United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-3334

___________

United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* District of South Dakota.

Artemio Norberto Reyes-Solano, *

*

Defendant - Appellant. *

___________

Submitted: May 13, 2008

Filed: September 26, 2008

___________

Before LOKEN, Chief Judge, BYE and COLLOTON, Circuit Judges.

___________

LOKEN, Chief Judge.

Artemio Norbert Reyes-Solano pleaded guilty to violating 8 U.S.C. § 1326(a)

by illegally reentering the country following deportation. At sentencing, the district

court agreed with the government that Reyes-Solano’s extensive criminal history

included “three or more convictions for misdemeanors that are crimes of violence”

and imposed a four-level increase under U.S.S.G. § 2L1.2(b)(1)(E), resulting in an

advisory guidelines sentencing range of 15-21 months in prison. The court applied

an upward variance under United States v. Booker, 543 U.S. 220 (2005), and

sentenced Reyes-Solano to twenty-two months in prison. He appeals that sentence,

challenging the four-level increase and the district court’s calculation of criminal

history points. Reviewing these issues of law de novo, we conclude that the district
-2-

court erred in applying Shepard v. United States, 544 U.S. 13 (2005), to ReyesSolano’s prior Mississippi convictions for domestic assault and assault of a police

officer, an error that undermines the § 2L1.2(b)(1)(E) four-level increase. See United

States v. Gomez-Hernandez, 300 F.3d 974, 977 (8th Cir. 2002) (standard of review),

cert. denied, 537 U.S. 1138 (2003). Though the district court’s upward variance

suggests this guidelines error may have been harmless, the four-level increase

substantially impacted the advisory guidelines range. Therefore, we conclude it is

prudent to remand for resentencing. 

I.

Reyes-Solano came to the United States in 1980. He lived and worked in

several States, had repeated run-ins with the law, and was deported in 2004. The

Presentence Investigative Report (PSR) listed ten pre-removal convictions in four

States; six included assault, domestic abuse, or resisting arrest offenses. After

illegally reentering, Reyes-Solano pleaded guilty to aggravated assault for stabbing

a man in the stomach after a fight. A South Dakota state court sentenced him to ten

years in prison. This federal illegal reentry prosecution followed.

Congress has prescribed greatly increased maximum sentences for aliens who

are convicted of illegal reentry if they were removed after committing an aggravated

felony (twenty years), a felony other than an aggravated felony (ten years), or three

or more misdemeanors involving drugs or crimes against the person (ten years). See

8 U.S.C. §§ 1326(b)(1), (2). In most other cases, the maximum sentence is two years.

§ 1326(a). Reflecting this statutory progression, § 2L1.2(b)(1) of the now-advisory

Sentencing Guidelines provides a sliding scale of offense level increases for these

types of prior convictions, beginning with a sixteen-level increase for the most serious

felonies, and ending in subpart (E) with a four-level increase for “three or more

convictions for misdemeanors that are crimes of violence.” “Crime of violence” is

defined as including twelve enumerated offenses (none at issue in this case), “or any
1

For an explanation of why this sliding scale was adopted, see U.S.S.G. App.

C amend. 632 (eff. Nov. 1, 2001).

-3-

other 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.” § 2L1.2, comment.

(n.1(B)(iii)).1

 

The PSR initially recommended a four-level increase under § 2L1.2(b)(1)(E)

based upon Reyes-Solano’s three pre-removal convictions in Washington State for

“Assault 4th Degree.” Reyes-Solano objected that this offense was not a crime of

violence. The Probation Officer agreed and lowered the recommended offense level

by four levels, which resulted in a recommended advisory guidelines range of 6-12

months in prison. The government’s pre-sentencing Memorandum reluctantly

conceded that “without more” the record would not establish that Reyes-Solano’s

prior convictions were crimes of violence; it urged the court to consider an upward

Booker variance because Reyes-Solano’s recent aggravated assault conviction and his

many pre-removal convictions demonstrate that he is “an extremely dangerous

individual.” 

Just before sentencing, the prosecutor obtained, disclosed to defense counsel,

and introduced at the hearing a Spanish-language plea document from one of the

Washington State fourth degree assault convictions. This court record included a

handwritten note in English stating, “I offensively touched another person, not in self

defense and [without] their consent. I threw a chair at my friend.” At the hearing,

Reyes-Solano testified in support of his contention that four Mississippi convictions

should not be counted as criminal history points because he was not provided an

interpreter, which rendered his guilty pleas not knowing and voluntary. On cross

exam, Reyes-Solano admitted that a 1998 Mississippi conviction for fourth degree

domestic assault was based on an altercation in which he struck one of his roommates,

and a 1999 assault conviction was for striking or attempting to strike a police officer.
-4-

The government argued that the Washington State court document and ReyesSolano’s testimony regarding the two Mississippi convictions met the government’s

burden to prove that he has three pre-removal misdemeanor convictions for crimes of

violence. The district court agreed and imposed a four-level increase under

§ 2L1.2(b)(1)(E). The court also rejected Reyes-Solano’s criminal history point

contention, and it imposed a one-month upward Booker variance.

