Hernandez-Castillo v. United States - Opposition

No. 06-432

In the Supreme Court of the United States

JORGE HERNANDEZ-CASTILLO, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record

ALICE S. FISHER
Assistant Attorney General

CLAIRE J. EVANS
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether petitioner's prior felony conviction under California law for sexual intercourse with a minor three years younger was a felony conviction for a "crime of violence" for purposes of Section 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines, which provides for a 16-level enhancement for defendants convicted of illegally re- entering the United States following deportation after having been convicted of a crime of violence.

2. Whether the court of appeals erred in not review- ing petitioner's sentence for reasonableness when his attorney did not challenge the reasonableness of the sentence on appeal.

In the Supreme Court of the United States

No. 06-432

JORGE HERNANDEZ-CASTILLO, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-10) is reported at 449 F.3d 1127.

JURISDICTION

The judgment of the court of appeals was entered on June 6, 2006. A petition for rehearing was denied on August 2, 2006 (Pet. App. 39). The petition for a writ of certiorari was filed on September 22, 2006. The jurisdic tion of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a guilty plea in the United States District Court for the District of New Mexico, petitioner was convicted of illegally reentering the United States after deportation following a conviction for an aggravated felony, in violation of 8 U.S.C. 1326(a)(1), (2) and (b)(2).

He was sentenced to 57 months of imprisonment. Pet. App. 11-18. The court of appeals affirmed. Id. at 1-10.

1. On July 18, 2004, petitioner, a Mexican national, was stopped at a border patrol checkpoint north of Las Cruces, New Mexico, and admitted that he had entered the United States illegally the previous day. Pet. App. 2-3; PSR ¶ 4. An immigration check revealed that peti tioner had been deported from the United States on July 3, 1998, following a June 23, 1998, conviction for sexual intercourse with a minor more than three years youn ger, in violation of Cal. Penal Code § 261.5(c) (West 1999). Pet. App. 2; PSR ¶ 5. Petitioner had been 18 years old at that time and had been involved in a consen sual sexual relationship with a 14-year-old female, who became pregnant. Pet. App. 2.

2. Petitioner pleaded guilty to illegally reentering the United States after deportation following a convic tion for an aggravated felony, in violation of 8 U.S.C. 1326(a)(1), (2) and (b)(2). In calculating petitioner's of fense level, the Probation Office began with a base of fense level of eight, added 16 levels because petitioner had been previously deported after a conviction for a felony that is a crime of violence, and subtracted three levels for acceptance of responsibility. That calculation resulted in a total offense level of 21, which, when com bined with a criminal history category of IV, yielded a Sentencing Guidelines range of 57 to 71 months of im prisonment. PSR ¶¶ 7-23; Pet. App. 3; see Sentencing Guidelines §§ 2L1.2(a) and (b)(1)(A)(ii), 3E1.1, 4A1.1(b), (d) and (e).

Petitioner objected to the "crime of violence" en hancement, arguing that his conviction for sexual inter course with a minor more than three years younger should be treated as a misdemeanor because his rela tionship with the minor was consensual. Pet. App. 22; PSR Addendum. The district court held that the en hancement applied because the offense of "sex with a minor three years younger, which is a felony, which * * * is more commonly known as statutory rape," is listed as a "crime of violence" in the commentary to Sen tencing Guidelines § 2L1.2, comment. (n.1(B)(iii)). Pet. App. 25-27.

On May 25, 2005, the district court, having "tak[en] into account the sentencing factors of 18 U.S.C. 3553(a) * * * including the nature and circumstances of the offense and the history and characteristics of the defen dant, also the seriousness of the offense, the require ment to promote respect for the law and to provide just punishment for the offense-that is, of illegally reenter ing the United States-and to afford adequate deter rence to this type of criminal conduct," concluded that the "guideline imprisonment range of 57 to 71 months is a reasonable sentence." Pet. App. 27-28. The district court imposed a sentence of 57 months of imprisonment. Id. at 28.

