haines v.

Kerner, 404 U.S. 519, 520 (1972). That he did not separately

list the issue as a ground does not deter us from considering the

issue. Haines, 404 U.S. at 520 (pro se prisoner complaint,

“however inartfully pleaded" is held "to less stringent standards

than formal pleadings drafted by lawyers...."); see also Mitchell

v. Horn, 318 F.3d 523, 529 (3d Cir. 2003).

       As noted, Otero was convicted of simple assault. In

Pennsylvania, simple assault is committed when a defendant:

       (1) attempts to cause or intentionally, knowingly or
       recklessly causes bodily injury to another;

       (2) negligently causes bodily injury to another with a
       deadly weapon;

       (3) attempts by physical menace to put another in fear of
       imminent serious bodily injury; or


                               8
       (4) conceals or attempts to conceal a hypodermic needle
       on his person and intentionally or knowingly penetrates
       a law enforcement officer or an officer or an employee of
       a correctional institution, county jail or prison, detention
       facility or mental hospital during the course of an arrest
       or any search of the person.

18 PA. CONS. STAT. ANN. § 2701(a) (2003).

       Section 2L1.2(b)(1)(A) of the Guidelines provides for a

16-level increase for a defendant like Otero who was

“previously deported . . .after a conviction for a felony that is a

crime of violence.” The Guidelines definition of “crime of

violence” is “an offense under 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.” U.S.S.G. § 2L1.2,

application note 1(B)(iii).

       We are required to take a categorical approach when

deciding whether a conviction is for a crime of violence. Taylor

v. United States, 495 U.S. 575, 602 (1990). That is to say we


                                9
must look to the statute that Otero was convicted of violating, to

see whether the crimes therein described qualify as crimes of

violence. If so, the enhancement is proper.

       Although we have yet to specifically decide whether

simple assault in Pennsylvania qualifies as a crime of violence

under U.S.S.G. § 2L1.2, we recently held that an alien’s

conviction under Pennsylvania’s simple assault statute did not

constitute a crime of violence under 18 U.S.C. § 16(a) that

would render the alien removable as an aggravated felon. See

Popal v. Gonzales, 416 F.3d 249, 254 (3d Cir. 2005).4

       We held in Popal that because a Pennsylvania simple

assault violation requires a minimum mens rea of recklessness


       4.
         Although the issue in Popal was the removal of an alien
for committing a crime of violence under § 16(a), its reasoning
is applicable to this case because its definition of “crime of
violence” is very similar to the definition contained in § 2L1.2,
i.e., whether the offense “has as an element the use ... of
physical force against the person or property of another.”

                               10
rather than intent, it is not a crime of violence. Popal, 416 F.3d

at 254. The reasoning behind our decision was hardly new or

innovative. Indeed, we held therein that it is “settled law in this

Circuit that an offender has committed a ‘crime of violence’

only if he acted with an intent to use force." Popal, 416 F.3d at

254. See also United States v. Parson, 955 F.2d 858 (3d Cir.

1992). Popal limits categorical crimes of violence to offenses

committed through intentional use of force against another

rather than reckless or grossly negligent conduct. Id. See also

Fernandez-Ruiz v. Gonzalez, 466 F.3d 1121, 1132 (9th Cir.

2007). Although the issue in Popal was the removal of an alien

for committing a crime of violence under § 16(a), its definition

of “crime of violence” is identical to the definition contained in

§ 2L1.2, that is, whether the offense “has as an element the use

... of physical force against the person or property of another.”




                                11
Therefore, we conclude that our holding in Popal applies to the

relevant crime of violence definition under U.S.S.G. § 2L1.2.5

       Turning to Otero’s ineffective assistance of counsel

claims, the issue becomes whether counsel performed

unreasonably in failing to object to the 16-level enhancement,

and the use of the PSR. Initially we note that, on its face, the

Pennsylvania simple assault statute does not require the “use of

force” when “causing bodily injury.” 18 PA. CONS. STAT. ANN.

§ 2701(a)(1). Given the available teachings of Taylor, counsel

did not need to rely on available precedent to make an argument

that simple assault in Pennsylvania is not a “crime of violence.”

The statute does not contain “use of force” as an element of the

       5.
         The Government would have us look to Otero’s
indictment for additional information regarding the nature of the
simple assault to which he pleaded guilty. Regardless whether
this would be appropriate, doing so would not strengthen the
Government’s case, for the indictment alleged that Otero’s
actions had been taken “intentionally, knowingly, or recklessly.”
(Emphasis added).

