NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0562n.06 Case No. 10- 5956 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
UNITED STAT ES O F AMERICA, P laintif f-App ellee,

v. EFR AIN MA RTINEZ-ORTEG A, Defendan t-Appellant.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ) ON AP P EAL FR OM THE UNITED STAT ES DIS TRICT COURT F OR THE MIDDLE DISTRICT OF TENNESS EE

BEFORE: BATCHELDER, Chief Circuit Judge; COLE and COOK, Cir cuit Judges. ALICE M. BATCHE LDER, Chief Judge. A fede ral jury convicted Efra in MartinezOrteg a of illega l ree ntry by a deported alien following a conviction for an ag g rava ted felony , in viol at i on of 8 U.S.C. § 1326(a) and (b)( 2), and the court sentenc ed him to 46 months of imprisonment. Martinez-Orte g a claims t h at t h e district court err ed when it applied cer tain enhanc ements in the calc ulation of his sentenc e. For the rea sons that follow, we find that MartinezOrteg a’s challeng es to his sentenc e have merit and, there fore , we vacate his sentenc e and rema nd the

case to the district court for complete r esente ncing

.

I. Martinez-Orte g a is a Mex ican national. I n May of 2005, he pleaded guilty in a Tennessee court to ag g rava ted assault, in violation of Tenn. Code Ann. § 39-13-102, a nd rec eived a

sentenc e

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of three y ear s of probation. On September 19, 2006, an I mmigra tion J udg e order ed Martinez-Orte g a

remove d from the United States. Martinez-Orte g a later returne d to the United States without permission. On September 23, 2009, a fede ral g rand jury indicted him on one count of illega l ree ntry by a deporte d alien following

a conviction fo r an aggr avate d felony , in violation of 8 U.S.C. § 1326(a) and (b)( 2). He pleade d
g uilty to the indictment. At sentenc ing, the district cou r t c o n c lu d e d th a

t M a r ti n e z- O r te g a ’ s prior Tenne ssee conviction for ag g rava ted assault constituted a “cr i m e o f v i olence ” within the meaning of U.S.S.G. § 2L 1.2(b)( 1)(A) (ii) and added six teen levels to his base- offe nse level. The court also deter mined that the Tenne ssee conviction was an “ag g rava ted felony ” under 8 U.S.C. § 1326(b) (2 ) and set the statutory maxi mum sentenc e at twenty y ear s. Ba sed on a Guidelines rang e of 46 to 57 months, the
court sente nced Ma

rtinez-Orteg a to 46 months of imprisonment. II. Martinez-Orte g a first claims that the court’s application of U.S.S.G. § 2L 1.2’s six teen- level

en h an ceme nt was improper beca use his Tenne ssee conviction does not constitute a “cr ime of violence.” Under U.S.S.G. § 2L 1.2, the sentenc ing court may apply a six teen- level enhanc ement to

a defe ndant’s base- offe nse level for illega l ree ntry if the g overnme nt establishes that the defe ndant’s prior conviction was a “cr ime of violence.” U.S.S.G. § 2L 1.2(b)( 1)(A) (ii) (2009); United States v. 1

T h i s e n h a n c e m e n t r e a d s : 1

I f t h e d e f

e n d a n t p r e v i o u s l y w a s d e p o r t e d , o r u n l a w f u l l y r e m a i n e d i n t h e U n i t e d S t a t e s , a f t e r

— ( A ) a c o n v i c t i o n f

o r a f e l o n y t h a t i s . . . ( i i ) a c r i m e o f v i o l e n c e . . . i n c r e a s e b y 1 6 l e v e l s [

. ]

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Bernal-Av eja , 414 F.3d 625, 626–27 (6th Cir. 2005) (“The g overnme nt bear s the burden of proving that [t he defe ndant] was previously convicted of a crime of violence

