Appellate Case: 14-2159 Document: 01019478724 Date Filed: 08/20/2015 Page: 1 Case: 14-10396 Date Filed: 09/02/2015 Page: 31 of 72 UNITED STATES COURT OF APPEALS TENTH CIRCUIT NO. 14-2159 UNITED STATES OF AMERICA, Plaintiff/ Appellee, vs. JONATHAN M. MADRID, Defendant/ Appellant. APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO DISTRICT COURT NO. CR-13-3361 SCOTT W. SKAVDAHL, UNITED STATES DISTRICT JUDGE FOR THE DISTRICT OF WYOMING, SITTING BY DESIGNATION APPELLEE'S SUPPLEMENTAL BRIEF ONE ATTACHMENT IN DIGITAL FORMAT DAMON P. MARTINEZ United States Attorney August 2015 LAURAFASHING Assistant United States Attorney Post Office Box 607 Albuquerque, NM 87103 (505) 346-7274 Attorneys for Appellee
Appellate Case: 14-2159 Document: 01019478724 Date Filed: 08/20/2015 Page: 2 Case: 14-10396 Date Filed: 09/02/2015 Page: 32 of 72 TABLE OF CONTENTS PAGE TABLE OF CASES AND OTHER AUTHORITIES....ii INTRODUCTION... l ARGUMENT... 1 I. THE UNITED STATES CONCEDES THAT THE RESIDUAL CLAUSE OF USSG 4Bl.2(a)(2) IS UNCONSTITUTIONALLY VAGUE... l A. The Johnson Decision... 1 B. The Application of Johnson to the Career Offender Guideline's Residual Clause... 3 C. The Application of Johnson to this Case... 10 CONCLUSION... 15 BRIEF FORMAT CERTIFICATION... 16 CERTIFICATE OF SERVICE AND DIGITAL SUBMISSION... 17 1
Appellate Case: 14-2159 Document: 01019478724 Date Filed: 08/20/2015 Page: 3 Case: 14-10396 Date Filed: 09/02/2015 Page: 33 of 72 TABLE OF CASES AND OTHER AUTHORITIES TABLE OF CASES PAGE Begay v. United States, 553 U.S. 137 (2008)... 2 Gall v. United States, 552 U.S. 38 (2007)... 5, 6 Griffi"th v. Kentucky, 479 U.S. 314 (1987)... 11 Henderson v. United States, 133 S. Ct. 1121 (2013)... 10, 11 Irizarry v. United States, 553 U.S. 708 (2008)... 6 James v. United States, 550 U.S. 192 (2007)... 2 Johnson v. United States, 135 S. Ct. 2551 (2015)... passim Peugh v. United States, 133 S. Ct. 2072 (2013)... 5, 6, 9 Stinson v. United States, 508 U.S. 36 (1993)... 12 Sykes v. United States, 564 U.S. 1 (2011)... 2 United States v. Alphas, 785 F.3d 775 (l t Cir. 2015)... 7 United States v. Batchelder, 442 U.S. 114 (1979)... 9 11
Appellate Case: 14-2159 Document: 01019478724 Date Filed: 08/20/2015 Page: 4 Case: 14-10396 Date Filed: 09/02/2015 Page: 34 of 72 United States v. Bercian-Flores, 786 F.3d 309 (4th Cir. 2015)... 7 United States v. Booker, 543 U.S. 220 (2005)... 9 United States v. Boose, 739 F.3d 1185 (8th Cir. 2014)... 4 United States v. Brierton, 165 F.3d 1133 (7th Cir. 1999)... 8 United States v. Charles, 576 F.3d 1060 (10th Cir. 2009)... 7 United States v. Cowan, 696 F.3d 706 (8th Cir. 2012)... 8 United States v. Darden, 605 F. App'x 545 (6th Cir. July 6, 2015) (unpublished)... 7 United States v. Griffin, 652 F.3d 793 (7th Cir. 2011)...,... 4 United States v. Groves, 369 F.3d 1178 (10th Cir. 2004)... 14 United States v. Johnson, 130 F.3d 1352 (9th Cir. 1997)... 7 United States v. Kelly, 1 F.3d 1137 (10th Cir. 1993)... 8 United States v. Keys, 785 F.3d 1240 (8th Cir. 2015)... 7 United States v. Maurer, 639 F.3d 72 (3d Cir. 2011)... 8 United States v. McConnell, 605 F.3d 822 (10th Cir. 2010)... 4 111
Appellate Case: 14-2159 Document: 01019478724 Date Filed: 08/20/2015 Page: 5 Case: 14-10396 Date Filed: 09/02/2015 Page: 35 of 72 United States v. Meeks, 664 F.3d 1067 (6th Cir. 2012)... 4 United States v. Rodriguez, 664 F.3d 1032 (6th Cir. 2011)... 13 United States v. Smith, 73 F.3d 1414 (6th Cir. 1996)... 7, 8 United States v. Templeton, 543 F.3d 378 (7th Cir. 2008)... 5 United States v. Tichenor, 683 F.3d 358 (7th Cir. 2012)... 7, 8, 9 United States v. Travis, 747 F.3d 1312 (11th Cir. 2014)... 4 United States v. Van Mead, 773 F.3d 429 (2tl Cir. 2014)... 8 United States v. Velazquez, 777 F.3d 91 (l t Cir. 2015)... 4 United States v. West, 550 F.3d 952 (10th Cir. 2008)... 4 United States v. Wivell, 893 F.2d 156 (8th Cir. 1990)... 7, 8 Yeager v. United States, 557 U.S. 110 (2009)... 13 IV
Appellate Case: 14-2159 Document: 01019478724 Date Filed: 08/20/2015 Page: 6 Case: 14-10396 Date Filed: 09/02/2015 Page: 36 of 72 TABLE OF OTHER AUTHORITIES PAGE 18 U.S.C. 3553(a)... 6 18 U.S.C. 924(e)(2)(B)... 1 18 U.S.C. 924(e)(2)(B)(ii)... 3 USSG 4Bl.1... 3 USSG 4Bl.l(a)... 7 USSG 4Bl.2... 12, 13, 14 USSG 4Bl.2(a)(2)... l, 3 I v
