Federal District Court Opinions
U.S. v. TREJO-PALACIOS, (S.D.Tex. 2006) UNITED STATES OF
AMERICA v. MONTSERRAT TREJO-PALACIOS AKA: BETZANI
HERRERA-RUIZ. Criminal No. B-05-714. United States
District Court, S.D. Texas. March 8, 2006
MEMORANDUM OPINION
ANDREW HANEN, District Judge
The Court is faced with Defendant’s objection to the
Pre-sentence Investigation Report (“PSR”) prepared by the
United States Probation Office. Docket No. 15. The PSR, as
filed with the Court, included a sixteen-point sentencing
enhancement to the base offense level of eight pursuant to
United States Sentencing Guideline § 2L1.2
(b)(1)(A)(ii). The basis of the enhancement is Defendant’s
prior conviction of Criminal Responsibility for
Facilitation of Aggravated Robbery under Section 39-11-403
of the Tennessee Code Annotated (“Section 403”),[fn1] which
was designated as a crime of violence in the PSR. For the
reasons stated below, Defendant’s objection to the
sixteen-point enhancement is GRANTED.
I. BACKGROUND[fn2]
On January 28, 2004, Defendant drove three male individuals
to a grocery store in Shelbyville, Tennessee. She remained
in the vehicle while her three companions robbed the
store. Page 2 Once the robbery was completed, Defendant
drove all four individuals away from the scene. Defendant
was apprehended soon thereafter and charged with Criminal
Responsibility for Aggravated Robbery under Tennessee Code
§ 39-11-402 (“Section 402”);[fn3] however, she pled
guilty to the lesser offense of Criminal Responsibility for
Facilitation of Aggravated Robbery under Section 403.[fn4]
She was sentenced to six years custody, but was released to
Immigration and Customs Enforcement on March 24, 2005, and
deported to Mexico on May 10, 2005. On August 10, 2005,
Defendant was taken into custody at the Gateway
International Bridge in Brownsville, Texas, after having
attempted to enter the country using a false identification
document. She has pled guilty to the charge of Attempted
Illegal Reentry into the United States After Deportation,
Having Been Previously Convicted of an Aggravated Felony,
in violation of 8 U.S.C. § 1326(a) and (b).
II. DISCUSSION
The primary question before this Court is whether
Defendant’s Tennessee conviction for facilitation of
aggravated robbery is a crime of violence under §
2L1.2 (b)(1)(A)(ii) of the Sentencing Guidelines. If the
Tennessee conviction fits within that particular definition
of “crime of violence,” a sixteen-level sentencing
enhancement is appropriate. If not, then this Court must
determine whether the Tennessee conviction nonetheless
merits a sentencing enhancement under Page 3 a different
subsection of § 2L1.2.
Under § 2L1.2 (b)(1)(A)(ii), a predicate offense
constitutes a crime of violence in one of two ways: either
it fits within one of the enumerated offenses, one of which
is “robbery,” or it has as an element “the use, attempted
use, or threatened use of physical force against the person
of another.” U.S. SENTENCING GUIDELINES MANUAL §
2L1.2 cmt. n. 1(B)(iii) (2005). The government argues that
Defendant’s predicate conviction out of Tennessee is a
crime of violence because she was essentially convicted of
aggravated robbery, an offense that fits within either
prong of the definition of crime of violence. Furthermore,
during oral argument, it was suggested that Defendant’s
conviction could, in the alternative, constitute aiding and
abetting, conspiring, and/or attempting to commit
aggravated robbery, which would also place the conviction
within the crime-of-violence definition under §
2L1.2 (b)(1)(A)(ii). See id. at § 2L1.2 cmt. n. 5.
