                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                   UNITED STATES COURT OF APPEALS
                        For the Fifth Circuit                    May 18, 2007

                                                           Charles R. Fulbruge III
                                                                   Clerk
                            No. 06-40812




                      UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,


                               VERSUS


      SABINO JAVIER MARTINEZ, also known as Wilfredo Ayguasbiba


                                                  Defendant-Appellant.



            Appeal from the United States District Court
                 For the Southern District of Texas
                            (05-CR-1059)



Before KING, DAVIS and BARKSDALE, Circuit Judges.

PER CURIAM:*

       The only significant issue presented in this case is whether

the district court erred by enhancing the defendant’s sentence by

16 levels for crimes of violence under U.S. Sentencing Guideline

2L1.2 based upon his prior convictions for kidnaping and rape in

Massachusetts. We affirm.



  *
   Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                                        I.

      Without a written plea agreement, Martinez pleaded guilty to

Count I of an indictment charging him with attempting to illegally

enter the United States after having been deported and after having

been convicted       of   an   aggravated     felony.      The    district   court

accepted the probation officer’s recommendation to impose a 16

level increase for prior convictions of crimes of violence under

USSG 2L.1 based on his 1998 Massachusetts convictions of rape and

kidnaping.      After     giving     Martinez    a    3   level   reduction      for

acceptance of responsibility, Martinez’s total offense level was 21

and criminal history category was 5, which combined for a Guideline

imprisonment range of 70 to 87 months.                    The court sentenced

Martinez   to   72   months     in   prison    plus   a   three    year   term    of

supervised release.

      Martinez objected to the PSR recommendation of a 16 level

crime of violence enhancement.               He objected “for the following

reasons:

      1.   The offenses involved are not crimes of violence,

      2. There is no judgment and conviction [as] required
      under Shepherd [v. U.S., 544 U.S. 13 (2005)].”1

The probation officer responded to the objection by asserting that

both rape and kidnaping offenses are enumerated crimes of violence.

The probation officer also asserted that copies of Martinez’s 1998

  1
   At sentencing counsel simply said: “In regard to my objection,
first of all, it deals with the nature of the offense being a crime
of violence under 2L1.2.”

                                        2
plea   colloquy   from   Massachusetts   revealed    that   Martinez   was

convicted of rape, kidnaping, threatening and assault and battery,

all from a single episode and that these convictions resulted

following a guilty plea accepted by the Massachusetts court in a

single proceeding.

       At sentencing, the prosecutor stated that:

       And if the court looks at all four counts committed on
       the same day, it indicates that this individual not only
       raped, kidnaped, but she [sic] also threatened and
       assaulted the victim because they all appear to be
       charging him out of the same incident. So, clearly this
       was a forcible rape, and clearly kidnaping is an
       enumerated offense.


                                  II.

       U.S. Sentencing Guideline 2L1.2(b)(1)(a)(ii)calls for a 16

level sentence enhancement if, prior to his deportation, the

defendant has been convicted of a felony that is a crime of

violence, which is   defined as follows: “‘Crime of violence’ means

any of the following: . . . kidnaping . . . forcible sex offenses.

. . , 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, comment.

(n.(1)(B)(iii)).

       In this case, if either prior conviction qualifies as a crime

of violence either as an enumerated offense or under the residual

“has as an element” clause, the sentencing enhancement was proper

and Martinez’s sentence can be affirmed.            Martinez argues that


                                   3
neither his conviction for rape nor his conviction for kidnaping

under Massachusetts law is a qualifying “crime of violence” under

either methodology.     We disagree.    We do not consider whether

Martinez’s convictions for kidnaping and rape match the enumerated

offenses of a kidnaping or forcible sex offense under § 2L1.2,

because we conclude that the rape conviction has “as an element,

the use, attempted use, or threatened use of physical force against

the person of another” as is required by the catch-all prong of the

crime of violence definition.

     “‘When determining whether a prior offense is a crime of

violence because it has as an element the use, attempted use, or

threatened   use   of   force,   district   courts    must   employ   the

categorical approach established in Taylor v. United States, 495

U.S. 575, 602 . . . (1990).’”          United States v. Hernandez-

Rodriguez, 467 F.3d 492, 494 (5th Cir. 2006) (citations omitted).

