APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. NO. 1:10-CR-00297-MSK-1)
The opinion of the court was delivered by: Murphy, Circuit Judge.
United States Court of Appeals Tenth Circuit
Elisabeth A. Shumaker Clerk of Court
Before MURPHY, HARTZ, and TYMKOVICH, Circuit Judges.
Jose Antonio-Agusta appeals the district court's application of U.S.S.G. § 2L1.2(b)(1)(A)(ii)'s sixteen-level sentence enhancement in calculating his advisory Guidelines range.*fn1 He argues the district court erred in relying on the indictment underlying his prior Arizona convictions to conclude those convictions constitute felony crimes of violence, warranting the enhancement. The district court did not err, however, because the indictment was incorporated by reference in the judgment and is therefore reliable evidence of the elements of Antonio- Agusta's prior convictions. Furthermore, the indictment, plea agreement, and judgment reveal Antonio-Agusta was convicted under parts of Arizona's aggravated assault statutes that constitute crimes of violence. Accordingly, exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), this court affirms the sentence imposed by the district court.
Antonio-Agusta pleaded guilty to one count of unlawful re-entry after removal. 8 U.S.C. § 1326(a). The Presentence Investigation Report ("PSR") treated Antonio-Agusta's prior Arizona convictions for aggravated assault as felony crimes of violence and applied a sixteen-level sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii).*fn2 In so doing, the PSR relied on the indictment underlying Antonio-Agusta's Arizona convictions, which revealed he used a dangerous weapon, i.e., a knife, in connection with those convictions.
At sentencing, the district court also relied on the indictment in concluding that Antonio-Agusta's Arizona convictions constituted felony crimes of violence, warranting the sentence enhancement. With the enhancement, the advisory guidelines range was fifty-one to seventy-one months. The district court varied downward and sentenced Antonio-Agusta to forty-six months' imprisonment. The Arizona indictment charged Antonio-Agusta with three counts of felony aggravated assault. Each of the counts was identical, except for the name of the victim:
[Jose Antonio-Agusta], on or about the 7th day of June, 2006, using a knife, a deadly weapon or dangerous instrument, intentionally placed [victim] in reasonable apprehension of imminent physical injury, in violation of A.R.S. §§ 13-1203, 13-1204, 13-701, 13-702, 13-702.01, and 13-1801.
The State of Arizona further alleges that the offense charged in this count is a dangerous felony because the offense involved the discharge, use, or threatening exhibition of a knife, a deadly weapon or dangerous instrument and/or the intentional or knowing infliction of serious physical injury upon [victim], in violation of A.R.S. § 13-604(P).
Antonio-Agusta pleaded guilty to an amended version of these three counts. The plea agreement sets out the manner in which the counts were amended: "The State agrees to dismiss the allegation of dangerousness," in exchange for Antonio- Agusta pleading guilty to "Counts 1-3, as amended, Aggravated Assault, Class 3 nondangerous felonies, in violation of A.R.S. §§ 13-1203, 13-1204, 13-701, 13-702.01, and 13-801." The plea agreement also states it "serves to amend the complaint or information, to charge the offense to ...