     10-1400-cr
     United States v. Reyes

 1                  UNITED STATES COURT OF APPEALS
 2
 3                            FOR   THE   SECOND CIRCUIT
 4
 5
 6
 7                              August Term, 2011
 8
 9    (Argued: March 8, 2012                     Decided: August 29, 2012)
10
11                            Docket No. 10-1400-cr
12
13
14                       UNITED STATES OF AMERICA,
15
16                                                                Appellee,
17
18                                        –v.–
19
20   RAUL REYES, AKA RAOUL REYES, AKA RICO REYES, AKA PAUL REYES,
21     AKA RAUL VASQUEZ REYES, AKA RAULI REYES, AKA JAIME COLON,
22                        AKA JAIME RODRIGUEZ,
23
24                                                     Defendant-Appellant.
25
26
27
28   Before:
29
30       KATZMANN, WESLEY, Circuit Judges, UNDERHILL, District
31                              Judge.*
32
33        Appeal from a judgment of the United States District
34   Court for the Southern District of New York (Preska, J.),
35   entered on April 12, 2010, pursuant to which the defendant-
36   appellant was sentenced to a term of imprisonment of 188
37   months.
38
39        VACATED and REMANDED.

          *
           The Honorable Stefan R. Underhill, United States District
     Judge for the District of Connecticut, sitting by designation.

                                      Page 1 of 18
 1
 2
 3
 4             MARY ANNE WIRTH, Bleakley Platt & Schmidt, LLP,
 5                  White Plains, NY, for Defendant-Appellant.
 6
 7             JENNIFER E. BURNS, Assistant United States Attorney
 8                  (Justin Anderson, Assistant United States
 9                  Attorney, on the brief), for Preet Bharara,
10                  United States Attorney for the Southern
11                  District of New York, New York, NY.
12
13
14
15   PER CURIAM:

16        Defendant-Appellant Raul Reyes pleaded guilty to one

17   count of bank robbery in violation of 18 U.S.C. § 2113.        The

18   district court sentenced Reyes as a “career offender” under

19   United States Sentencing Guideline (“U.S.S.G.” or

20   “Guidelines”) § 4B1.1(a).    In doing so, however, the

21   district court adopted inconsistent findings in the

22   Probation Department’s Presentence Report (“PSR”) regarding

23   Reyes’s prior convictions.     This case raises an issue of

24   first impression in our Circuit–whether a district court may

25   rely on a PSR’s description of a defendant’s pre-arrest

26   conduct that culminated in a prior conviction to determine

27   whether that prior conviction constitutes one for a “crime

28   of violence” under U.S.S.G. § 4B1.2(a)(1), where the

29   defendant makes no objection to the PSR’s description.        We



                                 Page 2 of 18
 1   hold that it may not.   We therefore vacate the sentence

 2   imposed by the district court and remand for proceedings

 3   consistent with this opinion.

 4                             Background

 5       The facts are largely undisputed. On July 28, 2008,

 6   Reyes robbed a bank in Manhattan.        After threatening an

 7   employee with what appeared to be an explosive device, Reyes

 8   absconded with approximately $14,000.        Without the benefit

 9   of a plea agreement, Reyes pleaded guilty to one count of

10   bank robbery in violation of 18 U.S.C. § 2113(a) and (d).

11       Shortly before Reyes pleaded guilty, the government

12   submitted a letter pursuant to United States v. Pimentel,

13   932 F.2d 1029, 1034 (2d Cir. 1991).        That letter outlined

14   the government’s position on the application of the

15   Guidelines to Reyes’s case.     As relevant here, the

16   government stated that, in its view, Reyes was a “career

17   offender” under U.S.S.G. § 4B1.1(a) because he had been

18   convicted of two previous “crimes of violence”–battery on a

19   law enforcement officer in violation of Florida Statute

20   section 784.07, and robbery in violation of Florida Statute

21   section 812.13.   As a “career offender” convicted of two

22   prior crimes of violence and facing a charge that carried a


                               Page 3 of 18
 1   maximum of 25 years’ imprisonment, Reyes would have his

 2   offense level elevated to level 34.        Contemplating a 3-level

 3   reduction for acceptance of responsibility under U.S.S.G.