3. On appeal, petitioner argued that the district court erred in holding that his statutory rape conviction qualified categorically as a felony and "crime of vio lence" under the Sentencing Guidelines, because the statute under which he was prosecuted for the offense "permit[ted] the classification of the offense to be a mis demeanor or a felony" and he was sentenced under that statute "to merely 157 days in the Los Angeles County jail," which "was clearly a misdemeanor sentence." Pet. C.A. Br. 9-12. He further argued that any facts about the prior conviction, apart from the fact of conviction itself, should be tried to a jury. Id. at 6-9. Although he cited United States v. Booker, 543 U.S. 220 (2005), for other purposes, see Pet. C.A. Br. 6, 7, 9, 13, petitioner did not raise a challenge to the reasonableness of his sentence.

On June 6, 2006, the court of appeals affirmed, con cluding that "the district court did not err * * * by classifying [petitioner]'s prior California conviction as both a felony and a crime of violence." Pet. App. 8. The court of appeals explained that, while it was true that petitioner was convicted for a crime that was "punish able either as a felony or a misdemeanor," it was clear under California law that petitioner's offense was prop erly classified as a felony. Id. at 5-7. The court of ap peals further determined that, because the conviction was one for "statutory rape" under California law, and because statutory rape is included in the commentary to Sentencing Guidelines § 2L1.2, comment. (n.1(B)(iii)) as an offense that is "always classified as [a] 'crime[] of vio lence,'" petitioner's "conviction was for a crime of vio lence irrespective of whether his relationship with [the victim] was consensual." Pet. App. 7-8 (quoting United States v. Munguia-Sanchez, 365 F.3d 877, 881 (10th Cir.), cert. denied, 543 U.S. 896 (2004)).

Because petitioner's counsel did not contest "the rea sonableness of the resulting sentence," the court af firmed the sentence. Pet. App. 8. The court "fe[lt] com pelled to comment, however," that this may be "the obvi ous case where an exercise of Booker discretion could mitigate a sentence that does not fit the particular facts of the case." Id. at 8-9. "The sentence results from a sixteen-level enhancement on account of a consensual sexual relationship [petitioner] had with a younger girl many years ago, with parental consent, when both were teenagers." Id. at 8. The court explained that, "[u]nder the Sentencing Guidelines, this prior act, a statutory rape, is classified as a violent felony, leading to a 16- point enhancement, which translates into about four additional years in federal prison," when, "[i]n reality, [petitioner] committed no violence and he was punished at the level of a misdemeanor." Ibid. "[B]ut unfortu nately for [petitioner], his lawyer has not challenged the reasonableness of the sentence." Id. at 9.

ARGUMENT

Petitioner contends (Pet. 16-18) that the court of ap peals erred in finding that his conviction for statutory rape was a "crime of violence" and (Pet. 10-16) in failing to consider his sentence for reasonableness pursuant to United States v. Booker, 543 U.S. 220 (2005). The for mer holding is correct and does not conflict with the de cision of any other court of appeals, and the latter issue was not raised by petitioner in the court of appeals. Thus, there is no warrant for further review by this Court.

1. Petitioner contends (Pet. 16-18) that the court of appeals erred in holding that his conviction for statu- tory rape was a "crime of violence" that triggered the 16-level enhancement of Sentencing Guidelines § 2L1.2(b)(1)(A)(ii). That claim lacks merit and does not warrant further review.

a. Petitioner first contends (Pet. 16-17) that statu tory rape should not be classified as a "crime of vio lence" under Sentencing Guidelines § 2L1.2(b)(1)(A)(ii)1 because statutory rape does not always involve the use of force. Petitioner's claim is contradicted by the ex press language of the Sentencing Guidelines which in cludes "statutory rape" as a "crime of violence." Id. § 2L1.2, comment. n.1(B)(iii).2 The Sentencing Commis sion's commentary is binding unless it is "plainly errone ous" or "inconsistent" with the Guidelines it interprets. Stinson v. United States, 508 U.S. 36, 43-47 (1993). The commentary here is therefore binding on the classifica tion of statutory rape as a crime of violence.

