United States of America v. Ismael Reyes-Rivas

United States Court of Appeals
For the First Circuit
No. 16-2008
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]
Before
Howard, Chief Judge,
Selya and Barron, Circuit Judges.
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.
November 28, 2018

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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).

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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— (l) 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.

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To determine whether a prior conviction qualifies as a
"crime of violence," we apply the "categorical approach." United
States v. Dávila–Félix, 667 F.3d 47, 55 (1st Cir. 2011) (citing
Taylor v. 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 the
conviction." United States v. Piper, 35 F.3d 611, 619 (1st Cir.
1994).
The conviction that is at issue in this appeal is the
one for aggravated battery. The Puerto Rico aggravated battery
statute provides that:
If the battery described in § 4749
[misdemeanor simple battery] of this title
causes an injury that does not leave permanent
harm, but requires medical attention,
specialized professional outpatient
treatment, shall incur a fourth degree felony.
If the battery causes an injury that requires
hospitalization or extended treatment, or
causes permanent harm, the perpetrator shall
incur a third degree felony. This modality
also includes mayhem, those that transmit an
illness, syndrome or condition requiring
prolonged physical treatment, or those that
require prolonged psycho-emotional treatment.
P.R. Laws. Ann. tit. 33 § 4750. A separate provision of that
statute defines simple battery as occurring when "[a]ny person who
illegally through any means or form inflicts injury to the bodily
integrity of another[.]" Id. § 4749.

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Reyes objected to the PSR on the ground that his
conviction for aggravated battery was not a "crime of violence."
The Probation Office responded to Reyes's objection with an email
that stated that Reyes's conviction was for "fourth degree
aggravated battery" and that this conviction was for an offense
that qualified as a "crime of violence" 1 under the "force clause."
The government asserted the same conclusion in its Response to the
Defendant's Objection to the Presentence Report.
To support that assertion, the government attached as
"Exhibit 1" a Spanish-language copy of a Puerto Rico judgment of
conviction for the offense at issue and requested that the District
Court grant the government ten days to file a certified translation
of the judgment. The government did not thereafter file a
translation.
The District Court then held a sentencing hearing on
June 24, 2016. Reyes argued at the hearing that the aggravated
battery conviction did not qualify as a "crime of violence."
Specifically, he contended that the "crime of violence"
1 Although an aggravated battery conviction in the third
degree is more serious than a conviction in the fourth degree, the
third-degree variant expressly covers injuries "that transmit an
illness . . . or those that require prolonged psycho-emotional
treatment." P.R. Laws. Ann. tit. 33 § 4750. The fourth-degree
variant, on the other hand, does not mention those types of
injuries. Thus, according to the parties, there is more ambiguity
that a third-degree conviction would require physical force or
present risk of physical injury such that it would fall within the
crime of violence definition.

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definition's enumerated offenses clause did not encompass his
offense of conviction because that offense was not "burglary of a
dwelling, arson, or extortion" and did not "involve[] use of
explosives." U.S.S.G. § 4B1.2(a)(2) (2015). Reyes also argued
that the "crime of violence" definition's residual clause could
not encompass his offense of conviction because that clause was
unconstitutional under Johnson v. United States, 135 S. Ct. 2551,
2563 (2015) ("Johnson II"), which had struck down as
unconstitutionally vague an analogous residual clause in the Armed
Career Criminal Act of 1984 ("ACCA"), 18 U.S.C. § 924(e)(2)(B).
Finally, Reyes argued that the "crime of violence" definition's
force clause did not encompass his offense of conviction because,
he contended, that offense did not have as an element the use or
threatened use of "force capable of causing physical pain or injury
to another person." See Johnson v. United States, 559 U.S. 133,
140 (2010) ("Johnson I").
For its part, the government made no argument at the
hearing that Reyes's offense of conviction qualified as a "crime
of violence" based on either the enumerated offenses clause or the
residual clause. Instead, the government informed the District
Court that it was proceeding on the understanding that the residual
clause was, as Reyes contended, unconstitutional under Johnson II.
But, the government argued, Reyes's conviction for aggravated
battery did qualify as a "crime of violence" under the force clause

