07-3660-cr
United States v. Gamez


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                      _____________________

                                         August Term, 2008
(Argued: September 23, 2008                                          Decided: December 5, 2008
                                                                  Opinion filed: August 20, 2009)
                                     Docket No. 07-3660-cr(L)

                                      _____________________

                                      United States of America,

                                                                    Appellee,

                                                -v.-

             Santos Gamez, also known as Robert Evangelista, also known as Santos* Diaz,

                                                                    Defendant-Appellant.
                                _______________________

BEFORE:           WESLEY, HALL and GIBSON,** Circuit Judges.
                            _______________________


        Appeal from the judgment of the United States District Court for the Southern District of
New York (Jones, J.), sentencing Defendant-Appellant Santos Gamez principally to thirty
months imprisonment and three years of supervised release following his January 10, 2007 guilty
plea to illegally reentering the United States after deportation for an aggravated felony, in
violation of 8 U.S.C. § 1326(a). We hold that criminal possession of a weapon in the second
degree, in violation of N.Y. Penal Law § 265.03, is not a crime of violence for the purposes of
Sentencing Guidelines § 2L1.2(b)(1)(A)(ii). We vacate the sentence and remand to the district
court for resentencing.
                                   ________________________


        *
         The Clerk of Court is directed to amend the official caption in this case to conform to
the above caption (“Samtos-Diaz” should become “Santos-Diaz”).
        **
          The Honorable John R. Gibson, United States Court of Appeals for the Eighth Circuit
Court, sitting by designation.
               EDWARD S. ZAS, Appeals Bureau, Federal Defenders of New York, Inc., New
               York, New York, for Defendant-Appellant Gamez.

               SHARON E. FRASE, Assistant United States Attorney, Of Counsel (Daniel A.
               Braun, Assistant United States Attorney, of Counsel, on the brief), for Michael J.
               Garcia, United States Attorney, Southern District of New York, New York, New
               York, for Appellee.
                                 ________________________

PER CURIAM:

       Defendant-Appellant Santos Gamez (“Gamez”) appeals from the district court judgment

sentencing him to thirty months imprisonment, three years of supervised release and an

assessment of $100, following his January 10, 2007 guilty plea to illegally reentering the United

States after deportation for an aggravated felony, in violation of 8 U.S.C. § 1326(a). Gamez was

convicted in 2000 in state court of a violation of N.Y. Penal Law § 265.03 for possessing,

without authorization, a loaded .32 caliber firearm and four live rounds of ammunition.1 On

appeal, Gamez argues that the district court erred when it increased his base offense level by

sixteen levels, pursuant to the United States Sentencing Guidelines (“Guidelines”) §

2L1.2(b)(1)(A)(ii), after determining that his prior New York State felony conviction was a

“crime of violence.” According to Gamez, a “crime of violence,” as defined in the Commentary

accompanying the Guidelines’ § 2L1.2(b)(1), requires that the offense of which he was

previously convicted have as an element the “use, attempted use, or threatened use of physical

force” and that it cannot encompass an offense for which the element related to physical force




       1
          Gamez argued at his sentencing before the district court that he was not charged with an
assault or aggravated assault in connection with the 1998 incident because he was involved in a
fight and was acting in self defense.

                                                 2
requires only proof of intent to use it. We agree, and for the reasons that follow we vacate the

sentence and remand for resentencing.

                                        BACKGROUND

       On January 20, 2007, Gamez, a Honduran citizen, pleaded guilty to unlawful reentry to

the United States after deportation in violation of 8 U.S.C. § 1326(a). Gamez had been removed

from the United States in August 2003 because in June 2000 he had pleaded guilty to criminal

possession of a weapon in the second degree in violation of N.Y. Penal Law § 265.03 which

constituted an aggravated felony, a removable offense under the Immigration and Nationality

Act. According to the Presentence Report (“PSR”), prepared by the Probation Office in

connection with Gamez’s illegal reentry conviction, which incorporated facts from the state

presentence report prepared in connection with Gamez’s 2000 guilty plea to the state offense,

Gamez was arrested in 1998 after shooting one person in the face and one in the stomach. When

he was arrested, Gamez was carrying a loaded .32 caliber firearm, which contained four live

rounds of ammunition. He pleaded guilty to a violation of N.Y. Penal Law § 265.03 and was

sentenced to forty-two months imprisonment. In August 2003, Gamez was transferred into the

custody of the Immigration and Customs Enforcement and removed to Honduras. Gamez later

returned to the United States and was charged with unlawfully reentering the United States, to

which he pleaded guilty and was sentenced to thirty months imprisonment.