 4   § 3E1.1 and that Reyes would be placed in Criminal History

 5   Category VI, the government advocated for a Guidelines range

 6   of 188 to 235 months’ imprisonment.

 7       The Probation Department prepared a PSR in advance of

 8   Reyes’s sentencing.   The PSR begins by correctly summarizing

 9   the government’s Pimentel letter and its conclusion that

10   Reyes was a career offender under U.S.S.G. § 4B1.1.        In

11   paragraph 47 of the report, however, the PSR states

12   inarticulately that Reyes was a career offender because he

13   had “at least two prior felony convictions of either a crime

14   of violence.”   PSR ¶ 47.   Then, in paragraph 86, the PSR

15   states that Reyes is a career offender under the Guidelines

16   because he “has prior felony convictions involving a crime

17   of violence and a controlled substance offense.”        PSR ¶ 86.

18   The PSR later repeats this statement in its “recommendation”

19   section.

20       Although the PSR never explicitly identifies the prior

21   convictions on which it relies to classify Reyes as a career

22   offender, it lists the following, among several other


                                 Page 4 of 18
 1   convictions, in detailing Reyes’s criminal history: (1) a

 2   January 2009 conviction in Puerto Rico for a “controlled

 3   substance offense”; (2) a May 2005 Florida conviction for

 4   robbery; and (3) a May 2005 Florida conviction for battery

 5   on a law enforcement officer.      The PSR also provides a

 6   description of the conduct underlying Reyes’s 2005 battery

 7   conviction.   It states, “On March 19, 2004, the defendant

 8   was detained at Falkenburg Road Jail when he caused a

 9   disturbance in the pod.     A detention deputy responded and

10   spoke with the defendant.     The defendant then struck the

11   deputy in the nose with a closed fist.”        PSR ¶ 73.   The PSR

12   does not provide the source of this information.

13       On April 7, 2010, Reyes appeared before the district

14   court for sentencing.     In his sentencing memorandum, Reyes’s

15   counsel did not object to the facts contained in the PSR,

16   the PSR’s classification of Reyes as a career offender, or

17   the PSR’s calculation of the Guidelines range.         Indeed, at

18   the sentencing hearing, Reyes’s counsel noted that he had

19   “[n]o objections to the facts or the [G]uidelines

20   calculations” set forth in the PSR.        App. 47.   In the

21   absence of an objection, the district court accepted the

22   PSR’s findings, including those that contained inaccuracies



                                 Page 5 of 18
 1   and inconsistencies regarding which crimes served as

 2   predicates for the career offender enhancement.

 3       The government noted that Reyes had a “very long and

 4   very violent criminal history” and highlighted for the

 5   district court a number of Reyes’s prior offenses, including

 6   both his 2005 robbery conviction and his 2005 conviction for

 7   battery on a law enforcement officer.      App. 50.   The

 8   district court then sentenced Reyes to 188 months’

 9   incarceration.     The court characterized Reyes’s “very

10   lengthy and very violent criminal history” as the “driving

11   force” behind the sentence.     App. 52.   The district court

12   did not, however, specifically discuss Reyes’s status as a

13   career offender.

14       Reyes timely appealed the district court’s judgment.

15   In January 2011, Reyes filed an appellate brief in this

16   Court.     In his brief, he claims that the district court

17   committed plain error in adopting the PSR’s conclusions

18   regarding his status as a career offender under U.S.S.G.

