Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-30-2008

USA v. Xocholij-Carrillo
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3318




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"USA v. Xocholij-Carrillo" (2008). 2008 Decisions. Paper 1673.
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                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 06-3318
                                      ___________

                                   UNITED STATES,


                                            v.

                           MATEO XOCHOLIJ-CARRILLO,

                                                   Appellant
                             ________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                     No: 06-cr-41
                    District Judge: Honorable Donetta W. Ambrose

                             ________________________


                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                 January 14, 2008

Before: FUENTES, JORDAN, Circuit Judges, and RUFE,* District Judge.

                           (Opinion Filed: January 30, 2008)




*
 Honorable Cynthia M. Rufe, District Judge for the United States District Court of the
Eastern District of Pennsylvania, sitting by designation.
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                                      ___________

                               OPINION OF THE COURT
                                    ____________

FUENTES, Circuit Judge.

       On March 20, 2006, Mateo Xocholij-Carrillo, defendant-appellant, pled guilty to a

violation of 18 U.S.C. §§ 1326(a) and 1326(b)(2)(A) for unlawfully reentering the United

States after having been deported on August 2, 2004. Xocholij-Carrillo was discovered to

have reentered the country when he was found riding in the back of a van with fourteen

other illegal immigrants on December 31, 2005. He had two prior convictions, one for

assault and one for a forged document (a social security card). Xocholij-Carrillo’s

presentence report (“PSR”) identified his assault conviction as being pursuant to N.Y.

Penal Law § 120.05(2), which is a crime of violence under U.S.S.G. § 2L1.2, and

calculated his offense level to be 21. The PSR calculated his guideline range to be 46 to

57 months in prison. On June 27, 2006, the District Court departed downwards six levels

to an offense level of 15 and sentenced Xocholij-Carrillo to 27 months in prison. He

timely appealed his sentence.1 For the reasons set forth, we will deny his appeal.

       Xocholij-Carrillo appeals his sentence on the basis that 1) the evidence on the

record was insufficient to establish that Xocholij-Carrillo had previously been convicted

of any crime, 2) the evidence of the record was insufficient to show that the crime


1
 The District Court had jurisdiction over the action by virtue of 18 U.S.C. § 3231. We
have jurisdiction to review the defendant’s sentence pursuant to 18 U.S.C. 3742(a) and 28
U.S.C. § 1291.
                                             2
Xocholij-Carrillo was convicted of, if any, required a mens rea more than recklessness, 3)

even if the record is clear that Xocholij-Carrillo was convicted of N.Y. Penal Law §

120.05(2), the rule of lenity requires it be treated as an aggravated felony, requiring an 8-

level enhancement, rather than a crime of violence, requiring a 16-level enhancement, 4)

the District Court should have made its findings regarding Xocholij-Carrillo’s prior

record beyond a reasonable doubt, not by a preponderance of the evidence, and 5) his

sentence was unreasonable.

       First, Xocholij-Carrillo’s argument that the evidence on the record was insufficient

to establish that he had previously been convicted of any crime is frivolous as he affirmed

during his change of plea hearing that it was true that “he was previously deported and

removed to his home country of Guatemala from the United States on August 2, 2004,

after serving periods of incarceration in New York for charges that include assault . . . and

possessing a forged instrument.” (App. 27.)

       Next, Xocholij-Carrillo contends that there is no evidence that he was convicted of

an assault which required a mens rea more than recklessness. He makes this argument

because “a crime whose mens rea is ‘pure’ recklessness is not a crime of violence for

immigration purposes.” Tran v. Gonzales, 

, 465 (3d Cir. 2005). His

sentence was enhanced because the District Court found that he had previously been

convicted of violating N.Y. Penal Law § 120.05(2), for which the mens rea element is

“intent to cause physical injury to another person.” He argues that the document offered

by the government to show what crime he was convicted of, the Certificate of Disposition
                                              3
    (App. 53), is insufficient evidence to prove that he was convicted of N.Y. Penal Law §

    120.05(2) as opposed to any of the other sections of New York penal law he was

    originally charged with.2

           In support of his argument that the Certificate of Disposition does not prove the

    statutory section he was convicted of, Xocholij-Carrillo cites to United States v.

    Hernandez, 

, 278-79 (3d Cir. 2000). The Hernandez case does not support

    Xocholij-Carrillo. In Hernandez, in order to argue for a career offender enhancement, the

    government submitted Certificates of Disposition to prove that the defendant had two

    prior convictions for possession of a narcotic with intent to sell. Hernandez sought to

    challenge the accuracy of these documents by introducing a transcript of his plea colloquy

    to show that he pled to mere possession, which would make him ineligible for the

    enhancement. The district court refused to consider the transcript of the plea colloquy

    and determined that Hernandez was eligible for the career offender enhancement, relying

    only on the Certificates of Disposition. We reversed, finding that the district court erred

    by refusing to consider the transcript of the plea colloquy. We held that a Certificate of

    Disposition is not conclusive proof of the statute of conviction. 

But in this

    case, Xocholij-Carrillo offers no evidence to show that he was not convicted of N.Y.

    Penal Law § 120.05(2). By a preponderance of the evidence, the government showed that


2
 Xocholij-Carrillo was also charged with violations of N.Y. Penal Law §§ 120.15,
240.26(1), and 265.01(2). We do not address whether these sections would be considered
crimes of violence as we find that there was sufficient evidence to show that Xocholij-
Carrillo was convicted of N.Y. Penal Law § 120.05(2).
                                              4
Xocholij-Carrillo was convicted of N.Y. Penal Law § 120.05(2).

       Third, Xocholij-Carrillo argues that even if we conclude that he was convicted of

N.Y. Penal Law § 120.05(2), he should have received the enhancement for an aggravated

felony, rather than a crime of violence, since a crime under N.Y. Penal Law § 120.05(2)

fits the definition of both. Pursuant to U.S.S.G. § 2L1.2, an aggravated felony merits an

8-level enhancement while a crime of violence merits a 16-level enhancement. Xocholij-

Carrillo’s argument that we should apply lenity and remand for the District Court to

impose the enhancement for an aggravated felony fails because U.S.S.G. § 2L1.2

specifically indicates that the court should impose “the greatest” of the possible

enhancements. Also, we note that the District Court departed downwards by 6 levels,

finding that “the advisory Guideline range is greater than necessary. . . to meet the goals

of sentencing.” (App. 87.)

       Fourth, Xocholij-Carrillo argues that the District Court erred by making its

findings on his prior record by a preponderance of the evidence, rather than beyond a

reasonable doubt. This argument has been soundly rejected by the Supreme Court. James

v. United States, __ U.S. __, 

, 1600 (2007); Almendarez-Torres v. United

States, 

(1998).

       Lastly, Xocholij-Carrillo offers us no basis to conclude that the sentence he

received was unreasonable.

       For the reasons stated, Xocholij-Carrillo’s appeal will be denied.



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