       According to the PSR prepared for the unlawful reentry conviction at issue, under

U.S.S.G. § 2L1.2(a), Gamez’s base offense level was eight. Concluding that Gamez’s prior

criminal possession of a weapon conviction was for a “crime of violence,” the PSR

recommended a sixteen-level increase pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). It also


                                                 3
recommended a three-level decrease for acceptance of responsibility based on Gamez’s plea of

guilty to the unlawful reentry charge. The resulting total offense level was twenty-one. The

parties voiced no objections to the facts contained in the PSR, and the court determined it was

undisputed that Gamez’s total offense level was twenty-one.2 While the PSR indicated that

Gamez’s criminal history was seven points, placing him in criminal history category IV, the

district court determined that the PSR was ambiguous about whether Gamez’s illegal reentry

crime was committed less than two years after he was released from imprisonment on his 2000

conviction and computed Gamez’s criminal history at six points, thus placing him in criminal

history category III. With a total offense level of twenty-one and criminal history category III,

Gamez’s Guidelines range was forty-six to fifty-seven months imprisonment.

       At the sentencing hearing, the district court adopted the facts from the PSR and

concluded, after considering the Guidelines range and the factors under 18 U.S.C. § 3553(a), that

a non-Guidelines sentence was appropriate. The district court found it significant that the

defendant returned to the United States to work, rather than to obtain money through criminal

activity, and the court credited Gamez’s statement that he would not return illegally to the United

States in the future. It imposed a thirty-month sentence of imprisonment, sixteen months below

the low end of the applicable Guidelines range.




       2
         Although the district court did not explain how it reached the total offense level of
twenty-one, the district court’s calculation corresponds to that of the PSR.

                                                  4
                                           DISCUSSION

Standard of Review

       We review de novo the district court’s interpretation of the Guidelines regarding whether

a particular crime is a “crime of violence.” See United States v. Rubenstein, 403 F.3d 93, 99 (2d

Cir. 2005).

       Gamez argues for the first time on appeal that the district court erred when it determined

that his New York conviction for criminal possession of a weapon in the second degree was a

“crime of violence” under the Guidelines, thus subjecting him to a sixteen-level increase of his

base offense level. It is undisputed that Gamez did not raise this issue at sentencing, nor did he

object to the court’s calculation of the total offense level. We therefore review the district court’s

decision for plain error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 732

(1993). Under the plain error standard, “[t]here must be an ‘error’ that is ‘plain’ and that

‘affect[s] substantial rights.’” Id. Moreover, courts of appeals should only exercise their

discretion to correct the forfeited error pursuant to Fed. R. Crim. P. 52(b) when the error

“seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. (citing

United States v. Young, 470 U.S. 1, 15 (1985)) (internal quotation marks omitted). This Court

has stated that the plain error doctrine should not be applied stringently in the sentencing context,

where the cost of correcting an unpreserved error is not as great as in the trial context. See

United States v. Williams, 399 F.3d 450, 456-57 (2d Cir. 2005).3


       3
          The government invites us to reject the “relaxed” plain error standard here because, it
contends, that standard “is not applied as a general matter to all unpreserved sentencing claims”
and Gamez’s “failure to object at any stage of the sentencing proceeding to the proposed
application of a well-established Guidelines enhancement does not warrant application of any
type of ‘relaxed’ plain error standard.” We do not need to address the government’s contention

                                                  5
Whether There Was an Error

       “Deviation from a legal rule is ‘error’ unless the rule has been waived.” Olano, 507 U.S.

at 732-33. The Guidelines provide a base offense level of eight for unlawfully entering or

remaining in the United States. See U.S.S.G. § 2L1.2(a). The specific offense characteristic

provides that an increase by sixteen levels applies “[i]f the defendant previously was deported, or

unlawfully remained in the United States, after—(A) a conviction for a felony that is . . . (ii) a

crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The commentary for § 2L1.2(b)(1) of the

Guidelines provides the following definition for “crime of violence”:

       “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, or threatened use of physical force against the person of
       another.

