In United States v. Martinez-Rodriguez the Fifth Circuit reversed an enhanced sentence on a illegal reentry case.
Martinez-Rodriguez had been charged with being in the United States after deportation. In his PSR the probation officer recommended that he receive an enhancement under 2L1.2(b)(1)(C) which calls for an 8-point increase in the offense level if the defendant was deported for an aggravated felony. Prior to this Martinez-Rodriguez was convicted in 2008 and served a three year sentence for the offense of causing injury to a child. This was the aggravated felony of which he was accused.
The offense of injury to a child is located in Texas Penal Code 22.04(a)(3):
“(a) A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual:
(1) serious bodily injury;
(2) serious mental deficiency, impairment, or injury; or
(3) bodily injury.”
At sentencing the court overruled Mr. Martinez-Rodriguez’s written objection to the enhancement of the prior conviction as an aggravated felony. The court overruled that objection after employing a modified categorical approach and looking at plea-related documents and the indictment. Mr. Martinez-Rodriguez appealed.
The court engaged in a discussion of how aggravated felonies are determined and how the Mathis, Shepherd and Descamps work. In order to determine whether the court should use the categorical approach (where the focus is on the elements of the offenses and not the underlying facts of the prior conviction) and the modified categorical approach (where the court can look at certain materials such as the statutory definition, the charging document, the written plea agreement, the transcript of the plea colloquy and other such documents), the court should look to whether the statute lists alternative elements and not alternative means of satisfying elements. If the statute lists alternative elements then the modified categorical approach can be used in order to determine which set of elements is appropriate. If the court lists only alternative means to satisfy the elements then the court should use the categorical approach. The court in Mathis indicated that a determination of means versus elements is often east to make because federal courts are to follow definitive state court decisions on the issue. The difference between means and elements is that elements of a statute must be agreed upon by all members of the jury, while means of committing an offense do not have to be agreed upon by all members of the jury.
The court noted that the Fifth Circuit has previously heard arguments on this and had previously held that it was not a crime of violence because such offenses may be committed by both acts and omissions. The court also noted that the Texas Court of Criminal Appeals (which is the highest criminal court in the state of Texas) has determined that Texas Legislature included the “act or omission language” in the Injury to a Child statute to constitute the means committing the offense as opposed to the elements of the offense. Because of that, section 22.04 is not a divisible statute and the modified categorical approach should not have been used in this case. Since the crime of injury to a child is broader under the Texas statute of a crime of violence then the sentencing court erred when it considered more than the statutory elements to determine how the offense was committed for purposes of the enhancement.
The Fifth Circuit reversed. United States of America v. Martinez-Rodriguez, No. 15-41688
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