. . . .”). We revie w de novo the leg al conclusion that a prior conviction constitutes a “cr ime of violence” for the purposes of U.S.S.G. § 2L 1.2. United States v. Me ndoza-Me ndoza , 239 F. App’ x 216, 222 (6th Cir. 2007). The application notes to § 2L 1.2 define a “cr ime of violence” by enumer ating sever al offe nses, one of which is a g g rava ted assault. U.S.S.G. § 2L 1.2 cmt. n.1(B )(iii). The notes f urther
p ro v ide that a non-enume rate d offe nse is a crime of violence if it “has as an element the use, attempted use, or threa tened use of phy sic al force ag ainst the person of another .” Id. ; see also Mendoza- Mendoza , 239 F. App’x at 222 (re fer ring to this as the “catch-a ll clause ”). To deter mine whether a prior co n v i ct i o n qualifies as an enumerate d offe nse or, instead, fits within the catch-a ll clause of § 2L 1

. 2 , a s en t en cing court must use a two-par t, cate g orica l approa ch in analy zing the conviction. First, the court must look to the stat u t e o f conviction and deter mine whether the lang uag e of the statute alone indicates that the defe ndant was convicted of a crime of violence. United States v. Armstead , 467 F.3d 943, 947–48 (6t h C i r. 2 0 0 6 ). I f the lang uag e of the statute includes both violent and non-violent crimes, then the court m ay look to the indictment, plea
ag ree ment, plea colloquy , or some other “compa rable judicial rec ord” from the prior conviction to deter mine whether

the def endant’ s conduct was within the vi olent-cr ime aspec t of t he st atute. Id. (quoting Shepard v. United States , 544 U.S. 13, 26 (2005)) ; see also United States v. Gibbs , 626 F.3d

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. A s o n e j u r i s t r e c e n t l y n o t e d , “ T h i s h a s t o b e a s e n t e n c e o n l y a g r a m m a r t e a c h e r c o u l d l o v e . W e h a v e h e r e o u r o l d n e m e s i s t h e p a s s i v e v o i c e , f o l l o w e d b y a s c r a g g l y e x p r e s s i o n o f t i m e ( ‘ p r e v i o u s l y . . . a f

t e r ’ ) , t h e n a t r a i n o f p r e p o s i t i o n a l p h r a s e s l i n k e d o n e a f t e r a n o t h e r a n d t h e m s e l v e s r u d e l y i n t e r r u p t e d b y a p a i r o f p a r e n t h e t i c a l p u n c t u a t i o n s . ” U n i t e d S t a t e s v . R o s a l e s - G a r c i a , 6 6 7 F

. 3 d 1 3 4 8 , 1 3 5 6 ( 1 0 t h C i r . 2 0 1 2 ) ( G o r s u c h , J

. , d i s s e n t i n g )

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344, 352 (6th Cir. 2010). The district co u rt did not conduct this analy sis in its calc ulation of Martinez-Orte g a’s sentenc e. I nstead, the court applied the enhanc ement simply beca use ag g rava ted assaul t i s l i sted in the application notes. There fore , we will apply the cate g orica l approa ch and deter mine whether the court’s application of the enhanc ement was never theless proper . See United States v. Davist , 481 F.3d 425, 427 (6th Cir. 2007) (“[W] e may aff irm on any g rounds supported by the rec ord, even [i f those g rounds are ] differ ent from the g rounds relie d on by the district court.” (interna l quotation marks and citation omitted)). To establish that Marti n e z- O r te g a ’ s prior conviction was a crime of violence, the g overnme nt prese nted the state court judgme nt of Martinez-Orte g a’s conviction, which indicates that he pleade d
g uilty to and was c onvicted of a g g rava ted assault under Tenn. Code Ann. § 39-13-102. Although this statute has four subsections, the judgme nt does not indicate which subsection Martinez-Orte g a admitted to violating. There fore , we must deter mine “[i] f it is possible to violate the statute in a way that would constitute a crime of violence and in a way that wo u l d n o t .” Gibbs , 626 F.3d at 352. When the prior conviction i s enumer ated in the Guidel i n es’s section, as agg rava ted assault is in § 2L 1.2, we compar e the statute’s definition of the offe nse to a g ener ic definition, such as that in the Model Penal Code. See Unit ed S t a t es v. McM urray , 653 F.3d 367, 373 n.4 (6th Cir. 2011); Me n d o z a -M endoza , 239 F. App’x at 222 (adopting the rea soning of United States v. Mungia

Portillo , 484 F.3d 813, 816–17 (5th Cir. 2007) (“When t h e statute of conviction encompa sses prohibited behavior t h at i s n o t within the plain, ordinary meaning of the enumer ated offe nse, the conviction is not a crime of violence a s a matter of

law.” ( internal quotation marks omitted)) ).

