United States v. Ramon Antonio Simo-López

United States Court of Appeals
For the First Circuit
No. 05-2656
UNITED STATES,
Appellee,
v.
RAMON ANTONIO SIMO-LÓPEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Lipez and Howard, Circuit Judges.
Joseph C. Laws, Jr., Federal Public Defender, Juan F. Matos-De
Juan, Assistant Federal Public Defender, and Héctor L. Ramos-Vega
on brief for appellant.
H.S. García, United States Attorney, and Nelson Pérez-Sosa,
Assistant United States Attorney, on brief for appellee.
December 22, 2006

-- 1 of 14 --

We draw the facts from the government’s proffer at 1
appellant’s change of plea hearing and from two Pre-Sentence
Reports (“PSR”), one prepared in this case and one prepared in
connection with an earlier reentry charge.
-2-
LIPEZ, Circuit Judge. Appellant Ramon Antonio Simo-López
pled guilty to charges of unlawful reentry into the United States
after removal and unlawful use of false identification. See 8
U.S.C. § 1326, 18 U.S.C. § 1028(a)(7). The district court imposed
a forty-one-month term of imprisonment, which included a sixteen-
level enhancement under the federal Sentencing Guidelines based on
its finding that appellant’s prior conviction for aggravated
battery constituted a felony. Appellant claims that, under Puerto
Rico law, the battery conviction was a misdemeanor, not a felony,
and that he is entitled to re-sentencing. We agree and therefore
remand.
I.
A. Factual Background1
Appellant, a citizen of the Dominican Republic, first
entered the United States unlawfully in March 1989. On December
31, 1989, he was charged in Puerto Rico Superior Court with felony
aggravated battery, a violation of Article 95 of the Puerto Rico
Penal Code, P.R. Laws Ann. tit. 33, § 4032 (1983). Appellant later
entered a guilty plea and was sentenced to six months

-- 2 of 14 --

The 2005 PSR reported that appellant also pled guilty to a 2
weapons law violation stemming from the same incident, for which he
received a concurrent six-month term of imprisonment. That
conviction is not at issue in this case.
Section 1326(a) provides, in relevant part, that “any alien 3
who – (1) has been denied admission, excluded, deported, or removed
. . . , and thereafter (2) enters, attempts to enter, or is at any
time found in, the United States,” without having obtained
permission to reenter shall be subject to a fine or up to two years
imprisonment, or both.
Section (b)(1) provides that, in the case of any alien
described in subsection (a):
(1) whose removal was subsequent to a conviction for
commission of three or more misdemeanors involving drugs,
crimes against the person, or both, or a felony (other
than an aggravated felony), such alien shall be fined
under Title 18, imprisoned not more than 10 years, or
both[.]
-3-
imprisonment. On May 24, 1990, he was removed to the Dominican 2
Republic. He reentered the United States in September 1996, again
in Puerto Rico, and in July 1999 pled guilty to a felony charge of
unlawful reentry. He was sentenced to seven months imprisonment
and again removed from the United States.
The incident underlying this case occurred on April 9,
2005. During a pre-flight inspection at the Luis M. Marín
International Airport in Carolina, Puerto Rico, appellant was
detained and found to be using a counterfeit Puerto Rican driver’s
license bearing a name other than his own. He subsequently was
charged in a two-count indictment with unlawful presence in the
United States after removal, in violation of 8 U.S.C. §§ 1326(a)
and (b)(1), and with the knowing and unauthorized use of another 3

-- 3 of 14 --

Appellant does not dispute that his conviction for aggravated 4
battery qualifies as a “crime of violence.” See U.S.S.G. § 2L1.2
cmt. n.1(B)(iii) (crime of violence includes “aggravated assault”).
-4-
person’s identification to facilitate his unlawful reentry, in
violation of 18 U.S.C. § 1028(a)(7). He pled guilty to both
counts.
Under the Sentencing Guidelines, a defendant convicted of
an unlawful reentry crime is subject to a sixteen-level increase in
his offense level if he previously was deported after “a conviction
for a felony that is . . . a crime of violence.” U.S.S.G. §
2L1.2(b)(1)(A)(ii). The applicable Guidelines definition of felony
is “any federal, state, or local offense punishable by imprisonment
for a term exceeding one year.” U.S.S.G. § 2L1.2 cmt. n.2. There
is no dispute that the felony crime of aggravated battery, with
which appellant was charged in 1989, would trigger the enhancement;
the question is whether appellant was convicted of that crime.4
Puerto Rico’s Article 95 divides aggravated battery into
discrete misdemeanor and felony crimes, which cover different types
of specified conduct. See infra pp. 10-11. The complaint filed
against appellant framed the charge as a felony. Felony aggravated
battery is “punishable by imprisonment for a fixed term of 3
years”; that sentence could be increased to five years if
aggravating factors existed and decreased to two years if
“attenuating circumstances are present.” P.R. Laws Ann. tit. 33,
§ 4032 (1983). Aggravated battery otherwise is punishable by a