II.

In determining whether a pre-removal conviction based on a guilty plea was for

a crime of violence under § 2L1.2(b)(1), we apply the “categorical approach”

prescribed in Shepard, 544 U.S. at 26. Under this approach, we must “look to the

elements and the nature of the offense of conviction, rather than to the particular facts

relating to [Reyes-Solano’s pre-removal] crime.” Leocal v. Ashcroft, 543 U.S. 1, 7

(2004). However, “[i]f the statute criminalizes both conduct that would qualify as a

crime of violence and conduct that would not, the court may consider the terms of the

charging document or plea agreement as well as a transcript in which the defendant

confirmed the factual basis for his plea in order to determine whether the prior

conviction was for a crime of violence.” United States v. Lopez-Zepeda, 466 F.3d

651, 653 (8th Cir. 2006); see United States v. Vazquez-Garcia, 449 F.3d 870, 873 (8th

Cir. 2006), cert. denied, 127 S. Ct. 1149 (2007). 

In this case, the government argues that Reyes-Solano’s admissions under oath

at the sentencing hearing met its burden to prove that two Mississippi misdemeanor

assault convictions were crimes of violence. However, this argument focuses on the

second step of the categorical approach, a step that is limited to “a narrow range of

cases” where analysis of the elements of the offense is inconclusive because the

statute is overinclusive. Shepard, 544 U.S. at 17 (quotation omitted). Here, the

government could not obtain any court records of the Mississippi convictions, and

therefore the record before the district court does not identify the state statutes or local
2

In its brief on appeal, the government identified current Mississippi statutes

defining various assault offenses. See Miss. Code Ann. §§ 97-3-7(1)-(4). For many

reasons, this showing was both inadequate and untimely. 

-5-

ordinances that Reyes-Solano pleaded guilty to violating. As the elements of the

offenses are unknown, the district court erred in concluding that those offenses were

crimes of violence applying the categorical approach of Shepard. Absent state court

records identifying the offense of conviction, from which the elements of that offense

may be determined, the testimony of Reyes-Solano at sentencing is not sufficient

proof that actual, attempted, or threatened use of force was an element of the offense

and not merely conduct incidental to an offense whose essential elements did not

include the use of force. Accordingly, on this record the four-level increase under

§ 2L1.2(b)(1)(E) was improperly imposed.2

 

Reyes-Solano further contends that the district court erred in including the

Washington State fourth degree assault conviction because the plea document

establishes that he was convicted of “offensive touching,” an offense that does not

include the element of force, even if the particular facts of his violation included the

use of force. The government responds that the statute is overinclusive, triggering the

modified categorical approach approved in Shepard, and that the English notation, “I

threw a chair at my friend,” establishes that he pleaded guilty to a crime of violence.

We conclude that we need not consider this issue because, with the two Mississippi

assault convictions excluded, the government has in any event failed to prove the three

pre-removal crimes of violence required to impose the four-level increase. For cases

in other circuits that have discussed whether Washington State assault convictions

were crimes of violence, see United States v. Sanchez-Torres, 136 F. App’x 644, 647-

48 (5th Cir. 2005) (unpublished), and United States v. Pimentel-Flores, 339 F.3d 959,

969 (9th Cir. 2003). 
-6-

III.

Finally, Reyes-Solano argues that the district court erred in counting his

Mississippi convictions as criminal history points because he was not represented by

counsel, and the state courts’ failures to appoint Spanish language interpreters

rendered his guilty pleas not knowing and voluntary. The district court rejected this

contention on the ground that Mississippi law afforded Reyes-Solano the right to

counsel, and he waived that right. We agree. 

Deprivation of the constitutional right to counsel is the only ground upon which

a prior conviction used to enhance a federal sentence may be collaterally attacked.

Custis v. United States, 511 U.S. 485, 487 (1994). Reyes-Solano had the burden to

demonstrate by a preponderance of the evidence that his uncounseled convictions

were constitutionally invalid. United States v. Stapleton, 316 F.3d 754, 756 (8th Cir.

2003). He testified that he does not understand court proceedings in English and was

not provided an interpreter in the Mississippi proceedings. But he admitted that he

understood the charges to which he pleaded guilty, and he did not testify that he was

unaware of his right to counsel or that his waiver of that right was constitutionally

infirm. On this record, the district court did not err in ruling that Reyes-Solano failed

to prove a deprivation of the right to counsel and in counting these convictions, which

placed Reyes-Solano in criminal history category IV. See U.S.S.G. § 4A1.2,

comment. (backg’d) (“Prior sentences, not otherwise excluded, are to be counted in

the criminal history score, including uncounseled misdemeanor sentences, where

imprisonment was not imposed.”); United States v. Thomas, 20 F.3d 817 (8th Cir.

1994) (en banc).

We vacate the judgment of the district court and remand for resentencing.

______________________________