Defendant, on the other hand, argues that her conviction
for facilitation of aggravated robbery is not a crime of
violence because “no intent to commit Robbery is required
to be convicted of such offense.” Docket No. 15. Moreover,
Defendant argues she was not convicted of aiding and
abetting, attempting to commit, or conspiring to commit
aggravated robbery. Rather, she was convicted of
facilitation of aggravated robbery, which is a lesser
offense.[fn5]
A. Crime of Violence Under § 2L1.2(b)(1)(A)(ii)
1. First Prong
Under the first prong of the definition of crime of
violence contained in § 2L1.2(b)(1)(A)(ii), courts
do not look to the specific definition of an enumerated
offense applied by the state of Page 4 conviction. United
States v. Dominguez-Ochoa, 386 F.3d 639, 642 (5th Cir.
2004). Rather, if the enhancement provision does not
specifically define the enumerated offense in question,
courts look to the “generic, contemporary meaning” of the
offense “regardless of the `labels employed by the various
States’ criminal codes.'” Id. (quoting Taylor v. United
States, 495 U.S. 575, 592, 598 (1990)). If the Sentencing
Guidelines do not define an enumerated offense, the Fifth
Circuit instructs lower courts to apply a “common sense
approach” in determining whether a particular state
conviction fits within the generic meaning of the
enumerated offense. United States v. Torres-Diaz, ___ F.3d
___, No. 05-40090, 2006 WL 225615, *5 (5th Cir. Jan. 30,
2006); see also United States v. Izaguirre-Flores, 405 F.3d
270, 274-75 (5th Cir. 2005).
Despite the fact that Defendant was convicted in Tennessee
of facilitation of aggravated robbery rather than the
actual crime of aggravated robbery, the government argues
that the Court can take a common sense approach and surmise
that Defendant’s conviction should be treated as an
aggravated robbery for sentencing purposes. In support of
this proposition, the government primarily relies on a
Sixth Circuit case that discusses Section 403 within the
context of the Career Offenders portion of the Sentencing
Guidelines: § 4B1.2.
In United States v. Chandler, 419 F.3d 484 (6th Cir.
2005), the Sixth Circuit held that the defendant’s
conviction for facilitation of an aggravated assault under
Section 403 constituted a crime of violence because such a
conviction “by its nature” presented a serious potential
risk of physical injury to another. Id. at 487. One of the
defendant’s main arguments in that case was that courts
could not look into the conduct underlying a Tennessee
facilitation conviction because many felonies could be
facilitated without any risk of physical harm to another
person. Id. at 486-87. In rejecting that argument, the
court stated: Page 5
A reading of this statute indicates, then, that the
specific underlying felony that a defendant is found
guilty of facilitating provides the substance of the
criminal conviction, for to determine whether a defendant
is guilty of facilitation and to determine the defendant’s
sentence, the court must look to the underlying specific
felony. Under this statute, a defendant is never convicted
of a generic “facilitation of a felony” charge. Rather, a
defendant convicted of facilitation is always found to
have facilitated a specific felony.
Id. at 487 (emphasis added). The government points to the
above emphasized language and extrapolates that if courts
must look to the underlying felony actually facilitated in
order to determine a proper sentence, then facilitation
convictions should be treated as convictions for the
underlying felony under the Sentencing Guidelines.
The government misconstrues the Sixth Circuit’s reasoning
in Chandler. First, the court specifically stated that
“[i]f a defendant had the requisite intent to commit the
specific felony, then he would be guilty of that offense,
not facilitation.” Id. at 488 n. 2. Moreover, the Chandler
court did not rule that if the underlying felony
constitutes a crime of violence, then the facilitation of
such a felony under Tennessee law also constitutes a crime
of violence. Rather, the court ruled that under the third
prong of the definition of crime of violence contained in
§ 4B1.2, the facilitation of aggravated assault
under Tennessee law “by its nature” presented “a serious
potential risk of physical injury to another” and,
therefore, such a conviction constitutes a crime of
violence.[fn6] Id. Thus, Chandler is not on point with
regard to the government’s argument because the applicable
sentencing guideline provision in that case contains
controlling language that is omitted from the applicable
sentencing guideline provision in this case. See §
2L1.2 cmt. n. 1(B)(iii). Indeed, even though “aggravated
assault” is one of the enumerated offenses listed in the
crime-of-violence Page 6 definition contained in §
4B1.2, the Chandler court did not even consider whether the
defendant’s facilitation of an aggravated assault
conviction constituted a crime of violence under that
prong.
