United States v. Reyes * The Honorable Stefan R. Underhill,

10-1400-cr
United States v. Reyes
* The Honorable Stefan R. Underhill, United States District
Judge for the District of Connecticut, sitting by designation.
Page 1 of 18
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
5
6
August Term, 2011 7
8
(Argued: March 8, 2012 Decided: August 29, 2012) 9
10
Docket No. 10-1400-cr 11
12
13
UNITED STATES OF AMERICA, 14
15
Appellee, 16
17
–v.– 18
19
RAUL REYES, AKA RAOUL REYES, AKA RICO REYES, AKA PAUL REYES, 20
AKA RAUL VASQUEZ REYES, AKA RAULI REYES, AKA JAIME COLON, 21
AKA JAIME RODRIGUEZ, 22
23
Defendant-Appellant. 24
25
26
27
Before: 28
29
KATZMANN, WESLEY, Circuit Judges, UNDERHILL, District 30
Judge. *
31
32
Appeal from a judgment of the United States District 33
Court for the Southern District of New York (Preska, J.), 34
entered on April 12, 2010, pursuant to which the defendant- 35
appellant was sentenced to a term of imprisonment of 188 36
months. 37
38
VACATED and REMANDED. 39

-- 1 of 18 --

Page 2 of 18
1
2
3
MARY ANNE WIRTH, Bleakley Platt & Schmidt, LLP, 4
White Plains, NY, for Defendant-Appellant. 5
6
JENNIFER E. BURNS, Assistant United States Attorney 7
(Justin Anderson, Assistant United States 8
Attorney, on the brief), for Preet Bharara, 9
United States Attorney for the Southern 10
District of New York, New York, NY. 11
12
13
14
P ER C URIAM : 15
Defendant-Appellant Raul Reyes pleaded guilty to one 16
count of bank robbery in violation of 18 U.S.C. § 2113. The 17
district court sentenced Reyes as a “career offender” under 18
United States Sentencing Guideline (“U.S.S.G.” or 19
“Guidelines”) § 4B1.1(a). In doing so, however, the 20
district court adopted inconsistent findings in the 21
Probation Department’s Presentence Report (“PSR”) regarding 22
Reyes’s prior convictions. This case raises an issue of 23
first impression in our Circuit–whether a district court may 24
rely on a PSR’s description of a defendant’s pre-arrest 25
conduct that culminated in a prior conviction to determine 26
whether that prior conviction constitutes one for a “crime 27
of violence” under U.S.S.G. § 4B1.2(a)(1), where the 28
defendant makes no objection to the PSR’s description. We 29

-- 2 of 18 --

Page 3 of 18
hold that it may not. We therefore vacate the sentence 1
imposed by the district court and remand for proceedings 2
consistent with this opinion. 3
Background 4
The facts are largely undisputed. On July 28, 2008, 5
Reyes robbed a bank in Manhattan. After threatening an 6
employee with what appeared to be an explosive device, Reyes 7
absconded with approximately $14,000. Without the benefit 8
of a plea agreement, Reyes pleaded guilty to one count of 9
bank robbery in violation of 18 U.S.C. § 2113(a) and (d). 10
Shortly before Reyes pleaded guilty, the government 11
submitted a letter pursuant to United States v. Pimentel, 12
932 F.2d 1029, 1034 (2d Cir. 1991). That letter outlined 13
the government’s position on the application of the 14
Guidelines to Reyes’s case. As relevant here, the 15
government stated that, in its view, Reyes was a “career 16
offender” under U.S.S.G. § 4B1.1(a) because he had been 17
convicted of two previous “crimes of violence”–battery on a 18
law enforcement officer in violation of Florida Statute 19
section 784.07, and robbery in violation of Florida Statute 20
section 812.13. As a “career offender” convicted of two 21
prior crimes of violence and facing a charge that carried a 22