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (2006) (emphasis added). Because criminal possession of a

weapon is not an enumerated offense, to constitute a crime of violence under this definition, it

must have “as an element the use, attempted use, or threatened use of physical force against the

person of another.” See id.

       At the time of Gamez’s guilty plea in 2000, N. Y. Penal Law § 265.034 provided:

       A person is guilty of criminal possession of a weapon in the second degree when,
       with intent to use the same unlawfully against another: (1) He possesses a
       machine-gun; or (2) He possesses a loaded firearm; or (3) He possesses a


on this issue because we reach the same result under either standard.
       4
         Effective December 1, 2005, a person also violates the second degree offense when he
possesses five or more firearms, N.Y. Penal Law § 265.03 (2) (McKinney 2005), and, effective
November 1, 2006, when he possesses a loaded firearm outside his home or place of business,
N.Y. Penal Law § 265.03 (3) (McKinney 2006).

                                                  6
       disguised gun. Criminal possession of a weapon in the second degree is a class C
       felony.

Therefore, to establish criminal possession of a weapon in the second degree, the prosecution

must demonstrate, beyond a reasonable doubt, that a person: (1) possessed one of the described

weapons; and (2) had intent to use such weapon unlawfully against another. See N.Y. Penal Law

§ 265.03 (McKinney 2000). As the New York Court of Appeals has instructed: “The essence of

the illegal conduct defined in sections 265.01-265.05 of the Penal Law is the act of possessing a

weapon unlawfully. . . . Once the unlawful possession of the weapon is established, the

possessory crime is complete and any unlawful use of the weapon is punishable as a separate

crime.” People v. Almodovar, 62 N.Y.2d 126, 130 (1984) (internal citations omitted).

       Because unlawful possession of a firearm under N.Y. Penal Law § 265.03 does not

include as an element any unlawful use, attempted use or threatened use of physical force against

another person, Gamez is correct that intent to use a gun unlawfully against another, an element

of the offense for which he was convicted, “cannot be equated with the actual, attempted or

threatened use of physical force, which all involve some affirmative conduct beyond the mere

possession of a gun.” See id. That Gamez actually used the firearm he possessed to shoot two

persons is irrelevant because the applicable Guidelines definition of “crime of violence” in the

context of immigration offenses requires that the statutory offense of which the defendant was

previously convicted have “as an element the use, attempted use, or threatened use of physical

force.” New York State second-degree weapon possession does not require proof of any of these

elements.




                                                 7
       The government contends the district court did not err in its calculations because no

courts have “considered whether courts sentencing illegal reentry defendants previously

convicted under [N.Y. Penal Law] § 265.03 should look beyond the statutory definition to the

underlying facts of the offense” and “the analogous case law that does exist supports application

of the 16-level enhancement in Gamez’s case.” According to the government, N.Y. Penal Law §

265.03 does not differ materially from the Iowa statute at issue in United States v. Gomez-

Hernandez, 300 F.3d 974 (8th Cir. 2002), because “possessing a loaded firearm with intent to use

it against another certainly can, and almost invariably will, encompass actions where the

perpetrator is manifesting that intent by using, attempting to use, or threatening the use of force.”

We are not persuaded.

