F I LED

United States Court of Appeals

Tenth Circuit

August 21, 2006

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 04-2224

LUIS HERNANDEZ-GARDUNO,

Defendant-Appellee.

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v. No. 04-2226

MIGUEL JUAN RAMOS-ESPINO,

Defendant-Appellee.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 04-2348

ANIVAL LEONEL ORTEGAENRIQUEZ,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO
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(D.C. NOS. CR-04-390 RB, 03-CR-2230 RB, 04-CR-93 JP)

Terri J. Abernathy, Assistant United States Attorney (David C. Iglesias, United

States Attorney with her on the briefs), Las Cruces, New Mexico, for the United

States of America.

Marcia J. Milner, Las Cruces, New Mexico, for Defendant-Appellee HernandezGarduno and Defendant-Appellant Ortega-Enriquez.

Rosanne Camunez, Las Cruces, New Mexico, for Defendant-Appellee RamosEspino.

Before HENRY, LUCERO, and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

These three criminal appeals present the question whether previous

Colorado misdemeanor convictions for third-degree assault constitute crimes of

violence under § 2L1.2 of the United States Sentencing Guidelines when the

defendants were sentenced to less than one-year imprisonment. The defendants

claim that the crime-of-violence enhancement applies only to crimes of violence

that are aggravated felonies, thereby limiting the enhancement to prior

convictions in which the defendant actually served a prison term of at least one

year. One district court judge accepted this argument as to two of the defendants,

Luis Hernandez-Garduno and Miguel Juan Ramos-Espino, but another district

court judge rejected the argument as to the third defendant, Anival Leonel OrtegaEnriquez. Mr. Ortega-Enriquez now appeals his sentence, claiming that his prior
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conviction was not a crime of violence and that his sentence violates the rule set

forth in United States v. Booker, 543 U.S. 220 (2005). The government maintains

that the sentences the defendants received for their prior assault convictions are

irrelevant to determining whether their convictions constituted crimes of violence,

but acknowledges that third-degree assault is not always a crime of violence. For

the reasons set forth below, we REMAND the cases to the district court with

directions to vacate each defendant’s sentence and resentence.

I. Background

Although each defendant pleaded guilty to illegally reentering the United

States, in violation of 8 U.S.C. § 1326(a)(1) and (a)(2), and had prior Colorado

misdemeanor convictions for third-degree assault, we briefly review the facts of

each defendant’s case separately.

A. Mr. Hernandez-Garduno

On September 17, 2003, Mr. Hernandez-Garduno was convicted of thirddegree misdemeanor assault in violation of Colorado law. See Colo. Rev. Stat. §

18-3-204. He was sentenced to 24 days’ imprisonment and 12 months’

unsupervised probation, and removed to Mexico on October 17, 2003. Less than

three months later, on December 20, 2003, Mr. Hernandez-Garduno was arrested

for illegally reentering the United States. He pleaded guilty on March 3, 2004. 

The Presentence Investigation Report (“PSR”) calculated Mr. HernandezGarduno’s total adjusted offense level as 21. Starting with a base offense level of
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8, the PSR applied a 16-level increase for a prior crime of violence, and a 3-level

reduction for acceptance of responsibility. With a criminal history category of

III, the guidelines range was 46 to 57 months. 

At his sentencing hearing, the district court concluded that “there is no

question but that [the prior conviction] is a crime of violence,” but found that the

applicability of the enhancement depended on the duration of the actual sentence

imposed. Case No. 04-2224, App. Vol. I, at 99. Mr. Hernandez-Garduno did not

object to the district court’s classification of third-degree assault as a crime of

violence. However, because Mr. Hernandez-Garduno received only a 24-day

sentence for his prior assault conviction, the district court declined to apply the

crime of violence enhancement. It also reduced his base offense level of 8 by two

levels for acceptance of responsibility. With an adjusted offense level of 6, and a

criminal history category III, the guidelines range was 2-8 months. The court

sentenced Mr. Hernandez-Garduno to 8 months’ imprisonment, which amounted

to time served, and recommended that he be removed from the country. 