-- 3 of 18 --

Page 4 of 18
maximum of 25 years’ imprisonment, Reyes would have his 1
offense level elevated to level 34. Contemplating a 3-level 2
reduction for acceptance of responsibility under U.S.S.G. 3
§ 3E1.1 and that Reyes would be placed in Criminal History 4
Category VI, the government advocated for a Guidelines range 5
of 188 to 235 months’ imprisonment. 6
The Probation Department prepared a PSR in advance of 7
Reyes’s sentencing. The PSR begins by correctly summarizing 8
the government’s Pimentel letter and its conclusion that 9
Reyes was a career offender under U.S.S.G. § 4B1.1. In 10
paragraph 47 of the report, however, the PSR states 11
inarticulately that Reyes was a career offender because he 12
had “at least two prior felony convictions of either a crime 13
of violence.” PSR ¶ 47. Then, in paragraph 86, the PSR 14
states that Reyes is a career offender under the Guidelines 15
because he “has prior felony convictions involving a crime 16
of violence and a controlled substance offense.” PSR ¶ 86. 17
The PSR later repeats this statement in its “recommendation” 18
section. 19
Although the PSR never explicitly identifies the prior 20
convictions on which it relies to classify Reyes as a career 21
offender, it lists the following, among several other 22

-- 4 of 18 --

Page 5 of 18
convictions, in detailing Reyes’s criminal history: (1) a 1
January 2009 conviction in Puerto Rico for a “controlled 2
substance offense”; (2) a May 2005 Florida conviction for 3
robbery; and (3) a May 2005 Florida conviction for battery 4
on a law enforcement officer. The PSR also provides a 5
description of the conduct underlying Reyes’s 2005 battery 6
conviction. It states, “On March 19, 2004, the defendant 7
was detained at Falkenburg Road Jail when he caused a 8
disturbance in the pod. A detention deputy responded and 9
spoke with the defendant. The defendant then struck the 10
deputy in the nose with a closed fist.” PSR ¶ 73. The PSR 11
does not provide the source of this information. 12
On April 7, 2010, Reyes appeared before the district 13
court for sentencing. In his sentencing memorandum, Reyes’s 14
counsel did not object to the facts contained in the PSR, 15
the PSR’s classification of Reyes as a career offender, or 16
the PSR’s calculation of the Guidelines range. Indeed, at 17
the sentencing hearing, Reyes’s counsel noted that he had 18
“[n]o objections to the facts or the [G]uidelines 19
calculations” set forth in the PSR. App. 47. In the 20
absence of an objection, the district court accepted the 21
PSR’s findings, including those that contained inaccuracies 22

-- 5 of 18 --

Page 6 of 18
and inconsistencies regarding which crimes served as 1
predicates for the career offender enhancement. 2
The government noted that Reyes had a “very long and 3
very violent criminal history” and highlighted for the 4
district court a number of Reyes’s prior offenses, including 5
both his 2005 robbery conviction and his 2005 conviction for 6
battery on a law enforcement officer. App. 50. The 7
district court then sentenced Reyes to 188 months’ 8
incarceration. The court characterized Reyes’s “very 9
lengthy and very violent criminal history” as the “driving 10
force” behind the sentence. App. 52. The district court 11
did not, however, specifically discuss Reyes’s status as a 12
career offender. 13
Reyes timely appealed the district court’s judgment. 14
In January 2011, Reyes filed an appellate brief in this 15
Court. In his brief, he claims that the district court 16
committed plain error in adopting the PSR’s conclusions 17
regarding his status as a career offender under U.S.S.G. 18
§ 4B1.1. Specifically, he argues that (1) he does not have 19
a prior conviction for a controlled substance offense that 20
counts towards his classification as a career offender;(2) 21
under the Supreme Court’s decision in Johnson v. United 22

