APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D. Ct. No. 6:07-CR-10113-MLB-1).
The opinion of the court was delivered by: Tacha, Circuit Judge.
Before TACHA, KELLY, and HOLMES, Circuit Judges.
Defendant-Appellant Tomas Barraza-Ramos pleaded guilty to unlawful re-entry by a deported alien previously convicted of an aggravated felony, a violation of 8 U.S.C. § 1326(a) and (b)(1). He appeals his 192-month sentence, arguing that his prior conviction under Fla. Stat. § 784.045(1)(b) for felony aggravated battery is not a conviction for a felony "crime of violence" warranting a sixteen-level enhancement under United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") § 2L1.2(b)(1)(A)(ii). He also contends that the district court improperly used the same facts to support both an upward variance and an upward departure from the advisory Guidelines range. We have jurisdiction under 28 U.S.C. § 1291, and because we conclude that Mr. BarrazaRamos's previous offense of felony aggravated battery is not categorically a crime of violence, we REVERSE and REMAND for resentencing.
After he was found in Wichita, Kansas, Mr. Barraza-Ramos was charged with one count of illegal re-entry after deportation subsequent to conviction for an aggravated felony. See 8 U.S.C. § 1326(a), (b)(1). He entered into a plea agreement with the government under Fed. R. Crim. P. 11(c)(1)(C), agreeing to plead guilty and to a sentence at the low end of the Guidelines range as determined by the United States Probation Office.
The Probation Office then prepared a presentence report ("PSR"). The PSR noted that the base offense level for a violation of § 1326(a) is 8. See U.S.S.G. § 2L1.2(a). The PSR added a sixteen-level enhancement based on Mr. BarrazaRamos's prior conviction for felony aggravated battery under Fla. Stat. § 784.045(1)(b), which it deemed a felony crime of violence. See U.S.S.G. § 2L1.2(b)(1)(A)(ii). After a reduction of three levels for acceptance of responsibility, see id. § 3E1.1, Mr. Barraza-Ramos's total offense level was 21. This level, combined with his criminal history category of IV, produced an advisory Guidelines range of fifty-seven to seventy-one months. The PSR noted, however, that Mr. Barraza-Ramos's "criminal history chronicles a consistent history of illegal presence in the United States coupled with a propensity to operate a motor vehicle while under the influence of alcohol," and that this factor might warrant a departure or variance from the Guidelines range.
Mr. Barraza-Ramos objected to the PSR's determination that felony aggravated battery under Fla. Stat. § 784.045(1)(b) is a felony crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). According to Mr. Barraza-Ramos, the offense is only an aggravated felony, which warrants only an eight-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C). That enhancement would produce a Guidelines range of twenty-four to thirty months. Mr. Barraza-Ramos further objected to the PSR's conclusion that a departure or variance might be warranted.
After the district court considered the PSR, the court notified the parties that it intended to reject the plea agreement and to impose a sentence above the advisory range. Mr. Barraza-Ramos declined the opportunity to withdraw his guilty plea.
In a subsequent sentencing memorandum, and at Mr. Barraza-Ramos's sentencing hearing, the district court overruled both of Mr. Barraza-Ramos's objections to the PSR. The court relied on the Eleventh Circuit's decision in United States v. Llanos-Agostadero, 486 F.3d 1194 (11th Cir. 2007), which held that felony aggravated battery under Fla. Stat. § 784.045(1)(b) is a felony crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Id. at 1195. The court further concluded that Mr. Barraza-Ramos's criminal history category of IV under-represented the seriousness of his criminal background, noting that the PSR reported eleven convictions for driving under the influence. The court departed upward under U.S.S.G. § 4A1.3(a)(1) by increasing his criminal history category to VI, which produced a sentencing range of seventy-seven to ninety-six months. The court then stated that a ninety-six-month sentence was insufficient in light of the factors set forth in 18 U.S.C. § 3553(a), relying in part on Mr. BarrazaRamos's history of drunk driving. Accordingly, the court varied upward from ninety-six months to 192 months, or sixteen years, in prison.
Mr. Barraza-Ramos timely appeals, arguing that the district court erred in applying the sixteen-level enhancement for a crime of violence under § 2L1.2(b)(1)(A)(ii) and in using the same facts to support both the upward departure and the upward variance. We conclude that the Florida offense is not categorically a crime of violence, and that the district court's error on this point is not harmless. We therefore remand for resentencing without reaching the so-called "double-counting" issue.
We review sentences for reasonableness under an abuse-of-discretion standard. United States v. Alapizco-Valenzuela, 546 F.3d 1208, 1214 (10th Cir. 2008). "Our appellate review of a defendant's sentence includes both a procedural component, encompassing the method by which a sentence was calculated, as well as a substantive component, which relates to the length of the resulting sentence." United States v. Sallis, 533 F.3d 1218, 1222 (10th Cir. 2008) (quotations omitted). Mr. Barraza-Ramos's crime-of-violence challenge goes to the procedural reasonableness of his sentence because it challenges the calculation of the applicable Guidelines range. See id. at 1222--23. We review de novo a district court's determination that a prior offense qualifies as a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii). United States v. Zuniga-Soto, 527 F.3d 1110, 1116--17 (10th Cir. 2008).
The Guidelines dictate a sixteen-level enhancement for a violation of 8 U.S.C. § 1326(a) and (b) if the "defendant previously was deported, or unlawfully remained in the United States, after . . . a conviction for a felony that is . . . a crime of violence." U.S.S.G. § 2L1.2(b)(1)(A)(ii). The application notes to § 2L1.2(b)(1)(A)(ii) define "crime of violence" as: murder, manslaughter, 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 other ...