       In Gomez-Hernandez, the court determined, based on the underlying conduct rather than

the statutory definition of the predicate state offense, that the defendant committed a crime of

violence. Id. at 980. At the time Gomez-Hernandez was sentenced, Iowa Code § 708.8, under

which he was convicted, provided: “A person who goes armed with any dangerous weapon with

the intent to use without justification such weapon against the person of another commits a class

‘D’ felony.” Gomez-Hernandez argued that “going armed with intent is not a crime of violence

under the amended guideline because ‘[i]t is possible to commit this offense without using,

attempting to use, or threatening to use force against the person of another.’” Gomez-Hernandez.

300 F.3d at 980. Relying on two decisions of the Iowa Supreme Court, State v. Ray, 516 N.W.2d

863, 865 (Iowa 1994), and State v. Slayton, 417 N.W.2d 432, 434 (Iowa 1987), the Eighth Circuit

applied a modified categorical approach to analyzing the Iowa statute “because it is clear that

[Iowa Code] § 708.8 includes at least some offenses that involve an actual, attempted, or


                                                  8
threatened use of force.” Gomez-Hernandez. 300 F.3d at 980. A portion of the Iowa Supreme

Court’s discussion in Ray is key to understanding both the distinction between “going armed . . .

with intent” under § 708.8 of the Iowa Code and the possession offense under N.Y. Penal Law §

265.03 and also the reason the Iowa provision can be read as constituting “an attempted use of

physical force.” See Gomez-Hernandez, 300 F. 3d at 980. In Ray, discussing the elements of the

crime the court stated: “As for ‘going’ armed, we believe the term necessarily implicates proof of

movement. That requirement is met here by uncontradicted testimony that Ray pursued Kelly

from inside the house onto the front lawn while carrying the knife.” Ray, 516 N.W.2d at 865

(emphasis added). Similarly in Slayton, while the issue before the Iowa court was the sufficiency

and nature of the proof of the defendant’s intent, the evidence as to the other elements of the

crime demonstrated that the defendant was moving through his victim parents’ house carrying a

shotgun. Slayton, 417 N.W.2d at 435. There is no question, therefore, that in many

circumstances, the act of carrying a dangerous weapon and the act of moving while carrying it,

all done with the intent to use it against another person, can amount to an attempted use of

physical force against that person. Because the element of movement required to be proven

under the Iowa statute is absent in N.Y. Penal Law § 265.03, however, and because the required

act to be proven under New York law is only possession, which when “[o]nce . . . established, the

possessory crime is complete,” Almodovar, 62 N.Y.2d at130, § 265.03 cannot in and of itself

involve an attempted use of physical force.

       The government also argues that it is the entire course of Gamez’s conduct, which

involves the use of force in his shooting of two persons, that manifests his intent to use a firearm

unlawfully against another. This argument also misses the mark because the manner in which


                                                 9
intent is manifested is irrelevant to our analysis since it is the conduct, i.e., “the use, attempted

use, or threatened use of physical force,” and not the mental state, i.e., “the intent to use” physical

force, that operates to define a prior conviction as a “crime of violence” under U.S.S.G. §

2L1.2(b)(1)(A)(ii). Put another way, although it is possible that during the time Gamez

committed the crime of possession of a weapon in the second degree he also committed another

crime that would constitute a “crime of violence,” he was not convicted of such crime, and under

the applicable Guidelines provisions, it is only “a conviction for a felony that is . . . (ii) a crime of

violence,” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (emphasis added), that will yield the sentencing

enhancement at issue here.

        For the reasons articulated, we hold that a violation of N.Y. Penal Law § 265.03 for

which Gamez was convicted is not a crime of violence as defined in U.S.S.G., §

2L1.2(b)(1)(A)(ii) because it is not an offense that includes “as an element the use, attempted

use, or threatened use of physical force against the person of another.” Accordingly, the

determination to the contrary was error.

Whether the Error Was Plain

        A “court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear

under current law.” Olano, 507 U.S. at 733. “Whether an error is ‘plain’ is determined by

reference to the law as of the time of appeal.” United States v. Weintraub, 273 F.3d 139,152 (2d

Cir. 2001) (citing Johnson v. United States, 520 U.S. 461, 468 (1997)). Typically, we will not

find plain error “where the operative legal question is unsettled.” Id.