-- 4 of 14 --

Our references throughout are to the statute as it existed at 5
the time of appellant’s conviction, although subsequent amendments
have not changed the provision in ways that would affect our
analysis. The statute continues to have separate sections for the
felony and misdemeanor crimes, with each section listing various
factual circumstances in which it applies. As in the earlier
version, the current statute states explicitly that aggravated
battery is a felony when it occurs in the specified circumstances.
See P.R. Laws Ann. tit. 33, § 4032(2)(2003). The statute’s first
section, currently designated subsection (1), is not expressly
labeled as a misdemeanor provision; it is the prescribed penalty
that triggers the misdemeanor classification. Puerto Rico’s Penal
Code defines a misdemeanor as
a crime punishable by detention for a term that does not
exceed six months or by a fine that does not exceed five
thousand (5,000) dollars, or both penalties at the
discretion of the court. A felony comprises all other
crimes.
P.R. Laws Ann. tit. 33, § 3044 (1999). Section 3044 was added to
the Penal Code in 1974 and its later revisions did not materially
change its substance.
The government explicitly relied on the PSR prepared in 6
connection with appellant’s 1999 unlawful reentry conviction. That
earlier PSR considered the aggravated battery a misdemeanor. The
PSR prepared in connection with the instant offenses treated the
conviction as a felony.
-5-
term “not exceeding six months,” and is thus a misdemeanor under
Puerto Rico law.5
At the sentencing hearing, both defense counsel and the
Assistant United States Attorney agreed that appellant’s aggravated
battery conviction should be considered a misdemeanor based on the
six-month sentence that was imposed. The misdemeanor 6
classification would have resulted in only a four-level enhancement
and a sentencing range of eight to fourteen months, compared to a
range of forty-one to fifty-one months with the sixteen-level

-- 5 of 14 --

-6-
enhancement. The alternative four-level increase in offense level
would not be based on the misdemeanor conviction, but would result
from appellant's prior reentry conviction. The Guidelines impose
a four-level enhancement for a prior felony conviction that has no
special characteristics – such as “aggravated” or “crime of
violence” status – that would trigger a harsher penalty. See
U.S.S.G. § 2L1.2(b)(1)(D).
Although the district court had before it the complaint
that led to appellant’s 1990 conviction, it had no other
information about the crime because the file could not be located.
Relying on the language in the complaint, the court concluded that
appellant had been convicted of a felony within the meaning of the
Guidelines:
[T]he prior felony conviction is a state
conviction for an offence [sic] punishable by
[im]prisonment for a term exceeding one year,
regardless of whether such offense is
specifically designated as a felony and
regardless of the actual sentence imposed,
which means that regardless of having been
sentenced to six months, and the Court there –
I don’t know whatever the judge did and
sentenced him to six months, but according to
what he was charged with, he was charged with
a felony that carried a term of imprisonment
of more than one year, carried a fixed term of
three years.
If afterwards he plea bargained and the
case was reduced to a misdemeanor, that is
something else. But for purposes of the
guidelines that we are applying, a prior
felony conviction means a state conviction
punishable by imprisonment for a term

-- 6 of 14 --

-7-
exceeding one year regardless of the actual
sentence imposed.
The court therefore applied the sixteen-level enhancement and
imposed the forty-one-month sentence.
B. Legal Principles
The body of law surrounding the proper classification of
state crimes for purposes of federal sentencing is both complex and
growing, see, e.g., Lopez v. Gonzales, 2006 WL 3487031 (U.S. Dec.
5, 2006) (No. 05-547), and this is not the first time that we have
confronted a defendant’s attempt to link the short length of his
sentence to the crime’s status under the Sentencing Guidelines. In
United States v. Santiago, 83 F.3d 20 (1st Cir. 1996), the
appellant claimed that his two prior convictions for assault and
battery did not satisfy the career offender requirement that they
be “punishable by imprisonment for a term exceeding one year”
because he received six-month sentences on each occasion. Id. at
26-27 (quoting U.S.S.G. § 4B1.2(1)). We noted, however, that the
offenses were punishable at the time they occurred by imprisonment
of up to two-and-one-half years, and we made the following
observation: "The guideline . . . does not speak in terms of a
judicial judgment (the length of the sentence meted out), but,
rather, in terms of a legislative judgment (the maximum punishment
applicable to the offense). Id. at 27 (emphasis in original). We
thus held the crimes qualified as predicate convictions for career
offender status.