Under this standard, the court must analyze the prior offense’s

statutory definition and not the defendant’s underlying conduct.

United States v. Velasco, 465 F.3d 633, 638 (5th Cir. 2006).          “If

any set of facts would secure a conviction under the statute

without proof of the intentional use of force against the person of

another, then the offense cannot be characterized as a crime of

violence for sentence-enhancement purposes.”         Id.   However, where

a conviction can be obtained under alternative theories and proof,

courts have limited authority to look outside the statute to

determine which alternative was pursued by the prosecutor to obtain

                                   4
the conviction.

       If a statute contains multiple, disjointed subsections,
       courts may look beyond the statute to certain conclusive
       records made or used in adjudicating guilt in order to
       determine which particular statutory alternative applies
       to the defendant’s conviction.       These records are
       generally limited to the charging document, written plea
       agreement, transcript of the plea colloquy, and any
       explicit factual finding by the trial judge to which the
       defendant assented.

Hernandez-Rodriguez,          467    F.3d     at    494    (citations    and   internal

quotation marks omitted); see Shepard v. United States, 544 U.S.

13, 16 (2005)).

       At the time of Martinez’s May 5, 1998, guilty-plea conviction,

Massachusetts’s rape statute read in pertinent part as follows:

“Whoever has sexual intercourse . . . with a person, and compels

such person to submit by force and against his will, or compels

such    person    to    submit      by    threat    of    bodily   injury”     shall   be

imprisoned.       MASS. GEN. LAWS ch. 265, § 22 (1997).              The disjunctive

Massachusetts rape statute can thus be violated in two different

ways:    (a) “by force and against [one’s]will” or (b) “by threat of

bodily injury.”

       Martinez     relies     on        Massachusetts’      decisions    which    have

construed    the       term   “force”       as     not    necessarily    referring     to

“physical force”.        See Commonwealth v. Caracciola, 569 N.E.2d 744,

776-77 (Mass. 1991).          We read this caselaw as introducing another

statutory alternative means by which rape may be committed under

Massachusetts law.            Under the force prong, the force may be

physical force or constructive force.

                                              5
      In order to determine which particular statutory alternative

applies to the defendant’s conviction we look to the charging

instruments     in     Martinez’s      prior       conviction.      The     charging

instrument for the rape states that Martinez “on January 8, 1995,

[Martinez] did assault [the victim] with intent to commit rape; and

did   commit    rape     upon   the    said       [victim].”     “Assault”    under

Massachusetts law is “an offer or attempt to do a battery”.

Commonwealth v. Cohen, 771 N.E.2d 176-177 (Mass. Ct. App. 2002).

Because a      battery    is    defined     as    either   a   physically    harmful

touching or an offensive, non-consensual touching, an attempt to

commit a battery does not necessarily require proof of the use of

physical    force.       However      as   the    record   shows,   the   State   of

Massachusetts also charged Martinez with physically beating the

victim in a separate count arising out of the rape and kidnaping.

This related count states: “on January 8, 1995 [Martinez] did

assault and beat one [victim].”              When we read the facts alleged in

the four charging instruments asserting the facts surrounding the

rape, it is apparent that the state charged that the rape was

forcible, in that the defendant used physical force to subdue the

victim.    When considered in this light, we have no difficulty in

concluding that the rape charged in this case has as an element the

use, attempted use or threatened use of physical force.                           The

district court therefore did not err in imposing the 16 level crime

of violence enhancement.

                                           III.

                                            6
     Martinez also challenges the constitutionality of § 1326(b)’s

treatment of prior felony and aggravated felony convictions as

sentencing factors rather than elements of the offense that must be

found by a jury in light of Apprendi v. New Jersey, 530 U.S. 466

(2000).   Martinez’s argument is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998), in which the Supreme Court

held that treatment of prior convictions as sentencing factors in

§ 1326(b)(1) and (2) was constitutional. This issue is foreclosed.

     AFFIRMED.




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