-- 6 of 18 --

Page 7 of 18
States, 130 S. Ct. 1265 (2010), a Florida battery conviction 1
does not necessarily constitute a “crime of violence”; and 2
(3) there was insufficient evidence in the record to 3
determine whether his particular battery conviction 4
constituted a conviction for a “crime of violence.” In 5
support of the latter point, Reyes contends that the 6
district court was not entitled to rely on the PSR’s 7
uncontested description of his pre-arrest conduct that 8
resulted in his conviction for battery of a law enforcement 9
officer to determine whether the battery was a “crime of 10
violence.” He notes that this Court left open that question 11
in United States v. Rosa, 507 F.3d 142, 156 (2d Cir. 2007). 12
In April 2011, the government moved to remand for 13
resentencing in light of Johnson. A panel of this Court 14
rebuffed the government’s request. The panel directed the 15
government to file a brief addressing 16
(1) whether Reyes’s failure to object to the facts 17
contained in his [PSR] describing the offense 18
conduct underlying his prior conviction for 19
battery of a law enforcement officer constituted 20
an admission of those facts; (2) whether a 21
sentencing court may use such an admission to find 22
that a prior offense constitutes a ‘crime of 23
violence’ under U.S.S.G. § 4B1.2(a)(1); and (3) if 24
so, whether the district court committed plain 25
error in adopting the PSR’s conclusion that Reyes 26
qualified as a career offender. 27
28

-- 7 of 18 --

Page 8 of 18
United States v. Reyes, No. 10-1400-cr (2d Cir. Aug. 2, 1
2011) (motion order). Following our directive, the 2
government argues that vacatur of Reyes’s sentence is 3
inappropriate and that his sentence should be affirmed. 4
Discussion 5
Because Reyes failed to object below to his 6
classification as a career offender under U.S.S.G. § 4B1.1, 7
we review his classification as such for plain error only. 8
See United States v. Morris, 350 F.3d 32, 36 (2d Cir. 2003). 9
Plain error exists where (1) the district court committed 10
error; (2) the error is plain; (3) the error affects the 11
defendant’s substantial rights; and (4) the error seriously 12
affects the “fairness, integrity or public reputation of 13
judicial proceedings.” United States v. Greer, 631 F.3d 14
608, 612 (2d Cir. 2011). 15
Pursuant to U.S.S.G. § 4B1.1(a), a defendant is a 16
career offender if: 17
(1) the defendant was at least eighteen years old 18
at the time the defendant committed the instant 19
offense of conviction; (2) the instant offense of 20
conviction is a felony that is either a crime of 21
violence or a controlled substance offense; and 22
(3) the defendant has at least two prior 23
convictions of either a crime of violence or a 24
controlled substance offense. 25
26
27

-- 8 of 18 --

Page 9 of 18
As is relevant here, the Guidelines define a “crime of 1
violence” as an offense punishable by imprisonment exceeding 2
one year that “has as an element the use, attempted use, or 3
threatened use of physical force against the person of 4
another.” U.S.S.G. § 4B1.2(a)(1). The “crime of violence” 5
convictions must be sustained prior to the defendant 6
committing the offense for which he is being sentenced. 7
U.S.S.G. § 4B1.2(c). 8
Here, the district court committed an error that was 9
plain–it adopted findings in the PSR that conclude that 10
Reyes is a career offender because he has convictions for 11
both a crime of violence and a controlled substance offense. 12
PSR ¶ 86. Reyes sustained the controlled substance offense 13
after he committed the instant offense. Therefore, that 14
conviction was not a proper predicate offense for the 15
application of the career offender enhancement. See 16
U.S.S.G. § 4B1.2(c). 17
But to prevail on plain error review, Reyes must do 18
more than show that the district court committed an obvious 19
error. He must further demonstrate that the error affected 20
his “substantial rights”–i.e., that it “affected the outcome 21
of the district court proceedings.” United States v. 22