-- 7 of 14 --

-8-
Other case law in our circuit and elsewhere confirms that
it is the statutory maximum for a particular crime, and not the
specific sentence imposed, that determines the crime’s status,
including its classification as a felony under § 2L1.2. See, e.g.,
United States v. Caicedo-Cuero, 312 F.3d 697, 704-06 (5th Cir.
2002) (rejecting defendant’s contention that mandatory suspended
sentence for first-time offender removed prior crime from
classification as “felony” under § 2L1.2 where statute provided for
maximum two-year term of imprisonment); United States v. Robles-
Rodriguez, 281 F.3d 900, 903-06 (9th Cir. 2002) (rejecting felony
classification under § 2L1.2 where maximum authorized punishment
was probation); United States v. Sanchez, 917 F.2d 607, 615 (1st
Cir. 1990) (rejecting claim that district court erroneously treated
crimes as felonies where defendants were sentenced to six years
“but actually served less than ‘one year and one month’”).
The issue here, however, is materially different.
Appellant does not seek to classify a crime based solely on the
sentence imposed, but invokes the sentence as decisive proof that
he was convicted of a misdemeanor. Framed in the language we used
in Santiago, the issue is whether appellant’s six-month term was
the product of a judicial judgment as to the appropriate sentence
for the felony with which he was charged, or a legislative judgment
as to the appropriate penalty for a lesser crime. Put another way,
was appellant convicted and sentenced for the misdemeanor crime of

-- 8 of 14 --

-9-
aggravated battery – for which the legislature fixed a maximum six-
month prison term – or was he sentenced leniently for the felony
crime of aggravated battery? If the former, the conviction would
not qualify as a felony crime of violence under § 2L1.2.
II.
We typically review de novo the district court’s
determination of the legal meaning of guidelines provisions.
United States v. Robinson, 433 F.3d 31, 35 (1st Cir. 2005); United
States v. Sanchez-Mota, 319 F.3d 1, 2 (1st Cir. 2002) (per curiam)
(interpreting § 2L1.2). A court’s factual findings on sentencing
are reviewed only for clear error. Robinson, 433 F.3d at 38. The
question we face here is legal, requiring us to consider both the
nature of Puerto Rico’s aggravated battery statute and the legal
significance owed to appellant’s plea and sentencing under the
provision. Accordingly, we apply de novo review.
Appellant concedes that he was charged with felony
aggravated battery, but he argues that the only conclusion that can
be drawn from his six-month sentence is that he was convicted of
the less serious crime of misdemeanor aggravated battery. This is
so, he maintains, because Puerto Rico was a fixed sentence
jurisdiction at the time of his conviction, and the judge who
sentenced him was therefore obligated to follow the fixed term

-- 9 of 14 --

Act No. 100, codified at P.R. Laws Ann. tit. 34, § 1044, 7
states:
The fixed sentence system is hereby established in Puerto
Rico. When the court orders a sentence of imprisonment,
it shall hand down a fixed sentence with a specific term
of duration. In felony cases a fixed term established by
law shall be imposed for the crime committed. Should
there be extenuating or aggravating circumstances, the
court must increase or decrease the established fixed
sentence within the limits established by law for the
crime. In these cases the prison term to be imposed
shall also be fixed.
The “fixed sentence system” was enacted into law in 1980.
The current version of section 4032 lists six instances of 8
misdemeanor aggravated battery, including the one noted in the
text.
-10-
prescribed by statute. If he were convicted of a felony, that 7
term would have been between two and five years, with a three-year
term being the standard. He argues that, because he was sentenced
to six months’ incarceration, he must have been convicted of
misdemeanor aggravated battery.
We find this reasoning persuasive. Under Article 95,
each form of aggravated battery has its own set of factual
criteria. At the time of appellant’s crime, aggravated battery was
classified as a misdemeanor when committed under one (or more) of
seven specifically designated circumstances, including “[w]hen
committed with the intent to inflict serious bodily injury.” P.R.
Laws Ann. tit. 33, § 4032(e) (1983). Aggravated battery was 8
considered a felony, however, under three other specified
instances, including “[w]hen serious bodily injury is inflicted on