B. Mr. Ramos-Espino

Mr. Ramos-Espino likewise was convicted of third-degree misdemeanor

assault, in violation of Colorado law. See Colo. Rev. Stat. § 18-3-204. He

received a 90-day jail sentence and one year of supervised probation. Mr. RamosEspino was deported from the United States on March 7, 2003, but illegally
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reentered the country. He was apprehended on August 5, 2003 and pleaded guilty

on December 2, 2004. 

The PSR prepared in Mr. Ramos-Espino’s case was similar to that prepared

in Mr. Hernandez-Garduno’s case. Based on the third-degree assault conviction,

it applied a 16-level enhancement for a prior crime of violence. After the

reduction for acceptance of responsibility, it recommended a total offense level of

21, criminal history category of III, and a sentencing range of 46-57 months. Mr.

Ramos-Espino objected to the enhancement, arguing that his 90-day prison

sentence did not satisfy the one year incarceration requirement for aggravated

felonies. The district court sustained the objection, relying on the definitions

section in the commentary of § 2L1.2, and finding that “where it’s a state

misdemeanor, even though the maximum penalty is 18 months and [the

defendant] has received a sentence of 90 days, suspended, that does not meet the

definition of felony required by the guidelines.” Case No. 04-2226, App. Vol. I,

at 90. Accordingly, Mr. Ramos-Espino’s guideline range was reduced to 2-8

months, and he received a sentence of time served, which equated to 11 months. 

Mr. Ramos-Espino was subsequently deported to Mexico. 

C. Mr. Ortega-Enriquez

Mr. Ortega-Enriquez pleaded guilty to third-degree assault in Colorado on

October 20, 2003. He received a four-day jail sentence and two years of

unsupervised probation. On October 24, 2003, he was released into the custody
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of Immigration and Custom Enforcement and deported on November 11, 2003. 

Three days later, Mr. Ortega-Enriquez was found in the United States and charged

with illegal reentry. He pleaded guilty to that charge on January 27, 2004. 

The PSR prepared for Mr. Ortega-Enriquez calculated a base offense level

of 8, added 16 levels for a prior crime of violence (the Colorado third-degree

assault), and subtracted 3 levels for acceptance of responsibility. The Colorado

assault also increased his criminal history from category I to category II. Based

on an offense level of 21, and a criminal history category of II, the PSR

recommended a guidelines range of 41-51 months. 

At sentencing, Mr. Ortega-Enriquez filed a motion for a criminal history

departure, claiming that category II overrepresented his criminal history. The

district court agreed, and reduced his criminal history to category I, reducing the

range to 37-46 months. Although Mr. Ortega-Enriquez conceded that his prior

Colorado conviction was a crime of violence, he argued that he did not qualify for

the 16-level enhancement because his four-day prison sentence precluded the

prior conviction from being considered an aggravated felony. Basing its

conclusion in part on the government’s decision to appeal the sentences in Mr.

Hernandez-Garduno’s and Mr. Ramos-Espino’s cases, the district court, with

“great reluctance,” rejected Mr. Ortega-Enriquez’s aggravated felony argument. 

Case No. 04-2348, R. Vol. III, at 6. Although the court noted that classifying the

prior assault conviction as a “felony,” and thereby enhancing the base offense
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level by only four levels, would have produced a “fair sentence” in the range of 8-

14 months, the district court concluded that an 8-14 month range was not “the

sentence compelled by the language of the sentencing guidelines.” Case No. 04-

2348, Sent. Tr. at 25-26. The court therefore applied the 37-46 month range, and

sentenced Mr. Ortega-Enriquez to 37 months’ imprisonment, a sentence the court

characterized as “terribly unfair.” Case No. 04-2348, R. Vol. III, at 6. 

II. Discussion

The government now challenges the district court’s decision not to apply

the crime of violence enhancement to Mr. Hernandez-Garduno and Mr. RamosEspino. Mr. Ortega-Enriquez contends that the enhancement should not have

been applied in his case. The common issue in all three cases is whether the

felony crime of violence enhancement applies only to aggravated felonies,

meaning convictions resulting in a prison sentence of at least one year. The

parties also raise some distinct arguments. For the first time on appeal, Mr.

Hernandez-Garduno and Mr. Ramos-Espino contend that their third-degree assault

convictions were not crimes of violence. The government maintains that their

failure to advance these arguments below precludes our consideration. Mr.