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At the time of Martinez-Orte g a’s conviction, Tenne ssee’ s Ag g rava ted Assault statute provided, in re levant par

t: (a) A per son commits agg rava ted assault who: (1) I ntentionally or knowing ly commits an assault as define d in § 39-13-101 and: (A) Ca

uses serious bodily

injury to another; or (B ) Uses or

display s a dea dly

wea pon; or (2) Rec klessly

commits an assault as def ined in § 39-13-101( a)( 1), and: (A) Ca uses serious bodily

injury to another; or (B ) Uses or

display s a dea dly

wea pon. (b) A person commits ag g rava ted assault who, b ei n g t he pare nt or custodian of a child or the cust o d i an of an adult, intentionally or knowing ly fails or ref uses to protec t such child or adult from an ag g rava ted assault as define d in subdivision (a) (1) or ag g rava ted child abuse as def ined in § 39-15-402. (c) A person commit s aggr avate d assault who, afte r having been enjoined or restrained by an order , diversion or probation ag ree ment of a court of competent jurisdiction from in any way causing or attempting to cause bodily injury or in any way committing or attempting to commit an assault ag ainst an individual or individuals, intentionally or knowing ly attempts to cause or causes bodi ly injury or c o m m i t s o r at t empts to commit an assault ag ainst such individual or individuals. Tenn. Code. Ann. § 39- 13-102 (2002)

. The Model Penal Code define s ag g rava ted assault as occur ring when a person “‘( a) attempts
to cause serious bodily injury to another , or cause s such injury purposely , knowing ly , or rec klessly under circ umstances manifesting extreme indiffer ence to the value of human life; or (b) attempts to

cause or purposely or knowingly cause s bodily injury to another with a d ea d l y we ap on.’” United States v. Mc

Falls , 592 F.3d 707, 717 ( 6th Cir. 2010) (quoting Mode l Penal Code § 211.1(2))

. A compar ison of these two definitions shows that the Tenne ssee s t at ute “enc ompasses prohibited behavior t h at i s n o t within the plain, ordinary meaning ” of ag g rava ted assault. See

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Mungia-Portillo , 484 F.3d at 816. Specifica lly , the Model Pe nal Code definition require s, at the very least, an attempt to cause bodily injury , while the Tenne ssee statute does not. The important distinction lies in subsection (c) of section 39-13-102, which provi d es t h at a defe ndant can be convicted of an ag g rava ted felony by committing a simple assault while under a restra ining order

. Simpl e assault in Tenne ssee includes “[i] ntentionally or knowing ly caus[ing] phy sical contac t with another and a rea sonable person would reg ard the contac t a s extremely offe nsive or provoca tive.” Tenn. Code Ann. § 39-13-101( a)( 3) (2002). Nothing in the rec ord indicates that Martinez-Orte g a’s
ag g rava ted assault conviction was for committing extremely offe nsive phy sical contac t while under

a restra ining order

. Neve rtheless, beca use the g overnme nt prese nted only the state court judgme nt without any additional evidenc e that could indicate what section of the ag g rava ted assault statute that Martinez-Orte g a violated, we mus t c o n s id e r s ubsection (c)