                               12
offense and counsel’s performance could be deemed deficient

on this basis alone.

          Moreover, before the PSR was created and Otero

sentenced, there was existing case law calling into doubt

whether simple assault qualified as a crime of violence for

sentence enhancement purposes. Indeed, the Supreme Court in

Taylor had years earlier enunciated the categorical approach rule

under which counsel could have argued that simple assault was

not a crime of violence because the minimum mens rea required

for a conviction under the Pennsylvania statute is lower than

intent.

          Additionally, our decision in Parson, supra.,     was

available at the time of Otero’s sentencing. In Parson, we stated

that an offender has committed a “crime of violence” under 18

U.S.C. § 16(a) only if he acted with an intent to use force. 955

F.2d at 866. See also Jobson v. Ashcroft, 326 F.3d 367, 372-73

                               13
(2d Cir. 2003) (holding that second-degree manslaughter was

not a crime of violence, and thus was not an aggravated felony

warranting an alien’s removal). Also, in United States v.

Vargas-Duran, 356 F.3d 598 (5th Cir. 2004), the Court of

Appeals for the Fifth Circuit determined that Texas’ intoxication

assault statute did not qualify as a crime of violence for the

purpose of applying the 16-level sentencing enhancement under

§ 2L1.2. The court held that the “use” of force under § 2L1.2

requires that a defendant intentionally avail himself of that

force. Vargas-Duran, 356 F.3d at 599 (emphasis added). The

court further held that the intentional use of force must be an

element of the predicate offense if the predicate offense is to

enhance a defendant’s sentence. Id. at 600. We acknowledge

that counsel cannot be deficient for failing to cite and argue

cases decided after sentencing. See, e.g., Fountain v. Kyler, 420

F.3d 267, 274 (3d Cir. 2005) (“[c]ounsel cannot be held

                               14
ineffective for failing to predict future developments in the

law.”). But, counsel does have a duty to make reasonable

investigations of the law. See Strickland, 466 U.S. at 691. We

have specifically held that counsel’s failure to cite favorable

decisions from other courts of appeals indicates deficient

performance. See, e.g., Jansen v. United States, 369 F.3d 237,

243 (3d Cir. 2004); United States v. Franks, 230 F.3d 811, 814

(3d Cir. 2000); United States v. Headley, 923 F.2d 1079, 1083-

84) (3d Cir. 1991). Based on cases like these, plus Taylor,

which endorsed a categorical approach, counsel here could have

argued that simple assault was not a crime of violence under §

2L1.2 because the minimum culpability required for a

conviction under the Pennsylvania statute is less than

intentional.

       The decisions in Taylor, Parson, Jobson and Vargas-

Duran were readily available to counsel. There is no sound

                              15
strategy in counsel’s failure to object to the 16-level

enhancement in the PSR. “Where defense counsel fails to object

to an improper enhancement under the Sentencing Guidelines,

counsel has rendered ineffective assistance.” Jansen v. United

States, 369 F.3d at 244.       We therefore find counsel’s

performance deficient.

       Of course, Strickland requires more than just a showing

of substandard performance. Otero’s Sixth Amendment claim

cannot be sustained if he was not prejudiced by counsel's

substandard performance. Prejudice is established when, but for

counsel's error, there was a reasonable probability that the

outcome of the proceeding would have been different.

See Strickland, 466 U.S. at 694.

      Here, Otero suffered prejudice as a result of counsel's

substandard performance. The prejudice prong is satisfied

“when a deficiency by counsel resulted in a specific,

                              16
demonstrable enhancement in sentencing — such as an

automatic increase for a ‘career’ offender or an enhancement for

use of a handgun during a felony — which would not have

occurred but for counsel's error.” United States v. Franks, 237

F.3d 811, 815 (5th Cir. 2000) (three extra months equals

prejudice) (citing United States v. Phillips, 210 F.3d 345, 351

(5th Cir. 2000). Without the 16-level enhancement, Otero’s

guideline range would have been only 18 to 24 months in

prison. The increased sentence constituted prejudice. See

Glover v. United States, 531 U.S. 198, 202-05 (2001).

Accordingly, Otero received ineffective assistance of counsel

when counsel failed to object to the 16-level enhancement in the

PSR.

                              IV.

       Otero has made out a cognizable ineffective assistance of

counsel claim. We will reverse and remand with instructions

                              17
directing the District Court to grant the writ of habeas corpus

and to re-sentence Otero in accordance with this opinion.




                              18