Appellate Case: 14-2159 Document: 01019478724 Date Filed: 08/20/2015 Page: 7 Case: 14-10396 Date Filed: 09/02/2015 Page: 37 of 72 INTRODUCTION On July 24, 2015, this Court ordered the parties to submit simultaneous briefs on the impact of the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015), on the resolution of the issues presented in this appeal. This brief is submitted in compliance with that order. ARGUMENT I. THE UNITED STATES CONCEDES THAT THE RESIDUAL CLAUSE OF USSG 4Bl.2(a)(2) IS UNCONSTITUTIONALLY VAGUE. A. The Johnson Decision In Johnson, the Supreme Court held that the final clause of the definition of "violent felony" in the Armed Career Criminal Act (ACCA) -also known as the "residual clause"-is void for vagueness. The residual clause defines a "violent felony" as an offense that "involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. 924(e)(2)(B). The Court held that this clause is unconstitutionally vague because it combines "indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony." 135 S. Ct. at 2558. The Court explained that the residual clause requires 1
Appellate Case: 14-2159 Document: 01019478724 Date Filed: 08/20/2015 Page: 8 Case: 14-10396 Date Filed: 09/02/2015 Page: 38 of 72 courts to assess whether a crime presents a serious potential risk of injury in light of a list of enumerated crimes that are "far from clear in respect to the degree of risk each poses." Id. (internal quotation marks omitted) (quoting Begay v. United States, 553 U.S. 137, 143 (2008)). Further, the ACCA's "inclusion of burglary and extortion among the enumerated offenses suggests that a crime may qualify under the residual clause even if the physical injury is remote from the criminal act," but the statute gives no indication of "how remote is too remote." 135 S. Ct. at 2559. The Court found that the inability of its own cases to develop a "principled and objective standard" demonstrated the residual clause's "hopeless indeterminacy." Id. at 2558. The Court concluded that "the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges." Id. at 2557. The Court held that the residual clause is "vague in all its applications." Id. at 2561 (rejecting the government's reliance on the "existence of some clearly risky crimes" to "save the residual clause"). The Court overruled its decisions in James v. United States, 550 U.S. 192 (2007) and Sykes v. United States, 564 U.S. 1 (2011), in which it previously had rejected arguments 2
Appellate Case: 14-2159 Document: 01019478724 Date Filed: 08/20/2015 Page: 9 Case: 14-10396 Date Filed: 09/02/2015 Page: 39 of 72 or suggestions in dissenting opinions that the residual clause was unconstitutionally vague. 135 S. Ct. at 2563. B. The Application of Johnson to the Career Offender Guideline's Residual Clause The ACCA's residual clause is identical to the residual clause in USSG 4Bl.2(a)(2), which defines a "crime of violence" for the purpose of determining the application of the career offender guideline. Compare 18 U.S.C. 924(e)(2)(B)(ii) with USSG 4Bl.2(a)(2). The career offender guideline-the guideline at issue in this case-provides for enhanced sentences for certain defendants who have two prior convictions for a "crime of violence" or a "serious drug offense." USSG 4Bl.1. The position of the United States is that Johnsons constitutional holding regarding the ACCA's residual clause applies to the identically worded clause of the career offender guideline. The career offender guideline's residual clause uses the same language that Johnson held was impermissibly vague because it "produces more unpredictability and arbitrariness than the Due Process Clause tolerates." 135 S. Ct. at 2558. Courts of appeals, including this Court, have held that the ACCA's residual clause and the career offender guideline's residual 3
