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United States v. Reyes-Rivas

United States Court of Appeals, First Circuit

November 28, 2018

UNITED STATES OF AMERICA, Appellee,
v.
ISMAEL REYES-RIVAS, Defendant, Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Jay A. Garcia-Gregory, U.S. District Judge]

          Franco L. Pérez-Redondo, Research & Writing Specialist, with whom Eric A. Vos, Federal Public Defender, and Vivianne M. Marrero-Torres, Assistant Federal Public Defender, were on brief, for appellant.

          Mainon A. Schwartz, Assistant United States Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, were on brief, for appellee.

          Before Howard, Chief Judge, Selya and Barron, Circuit Judges.

          BARRON, Circuit Judge.

         Ismael Reyes-Rivas ("Reyes") challenges his sentence of 77 months of imprisonment on the grounds (1) that he was improperly subjected to the career offender enhancement, U.S.S.G. § 4B1.1, because one of his predicate crimes did not qualify as a "crime of violence" under the career offender guideline and (2) that the District Court impermissibly considered an untranslated Spanish-language document in violation of the Jones Act, 48 U.S.C. § 864. For the reasons that follow, we vacate and remand for further proceedings.

         I.

         In 2015, Reyes was indicted in the District of Puerto Rico on one count of assault with a dangerous weapon, see 18 U.S.C. § 113(a)(3), for stabbing a fellow prisoner with a "homemade weapon." Reyes pleaded guilty to that offense, and his case proceeded to sentencing.

         On April 28, 2016, the Probation Office released a Presentence Report ("PSR") in Reyes's case. The PSR classified Reyes as a career offender. See U.S.S.G. § 4B1.1(a). Under U.S.S.G. § 4B1.1(a), a "career offender" includes "those defendants who have two prior convictions, whether for a 'controlled substance offense,' any 'crime of violence,' or any combination thereof." United States v. Steed, 879 F.3d 440, 443 (1st Cir. 2018) (internal citations omitted).

         At the time of Reyes's sentencing, the career offender guideline defined a "crime of violence" as:

[A]ny offense under federal or state law, punishable by imprisonment for a term exceeding one year, that- (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a) (2015). Thus, an offense could fit within the then-operative "crime of violence" definition if it were encompassed by that definition's force clause ("has as an element the use, attempted use, or threatened use of physical force against the person of another"), enumerated offenses clause ("is burglary of a dwelling, arson, or extortion, involves use of explosives"), or residual clause ("otherwise involves conduct that presents a serious potential risk of physical injury to another").

         The PSR determined, without express references to any of the clauses just referenced, that Reyes qualified as a "career offender" because he had two prior convictions for "crimes of violence." Those convictions were a 2014 federal carjacking conviction, see 18 U.S.C. § 2119(1), and a 2012 Puerto Rico conviction for aggravated battery, see P.R. Laws. Ann. tit. 33 § 4750.

         To determine whether a prior conviction qualifies as a "crime of violence," we apply the "categorical approach." United Statesv.Dávila-Félix, 667 F.3d 47, 55 (1st Cir. 2011) (citing Taylorv.United States, 495 U.S. 575, 600-02 (1990)). Under that approach, "we look to the statutory definition of the offense in question, as opposed to the particular facts underlying ...


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