Ortega-Enriquez claims that his sentence is inconsistent with the remedial holding

of Booker. The government agrees, and concedes that this error was not

harmless. However, before turning to the substance of the claims presented in

these appeals, we must first consider whether the appeals involving Mr.
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Hernandez-Garduno and Mr. Ramos-Espino were rendered moot upon their

deportation.

A. Mootness

Near the end of his response brief, Mr. Ramos-Espino argues that we

should “alternative[ly]” dismiss the government’s appeal as moot. Appellee

Answer Br., Case No. 04-2226, at 16. For a court, mootness is not an alternative

argument; we have “an affirmative obligation to consider this [jurisdictional]

question sua sponte.” Tandy v. City of Wichita, 380 F.3d 1277, 1290 n.15 (10th

Cir. 2004). Mr. Ramos-Espino contends that because he has completed his

sentences, has been deported, and cannot be resentenced without reentering this

country illegally, the district court is without jurisdiction to resentence him. The

same argument appears to apply with equal force to Mr. Hernandez-Garduno

because he has also been deported.

Completion of a sentence and deportation does not moot the government’s

appeal of an improper sentence. United States v. Alvarez-Pineda, 258 F.3d 1230,

1235 (10th Cir. 2001). Even after a defendant is deported, the government may

continue to allege a remediable injury: here, the trial court’s failure to impose a

sufficiently lengthy sentence under the sentencing guidelines. See United States

v. Meyers, 200 F.3d 715, 721 n.3 (10th Cir. 2000). This injury may be remedied

only through an appeal. See id. Although neither defendant could appear for

resentencing without reentering the country illegally, if either defendant returned
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to the United States “by extradition or by re-entering . . . on his own, he would be

subject to arrest and imprisonment for the remainder of his sentence.” AlvarezPineda, 258 F.3d at 1235; see also United States v. Villamonte-Marquez, 462 U.S.

579, 581 n.2 (1983). The government’s appeal is therefore not moot, and we

proceed to the merits of the claim.

B. Felony Crimes of Violence and Aggravated Felonies under § 2L1.2

The defendants argue that § 2L1.2 defines a “felony” for purposes of the

crime of violence enhancement in reference to 8 U.S.C. § 1101. Because 8

U.S.C. § 1101(a)(43)(F) limits aggravated felonies to crimes of violence “for

which the term of imprisonment [is] at least one year,” the defendants argue that

§ 2L1.2 of the Sentencing Guidelines also includes such a limitation,

notwithstanding an application note that defines “felony” as an offense

“punishable by imprisonment for a term exceeding one year.” U.S.S.G. § 2L1.2

n.2 (emphasis added). Their interpretation is not supported by the language of the

2003 Sentencing Guidelines, which were used to calculate each defendant’s

sentence.

Section 2L1.2 provides, in pertinent part:

§ 2L1.2. Unlawfully Entering or Remaining in the United States

(a) Base Offense Level: 8

(b) Specific Offense Characteristic

(1) Apply the Greatest:
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If the defendant previously was deported, or unlawfully

remained in the United States, after—

(A) a conviction for a felony that is . . . (ii) a crime of

violence . . . increase by 16 levels;

* * *

(C) a conviction for an aggravated felony, increase by

8 levels;

(D) a conviction for any other felony, increase by 4

levels.

U.S.S.G. § 2L1.2 (emphasis added). “Felony” and “aggravated felony” are

carefully defined in the application notes, which are authoritative unless they are

unconstitutional, violate a federal statute, or are inconsistent with, or a plainly

erroneous reading of, the guideline. See Stinson v. United States, 508 U.S. 36, 38

(1993). Felony, “[f]or purposes of subsection (b)(1)(A), (B), and (D), . . . means

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

exceeding one year.” U.S.S.G. § 2L1.2 n.2. Specifically “for purposes of

subsection (b)(1)(C),” the Guidelines define “aggravated felony” as having “the

meaning given that term in section 101(a)(43) of the Immigration and Nationality

Act (8 U.S.C. § 1101(a)(43)).” Id. § 2L1.2 n.3(A). 