Appellate Case: 14-2159 Document: 01019478724 Date Filed: 08/20/2015 Page: 10 Case: 14-10396 Date Filed: 09/02/2015 Page: 40 of 72 clause must be interpreted in the same way, and they have applied decisions interpreting the two provisions interchangeably. See, e.g., United States v. McConnell, 605 F.3d 822, 828 (10th Cir. 2010) ("Although [United States v.l West[, 550 F.3d 952, (10th Cir. 2008)) involved the ACCA's characterization of a prior offense as a 'violent felony,' while this case involves the Guidelines' definition of a 'crime of violence,' the nearly identical language in those two provisions allows us to consider precedent involving one in construing the other."); see also, e.g., United States v. Velazquez, 777 F.3d 91, 94-98, 94 n.1 (1 t Cir. 2015) (interpreting guideline using "ordinary case" analysis that Johnson found "speculative" and unreliable); United States v. Travis, 747 F.3d 1312, 1314-17, 1314 n.2 (11th Cir. 2014) (applying James and Sykes in interpreting guideline); United States v. Boose, 739 F.3d 1185, 1187 n.1 (8th Cir. 2014) (court construes ACCA's "violent felony" and the career offender guideline's "crime of violence" as "interchangeable"); United States v. Meeks, 664 F.3d 1067, 1070-72, 1070 n.1 (6th Cir. 2012) (same analysis applies to ACCA and guidelines); United States v. Griffin, 652 F.3d 793, 802 (7th Cir. 2011) ("[T]he definition of'violent felony' under the ACCA is the same as the definition of 'crime of 4
Appellate Case: 14-2159 Document: 01019478724 Date Filed: 08/20/2015 Page: 11 Case: 14-10396 Date Filed: 09/02/2015 Page: 41 of 72 violence' in section 4Bl.2 of the guidelines, and '[i]t would be inappropriate to treat identical texts differently just because of a different caption."' (quoting United States v. Templeton, 543 F.3d 378, 380 (7th Cir. 2008))). The ACCA cases on which courts have relied to decide whether offenses fall within the guideline's residual clause are now overruled, leaving courts with no body of law to apply. After Johnson, judges attempting to determine whether a particular offense qualifies as a crime of violence under the residual clause will be forced to rely on "guesswork and intuition." 135 S. Ct. at 2559. Application of a vague guideline conflicts with the proper role of the Guidelines in providing a uniform baseline for sentencing. Under the advisory guidelines system, district courts still must "begin all sentencing proceedings by correctly calculating the applicable Guidelines range" and to use the Guidelines as "the starting point and the initial benchmark" for sentencing. Gall v. United States, 552 U.S. 38, 49 (2007); see also Peugh v. United States, 133 S. Ct. 2072, 2083 (2013) ("That a district court may ultimately sentence a given defendant outside the Guidelines range does not deprive the Guidelines of force as the framework for sentencing."). A district court that incorrectly 5
Appellate Case: 14-2159 Document: 01019478724 Date Filed: 08/20/2015 Page: 12 Case: 14-10396 Date Filed: 09/02/2015 Page: 42 of 72 calculates the advisory guideline range is subject to reversal on appeal. Gall, 552 U.S. at 51; see also Peugh, 133 S. Ct. at 2083 ("[T]he rule that an incorrect Guidelines calculation is procedural error ensures that they remain the starting point for every sentencing calculation in the federal system."). Consistent with sentencing courts' discretion to sentence within or outside the advisory guideline range, the Supreme Court has held that no notice is required when a court imposes a sentence outside the guideline range based on the factors in 18 U.S.C. 3553(a) because defendants no longer have "[a]ny expectation subject to due process protection" that they will receive a sentence within the guideline range. Irizarry v. United States, 553 U.S. 708, 713 (2008). The Guidelines, however, are unlike the broad sentencing factors in 3553(a). Their function is to provide a precise starting point for sentencing. Courts have discretion to weigh the 3553(a) factors and to determine the appropriate sentence, but they have no discretion about the proper legal interpretation of the Guidelines. This is evidenced by the numerous appellate decisions in which this Court and others have applied de novo review to questions of Guidelines interpretation. See, e.g., United 6