19   § 4B1.1.     Specifically, he argues that (1) he does not have

20   a prior conviction for a controlled substance offense that

21   counts towards his classification as a career offender;(2)

22   under the Supreme Court’s decision in Johnson v. United


                                 Page 6 of 18
 1   States, 130 S. Ct. 1265 (2010), a Florida battery conviction

 2   does not necessarily constitute a “crime of violence”; and

 3   (3) there was insufficient evidence in the record to

 4   determine whether his particular battery conviction

 5   constituted a conviction for a “crime of violence.”       In

 6   support of the latter point, Reyes contends that the

 7   district court was not entitled to rely on the PSR’s

 8   uncontested description of his pre-arrest conduct that

 9   resulted in his conviction for battery of a law enforcement

10   officer to determine whether the battery was a “crime of

11   violence.”   He notes that this Court left open that question

12   in United States v. Rosa, 507 F.3d 142, 156 (2d Cir. 2007).

13       In April 2011, the government moved to remand for

14   resentencing in light of Johnson.        A panel of this Court

15   rebuffed the government’s request.       The panel directed the

16   government to file a brief addressing

17       (1) whether Reyes’s failure to object to the facts
18       contained in his [PSR] describing the offense
19       conduct underlying his prior conviction for
20       battery of a law enforcement officer constituted
21       an admission of those facts; (2) whether a
22       sentencing court may use such an admission to find
23       that a prior offense constitutes a ‘crime of
24       violence’ under U.S.S.G. § 4B1.2(a)(1); and (3) if
25       so, whether the district court committed plain
26       error in adopting the PSR’s conclusion that Reyes
27       qualified as a career offender.
28


                               Page 7 of 18
 1   United States v. Reyes, No. 10-1400-cr (2d Cir. Aug. 2,

 2   2011) (motion order).    Following our directive, the

 3   government argues that vacatur of Reyes’s sentence is

 4   inappropriate and that his sentence should be affirmed.

 5                               Discussion

 6       Because Reyes failed to object below to his

 7   classification as a career offender under U.S.S.G. § 4B1.1,

 8   we review his classification as such for plain error only.

 9   See United States v. Morris, 350 F.3d 32, 36 (2d Cir. 2003).

10   Plain error exists where (1) the district court committed

11   error; (2) the error is plain; (3) the error affects the

12   defendant’s substantial rights; and (4) the error seriously

13   affects the “fairness, integrity or public reputation of

14   judicial proceedings.”     United States v. Greer, 631 F.3d

15   608, 612 (2d Cir. 2011).

16       Pursuant to U.S.S.G. § 4B1.1(a), a defendant is a

17   career offender if:

18       (1) the defendant was at least eighteen years old
19       at the time the defendant committed the instant
20       offense of conviction; (2) the instant offense of
21       conviction is a felony that is either a crime of
22       violence or a controlled substance offense; and
23       (3) the defendant has at least two prior
24       convictions of either a crime of violence or a
25       controlled substance offense.
26
27


                                 Page 8 of 18
 1   As is relevant here, the Guidelines define a “crime of

 2   violence” as an offense punishable by imprisonment exceeding

 3   one year that “has as an element the use, attempted use, or

 4   threatened use of physical force against the person of

 5   another.”   U.S.S.G. § 4B1.2(a)(1).      The “crime of violence”

 6   convictions must be sustained prior to the defendant

 7   committing the offense for which he is being sentenced.

 8   U.S.S.G. § 4B1.2(c).

 9       Here, the district court committed an error that was

10   plain–it adopted findings in the PSR that conclude that

11   Reyes is a career offender because he has convictions for

12   both a crime of violence and a controlled substance offense.

13   PSR ¶ 86.   Reyes sustained the controlled substance offense

14   after he committed the instant offense.       Therefore, that

15   conviction was not a proper predicate offense for the

16   application of the career offender enhancement.       See

17   U.S.S.G. § 4B1.2(c).

18       But to prevail on plain error review, Reyes must do

19   more than show that the district court committed an obvious

20   error.   He must further demonstrate that the error affected

21   his “substantial rights”–i.e., that it “affected the outcome

22   of the district court proceedings.”       United States v.