Similarly, in United States v. Sawyers, 409 F.3d 732 (6th
Cir. 2005), the Sixth Circuit addressed whether a
facilitation of a burglary conviction under Section 403
constituted a “violent felony” for the purposes of the
Armed Career Criminal Act (“ACCA”). See 18 U.S.C. §
924(e). The definition of “violent felony” under that
statute, which is very similar to the applicable
crime-of-violence definition in Chandler, is as follows:
any crime punishable by imprisonment for a term exceeding
one year . . . that —
(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
Id. at § 924(e)(2)(B) (emphasis added). Although the
underlying felony in Sawyers was burglary, the court did
not consider whether facilitation of a burglary fit within
the enumerated-offense prong of the definition of “violent
felony.” Rather, the court found that the defendant’s
conviction under Section 403 constituted a violent felony
because it involved conduct that presented “a serious
potential risk of physical injury to another.” Id. Again,
that language does not exist within the definition of crime
of violence in § 2L1.2. Thus, the government’s
reliance on Sixth Circuit case law is completely misplaced.
The Fifth Circuit has not had occasion to address the
particular issue involved in the case at hand. The closest
case to being on point that this Court has found from
within this circuit is a case out of the Western District
of Texas in which the district court determined that the
defendant’s prior conviction under Section 403 for
facilitation of the sale and distribution of over 70 pounds
of marijuana constituted a drug trafficking offense under
§ 2L1.2(b)(1)(A)(i) of the Sentencing Page 7
Guidelines. United States v. Leon-Orozco, No.
EP-05-CR-1624-KC, 2005 WL 3077153 (W.D. Tex. Nov. 4, 2005).
Leon-Orozco is not controlling or persuasive authority in
this case because it involves a different subsection of the
Sentencing Guidelines.
The Sentencing Guidelines do not define either “robbery”
or “aggravated robbery.” Thus, in order to determine
whether Defendant’s conviction for facilitation of an
aggravated robbery fits within the first prong of the
crime-of-violence definition contained in §
2L1.2(b)(1)(A)(ii), the Court turns to Section 403 to see
whether a conviction under that statute fits within a
generic, contemporary meaning of robbery or, in this case,
aggravated robbery. Although courts are not required to do
so, they can look to the Model Penal Code for the generic
contemporary meaning of an enumerated offense. See, e.g.,
Torres-Diaz, 2006 WL 225615, at *5-6. The Model Penal Code
defines “robbery” as follows:
A person is guilty of robbery if, in the course of
committing a theft, he:
(a) inflicts serious bodily injury upon another; or
(b) threatens another with or purposely puts him in fear
of immediate serious bodily injury; or
(c) commits or threatens immediately to commit any felony
of the first or second degree.
MODEL PENAL CODE § 222.1(1). Theft is defined as the
unlawful taking of, or exercise of control over, the
property of another with the purpose of depriving him
thereof. Id. at § 223.2(1). Thus, a generic
contemporary meaning of robbery contains three basic
elements: (1) a person has to intend (or have the purpose)
to deprive another of property; (2) the person actually has
to take the property; and (3) in doing so, the person has
to either threaten or inflict serious bodily injury. A
conviction under Section 403, therefore, would have to have
these three elements in order to fit within the first prong
of the crime-of-violence definition under § 2L1.2
(b)(1)(A)(ii).
Section 403 “applies to a person who has facilitated the
commission of a felony by another Page 8 by furnishing
substantial assistance but without the intent to promote,
assist in or benefit from the felony’s commission.” State
v. Fowler, 23 S.W.3d 285, 287 (Tenn. 2000); see also TENN.
CODE ANN. § 39-11-402, Sentencing Commission
Comments. Facilitation of a Felony under Section 403 is
considered a lesser-included offense of Criminal
Responsibility for the Conduct of Another under Section
402. Fowler, 23 S.W.3d at 288; see also State v. Burns, 6
S.W.3d 453, 470 (Tenn. 1999); Chandler, 419 F.3d at 488 n.