. See McM urray , 653 F.3d at 373 (looking at the entire statute wher e the r ecor d does not indicate a narr owed charg e). Be cause someone can be convicted of ag g rava

ted assault under section 39-1 3 -1 0 2 wi thout attempting to cause bodily injury , the statute encompa sses behavior that is not within the plain ordinary meaning of ag g rava ted assault and, ther efor e, does not qua lify as an e numera ted offe nse under U.S.S.G. § 2L 1.2. Al t h oug h Martinez-Orte g a’s prior conviction is not a crime of violence as an enumer ate d offe nse under § 2L 1.2, it may never theless qualify as a crime of violence if it falls under the catc h-all clause , which require s that the statute contain the “use, attempted use, or threa tened use of phy sical forc e” as an element. See United States v. Portela , 469 F.3d 496, 498 (6th Cir

. 2 0 0 6 ). W e m u s t “look to the elements and the nature of the offe nse of conviction, rathe r than to the particula r fac ts rela ting to [t he defe ndant’s] crime.” Leocal v. Ashcroft , 543 U.S. 1, 7 (2004). Be ca u s e the
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g overnme nt prese nted only the state court judgme nt, which does not indicate that Martinez-Orte g a

was convicted under one of the subsections that require s the use of forc e as an element, we cannot conclude that the use of f orce was a

nece ssary

element of

his conviction. Proce eding to the second step of the cate g orica l analy sis, we may consider additional documents to deter

mine if the nature of the conviction included bodily harm or forc e such tha t we

can conclude that Martinez-Orte g a’s conviction was for a violation of subsection (a) or (b) of section 39-13-102. See Mendoza- Mendoza , 239 F. Ap p ’x at 219 (conc luding that beca use the criminal information stated that the defe ndant acte d “re cklessly ,” the defe ndant must have pleade d g uilty to the re cklessness subsec tion of the statute). Aga in, the gover nment did not present a

ny documents other than the s tate judgment; and although we may consider judgment s as p ar t of t he categ orica l
approa ch, Armstead , 467 F.3d at 948, the j udg ment here does not provide a ny further information fr o m wh i ch we can deter mine the nature of the conviction. Wit hout additional documentation establ i s hing that Martinez-Orte g a was convicted under one of the subsections that specific ally addre sses violent conduct, the g overnme nt failed to m ee t its burden of establishing that his prior conviction constituted a c rime of violenc e. The g overnme nt arg ues that we are not require d to consider subsection (c) of the Tenne ssee statute beca

use the state court judgme nt implies that Martinez-Orte g a’s conviction was either under subsection (a) or (b). Specifica lly , the g overnme nt arg ues that we can make this infere nce beca use the judgme nt indicates that Martinez-Orte g a was orig inally indicted for attempted rape , and, there fore , ag g rava ted assault must h a v e b e e n a le s ser- included offe nse. The g overnme nt’s arg ument, howeve r, ignor es the basic principle of the cate g orica l approa ch —we may not consider the
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underly ing fac ts of t he conviction that the defendant has not admitted. See Leocal , 543 U.S. at 7; United States v. Louc h a rt , — F.3d —, 2012 U.S. App. L EXI S 10619, at *6 (6th Cir. 2012) (“A dmission of fac ts from a g uilty plea is limit ed to elements of the crime char g ed or those expli citly admitted to by the defe ndant.”)

. The g overnme nt prese nted only one d o cu m en t , and althoug h it indicates that M artinez-Or teg a was indicted for attempted rape , it is impossibl e to discern which fac ts Martinez-Orte g a nece ssarily admitted when he pleade d g uilty , not to attempted ra pe, but to ag g rava ted assault. See Shepard , 544 U.S. a t 25–26. The cate g orica l a pproac h is meant “to avoid ‘the prac tical difficulties and potential unfairne ss’ of permitting a sentenc ing court to relitig ate the fac ts and delve into the details of a prior convic tion.” Armstead , 467 F.3d at 949 (quoting Taylor

v. United States , 495 U.S. 575, 601 (1990))

. Consideration of the attempted rape char g e would not only prese nt prac tical difficulties, beca use the judgme nt does not even state a statutory section whose lang uag e we could analy

ze, but it would also be decide dly unfair to the defe ndant, who may not have admitted to any

violent conduct in his plea. Wit hout further ev id e n c e th a t Martinez-Orte g a admitted to intending to commit bodily injury

or the attempted use of forc e, the district court could not find that his prior conviction was for a crime of violence. See also Arm stead , 467 F.3d at 949 (“ [W ]here a de fenda nt did not ple ad g uilty to, and there fore was not actua lly convicted of, the