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because that offense had as an element the infliction of bodily
injury requiring medical attention and thus necessarily required
the use of the degree of force that the Supreme Court had
determined was necessary to satisfy that clause.
In presenting their conflicting arguments at the hearing
about the career offender guideline's application to Reyes's
conviction, neither Reyes nor the government directly addressed
whether Reyes's conviction was for aggravated battery in the third
or fourth degree. Nor did either Reyes or the government directly
address whether the aggravated battery statute was divisible along
that dimension, such that a conviction under the statute could be
for one of the two variants rather than for aggravated battery as
a categorical whole.
The District Court then ruled that, based on "the
arguments that [it had] heard," Reyes's aggravated battery
conviction qualified as a "crime of violence" and that Reyes was
thus a career offender. On the basis of that conclusion, the
District Court assigned Reyes a guideline sentencing range of 77
to 96 months of imprisonment. The District Court sentenced Reyes
to a prison sentence at the low end of that range: 77 months.
Reyes next filed a motion for reconsideration, in which
he argued for a reduced term of imprisonment based on factors in
18 U.S.C. § 3553(a). The District Court does not appear to have
ruled on this motion.

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Reyes filed a timely notice of appeal of his sentence,
and the government thereafter filed a "motion requesting
certification and forwarding of modified record on appeal." In
that motion, the government stated that it had failed to file a
translated version of the judgment of Reyes's aggravated battery
conviction and requested to supplement the record on appeal
pursuant to Federal Rule of Appellate Procedure 10(e)(2)(B) by
including the translated document. The District Court granted the
government's motion.
At that point, Reyes filed an opposition to the
government's motion on the ground that Rule 10(e)(2)(B) "is an
inadequate procedural vehicle for curing violations to the Jones
Act's English-language requirement." Reyes also filed a second
motion for reconsideration, in which he stated that his counsel
had changed and that this change had delayed his response to the
government's motion to supplement the record with the translated
judgment of conviction.
The District Court acknowledged that it had "used an
untranslated version [of the state court judgment] at sentencing,"
granted Reyes's motion for reconsideration, and vacated the order
granting the government's motion for certification and forwarding
of supplemental record on appeal. Prior to oral argument in this
appeal, however, the government moved for summary disposition. In
doing so, the government admitted that "due to an oversight, the

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translation [of the judgment of conviction] was not filed" and
requested that we remand the case for de novo resentencing because
"the record appears to have been insufficiently developed for
applying the modified categorical approach on appeal." Reyes
opposed that motion on that ground that any remand should be
limited in scope and should preclude the government from presenting
new evidence of Reyes's prior conviction. We denied the
government's motion, and the case proceeded to oral argument.
II.
Reyes contends on appeal that, under the Jones Act, the
District Court's use of the untranslated judgment of conviction at
his sentencing requires that we vacate his sentence. The Jones
Act "requires that '[a]ll pleadings and proceedings in the United
States District Court for the District of Puerto Rico . . . be
conducted in the English language.'" United States v. Rivera-
Rosario, 300 F.3d 1, 5–6 (1st Cir. 2002) (alteration in original)
(quoting 48 U.S.C. § 864).
The government contends that there was no violation of
the Jones Act because the District Court did not consider the
untranslated document in determining Reyes's sentence. The
government does not dispute, however, that it provided the District
Court with an untranslated copy of the judgment of conviction.
See Rivera-Rosario, 300 F.3d at 5-6 (noting neither party disputed
that there was a Jones Act violation where the government provided

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untranslated Spanish language materials to the District Court).
Moreover, the District Court itself stated in an order that it had
"used an untranslated version [of the state court judgment] at
sentencing." (emphasis added). We thus conclude that there was
a Jones Act violation, see United States v. Millán-Isaac, 749 F.3d
57, 64 (1st Cir. 2014), and the government makes no argument that,
insofar as there was a violation, the sentence may stand. See
Rivera-Rosario, 300 F.3d at 10 ("[V]iolations of the English
language requirement will constitute reversible error whenever the
appellant can demonstrate that the untranslated evidence has the
potential to affect the disposition of an issue raised on appeal.
Absent that potential, there is no prejudice from the violation of
the Jones Act that warrants relief.")
We do note that the government -- apparently on the
assumption that no Jones Act violation occurred -- does separately
argue that Reyes's conviction qualifies as one for a "crime of
violence." In pressing that contention on appeal, however, the
government has abandoned the argument that it made below -- namely,
that Reyes's conviction qualifies as a "crime of violence" under
the force clause. Rather, the government now argues that, in light
of Beckles v. United States, 137 S. Ct. 886 (2017), which was
decided after Reyes's sentencing, "[Reyes's] conviction for
fourth-degree aggravated battery qualifies as a crime of violence
under the residual clause," (emphasis added). See id. at 892