A question involving the interpretation of the Sen tencing Guidelines normally does not warrant this Court's review, in light of the Sentencing Commission's "statutory duty 'periodically [to] review and revise' the Guidelines." Braxton v. United States, 500 U.S. 344, 348 (1991) (quoting 28 U.S.C. 994(o)). That general rule car ries added force here, because the Sentencing Commis sion has demonstrated its attention to the specific ques tion posed by the petition. Before petitioner's case, the Sentencing Commission adopted a clarifying amendment that "makes clear that the enumerated offenses [in Sen tencing Guidelines § 2L1.2, comment. (n.1(B)(iii)), which includes 'statutory rape,'] are always classified as 'crimes of violence,' regardless of whether the prior of fense expressly has as an element the use, attempted use, or threatened use of physical force against the per son of another." Sentencing Guidelines App. C amend. 658. Before the amendment, there was some "confusion over whether the specified offenses listed in th[e prior] definition, particularly sexual abuse of a minor and resi dential burglary, also had to include as an element of the offense 'the use, attempted use, or threatened use of physical force against the person of another.'" Ibid. The amendment removed the ambiguity, and at the time of petitioner's illegal reentry and at the time of sentenc ing it was established that a prior conviction for one of the enumerated offenses, including "statutory rape," warrants the 16-level enhancement, regardless of whether the elements of that crime included the use, attempted use, or threatened use of physical force. See, e.g. United States v. Alvarado-Hernandez, 465 F.3d 188, 189 (5th Cir. 2006); United States v. Ortiz-Delgado, 451 F.3d 752, 756-757 (11th Cir. 2006); United States v. Granbois, 376 F.3d 993, 996 (9th Cir.), cert. denied, 543 U.S. 1014 (2004).

Contrary to petitioner's contention (Pet. 17), there is no "significant Circuit split" regarding the classification of "statutory rape" as a "crime of violence" under Sen tencing Guidelines § 2L1.2(b)(1)(A)(ii). As petitioner notes, in United States v. Houston, 364 F.3d 243 (2004), the Fifth Circuit found that statutory rape was not a "crime of violence" under the firearms provision of the Sentencing Guidelines, which adopts the definition of "crime of violence" under the career offender provision of the Guidelines. See id. at 246 (discussing Sentencing Guidelines § 2K2.1, comment. (n.5) (2001); id. § 4B1.2, comment. (n.1)). The Fifth Circuit has since limited the holding in Houston to the Guidelines provisions at issue there, which "did not include statutory rape as an enu merated offense." Alvarado-Hernandez, 465 F.3d at 190 n.1. The Fifth Circuit recognizes that, by contrast, "the provision at issue in this case, § 2L1.2, specifically enu merates statutory rape as a crime of violence." Ibid. There is, therefore, no disagreement among the courts of appeals that warrants further review by this Court.

b. Petitioner further contends (Pet. 17-18) that his conviction for statutory rape should not be treated as a felony for purposes of Section 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines. He asserts that this Court should "revisit the 'categorical' application of the Cali fornia 'wobbler' rule" and treat his prior felony convic tion as though it were a misdemeanor conviction. That argument lacks merit and does not warrant further re view.

The "wobbler" rule applies to certain California stat utes, such as the one under which petitioner was prose cuted, that allow the court to classify the offense as ei ther a felony or a misdemeanor. Petitioner does not dispute that a plurality of this Court has found that the fact that a felony conviction could have been a misde meanor conviction under a "wobbler" statute "is of no moment" in determining whether that prior conviction was, in fact, a felony conviction. Ewing v. California, 538 U.S. 11, 28 (2003) (plurality opinion); Pet. 17-18 (cit ing Ewing). Nor does petitioner dispute that the court of appeals correctly determined that, under California law, his conviction is classified as a felony. Pet. 17-18; Pet. App. 7.