        The settled law requires the sentencing courts to take a categorical approach in

determining whether a prior conviction is a crime of violence for the purposes of sentencing


                                                   10
enhancement except in “a narrow range of cases where a jury was actually required to find all the

elements of [an offense].” See United States v. Taylor, 495 U.S. 575, 602 (1990); United States

v. Gray, 535 F.3d 128, 131 (2d Cir. 2008); United States v. Rosa, 507 F.3d 142, 151(2d Cir.

2007); United States v. Jackson, 301 F.3d 59, 61 (2d Cir. 2002), abrogated on other grounds by

Chambers v. United States, 129 S. Ct. 687 (2009). “The nature of the prior offense of conviction

is controlled by the statutory definition of the offense.” United States v. Galicia-Delgado, 130

F.3d 518, 520 (2d Cir. 1997).

       We reject the government’s invitation to rely on the rule applied in United States v.

Maldonado-Lopez, 517 F.3d 1207, 1209 (10th Cir. 2008), which states that “[i]f 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 proceedings,” including “charging papers,

judgment of conviction, plea agreement or other statement by the defendant for the record,

presentence report adopted by the court, and findings by the sentencing judge.” We note that the

Tenth Circuit in United States v. Zuniga-Soto, 527 F.3d 1110, 1113 (10th Cir. 2008) abandoned

its Maldonado-Lopez rule, a rule the government urges us to apply here, when it held that the

Guidelines “§ 2L1.2’s ‘as an element’ language limits the scope of a proper inquiry to the

statutory definition of the prior offense and does not permit judicial examination of the facts

behind conviction.” Like the Zuniga-Soto court, we believe that the categorical approach is the

one that must be applied in determining whether a conviction is a crime of violence for the

purposes of the Guidelines’ § 2L1.2(b)(1)(A)(ii) sentence enhancement. The district court,

therefore, should have limited its inquiry to the elements of the state crime for which Gamez had

been convicted. Because the categorical approach limiting the court’s inquiry to the statutory


                                                 11
elements of the conviction is a well settled law, and the district court went beyond a categorical

approach to consider the factual circumstances of the crime of conviction, we must find that the

district court’s error here was plain.

Whether the Error Affects Substantial Rights

        To affect a defendant’s substantial rights, “the error must have been prejudicial: It must

have affected the outcome of the district court proceedings.” Olano, 507 U.S. at 734.

        When it sentenced Gamez, the district court applied the Guidelines range of forty-six to

fifty-seven months imprisonment, based on the total offense level of twenty-one. According to

Gamez, had the district court not applied the enhancement for a crime of violence, his total

offense level would have been, at most, thirteen based on: (i) a base offense level eight, U.S.S.G.

§ 2L1.2(a); (ii) an eight level increase for his N.Y. Penal Law § 265.03 conviction, which likely

qualifies as an aggravated felony, U.S.S.G.§ 2L1.2(b)(1)(C); and (iii) a three level reduction for

acceptance of responsibility, U.S.S.G. § 3E1.1(a). At a total offense level of thirteen and

Criminal History Category III, Gamez’s Guidelines range would have been eighteen to twenty-

four months. Thus, Gamez’s substantial rights were affected by the district court’s error because,

although he was given a below-Guidelines sentence, the advisory Guidelines range, which was

the starting point for the district court’s determination of the sentence it imposed, would have

been significantly lower.

        The final question in the plain error analysis is whether “the error seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Olano, 507 U.S. at 732 (internal

quotation marks, alteration and citation omitted). Under the circumstances of this case, the error

resulting in a significantly overstated advisory Guidelines range seriously affected the fairness


                                                 12
and integrity of the proceedings. The district court’s determination of an appropriate sentence

was influenced by the calculation of a total offense level that was at least half the level that

would have obtained had the New York State conviction not been counted as a crime of violence.

                                          CONCLUSION

       For the foregoing reasons, we vacate Gamez’s sentence and remand to the district court

for resentencing.




                                                  13