Reading § 2L1.2 as a whole, then, there can be no question that the

Guidelines employ a different definition of “felony” for purposes of subsection

(b)(1)(A) than the definition of “aggravated felony” for purposes of subsection

(b)(1)(C). The reference to 8 U.S.C. § 1101(a)(43) applies only to subsection
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(b)(1)(C). U.S.S.G. § 2L1.2 n.3(A). The enhancement relevant to these

cases—for a felony that is a crime of violence, contained in subsection

(b)(1)(A)—has its own definition of felony. U.S.S.G. § 2L1.2 n.2. Because the

application notes are neither inconsistent with, nor a plainly erroneous reading of,

§ 2L1.2, we must apply the definition of felony contained within the application

notes to define “felony” in subsection (b)(1)(A). See Stinson, 508 U.S. at 38. 

 In arguing that the phrase “felony that is . . . a crime of violence” is

defined by reference to 8 U.S.C. § 1101(a)(43)(F), defendants also direct us to

this Court’s decision in United States v. Saenz-Mendoza, 287 F.3d 1011, 1012-13

(10th Cir. 2002) in which we held that a state misdemeanor may constitute an

“aggravated felony” under § 2L1.2 as long as it satisfies the definition of

“aggravated felony” in 8 U.S.C. § 1101(a)(43)(F). In relying on Saenz-Mendoza,

defendants fail to recognize that Saenz-Mendoza interpreted the “aggravated

felony” enhancement in § 2L1.2(b)(1)(C), not the “crime of violence”

enhancement in § 2L1.2(b)(1)(A)(ii). Because these cases involve only the

“crime of violence” enhancement, the interpretation of which is governed by

different application notes, Saenz-Mendoza is not instructive on this issue. 

The definition of “felony” for purposes of § 2L1.2(b)(1)(A)(ii) includes any

offense punishable by more than one year of imprisonment, irrespective of the

actual sentence imposed. See United States v. Hernandez-Castillo, 449 F.3d

1127, 1130-31 (10th Cir. 2006) (holding that a defendant who received a
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suspended sentence of 157 days in jail was convicted of an offense punishable by

more than one-year of incarceration because California law provided for a

sentence of up to three years’ imprisonment); cf. United States v. Norris, 319 F.3d

1278, 1282 (10th Cir. 2003) (interpreting the same phrase under 18 U.S.C. §

922(g)(1) and concluding that “[w]hat matters is not the actual sentence which the

appellant received, but the maximum possible sentence”). Because Colorado

provides for a term of imprisonment up to 18 months for third-degree assault,

Colo. Rev. Stat. §§ 18-3-204, 18-1.3-501, the defendants’ convictions were

felonies under § 2L1.2(b)(1)(A), even though the convictions may not have

qualified as aggravated felonies under 8 U.S.C. § 1101(a)(43)(F). The district

court therefore erred in concluding that Mr. Hernandez-Garduno’s and Mr.

Ramos-Espino’s prior convictions were not felony crimes of violence, but

correctly found that Mr. Ortega-Enriquez’s prior conviction was a felony crime of

violence.

C. Colorado Third-Degree Assault as a Crime of Violence

Aside from contending that their prior assault convictions were not

felonies, both Mr. Hernandez-Garduno and Mr. Ramos-Espino argue, for the first

time, that their third-degree assault convictions were not crimes of violence under

§ 2L1.2(b)(1)(A). Mr. Ortega-Enriquez conceded that his third-degree assault

was a crime of violence and does not contest that aspect of the district court’s

conclusion. The government contends that Mr. Hernandez-Garduno and Mr.
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Ramos-Espino have waived this claim by failing to raise it in the district court. 

However, a new legal theory can be considered on appeal if it “presents an

alternative ground for affirming a lower court ruling on a pure question of law.” 

McMorris v. Comm’r of Internal Revenue, 243 F.3d 1254, 1258 n.6 (10th Cir.

2001); J.E. Riley Inv. Co. v. Comm’r of Internal Revenue, 311 U.S. 55, 59 (1940). 

We therefore consider Mr. Hernandez-Garduno’s and Mr. Ramos-Espino’s

alternative argument that their Colorado third-degree assault convictions were not

crimes of violence.

The Guidelines define “crime of violence” for purposes of § 2L1.2(b)(1)(A)

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.

Id. § 2L1.2 n.1(B)(iii). Relying on United States v. Perez-Vargas, 414 F.3d 1282,

1287 (10th Cir. 2005), Mr. Hernandez-Garduno and Mr. Ramos-Espino contend

that their prior convictions, even if felonies, do not qualify as crimes of violence.