-- 9 of 18 --

Page 10 of 18
Marcus, 628 F.3d 36, 42 (2d Cir. 2010) (internal quotation 1
marks omitted). That decision turns on whether Reyes’s 2005 2
Florida conviction for battery on a law enforcement officer 3
constitutes a conviction for a “crime of violence” under the 4
Guidelines. And that inquiry is determined by whether a 5
sentencing court may rely on a PSR’s uncontested description 6
of Reyes’s pre-arrest conduct that resulted in his prior 7
conviction for battery on a law enforcement officer to 8
decide that the prior conviction is one for a “crime of 9
violence” under U.S.S.G. § 4B1.2(a)(1). We hold that it may 10
not. 11
12
Florida Statute section 784.07 criminalizes battery 13
committed on a law enforcement officer. In Florida, battery 14
occurs when a person (1) “[a]ctually and intentionally 15
touches . . . another person against the will of the other”; 16
(2) “intentionally . . . strikes another person against the 17
will of the other”; or (3) “[i]ntentionally causes bodily 18
harm to another person.” Fla. Stat. § 784.03(1)(a). The 19
slightest unwanted intentional physical contact constitutes 20
battery under Florida law. Johnson, 130 S. Ct. at 1269-70 21
(citing State v. Hearns, 961 So.2d 211, 218 (Fla. 2007)). 22
Therefore, battery on a law enforcement officer, if 23

-- 10 of 18 --

1Johnson dealt with sentence enhancements under the Armed
Career Criminal Act (“ACCA”). The ACCA’s definition of “violent
felony” is identical in all material respects to U.S.S.G
§ 4B1.2(a)’s definition of “crime of violence.” See United
States v. Walker, 595 F.3d 441, 443 n.1 (2d Cir. 2010); United
States v. Palmer, 68 F.3d 52, 55 (2d Cir. 1995). Therefore,
cases interpreting the ACCA’s definition of “violent felony” are
highly persuasive in interpreting the Guidelines’ definition of
“crime of violence.” Walker, 595 F.3d at 443 n.1. Many of the
cases cited in this opinion deal with the ACCA, not the
Guidelines.
Page 11 of 18
accomplished only by “actually and intentionally 1
touch[ing],” does not constitute a “crime of violence” under 2
U.S.S.G. § 4B1.2 because it does not involve the “use of 3
physical force,” as that phrase is interpreted by the 4
Supreme Court. Id. at 1269-73. 1
5
To ascertain whether Reyes’s conviction for battery on 6
a law enforcement officer constitutes a conviction for a 7
“crime of violence,” we employ a two-step “modified 8
categorical approach.” See Walker, 595 F.3d at 443; United 9
States v. Savage, 542 F.3d 959, 964 (2d Cir. 2008). The 10
first step requires the court to determine “whether the 11
statute of the prior conviction criminalizes conduct that 12
falls exclusively” within the Guidelines’ definition of 13
“crime of violence.” See Savage, 542 F.3d at 964. If so, 14
the inquiry ends. But if the statute of conviction also 15
criminalizes conduct that does not fall within the 16

-- 11 of 18 --

Page 12 of 18
Guidelines’ definition of a “crime of violence,” the 1
government must demonstrate that the conviction 2
“necessarily” rested on facts identifying the conviction as 3
one for a “crime of violence.” Walker, 595 F.3d at 444 4
(internal quotation marks omitted). 5
When a court is required to look beyond the statutory 6
definition of a prior offense to determine whether it 7
constitutes a “crime of violence,” its inquiry is 8
circumscribed. Generally, a sentencing court must limit 9
itself “to examining the statutory definition, charging 10
document, written plea agreement, transcript of plea 11
colloquy, and any explicit factual finding by the trial 12
judge to which the defendant assented.” Shepard v. United 13
States, 544 U.S. 13, 16 (2005); see Johnson, 130 S. Ct. at 14
1273. This general limitation on the sentencing court’s 15
inquiry is driven by U.S.S.G. § 4B1.1(a)’s focus on the 16
defendant’s prior conviction, rather than the conduct 17
underlying the conviction, as well as a need to avoid 18
collateral trials. See Taylor v. United States, 495 U.S. 19
575, 600-01 (1990) (analyzing nearly identical language in 20
the ACCA); see also Shepard, 544 U.S. at 23 (same). “[T]he 21
critical issue is whether the judicial record of the 22