2.
A plain interpretation of the Tennessee statute shows that
facilitation of an aggravated robbery is not analogous to a
generic contemporary meaning of “robbery” under the
Sentencing Guidelines. The requisite mens rea elements
differ. A person convicted under Section 403 does not have
to intend to deprive a person of property or intend to put
someone in fear of serious bodily injury; rather, Section
403 requires only that the person know someone else intends
to do so. Thus, Defendant’s prior conviction does not fit
within the first prong of the crime-of-violence definition
under § 2L1.2 (b)(1)(A)(ii) of the Sentencing
Guidelines.
2. Second Prong
Under the second prong of the definition of crime of
violence, the Court must employ a categorical approach
looking only to the statute under which Defendant was
convicted — not to the facts underlying the
conviction — in order to determine whether the
statute contains an element involving the use of force.
Unites States v. Gracia-Cantu, 302 F.3d 308, 312-13 (5th
Cir. 2002). Even though the Sentencing Guidelines are
silent as to whether “the use of force” must be
intentional, the Fifth Circuit has held that the
intentional use of force must be an element of the
convicting statute in order for the predicate offense to
qualify as a crime of violence for sentence enhancement
purposes under § 2L1.2 (b)(1)(A)(ii). United States
v. Vargas-Duran, 356 F.3d 598, Page 9 602 (5th Cir.
2004). Therefore, this Court must determine whether the
intentional use of force is an element of Section 403.
Section 403 on its face does not contain an element
involving the intentional use of force. Cf. Sawyers, 409
F.3d at 737 (stating that facilitation of a felony under
Tennessee law does not “contain an element of force” for
the purposes of the ACCA). A person could provide
substantial assistance in the commission of a felony
without availing herself of the use of force, intentional
or otherwise. The government argues that because the crime
of aggravated robbery has as an element the intentional use
of force, the facilitation of aggravated robbery also
involves the intentional use of force because the Tennessee
robbery statute requires the intentional or threatened use
of violence.[fn7] As has already been discussed, however,
the requisite mental states differ between facilitation of
aggravated robbery and aggravated robbery. A conviction for
facilitation of aggravated robbery does not involve the
intentional use of force because “[a] person responsible
for facilitation need not possess the mental state to
commit the underlying crime; instead, he must only be aware
that another person intends to commit it and knowingly
furnish substantial assistance.” Id. at 738. Therefore, the
Court finds the government’s argument unpersuasive and
rules that Defendant’s Tennessee conviction does not fall
within the second prong of the applicable definition of
crime of violence. Page 10
3. Aiding and Abetting, Attempt, and Conspiracy
Although the government did not brief this issue, it was
suggested that Defendant’s conviction could nonetheless
constitute aiding and abetting, attempting to commit, or
conspiring to commit aggravated robbery. Defendant argues
that her conviction should not be treated as the equivalent
of robbery “[b]ecause the drafters of the commentary to the
guidelines chose to exclude facilitation offenses from the
list of offenses which should be treated as equivalent to
an underlying offense, and because the offense of
facilitation is indeed less severe than the offenses of
`aiding and abetting, conspiring, and attempting.'” Docket
No. 18, at 3. She points to a Second Circuit case for
support.
In United States v. Liranzo, 944 F.2d 73 (2d Cir. 1991),
the court considered whether a conviction under a New York
facilitation statute fell within the aiding and abetting,
conspiracy, and attempt commentary of §§ 4B1.1
and 4B1.2 of the Sentencing Guidelines. The New York
facilitation statute at issue in that case is similar to
the Tennessee facilitation statute at issue in this case in
that it “involves conduct `in which the actor aids the
commission of a crime with knowledge that he is doing so
but without any specific intent to participate therein or
to benefit therefrom.'”[fn8] Id. at 79 (quoting N.Y. PENAL
LAW § 115.05, Practice Commentaries). The district
court determined that the defendant’s prior conviction for
facilitation of the sale of cocaine constituted a
“controlled substance offense” for the purposes of being
assessed a career offender enhancement. The Second Page
11 Circuit reversed stating that “unlike the crime of
aiding and abetting, conspiracy, or attempt, the crime of
criminal facilitation does not involve the intent to commit
the underlying substantive offense.” Id. (emphasis in
original). Thus, the court ruled that the defendant’s crime
for facilitation of the sale of cocaine was not a
controlled substance offense because it was a crime that
did not involve “the mental culpability to commit a
substantive narcotics offense.” Id.