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(holding that, notwithstanding Johnson II, the residual clause in
the career offender guideline is not unconstitutionally vague). 2
But, because the Jones Act requires that we set aside
the untranslated document concerning Reyes's judgment of
conviction, we have no basis for concluding that the District Court
permissibly found that Reyes's conviction was for aggravated
battery in the fourth degree. Nor does the government argue
otherwise. In fact, the government asserts that the District Court
"focused solely on the question of whether [the statutory offense
of aggravated battery], as a categorical whole, qualified as a
crime of violence under the force clause." And thus we have no
reason to consider the government's new argument for finding that
Reyes's conviction qualifies as a crime of violence, as the
government at no point argues to us that the residual clause
encompasses the offense of aggravated battery even if it is in the
fourth degree.
Accordingly, we vacate and remand the sentence. That
way, the District Court may determine on the basis of the record
2 While arguments not made before the District Court are
ordinarily deemed waived, see Me. Green Party v. Me., Sec'y of
State, 173 F.3d 1, 4 (1st Cir. 1999), we have held that where a
party relied on Johnson II in waiving an argument on the assumption
that the Guidelines' residual clause was unconstitutional -- like
the government did here -- "[w]e are not bound by [that party's]
concession, which, while understandable before Beckles, turned out
to be incorrect," United States v. Thompson, 851 F.3d 129, 131
(1st Cir. 2017).

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as it existed at the time of sentencing, but without consideration
of the untranslated document that it "used" at that sentencing,
the type of aggravated battery of which Reyes was convicted and
whether that offense is a "crime of violence." 3
We note, moreover, that the government is limited in the
arguments that it may make on remand regarding the application of
the career offender guideline. The government chose to abandon on
appeal the only ground that the District Court appears to have
relied upon below in finding, "based on the arguments that [it
had] heard," that the offense was a "crime of violence" -- namely,
that Reyes committed an offense encompassed by the force clause of
the career offender guideline's "crime of violence" definition.
Instead, the government chose to defend the sentence -- insofar as
it was not tainted by a Jones Act violation -- solely by contending
that the residual clause encompasses fourth-degree aggravated
3 We note in this regard that the untranslated document was
not in evidence and thus any certified translation of the same
document would necessarily constitute new evidence. But, we have
not allowed the government to introduce additional evidence in
cases "where the government asked for the enhancement but failed
to adduce sufficient proof for its imposition -- a situation in
which there would not likely be reason to permit a second bite at
the apple." United States v. Román-Huertas, 848 F.3d 72, 78 (1st
Cir. 2017) (quoting United States v. Montero-Montero, 370 F.3d
121, 124 (1st Cir. 2004)). In cases like Reyes's, the government
"had every incentive to ensure that the [D]istrict [C]ourt relied
only on evidence presented in the English language," id., and
therefore the government may not present new evidence of Reyes's
prior conviction on remand.

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battery and that Reyes was convicted of that variant of the offense
and no other. It is thus limited to that argument on remand.
We make one final observation. The District Court is
bound on remand to apply the version of the Sentencing Guidelines
that contained the residual clause, just as it relied on that
version of the guidelines (though not the clause itself) when it
sentenced Reyes the first time. See 18 U.S.C. § 3742(g)(1) ("[T]he
court shall apply the guidelines issued by the Sentencing
Commission . . . that were in effect on the date of the previous
sentencing of the defendant prior to the appeal."). But, we note
that the United States Sentencing Commission, five months prior to
Reyes's original sentencing, voted to adopt an amendment that would
eliminate the residual clause from the definition of "crime of
violence" in the Guidelines. See U.S. Sentencing Comm'n, U.S.
Sentencing Commission Adopts Amendment to Definition of “Crime of
Violence” in Federal Sentencing Guidelines and Proposes Additional
Amendments (Jan. 8, 2016), https://www.ussc.gov/about/news/press-
releases/january-8-2016. Therefore, although the amendment itself
was not effective until August 1, 2016, about a month after Reyes's
June 24 sentencing, the District Court would have been aware of
the upcoming change. See Supplement to the 2015 Guidelines Manual,
Appendix C, amendment 798 (U.S. Sentencing Comm'n 2016). We leave
it to the District Court to determine in the first instance what
impact, if any, those actions by the Commission should have on

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sentencing Reyes in the event that the District Court were to
determine (for the first time) that, solely in consequence of the
residual clause, his conviction was for a "crime of violence."
III.
For the foregoing reasons, we vacate Reyes's sentence
and remand for resentencing consistent with this opinion.

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