-- 12 of 18 --

Page 13 of 18
defendant’s prior conviction establishes that his guilty 1
plea ‘necessarily admitted [facts demonstrating that his 2
conviction was for a crime of violence].’” United States v. 3
Baker, 665 F.3d 51, 56 (2d Cir. 2012) (quoting Shepard, 544 4
U.S. at 26) (brackets in original). 5
The problem here is that the government submitted no 6
evidence demonstrating that Reyes’s conviction for battery 7
on a law enforcement officer under Florida Statute section 8
784.07 necessarily rested on anything but the slightest 9
unwanted physical contact. The government admits as much, 10
but seeks safe harbor in the defendant’s failure to object 11
to the PSR’s description of Reyes’s pre-arrest conduct that 12
culminated in his conviction for battery of a law 13
enforcement officer. The PSR states–without providing the 14
source of its information–that Reyes struck a detention 15
deputy in the face with a closed fist while incarcerated at 16
the Falkenburg Road Jail in Florida. The government argues 17
that because Reyes failed to object to that description, he 18
admitted facts that establish that his battery offense 19
involved the use of “physical force” and thus constituted a 20
“crime of violence” under U.S.S.G. § 4B1.2(a). 21
22
23

-- 13 of 18 --

2Rosa is an ACCA case, and thus the Rosa court was tasked
with determining whether a prior offense constituted a “violent
felony,” not a “crime of violence.” However, as noted in
footnote 1, the ACCA’s definition of “violent felony” and
U.S.S.G. § 4B1.2(a)’s definition of “crime of violence” are
identical in all material respects.
Page 14 of 18
As a general matter, reliance on a federal PSR’s 1
factual description of a defendant’s pre-arrest conduct to 2
determine whether a prior offense constitutes a “crime of 3
violence” under U.S.S.G. § 4B1.2(a)(1) is prohibited. See 4
Rosa, 507 F.3d at 156; Palmer, 68 F.3d at 59. This is 5
because “a current presentence report prepared for a 6
sentencing court presented with the enhancement issue would 7
ordinarily be a surrogate for the elaborate factfinding 8
process regarding the defendant’s prior offenses that was 9
criticized in Taylor.” Palmer, 68 F.3d at 59 (internal 10
quotation marks omitted) (emphasis removed). However, in 11
United States v. Rosa, this Court left open the question of 12
whether “a sentencing court may look to a PSR prepared for 13
that case to determine the underlying facts of a previous 14
conviction when the defendant fails to object to the PSR’s 15
findings” in order to ascertain whether a defendant’s prior 16
offense constituted a “crime of violence.” 507 F.3d at 17
156. 2
18
19

-- 14 of 18 --

Page 15 of 18
The government urges us to hold that such reliance is 1
proper. In support of its argument, the government contends 2
that uncontested descriptions of the circumstances 3
underlying prior convictions found in a PSR are similar to 4
the sources enumerated by the Shepard Court. It also points 5
out that use of those descriptions does not implicate the 6
collateral trial or fairness concerns that animate the 7
limits inherent in the modified categorical approach. 8
Further, the government claims that reliance on an 9
uncontested portion of the PSR is permissible because it is 10
well established that undisputed portions of the PSR may be 11
accepted as fact by a sentencing court. 12
We have little trouble concluding that a sentencing 13
court may not rely on a PSR’s description of a defendant’s 14
pre-arrest conduct that resulted in a prior conviction to 15
determine that the prior offense constitutes a “crime of 16
violence” under U.S.S.G. § 4B1.2(a)(1), even where the 17
defendant does not object to the PSR’s description. It is 18
true, as the government notes, that collateral trial 19
concerns are not implicated by that reliance. But 20
collateral trial concerns are not the only concerns 21
animating the modified categorical approach. U.S.S.G. 22

