F I LED

United States Court of Appeals

Tenth Circuit

June 6, 2006

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 05-2157

JORGE HERNANDEZ-CASTILLO,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. NO. 04-CR-02210)

James P. Baiamonte, Albuquerque, New Mexico for Defendant-Appellant.

Norman Cairns, Assistant United States Attorney, (David C. Iglesias, United

States Attorney, with him on the brief), Albuquerque, New Mexico for PlaintiffAppellee.

Before O’BRIEN, McWILLIAMS, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

Jorge Hernandez-Castillo pleaded guilty to illegally reentering the United

States in violation of 8 U.S.C. §§ 1326(a)(1), (a)(2), and (b)(2). At sentencing,

the district court enhanced Mr. Hernandez-Castillo’s base offense level by 16
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points, finding that a prior California conviction for engaging in sexual

intercourse with a minor was a felony and a crime of violence. On appeal, Mr.

Hernandez-Castillo challenges only the district court’s application of an

enhancement for a crime of violence. Because we find that the prior California

conviction was a felony and a crime of violence, we AFFIRM the district court’s

decision.

I. Background

Mr. Hernandez-Castillo is a Mexican national who lived in the United

States as a teenager. When he was eighteen years old, Mr. Hernandez-Castillo

was involved in a consensual sexual relationship with Ana Mejia, a fourteen-year

old girl. The two had a child, Brenda, who was born on January 8, 1998. Mr.

Hernandez-Castillo has remained in contact with Brenda since 1998 and continues

to help support her. Because of the four-year age difference between Mr.

Hernandez-Castillo and Ms. Mejia, he was charged with several violations of the

California Penal Code. He pleaded guilty to having unlawful sexual intercourse

with a minor more than three years younger than himself, in violation of

California Penal Code § 261.5(c). The California court sentenced Mr. HernandezCastillo to a suspended sentence of 157 days in county jail, which amounted to

time served, and placed him on formal probation for four years. 

On July 3, 1998, after his California conviction, Mr. Hernandez-Castillo

was deported from the United States to Mexico. On July 18, 2004, he reentered
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the United States and was apprehended at a border patrol checkpoint north of Las

Cruces, New Mexico. Mr. Hernandez-Castillo admitted to border patrol agents

that he was a citizen of Mexico and that he had illegally entered the United

States. He subsequently pleaded guilty to illegal reentry. 

The Presentence Report (“PSR”) provided that Mr. Hernandez-Castillo’s

base offense level was 8, pursuant to § 2L1.2(a) of the United States Sentencing

Guidelines. The PSR recommended that Mr. Hernandez-Castillo’s base offense

level be increased by 16 levels, pursuant to § 2L1.2(b)(1)(A)(ii), because his prior

California conviction for unlawful sexual intercourse with a minor was a felony

and a crime of violence. After a 3-level downward departure for acceptance of

responsibility, the PSR provided for an adjusted offense level of 21, a criminal

history category of IV, and a recommended guidelines range of 57 to 71 months.

At sentencing, the district court adopted the recommendations contained in the

PSR and sentenced Mr. Hernandez-Castillo to the low end of the range, 57

months, concluding that such a sentence was reasonable based on the factors set

forth in 18 U.S.C. § 3553(a). Mr. Hernandez-Castillo filed a timely appeal,

claiming that the district court erred in applying the sixteen-level upward

adjustment because his previous California conviction was a misdemeanor, not a

felony, and was not a crime of violence. 
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II. Discussion

After United States v. Booker, 543 U.S. 220 (2005), rendered the

Sentencing Guidelines advisory, district courts must use a two-step process at

sentencing. In Step 1, the district court must consult the Guidelines and apply

any applicable upward adjustments and downward departures. Through that

process, the district court establishes a total offense level and corresponding

sentencing range under the Guidelines. In Step 2, the district court may use its

discretion to impose a sentence within the Guidelines range or to vary either

upward or downward from that range.