. . . char g e contained in the indictment, the indictment alone is insufficient to meet the g overnme nt’s burden of proving that he was previously convicted of a ‘c ri m e o f violence.’ ” (interna l altera tions and quotation marks omitted)). Acco rd ingly , we may not consider any infere nce that may arise from the name of the char g e in

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Martinez-Orte g a’s indictm en t

. Be cause we cannot know what conduct from the indictment 2 Martinez-Orte g a admitted “until and unles s we are prese nted with additional evidenc e in a form
approve d of by th e S u p re m e Court[ ,]” we cannot conclude that his conviction under Tenne ssee’ s g ener al ag g rava ted assault statute qualifies as a “cr ime of violence ” for

the purposes of

enhanc ing his sentence

. See id. , 467 F.3d a t 950. Martinez-Orte g a also challeng es the district court’s ruling that his prior conviction is an “ag g rava ted felony ” under 8 U.S.C. § 1326(b)( 2), which incre ased the statutory maxi mum for the offe nse to twe nty y ear s. This enhanc ement define s an “ag g rava ted felony ” as a “cr ime of violence [as define d in 18 U.S.C. § 16] for which the term of imprisonment [i s] at least one y ear .” 8 U.S.C. § 1101(a) (43)( F)

. The g overnme nt bear s the burden of proving by a preponde ranc e of the evidenc e that this enhanc ement applies. United States v. Dupree , 323 F.3d 480, 491 (6th Cir. 2003). To deter mine whether a dis trict court properly applied § 1326(b) (2), we ag ain employ the ca teg orica l
approa ch. Mendoza-

Mendoza , 239 F. App’ x at 218–19. We decline to r eview this claim because the district court’s err or reg arding U.S.S.G. § 2L 1.2 ’s s i x teen- level enhanc ement is sufficie nt to require rema

nd for resentenc ing, but we note that the gover nment’s presentation of t he judgment 3 alone appea

rs defic ient in this context, as well. The g overnme nt cannot meet its burden of proving

L i k e w i s e , w e c a n n o t c o n s i d e r t h e u n d e r l y i n g f a c t s o f t h e c h a r g e s t h a t a r e o u t l i n e d i n t h e p r e s e n t e n c e r e p o r t

. 2 S e e U n i t e d S t a t e s v . B a r t e e , 5 2 9 F

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. P r e s e n t e n c e r e p o r t s a r e n o t S h e p a r d

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a c t s i n c l u d e d i n t h e m r e g a r d i n g t h e p r i o r c o n v i c t i o n s h o u l d n o t b e c o n s i d e r e d u n d e r t h e c a t e g o r i c a l a p p r o a c h

.

W e a l s o d e c l i n e t o r e v i e w M a r t i n e z - O r t e g a ’ s s i m i l a r a r g u m e n t r e g a r d i n g t h e a p p l i c a b i l i t y o f U

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- l e v e l e n h a n c e m e n t , w h i c h i s b a s e d o n t h e s a m e l a n g u a g e t h a t i s u s e d i n § 1 3 2 6 ’ s a g g r a v a t e d

- f e l o n y a n a l y s i s . T h e d i s t r i c t c o u r t n e i t h e r a p p l i e d n o r c o n s i d e r e d t h e e n h a n c e m e n t , a n d , t h e r e f o r e , w e w i l l n o t a d d r e s s t h e h y p o t h e t i c a l q u e s t i o n o f i t s a p p l i c a b i l i t y . 9N o . 1 0

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by a pr e p o n d e r a

n c e o f th e e v idence that Martinez-Orte g a’s prior conviction was an ag g rava ted felony simply on the basis of a st at e court judgment t hat i s unclea r as to the charg e of conviction as well as the ter m of imprisonment. III. For the fo regoing rea sons, we VACATE Martinez-Orte g a’s sentenc e, and REMAND the

case for c omplete re sentenc ing.

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