-- 15 of 18 --

Page 16 of 18
§ 4B1.1's language clearly focuses on the defendant’s 1
conviction, not the defendant’s conduct in a particular 2
case. See Taylor, 495 U.S. at 600-01 (interpreting nearly 3
identical language in the ACCA). 4
It is impossible on this record to know whether Reyes’s 5
conviction necessarily rested on the “intentionally strikes” 6
or “intentionally causes bodily harm” prongs–rather than the 7
“intentionally touches” prong–of the battery statute. At 8
most, the PSR’s description tells us what Reyes did, not the 9
specific provision of the Florida statute for which he was 10
convicted. Even if Reyes did punch the corrections officer 11
in the face, he could have pleaded guilty to battery on a 12
law enforcement officer by simply admitting that he touched 13
the corrections officer in an unwanted manner. If that were 14
the case, the conviction would rest on facts not involving 15
the “use of physical force” and thus the offense would not 16
be a “crime of violence” under the Guidelines. See Johnson, 17
130 S. Ct. at 1269-73. For this reason, reliance on the 18
PSR’s uncontested description of pre-arrest conduct that 19
resulted in a defendant’s prior conviction to determine 20
whether that prior conviction constitutes one for a crime of 21
violence is improper. 22

-- 16 of 18 --

3The easiest way, and the only one explicitly approved by
our case law, for the government to prove the nature of Reyes’s
prior battery conviction on remand is to use Shepard-approved
sources. We leave for another day the question of whether
Shepard-approved sources are the only kinds of evidence that may
be introduced for such a purpose, or whether the parties may
stipulate (either explicitly or by failing to object) to the
nature of a prior conviction for Guidelines purposes. See, e.g.,
United States v. Aviles-Solarzano, 623 F.3d 470, 475 (7th Cir.
2010) (suggesting that parties may stipulate to the nature of a
defendant’s prior conviction for Guidelines purposes).
In the event that the government is unable to establish that
the career offender enhancement under U.S.S.G. § 4B1.1(a) is
warranted (and thus Reyes’s offense level is not automatically
elevated to level 34), we note that the PSR incorrectly applied
separate enhancements under U.S.S.G. § 2B3.1(b)(2)(E) for
brandishing a dangerous weapon and U.S.S.G. § 2B3.1(b)(2)(F) for
making a death threat during the offense. Only one enhancement
under U.S.S.G. § 2B3.1(b)(2) may be employed. See United States
v. Triplett, 104 F.3d 1074, 1082 (8th Cir. 1997); United States
v. Farrier, 948 F.2d 1125, 1127 (9th Cir. 1991); see also United
States v. Murray, No. 97-6735, 1999 WL 187192, at *4 (4th Cir.
Apr. 6, 1999) (unpublished).
Page 17 of 18
The district court’s error in sentencing Reyes as a 1
career offender on this record affected his substantial 2
rights because it resulted in an elevated offense level 3
under the Guidelines. We must vacate the sentence imposed 4
by the district court and remand for proceedings consistent 5
with this opinion. On remand, the district court shall 6
provide the government with an opportunity to introduce 7
evidence demonstrating that Reyes’s battery conviction was a 8
“crime of violence” under U.S.S.G. § 4B1.2(a). 3
9
10

-- 17 of 18 --

Page 18 of 18
A final point. Although a sentencing court may not 1
rely on a PSR’s description of pre-arrest conduct that 2
resulted in a prior conviction to determine whether that 3
prior conviction constitutes a crime of violence under the 4
Guidelines, a sentencing court can consider that conduct 5
under 18 U.S.C. § 3553(a) when fashioning the defendant’s 6
sentence. Such conduct may be probative of the “history and 7
characteristics of the defendant.” 18 U.S.C. § 3553(a). 8
Conclusion 9
The district court’s judgment of April 12, 2010, which 10
sentenced the defendant to 188 months’ imprisonment, is 11
hereby VACATED. The case is REMANDED for resentencing 12
proceedings consistent with this opinion. 13

-- 18 of 18 --