This Court finds the reasoning in Liranzo persuasive,
especially given the distinction between Sections 402(2) and
403 under Tennessee law. Indeed, facilitation is a lesser
included offense of Section 402(2). According to the
commentary of the Tennessee Sentencing Commission, Section
402 “sets forth the conduct of defendants formerly known as
accessories before the fact and aiders and abettors.” TENN.
CODE ANN. § 39-11-402, Sentencing Commission
Comments. Furthermore, the comments also indicate that a
conviction for facilitation is possible “if the defendant’s
degree of complicity is insufficient to warrant conviction
as a party.” TENN. CODE ANN. § 39-11-403, Sentencing
Commission Comments (emphasis added). In order to be
convicted of the crimes of aiding and abetting (Section
402(2)), conspiracy (Tennessee Code § 39-12-103), or
attempt (Tennessee Code § 39-12-101), the defendant
is required to have the requisite mens rea for the
underlying offense. This is the same under a generic,
contemporary meaning of those crimes. See, e.g., MODEL
PENAL CODE §§ 206, 501, 503. Section 403 has
no such element. Thus, Defendant’s facilitation conviction
does not fit within the aiding and abetting, conspiracy,
and attempt portion of the commentary to § 2L1.2.
Defendant’s facilitation conviction does not constitute a
crime of violence and is not equivalent to aiding and
abetting, attempt, or conspiracy to commit a crime of
violence. Therefore, a sixteen-point enhancement is not
warranted under either § 2L1.2(b)(1)(A)(ii) or its
commentary. Page 12
B. Crime of Violence Under § 2L1.2 (b)(1)(C)
— Aggravated Felony
Although this Court has ruled that a sixteen-point
enhancement is inappropriate because Defendant’s conviction
for facilitation of aggravated robbery does not constitute
a crime of violence under § 2L1.2 (b)(1)(A)(ii), the
Court hereby assesses an eight-point enhancement under
§ 2L1.2 (b)(1)(C) because Defendant’s conviction
constitutes an aggravated felony. For the purposes of
§ 2L1.2 (b)(1)(C), “aggravated felony” is assigned
the meaning contained in 8 U.S.C. § 1101(a)(43).
U.S.S.G. MANUAL § 2L1.2 cmt. n. 3(A). That section
also contains another definition of “crime of violence”
that cross-references yet another statutory provision: 18
U.S.C. § 16. See 8 U.S.C. § 1101(a)(43)(F).
Section 16 defines crime of violence as an offense that
either “has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another” or “is a felony and that, by its
nature, involves a substantial risk that physical force
against the person of another may be used in the course of
committing the offense.” 18 U.S.C. § 16.
The first prong of § 16 tracks the language of the
second prong of the crime-of-violence definition contained
in § 2L1.2. As has already been discussed, a
conviction for facilitation of aggravated robbery does not
contain an element involving the use of force. The second
prong of § 16, however, tracks the language of the
third prong of the crime-of-violence definition contained
in § 4B1.2 of the Sentencing Guidelines. Although the
Fifth Circuit has not spoken on this particular subject,
this Court finds the Sixth Circuit’s reasoning in Chandler
persuasive. Even though Defendant did not actually commit
aggravated robbery, she pled guilty to a crime in which she
“knew an individual intended to commit” aggravated robbery
and “knowingly furnished substantial assistance to this
individual in the commission” of the aggravated robbery.