                               Page 9 of 18
 1   Marcus, 628 F.3d 36, 42 (2d Cir. 2010) (internal quotation

 2   marks omitted).    That decision turns on whether Reyes’s 2005

 3   Florida conviction for battery on a law enforcement officer

 4   constitutes a conviction for a “crime of violence” under the

 5   Guidelines.    And that inquiry is determined by whether a

 6   sentencing court may rely on a PSR’s uncontested description

 7   of Reyes’s pre-arrest conduct that resulted in his prior

 8   conviction for battery on a law enforcement officer to

 9   decide that the prior conviction is one for a “crime of

10   violence” under U.S.S.G. § 4B1.2(a)(1).     We hold that it may

11   not.
12
13          Florida Statute section 784.07 criminalizes battery

14   committed on a law enforcement officer.     In Florida, battery

15   occurs when a person (1) “[a]ctually and intentionally

16   touches . . . another person against the will of the other”;

17   (2) “intentionally . . . strikes another person against the

18   will of the other”; or (3) “[i]ntentionally causes bodily

19   harm to another person.”     Fla. Stat. § 784.03(1)(a).   The

20   slightest unwanted intentional physical contact constitutes

21   battery under Florida law.     Johnson, 130 S. Ct. at 1269-70

22   (citing State v. Hearns, 961 So.2d 211, 218 (Fla. 2007)).

23   Therefore, battery on a law enforcement officer, if


                                Page 10 of 18
 1   accomplished only by “actually and intentionally

 2   touch[ing],” does not constitute a “crime of violence” under

 3   U.S.S.G. § 4B1.2 because it does not involve the “use of

 4   physical force,” as that phrase is interpreted by the

 5   Supreme Court.   Id. at 1269-73.1

 6        To ascertain whether Reyes’s conviction for battery on

 7   a law enforcement officer constitutes a conviction for a

 8   “crime of violence,” we employ a two-step “modified

 9   categorical approach.”     See Walker, 595 F.3d at 443; United

10   States v. Savage, 542 F.3d 959, 964 (2d Cir. 2008).      The

11   first step requires the court to determine “whether the

12   statute of the prior conviction criminalizes conduct that

13   falls exclusively” within the Guidelines’ definition of

14   “crime of violence.”     See Savage, 542 F.3d at 964.   If so,

15   the inquiry ends.   But if the statute of conviction also

16   criminalizes conduct that does not fall within the



          1
           Johnson dealt with sentence enhancements under the Armed
     Career Criminal Act (“ACCA”). The ACCA’s definition of “violent
     felony” is identical in all material respects to U.S.S.G
     § 4B1.2(a)’s definition of “crime of violence.” See United
     States v. Walker, 595 F.3d 441, 443 n.1 (2d Cir. 2010); United
     States v. Palmer, 68 F.3d 52, 55 (2d Cir. 1995). Therefore,
     cases interpreting the ACCA’s definition of “violent felony” are
     highly persuasive in interpreting the Guidelines’ definition of
     “crime of violence.” Walker, 595 F.3d at 443 n.1. Many of the
     cases cited in this opinion deal with the ACCA, not the
     Guidelines.

                                 Page 11 of 18
 1   Guidelines’ definition of a “crime of violence,” the

 2   government must demonstrate that the conviction

 3   “necessarily” rested on facts identifying the conviction as

 4   one for a “crime of violence.”     Walker, 595 F.3d at 444

 5   (internal quotation marks omitted).

 6       When a court is required to look beyond the statutory

 7   definition of a prior offense to determine whether it

 8   constitutes a “crime of violence,” its inquiry is

 9   circumscribed.   Generally, a sentencing court must limit

10   itself “to examining the statutory definition, charging

11   document, written plea agreement, transcript of plea

12   colloquy, and any explicit factual finding by the trial

13   judge to which the defendant assented.”     Shepard v. United

14   States, 544 U.S. 13, 16 (2005); see Johnson, 130 S. Ct. at

15   1273.   This general limitation on the sentencing court’s

16   inquiry is driven by U.S.S.G. § 4B1.1(a)’s focus on the

17   defendant’s prior conviction, rather than the conduct

18   underlying the conviction, as well as a need to avoid

19   collateral trials.   See Taylor v. United States, 495 U.S.

