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


2-16-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4866




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"USA v. Remoi" (2007). 2007 Decisions. Paper 1604.
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                                                                NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                                __________

                                     No. 05-4866
                                     __________

                          UNITED STATES OF AMERICA

                                          v.

                                  OKOCCI REMOI,

                                               Appellant.
                                     __________

                   On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                         (D.C. Criminal No. 02-cr-00804-1)
                    District Judge: Honorable James K. Gardner
                                    __________

                     Submitted Under Third Circuit LAR 34.1(a)
                                on January 8, 2007

                Before: SLOVITER and RENDELL , Circuit Judges,
                           and IRENAS, District Judge.

                              (Filed: February 16, 2007)
                                      __________

                             OPINION OF THE COURT
                                   __________


__________________

   * Honorable Joseph E. Irenas, Senior Judge of the United States District Court for
     the District of New Jersey, sitting by designation.
RENDELL, Circuit Judge.

       Okucci Remoi appeals from a sentence entered following his April 2003

conviction for hampering the departure of an alien subject to removal, in violation of 8

U.S.C. § 1253(a)(1)(C). Remoi appeals to our court for a second time, following a

remand under United States v. Booker, 543 U.S. 220 (2005), now contending that the

District Court erred under Shepard v. United States, 544 U.S. 13 (2005), by concluding,

based solely on the charging document and without consulting the record of Remoi’s

guilty plea, that his 1990 New Jersey conviction on two counts of criminal sexual contact

involved physically helpless victims and therefore qualified as a crime of violence under

United States Sentencing Guidelines § 2L1.2. We will affirm the District Court’s

sentencing order.

                                             I.

       Remoi’s argument on appeal is that the Supreme Court’s holding in Shepard,

which further explains the exception to the “categorical” approach used to determine

whether the elements giving rise to liability in a prior conviction comport with the

elements necessary to trigger a sentencing enhancement, is somehow at odds with the

methods used at sentencing by the District Court. We disagree.

       We note that the procedural posture of this appeal substantially undercuts Remoi’s

claim. In our previous opinion in United States v. Remoi, 404 F.3d 789, 792-93 (3d Cir.

2005) (“Remoi I”), we specifically concluded that Remoi’s 1990 conviction for criminal



                                             2
sexual contact categorically qualified as a “forcible sex offense,” and therefore that it

constituted a crime of violence for purposes of the enhancement under § 2L1.2.1 Shepard

was decided five weeks before our opinion in Remoi I was filed, and we rejected Remoi’s

petition for rehearing based on Shepard. Only if our ruling in Remoi I was inconsistent

with Shepard, would we revisit it here, but we find no such inconsistency.

       Remoi reads Shepard to mean that a District Court must look to both the

adjudicative records surrounding the defendant’s guilty plea and the charging document

to determine whether a defendant’s prior conviction is of a kind that triggers an

enhancement under the Guidelines. Given this reading, Remoi contends that because he

never specifically admitted to sexual contact with a “helpless victim” during his plea

colloquy, the Government cannot show that his prior conviction was for a crime of

violence under the “categorical approach.” However, regardless of the accuracy of his

interpretation of Shepard, Remoi’s reliance on that case is misplaced.

       In Shepard, the Supreme Court explained how the exception to the categorical

approach, previously set forth in the context of convictions following trial in Taylor v.

United States, 495 U.S. 575 (1990), should be applied to convictions following plea

agreements. In Taylor, the Court determined that an exception to the strict categorical

approach was necessary when the statute under which the defendant was previously


  1
   Remoi was convicted again under the same statute for a similar crime in 1995, though
we did not rely on this conviction in Remoi I. Any determination that the 1990 conviction
qualifies for sentencing enhancement purposes applies equally to the 1995 conviction.

                                              3
convicted includes multiple offenses, not all of which contain each of the elements

necessary to trigger a sentencing enhancement. In the case of these “divisible statutes,”

the sentencing court must still determine whether the conviction necessarily encompassed

all of the elements of the qualifying offense. However, to do so, the Supreme Court held

that a sentencing court was permitted to look beyond the plain language of the statute –

the usual limit of its gaze under the strict categorical approach – but that it could examine

no more than the charging document and jury instructions from the previous trial. Taylor,

495 U.S. at 602.

       Extending this rule to those situations in which a sentencing court is called upon to

examine a conviction following a guilty plea, rather than following a full trial, the

Supreme Court in Shepard set forth the universe of documents a sentencing court could

examine and specifically declined to permit inquiry into police reports. The Court noted:

              We hold that inquiry . . . is limited to the terms of the
              charging document, the terms of a plea agreement or
              transcript of colloquy between judge and defendant in which
              the factual basis for the plea was confirmed by the defendant,
              or to some comparable judicial record of this information.

544 U.S. at 26.

However, as we held in Remoi I, the charging document leading to the 1990 conviction is

clear, charging in both counts of criminal sexual contact that: “Remoi . . . did commit an

act of sexual contact with A.C. when A.C. was one whom Okocci Remoi knew was

physically helpless for the purpose of . . . contrary to the provisions of N.J.S.A. 2C:14-



                                              4
3(b).” 2 We need look no further than that document to determine, as we did in Remoi I,

that Remoi was charged with and convicted of N.J.S.A. 2C:14-2c(2), which criminalizes

intentional sexual touching with “one whom the actor knew or should have known was

physically helpless.” Remoi I, 404 F.3d at 793. Accordingly, the enhancement under §

2L1.2 was applicable. On remand, the District Court adhered to this ruling and applied §

2L1.2 to Remoi’s sentence.

       Given that we previously applied the strict categorical approach in Remoi I,

Shepard does not alter the District Court’s inquiry or the reasons for the result reached in

our previous opinion and we will accordingly AFFIRM.

________________




  2
   The first count of criminal sexual contact was as to Remoi’s touching of A.C., while
the second count was as to his touching of a different victim, M.S.

                                              5