In evaluating sentences imposed under the now-advisory Guidelines, we

likewise employ a two-step approach. United States v. Kristl, 437 F.3d 1050,

1055 (10th Cir. 2006) (per curiam). First, we consider whether the district court

properly applied the Guidelines at Step 1, reviewing its legal determinations de

novo and its factual findings for clear error. Id. Only if we conclude that the

district court correctly applied the Guidelines or that any errors were harmless, do

we consider whether the ultimate sentence imposed in Step 2 was reasonable,

applying a presumption of reasonableness to sentences falling within the

Guidelines range. Id. 

Mr. Hernandez-Castillo does not challenge the reasonableness of the

sentence imposed by the district court. Instead, he argues that the district court

committed legal error at Step 1 by applying the sixteen-level upward adjustment
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based on his prior California conviction because his conviction was a

misdemeanor, not a felony, and because the sexual relationship was consensual

and did not involve the use of force. 

The sixteen-level upward adjustment for crimes of violence applies to

defendants who were previously deported after “a conviction for a felony that is .

. . (ii) a crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A). These are terms of art;

we must follow the definitions specified by the guidelines and guidelines

commentary, rather than the ordinary sense of the terms. A “felony” is defined as

“any federal, state, or local offense punishable by imprisonment for a term

exceeding one year.” Id. at n.2. The crime for which Mr. Hernandez-Castillo was

convicted, sexual intercourse with a minor, is referred to as a “wobbler” because

it is punishable either as a felony or a misdemeanor: 

Any person who engages in an act of unlawful sexual intercourse

with a minor who is more than three years younger than the

perpetrator is guilty of either a misdemeanor or a felony, and shall be

punished by imprisonment in a county jail not exceeding one year, or

by imprisonment in the state prison.

Cal. Penal Code §§ 261.5(c). Under the California Penal Code, an unspecified

prison term in state prison may be for 16 months or two or three years. Id. § 18. 

A wobbler charged as a felony is treated as a felony for all purposes until

judgment. United States v. Robinson, 967 F.2d 287, 293 (9th Cir. 1992). A

wobbler is converted to a misdemeanor: 
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(1) After a judgment imposing a punishment other than imprisonment

in the state prison.

* * * 

(3) When the court grants probation to a defendant without

imposition of sentence and at the time of granting probation, or on

application of the defendant or probation officer thereafter, the court

declares the offense to be a misdemeanor.

Cal. Penal Code § 17(b). Although Mr. Hernandez-Castillo received four years’

probation and a suspended sentence of 157 days in county jail, his situation does

not fall under either of those circumstances. 

Mr. Hernandez-Castillo’s conviction could have been converted to a

misdemeanor under § 17(b)(1) only if a judgment imposed a punishment other

than imprisonment in state prison. Both parties agree that Mr. Hernandez-Castillo

received a sentence other than imprisonment in state prison. Indeed, he received

probation and a suspended sentence of imprisonment in county jail. However,

neither probation nor a suspended sentence is deemed to be a judgment imposing

punishment under California law. Robinson, 967 F.2d at 293; United States v.

Gomez-Hernandez, 300 F.3d 974, 978 (8th Cir. 2002); People v. Smith, 16 Cal.

Rptr. 12, 13 (Cal. Ct. App. 1961) (“An order granting probation is not a

judgment.”); People v. Arguello, 381 P.2d 5, 6 (Cal. 1963) (“In granting probation

after a conviction, the trial court may suspend the imposition of sentence, in

which case no judgment of conviction is rendered.”). Accordingly, there was no

judgment converting Mr. Hernandez-Castillo’s conviction to a misdemeanor under

§ 17(b)(1).
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Nor was Mr. Hernandez-Castillo’s conviction converted to a misdemeanor

under § 17(b)(3). Although § 17(b)(3) applies to grants of probation and

suspended sentences, it operates to convert a wobbler into a misdemeanor only

when “the court declares the offense to be a misdemeanor.” Cal. Penal Code §

17(b)(3). Mr. Hernandez-Castillo has presented no evidence that the sentencing

court declared his offense to be a misdemeanor. Indeed, there is some evidence

that his offense was treated as a felony. Because his conviction under § 261.5(c)

was a felony punishable by up to three years imprisonment, see id. § 18, the

district court did not err in classifying Mr. Hernandez-Castillo’s California

conviction as a felony.