20   575, 600-01 (1990) (analyzing nearly identical language in

21   the ACCA); see also Shepard, 544 U.S. at 23 (same).     “[T]he

22   critical issue is whether the judicial record of the


                               Page 12 of 18
 1   defendant’s prior conviction establishes that his guilty

 2   plea ‘necessarily admitted [facts demonstrating that his

 3   conviction was for a crime of violence].’”      United States v.

 4   Baker, 665 F.3d 51, 56 (2d Cir. 2012) (quoting Shepard, 544

 5   U.S. at 26) (brackets in original).

 6       The problem here is that the government submitted no

 7   evidence demonstrating that Reyes’s conviction for battery

 8   on a law enforcement officer under Florida Statute section

 9   784.07 necessarily rested on anything but the slightest

10   unwanted physical contact.   The government admits as much,

11   but seeks safe harbor in the defendant’s failure to object

12   to the PSR’s description of Reyes’s pre-arrest conduct that

13   culminated in his conviction for battery of a law

14   enforcement officer.   The PSR states–without providing the

15   source of its information–that Reyes struck a detention

16   deputy in the face with a closed fist while incarcerated at

17   the Falkenburg Road Jail in Florida.      The government argues

18   that because Reyes failed to object to that description, he

19   admitted facts that establish that his battery offense

20   involved the use of “physical force” and thus constituted a

21   “crime of violence” under U.S.S.G. § 4B1.2(a).

22
23


                               Page 13 of 18
 1           As a general matter, reliance on a federal PSR’s

 2   factual description of a defendant’s pre-arrest conduct to

 3   determine whether a prior offense constitutes a “crime of

 4   violence” under U.S.S.G. § 4B1.2(a)(1) is prohibited.        See

 5   Rosa, 507 F.3d at 156; Palmer, 68 F.3d at 59.     This is

 6   because “a current presentence report prepared for a

 7   sentencing court presented with the enhancement issue would

 8   ordinarily be a surrogate for the elaborate factfinding

 9   process regarding the defendant’s prior offenses that was

10   criticized in Taylor.”     Palmer, 68 F.3d at 59 (internal

11   quotation marks omitted) (emphasis removed).     However, in

12   United States v. Rosa, this Court left open the question of

13   whether “a sentencing court may look to a PSR prepared for

14   that case to determine the underlying facts of a previous

15   conviction when the defendant fails to object to the PSR’s

16   findings” in order to ascertain whether a defendant’s prior

17   offense constituted a “crime of violence.”     507 F.3d at

18   156.2

19


             2
           Rosa is an ACCA case, and thus the Rosa court was tasked
     with determining whether a prior offense constituted a “violent
     felony,” not a “crime of violence.” However, as noted in
     footnote 1, the ACCA’s definition of “violent felony” and
     U.S.S.G. § 4B1.2(a)’s definition of “crime of violence” are
     identical in all material respects.

                                 Page 14 of 18
 1       The government urges us to hold that such reliance is

 2   proper.   In support of its argument, the government contends

 3   that uncontested descriptions of the circumstances

 4   underlying prior convictions found in a PSR are similar to

 5   the sources enumerated by the Shepard Court.    It also points

 6   out that use of those descriptions does not implicate the

 7   collateral trial or fairness concerns that animate the

 8   limits inherent in the modified categorical approach.

 9   Further, the government claims that reliance on an

10   uncontested portion of the PSR is permissible because it is

11   well established that undisputed portions of the PSR may be

12   accepted as fact by a sentencing court.

13       We have little trouble concluding that a sentencing

14   court may not rely on a PSR’s description of a defendant’s

15   pre-arrest conduct that resulted in a prior conviction to

16   determine that the prior offense constitutes a “crime of

17   violence” under U.S.S.G. § 4B1.2(a)(1), even where the

18   defendant does not object to the PSR’s description.     It is

19   true, as the government notes, that collateral trial

20   concerns are not implicated by that reliance.    But

21   collateral trial concerns are not the only concerns

22   animating the modified categorical approach.    U.S.S.G.