Chandler, 419 F.3d at 487. This Court concludes that
Defendant’s Tennessee conviction inherently involved
conduct that Page 13 presents a serious potential risk of
physical injury to another and, therefore, constitutes a
crime of violence under § 1101(a)(43)(F). Thus,
under § 2L1.2 (b)(1)(C), Defendant’s conviction
constitutes an aggravated felony.
III. CONCLUSION
Defendant’s objection to the sixteen-point enhancement
[Docket No. 15] is hereby GRANTED. Defendant’s Tennessee
conviction for facilitation of an aggravated robbery does
not constitute a crime of violence within the meaning of
§ 2L1.2 (b)(1)(A)(ii). Therefore, a sixteen-point
sentencing enhancement is inappropriate. The Court,
however, hereby assesses an eight-point enhancement under
§ 2L1.2 (b)(1)(C) because Defendant’s conviction
constitutes an aggravated felony pursuant to 8 U.S.C.
§ 1101(a)(43)(F) and 18 U.S.C. § 16.
[fn1] Section 403 states:
A person is criminally responsible for the facilitation
of a felony if, knowing that another intends to commit a
specific felony, but without the intent required for
criminal responsibility under § 39-11-402(2), the
person knowingly furnishes substantial assistance in the
commission of the felony.
TENN. CODE ANN. § 39-11-403(a) (2005).
[fn2] The underlying facts are repeated here to aid as a
frame of reference but were not considered by this Court,
which remains bound by the categorical approach as per the
dictates of the Fifth Circuit. United States v.
Chapa-Garza, 243 F.3d 921, 924 (5th Cir. 2001).
[fn3] Section 402 states:
Acting with intent to promote or assist the commission of
the offense, or to benefit in the proceeds or results of
the offense, the person solicits, directs, aids, or
attempts to aid another person to commit the offense.
TENN. CODE ANN. § 39-11-402(2) (2005).
[fn4] The government has suggested that this Court consider
the “charging instrument as well as the judgment of
conviction” in assessing Defendant a sixteen-point
enhancement. Docket No. 17, at 4. However, under United
States v. Turner, 349 F.3d 833 (5th Cir. 2003), because
“there is no document actually charging [her] with the
offense for which [she] was ultimately convicted,” this
Court cannot take Defendant’s Tennessee indictment into
consideration for sentencing purposes. Id. at 836.
[fn5] During oral argument, counsel for Defendant argued
that, at most, her Tennessee conviction deserves a
four-point enhancement pursuant to § 2L1.2(b)(1)(D);
however, her written objection asks this Court to consider
“in the alternative” a four-point or an eight-point
enhancement. Docket No. 15, at 5.
[fn6] The third prong of § 4B1.2 states that an
offense is a crime of violence when “the conduct set forth
. . . in the count of which the defendant was convicted . .
. by its nature, presented a serious potential risk of
physical injury to another.” U.S. SENTENCING GUIDELINES
MANUAL § 4B1.2 cmt. n. 1.
[fn7] The elements of aggravated robbery under Tennessee law
are set out in Tennessee Code §§ 39-11-401(a)
and 39-13-402(a). They can be described as follows:
Robbery is the intentional or knowing theft of property
from the person of another by violence or putting the
person in fear . . . [a]ccomplished with a deadly weapon
or by display of any article used or fashioned to lead the
victim to reasonably believe it to be a deadly weapon or
[w]here the victim suffers serious bodily injury.
State v. Wilkins, No. W2003-03085-CCA-R3-CD, 2006 WL 304696
(Tenn.Crim.App. February 8, 2006).
[fn8] The New York statute at issue in Liranzo stated that
a person commits criminal facilitation in the second degree
when:
. . . believing it probable that he [or she] is rendering
aid to a person who intends to commit a class A felony . .
. he [or she] engages in conduct which provides such
person with means or opportunity for the commission
thereof and which in fact aids such person to commit such
class A felony.
Liranzo, 944 F.2d at 79 (quoting N.Y. PENAL LAW §
115.05 (McKinney 1987)). Page 1