Nonetheless, petitioner argues that his prior felony conviction should be treated as though it had been a mis demeanor conviction under the facts of this case because his sentence for that felony allowed him to "resolve [his] teenage indiscretions through probationary counseling and made him into a responsible father." Pet. 18. While it is true that the purpose of the "wobbler" scheme is to allow sentencing judges "to downgrade certain felonies" and "impose a misdemeanor sentence in those cases in which the rehabilitation of the convicted defendant ei ther does not require, or would be adversely affected by, incarceration in state prison as a felon," Ewing, 538 U.S. at 29 (plurality opinion) (quoting In re Anderson, 447 F.2d 117, 152 (Cal. 1968) (Tobriner, J., concurring and dissenting)), the fact that petitioner's prior sentence had that effect "is of no moment" in this case where peti tioner's conviction is characterized as a felony under state law, id. at 28.

2. Petitioner also contends (Pet. 10-16) that the court of appeals erred when it did not consider his sentence for reasonableness pursuant to Booker. Petitioner's argument is mistaken.

Although petitioner argues that there should not be a "presumption of reasonableness" (Pet. 11) for Sentenc ing Guidelines sentences, the court of appeals did not apply a presumption of reasonableness to petitioner's sentence. Instead, the court of appeals held that it could not consider the reasonableness of petitioner's sentence because petitioner failed to raise the issue. Pet. App. 4, 8, 9. A court of appeals is under no obligation to con sider a claim that is not timely raised. See Tulengkey v. Gonzales, 425 F.3d 1277, 1279 n.1 (10th Cir. 2005) ("Is sues not raised on appeal are deemed to be waived") (quoting Krastev v. INS, 292 F.3d 1268, 1280 (10th Cir. 2002)). Claims are timely raised if they are contained in the appellant's opening brief in the court of appeals. Fed. R. App. P. 28(a)(5). The Tenth Circuit also re quires that the opening brief include a citation to "the precise reference in the record where the issue was raised and ruled on" in the district court. 10th Cir. R. 28.2(C)(2).

The longstanding principle that the court of appeals may decline to decide an issue that has not been raised by the appellant applies to Booker claims. Booker itself indicated that it "expect[ed] reviewing courts to apply ordinary prudential doctrines" in determining whether relief is warranted, 543 U.S. at 268. One such "pruden tial doctrine" is the abandonment of a claim by failing to raise it in a timely manner. See, e.g., Pasquantino v. United States, 544 U.S. 349, 372 n.14 (2005) (declining to consider sentence in light of Blakely v. Washington, 542 U.S. 296 (2004), pursuant to its prudential rule that peti tioners need to raise the claim before the court of ap peals and in their petition for a writ of certiorari). The court of appeals was therefore entitled to exercise dis cretion not to rule on a Booker claim that petitioner did not present. As the Eleventh Circuit has explained, "[i]t seems relatively obvious that if the Supreme Court may apply its prudential rules to foreclose a defendant's un timely Blakely, now Booker, claim, there is no reason why [courts of appeals] should be powerless to apply [a] prudential rule to foreclose [a] defendant['s] * * * un timely Blakely, now Booker, claim." United States v. Levy, 416 F.3d 1273, 1277, cert. denied, 126 S. Ct. 643 (2005); accord United States v. Smith, 416 F.3d 1350, 1354 (11th Cir.), cert. denied, 126 S. Ct. 784 (2005).

3. On November 3, 2006, this Court granted writs of certiorari in Claiborne v. United States, No. 06-5618, and Rita v. United States, No. 06-5754, to address vari ous aspects of the application of reasonableness review under Booker in the imposition and appellate review of federal sentences. The petition in this case need not be held pending the disposition of Claiborne and Rita, how ever, because petitioner raised no challenge to the rea sonableness of his sentence under Booker in the court of appeals.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General

ALICE S. FISHER
Assistant Attorney General

CLAIRE J. EVANS
Attorney

NOVEMBER 2006

1 Sentencing Guidelines § 2L1.2(b)(1)(A)(ii) provides: "If the defen- dant previously was deported, or unlawfully remained in the United States, after * * * a conviction for a felony that is * * * a crime of violence * * * increase by 16 levels."

2 Sentencing Guidelines § 2L1.2, comment. (n.1(B)(iii)) states:

"Crime of violence" means any of the following: murder, man slaughter, kidnapping, 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.

Ibid. (emphasis added).