                               Page 15 of 18
 1   § 4B1.1's language clearly focuses on the defendant’s

 2   conviction, not the defendant’s conduct in a particular

 3   case.   See Taylor, 495 U.S. at 600-01 (interpreting nearly

 4   identical language in the ACCA).

 5       It is impossible on this record to know whether Reyes’s

 6   conviction necessarily rested on the “intentionally strikes”

 7   or “intentionally causes bodily harm” prongs–rather than the

 8   “intentionally touches” prong–of the battery statute.     At

 9   most, the PSR’s description tells us what Reyes did, not the

10   specific provision of the Florida statute for which he was

11   convicted.   Even if Reyes did punch the corrections officer

12   in the face, he could have pleaded guilty to battery on a

13   law enforcement officer by simply admitting that he touched

14   the corrections officer in an unwanted manner.   If that were

15   the case, the conviction would rest on facts not involving

16   the “use of physical force” and thus the offense would not

17   be a “crime of violence” under the Guidelines.   See Johnson,

18   130 S. Ct. at 1269-73.   For this reason, reliance on the

19   PSR’s uncontested description of pre-arrest conduct that

20   resulted in a defendant’s prior conviction to determine

21   whether that prior conviction constitutes one for a crime of

22   violence is improper.



                               Page 16 of 18
 1        The district court’s error in sentencing Reyes as a

 2   career offender on this record affected his substantial

 3   rights because it resulted in an elevated offense level

 4   under the Guidelines.    We must vacate the sentence imposed

 5   by the district court and remand for proceedings consistent

 6   with this opinion.   On remand, the district court shall

 7   provide the government with an opportunity to introduce

 8   evidence demonstrating that Reyes’s battery conviction was a

 9   “crime of violence” under U.S.S.G. § 4B1.2(a).3

10



          3
           The easiest way, and the only one explicitly approved by
     our case law, for the government to prove the nature of Reyes’s
     prior battery conviction on remand is to use Shepard-approved
     sources. We leave for another day the question of whether
     Shepard-approved sources are the only kinds of evidence that may
     be introduced for such a purpose, or whether the parties may
     stipulate (either explicitly or by failing to object) to the
     nature of a prior conviction for Guidelines purposes. See, e.g.,
     United States v. Aviles-Solarzano, 623 F.3d 470, 475 (7th Cir.
     2010) (suggesting that parties may stipulate to the nature of a
     defendant’s prior conviction for Guidelines purposes).

          In the event that the government is unable to establish that
     the career offender enhancement under U.S.S.G. § 4B1.1(a) is
     warranted (and thus Reyes’s offense level is not automatically
     elevated to level 34), we note that the PSR incorrectly applied
     separate enhancements under U.S.S.G. § 2B3.1(b)(2)(E) for
     brandishing a dangerous weapon and U.S.S.G. § 2B3.1(b)(2)(F) for
     making a death threat during the offense. Only one enhancement
     under U.S.S.G. § 2B3.1(b)(2) may be employed. See United States
     v. Triplett, 104 F.3d 1074, 1082 (8th Cir. 1997); United States
     v. Farrier, 948 F.2d 1125, 1127 (9th Cir. 1991); see also United
     States v. Murray, No. 97-6735, 1999 WL 187192, at *4 (4th Cir.
     Apr. 6, 1999) (unpublished).

                                Page 17 of 18
 1       A final point.   Although a sentencing court may not

 2   rely on a PSR’s description of pre-arrest conduct that

 3   resulted in a prior conviction to determine whether that

 4   prior conviction constitutes a crime of violence under the

 5   Guidelines, a sentencing court can consider that conduct

 6   under 18 U.S.C. § 3553(a) when fashioning the defendant’s

 7   sentence.   Such conduct may be probative of the “history and

 8   characteristics of the defendant.”        18 U.S.C. § 3553(a).

 9                             Conclusion

10       The district court’s judgment of April 12, 2010, which

11   sentenced the defendant to 188 months’ imprisonment, is

12   hereby VACATED.   The case is REMANDED for resentencing

13   proceedings consistent with this opinion.




                               Page 18 of 18