-- 10 of 14 --

The current version of section 4032 lists seven instances of 9
felony aggravated battery, including the two noted in the text.
The PSR states that the charge specified that the “deadly 10
weapon” was a machete. The charging document is not in the
submitted record materials.
-11-
the person assaulted,” id. at § 4032(b) (second part), and when it
was “committed with deadly weapons under circumstances not
amounting to an intent to kill or maim,” id. at § 4032(c) (second
part).9
The district court had no information before it other
than that appellant had been charged with the felony version of
aggravated battery – and that he received a six-month sentence.
Translating from Spanish, the court quoted the complaint filed
against appellant, in pertinent part, as follows:
[D]efendant . . . illegally, voluntarily,
maliciously, and with criminal intention, did
use force or violence against a human being .
. . with the purpose of causing him harm,
committing said crime with deadly weapons
under circumstances that do not amount to an
intent to kill or to maim.10
Unquestionably, the language in the complaint tracks the language
in subsection (c) of the felony portion of Article 95 referring to
the use of deadly weapons. The court concluded that it should
rely on that language, rather than on the sentence, to classify the
crime. It recognized, reasonably, that sentences often reflect a
variety of factors, and its own experience revealed that, in some

-- 11 of 14 --

-12-
cases, plea bargaining can result in a “misdemeanor” penalty for a
felony charge.
However, under Puerto Rico law, a sentencing judge
imposing a term of imprisonment for the felony crime of aggravated
battery appears to lack the discretion to reduce the sentence below
the statutory minimum of two years. Law 100 provides that, when
extenuating or aggravating circumstances exist to justify departing
from the standard three-year term, “the court must increase or
decrease the established fixed sentence within the limits
established by law for the crime.” P.R. Laws Ann. tit. 34, § 1044
(1980) (emphasis added). Thus, the six-month sentence is strong
evidence that appellant’s conviction was not for a felony and that,
consequently, it cannot support the penalty of a sixteen-level
increase in his offense level.
The Fifth Circuit also has considered an illegal reentry
case involving a challenge to the sixteen-level enhancement, and an
important difference in context provides some perspective here. In
United States v. Rivera-Perez, 322 F.3d 350 (5th Cir. 2003) (per
curiam), the appellant argued that his prior conviction did not
constitute a felony crime of violence because his plea agreement
provided that he would be punished as if the crime were a
misdemeanor, with a one-year maximum sentence, and he was sentenced
to a term of ninety days. Id. at 351-52.

-- 12 of 14 --

-13-
The court rejected the appellant’s argument because,
under a provision of Texas law, “a crime remains a felony even if
punished as a misdemeanor.” Id. at 352 (citing Tex. Penal Code §
12.44(a)). Significantly, the plea bargain in that case stated,
with emphasis, that despite Rivera’s misdemeanor-like punishment,
the judgment “‘shall constitute A FINAL FELONY CONVICTION FOR THE
DEFENDANT.’” Id.
The government, which on appeal endorses the district
court's ruling (despite its agreement at sentencing that the
aggravated battery conviction was a misdemeanor), cites no
comparable provision of Puerto Rico law. It relies on the district
court's rationale that a plea bargain may have prompted a reduced
felony sentence, and alternatively suggests that the Puerto Rico
court may have imposed a six-month term because of extenuating or
mitigating circumstances. That logic, however, requires the
government to argue that the Puerto Rico court imposed a sentence
that was not permitted by Commonwealth law, which sets a two-year
minimum for felony aggravated battery. We think it more sensible
to conclude that the Puerto Rico court imposed a lawful sentence
for misdemeanor aggravated battery. Indeed, if we were to deem
this conviction a felony for purposes of U.S.S.G. § 2L1.2, we think
it likely that we would be elevating the severity of the crime
beyond the intent of the law that criminalized the conduct. We
have neither authority nor inclination to take such a step. We

-- 13 of 14 --

-14-
hold that appellant’s aggravated battery conviction may not be
treated as a felony in calculating his sentence.
Vacated and remanded for re-sentencing.

-- 14 of 14 --