In Perez-Vargas, we considered whether a Colorado third-degree assault

conviction under Colo. Rev. Stat. § 18-3-204—the same statute of conviction at

issue in this case—qualified as a crime of violence under § 2L1.2(b)(1)(A)(ii) of

the Sentencing Guidelines. Applying the categorical approach outlined in
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Shepard v. United States, 544 U.S. 13 (2005), and Taylor v. United States, 495

U.S. 575 (1990), which looks primarily to the statutory definitions of prior

offenses, we held that Colorado third-degree assault is not necessarily a crime of

violence. Perez-Vargas, 414 F.3d at 1287. We explained that third-degree

assault under Colorado law includes actions which cause only the impairment of a

mental condition. See Colo. Rev. Stat. §§ 18-3-204, 18-1-1901(3)(c). As a result,

not all third-degree assaults involve the use, attempted use, or threatened use of

physical force.

To be sure, Perez-Vargas does not hold that a Colorado third-degree assault

conviction can never be a crime of violence; rather, it clarifies that third-degree

assault is not always a crime of violence. If the charging documents, plea

agreement, transcript of a plea colloquy, or sentencing court findings of the prior

state court conviction demonstrate that the third-degree assault did, in fact,

involve the use, attempted use, or threatened use of physical force, then the

particular defendant’s prior assault conviction qualifies as a crime of violence

under § 2L1.2(b)(1)(A)(ii). See Shepard, 544 U.S. at 26. We must therefore

remand these cases to the district court for it to review these documents and

determine whether the prior convictions fall within the definition of “crime of

violence” under § 2L1.2. 

We note, however, that because Colorado third-degree assault is a “felony,”

under § 2L1.2(b)(1)(A), (B), and (D), both Mr. Hernandez-Garduno and Mr.
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Ramos-Espino are eligible for sentencing enhancements under § 2L1.2(b)(1)(D),

for having previously been convicted of “any other felony.” The Guidelines

explicitly instruct district courts to “[a]pply the [g]reatest” enhancement under §

2L1.2(b)(1). Accordingly, if the district court concludes that the prior

convictions were crimes of violence, then a 16-level enhancement is appropriate;

if the district court determines that there is not sufficient evidence to find that the

prior convictions were crimes of violence, then it should apply a 4-level

enhancement for a prior felony conviction. Of course, the district court retains

discretion to vary from the Guidelines range, as it deems appropriate based on the

factors in 18 U.S.C. § 3553(a). See Booker, 543 U.S. at 259.

D. Booker Error

Mr. Ortega-Enriquez also claims that the district court committed nonconstitutional Booker error by applying the Guidelines in a mandatory manner. 

See United States v. Gonzalez-Huerta, 403 F.3d 727, 731-32 (10th Cir. 2005)

(explaining that non-constitutional Booker error occurs when a district court

applies the guidelines in a mandatory, rather than discretionary, fashion). Where,

as here, the defendant raises a Sixth Amendment objection at sentencing, we

review the error for harmlessness. United States v. Labastida-Segura, 396 F.3d

1140, 1142-43 (10th Cir. 2005). The government has conceded that the error in

Mr. Ortega-Enriquez’s case was not harmless, and we agree. Not only did the

district court sentence Mr. Ortega-Enriquez at the bottom of the sentencing range,
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which places us “in the zone of speculation and conjecture” as to whether the

district court would have applied the same sentence under an advisory guidelines

system, see id. at 1143, but the district court expressed “great reluctance” in

imposing the 37-month sentence, characterizing it as “terribly unfair.” Case No.

04-2348, R. Vol. III, at 6. 

III. Conclusion

We therefore remand each case to the district court for resentencing. We

reverse the sentences imposed on Mr. Hernandez-Garduno and Mr. Ramos-Espino

because their prior convictions were felonies that may have qualified as crimes of

violence. On remand, the district court should consider the documents outlined in

Shepard and determine whether the prior convictions fall within the definition of

“crime of violence” contained in § 2L1.2 or whether they are “other felon[ies].” 

We also reverse Mr. Ortega-Enriquez’s sentence and remand for resentencing

under an advisory guidelines regime.