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Media Alerts - United States v. Cabrera-Umanzor - Fourth Circuit
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November 12, 2013
  United States v. Cabrera-Umanzor - Fourth Circuit
Headline: Sexual Abuse of a Child in Maryland Not a Crime of Violence for Purposes of Federal Sentencing.

Area of Law: Criminal Law, Immigration Law, Sentencing

Issues Presented: 1) Whether the modified categorical approach for sentencing is applicable in the present case. 2) Whether Cabrera-Umanzor's prior Maryland conviction for sexual abuse is considered a "crime of violence" for federal sentencing purposes.

Brief Summary: In 2001, Hans Elvin Cabrera-Umanzor pled guilty in a Maryland state court to a charge of causing abuse to a child. Due to his conviction, he was deported. After his deportation, Cabrera-Umanzor unlawfully re-entered the United States, and was charged with unlawful re-entry of a removed alien after an aggravated felony conviction. The finding that Cabrera-Umanzor had been convicted of an "aggravated felony" was based on his 2001 conviction for causing abuse to a child. Cabrera-Umanzor's underlying conduct related to the 2001 charge involved him having sex with an 11-year-old girl when he was 19.

Without considering the specific elements of the state child abuse charge, the District Court determined that it was a crime of violence pursuant to the Federal Sentencing Guidelines. The District Court found that Cabrera-Umanzor had committed a crime of violence because some, but not all, of the elements of his previous crime (abuse of a child) matched elements of the crime of violence listed in the sentencing enhancement. The crime of violence finding allowed the District Court to increase Cabrera-Umanzor's sentence significantly. Cabrera-Umanzor appealed his sentence, arguing that the Maryland child abuse statute that he was charged under did not constitute a crime of violence and that the statute was not divisible which made the modified categorical approach inappropriate in his case. The United States Court of Appeals for the Fourth Circuit Court agreed with Cabrera-Umanzor, holding that the modified categorical approach was inapplicable and that Cabrera-Umanzor's prior conviction should not be considered a crime of violence, making the sentencing enhancement inappropriate.

Significance: Applying the modified categorical approach may lead to sentencing disparities based on the verbiage of a state's statute. For example, the Maryland child abuse statute was not considered to be a crime of violence, but another state's statute for similar conduct could be considered to be a crime of violence depending its wording.

Extended Summary: Sometimes a sentencing judge is asked to pass judgment on a person with prior convictions. Depending upon the case, such prior convictions might result in increased punishment. To help a sentencing judge determine whether the past crime is one that causes enhancement, the Federal Sentencing Guidelines create categories of generic crimes. A sentencing judge is required to compare the defendant's prior conviction to the generic crime to determine if they are comparable. If the prior offense is akin to one of the generic crimes listed, enhancement is generally appropriate. One of the generic crimes triggering enhancement that is found in the Federal Sentencing Guidelines is a "crime of violence."

One way to make the required comparison discussed above is the "modified categorical approach." The modified categorical approach applies in situations where a prior conviction cannot be compared to the generic offense listed in the sentencing guidelines because the prior conviction arose from a statute that defines many different crimes. These are known as divisible statutes. The United States Supreme Court in Des Camps v. United States, 133 S. Ct. 2276 (2013), held that the modified categorical approach only applies to convictions grounded in divisible statutes. Since a divisible statute creates several crimes under a single offense, the Court held that it was necessary to allow courts to examine approved legal documents in addition to the plain language of the statute. The notion is that allowing this fuller comparison gives the sentencing court a truer sense of whether the prior conviction falls within the category of cases described by the generic offense. Under the modified categorical approach, enhancement is appropriate if the actual conduct involved in the prior crime of conviction satisfies all of the elements of the crime of enhancement found in the Federal Sentencing Guidelines. In contrast, the categorical approach focuses only on the plain statutory language and the elements of the prior offense rather than a defendant's actual conduct. Taylor v. United States, 495 U.S. 575, 602 (1990).

In the instant case, Cabrera-Umanzor was sentenced in a Maryland state court to a charge of causing abuse to a child. See Md. Code, art. 27, §35C (2000). Cabrera-Umanzor was subsequently deported. After his deportation, Cabrera-Umanzor returned to the United States and was charged with illegal re-entry. For the purpose of his illegal re-entry, the sentencing court had to determine whether his prior conviction (for causing abuse to a child) should be considered a crime of violence subjecting him to an enhanced sentence. The district court held that his prior conviction should be evaluated under the modified categorical approach because some, but not all, of the conduct enumerated in §35C constituted a crime of violence. For example, at the time of Cabrera's offense, the statute permitted conviction in some circumstances even if no actual injury to a child occurred.

The United States Court of Appeals for the Fourth Circuit found that the use of the modified categorical approach was inappropriate. The court reached this conclusion because while the state statute listed several examples of crimes that would be considered causing abuse to a child, it was merely a "generally divisible" statute and did not create several different crimes. The court reasoned that general divisibility was not sufficient for use of the modified categorical approach.

The crimes enumerated as "crimes of violence" by the Guidelines include forcible sex offenses, sexual abuse of a minor, and statutory rape. The court reasoned that the elements of the Maryland statute did not amount to any of these crimes of violence. Under the Federal Sentencing Guidelines, forcible sex offenses require the use or threat of the use of force, which is not an element of the Maryland statute. Similarly, unlike the Federal Sentencing Guidelines, sexual abuse of a minor under the Maryland statute does not require a purpose associated with sexual gratification. Finally, the court considered whether the elements of §35C were similar to the generic definition of statutory rape found in the commentary section of the Federal Sentencing Guidelines. For statutory rape in the Federal Sentencing Guidelines, sexual intercourse is a required element. This differs from §35C where a defendant can be convicted of causing abuse to a child without even touching the victim. Therefore, none of the crimes of violence applied to Cabrera-Umanzor, making the enhancement of his sentence inappropriate. Upon finding that the 16-level enhancement was inappropriate, the sentence was reversed and remanded.

For the full opinion, please see:

Panel: Chief Judge Traxler; Circuit Judges Niemeyer and Motz

Argument Date: 09/21/2012

Date of Issued Opinion: 08/26/2013

Docket Number: No. 11-14621

Decided: Reversed and Remanded

Case Alert Author: Christine S. Diana

Counsel: ARGUED: Joanna Beth Silver, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore, Maryland, for Appellant. Erin Baxter Pulice, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public Defender, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Baltimore, Maryland for Appellee.

Author of Opinion: Chief Judge Traxler

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/12/2013 11:02 AM     4th Circuit  

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