We next turn to Mr. Hernandez-Castillo’s argument that his prior

conviction was not a crime of violence because his relationship with Ms. Mejia

was consensual. The application notes to § 2L1.2(b)(1) define “crime of

violence” as:

any of the following: 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 offense under 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.

U.S.S.G. § 2L1.2 n.1(B)(iii). The offenses listed in the application note to §

2L1.2 “are always classified as ‘crimes of violence,’ regardless of whether the

prior offense expressly has as an element the use, attempted use, or threatened use
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of physical force against the person of another.” United States v. MunguiaSanchez, 365 F.3d 877, 881 (10th Cir. 2004) (emphasis and internal quotation

marks omitted). Section 261.5 is California’s statutory rape law. See Michael M.

v. Superior Court of Sonoma County, 450 U.S. 464, 466 (1981); People v.

Osband, 919 P.2d 640, 734 (Cal. 1996) (“‘Statutory rape’ is commonly

understood to be the offense of unlawful sexual intercourse with a minor (§

261.5).”). Because § 261.5 is a statutory rape statute and statutory rape is listed

in the application note, Mr. Hernandez-Castillo’s conviction was for a crime of

violence irrespective of whether his relationship with Ms. Mejia was consensual.

III. Conclusion

Accordingly, the district court did not err in Step 1 by classifying Mr.

Hernandez-Castillo’s prior California conviction as both a felony and crime of

violence. At sentencing, Mr. Hernandez-Castillo’s counsel did not challenge the

reasonableness of the resulting sentence, and he does not do so here. We

therefore affirm the sentence imposed by the district court.

We feel compelled to comment, however, that we have grave misgivings

regarding the appropriateness of this 57-month sentence. The sentence results

from a sixteen-level enhancement on account of a consensual sexual relationship

Mr. Hernandez-Castillo had with a younger girl many years ago, with parental

consent, when both were teenagers. Mr. Hernandez-Castillo continues to support

and maintain contact with the child, who is now six years old, and also
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(apparently) maintains contact with the mother. Under the Sentencing Guidelines,

this prior act, a statutory rape, is classified as a violent felony, leading to a 16-

point enhancement, which translates into about four additional years in federal

prison. In reality Mr. Hernandez-Castillo committed no violence and he was

punished at the level of a misdemeanor. 

The Sentencing Guidelines produce this result by looking to possible

punishment rather than actual punishment and by defining all statutory rape as

violent regardless of the circumstances. Then there is the added complication of

determining whether a California “wobbler” is a felony or a misdemeanor. A

“wobbler” is an offense that may be either a felony or a misdemeanor, but is

assumed to be a felony unless, among other things, the state court issues a 

“judgment” sentencing the defendant to something less than a year in state prison

or otherwise explicitly classifies the offense as a misdemeanor. Unfortunately for

Mr. Hernandez-Castillo, his actual state court sentence – probation or a suspended

sentence – is for some reason not deemed a “judgment” under state law. Thus,

although he served only 157 days in the county jail – a sentence appropriate for a

misdemeanor and not for a felony – this conviction counts as a felony under state

law. It is hard to see the logic in treating imposition of probation or a suspended

sentence as something other than a “judgment” for purposes of classifying the

offense as a felony or a misdemeanor, but that is what state law dictates. We

wonder if California judges are aware of the momentous consequences under
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federal law of their decision whether to denominate wobbler offenses explicitly as

misdemeanors. Ironically, if the state court had been more severe toward Mr.

Hernandez-Castillo, by requiring him to serve a few more days in jail instead of

allowing him to be released immediately, his offense would be classified as a

misdemeanor and his guidelines range would be 6 to 12 months. 

One might consider this the obvious case where an exercise of Booker

discretion could mitigate a sentence that does not fit the particular facts of the

case, see United States v. Trujillo-Terrazas, 405 F.3d 814, 819-20 (10th Cir.

2005), but unfortunately for Mr. Hernandez-Castillo, his lawyer has not

challenged the reasonableness of the sentence. Perhaps the Sentencing

Commission will take a hard look at these guideline definitions, and especially at

the issue of California “wobblers,” to ensure that sentences imposed under this

section are not greater than can be justified.