Appellate Case: 14-2159 Document: 01019478724 Date Filed: 08/20/2015 Page: 13 Case: 14-10396 Date Filed: 09/02/2015 Page: 43 of 72 States v. Charles, 576 F.3d 1060, 1066 (10th Cir. 2009) ("Whether a prior conviction qualifies as a 'crime of violence' for the purposes of USSG 4B 1. l(a) is a question of statutory construction that we review de novo."); see also, e.g., United States v. Alphas, 785 F.3d 775, 780 (l t Cir. 2015); United States v. Bercian-Flores, 786 F.3d 309, 311 (4th Cir. 2015); United States v. Keys, 785 F.3d 1240, 1242 (8th Cir. 2015). The notice concerns addressed in Irizarry are distinct from the danger of "arbitrary enforcement by judges" of the career offender guideline's residual clause. See Johnson, 135 S. Ct. at 2556, 2557. Three courts of appeals have held that constitutional vagueness challenges may not be brought against the Guidelines. See United States v. Tichenor, 683 F.3d 358, 362-67 (7th Cir. 2012); United States v. Smith, 73 F.3d 1414, 1417-18 (6th Cir. 1996); United States v. Wivell, 893 F.2d 156, 159-60 (8th Cir. 1990). But see United States v. Darden, 605 F. App'x 545 (6th Cir. July 6, 2015) (unpublished) (vacating career offender sentence in light of Johnson). The Ninth Circuit has held otherwise, specifically recognizing that defendants may challenge mandatory guideline provisions on vagueness grounds. See United States v. Jr:hnson, 130 F.3d 1352, 1354 (9th Cir. 1997). Other courts, 7
Appellate Case: 14-2159 Document: 01019478724 Date Filed: 08/20/2015 Page: 14 Case: 14-10396 Date Filed: 09/02/2015 Page: 44 of 72 including this Court, appear to have assumed that defendants may raise vagueness challenges to the Guidelines. See United States v. Kelly, 1F.3d1137, 1142-43 (10th Cir. 1993) (rejecting vagueness challenge to provision authorizing upward departure when defendant's conduct was "unusually heinous, cruel, brutal, or degrading to the victim"); see also, e.g., United States v. Van Mead, 773 F.3d 429, 438 n.7 (2tl Cir. 2014) (rejecting claim that career offender guideline's residual clause is unconstitutionally vague); United States v. Cowan, 696 F.3d 706, 708-09 (8th Cir. 2012) (same); United States v. Maurer, 639 F.3d 72, 78 n.4 (3d Cir. 2011) (rejecting vagueness challenge to child pornography guideline). The cases holding that the Guidelines are not subject to vagueness challenges predate the decisions in Johnson and Peugh, and this Court should not rely on them. Those cases reasoned that the Guidelines "do not establish the illegality of any conduct," and are "directives to judges for their guidance in sentencing convicted criminals, not to citizens at large." Tichenor, 683 F.3d at 364 (quoting United States v. Brierton, 165 F.3d 1133, 1139 (7th Cir. 1999)); see also Smith, 73 F.3d at 1417-18 (same); Wive]], 893 F.2d at 159 (vagueness doctrine "presume[s] a law 8
Appellate case: 14-2159 Document: 01019478724 Date Filed: 08/20/2015 Page: 15 Case: 14-10396 Date Filed: 09/02/2015 Page: 45 of 72 that attempts to proscribe or prescribe conduct"). Johnson rejected that approach, holding that vagueness principles "apply not only to statutes defining elements of crimes, but also to statutes fixing sentences." 135 S. Ct. at 2557 (citing United States v. Batchelder, 442 U.S. 114, 123 (1979)); c Tichenor, 683 F.3d at 365 (dismissing "[t]he isolated comment from Batchelder' as "mere dictum"). The cases holding that vagueness principles are inapplicable to the Guidelines also reasoned that the Guidelines do not function in the same way as statutes because they merely structure sentencing courts' discretion. See Tichenor, 683 F.3d at 365. Those cases, however, were decided before the Supreme Court's decision in Peugh, in which the Court held that the Ex Post Factor Clause applies to advisory Guidelines. 133 S. Ct. at 2078. Peugh rejected many of the arguments made by courts that have declined to consider vagueness challenges to the Guidelines. The Court dismissed the government's argument that the Guidelines were merely "guideposts" that lacked '"the force and effect of laws."' Id. at 2085-86 (quoting United States v. Booker, 543 U.S. 220, 234 (2005)). The Court identified numerous features of the post Booker sentencing system that ensure that the Guidelines 9
Appellate Case: 14-2159 Document: 01019478724 Date Filed: 08/20/2015 Page: 16 Case: 14-10396 Date Filed: 09/02/2015 Page: 46 of 72 continue to have "legal force," id. at 2087, and serve as the "framework" for sentencing, even when a court ultimately imposes a sentence outside the advisory guideline range. Id. at 2083. The Due Process Clause inquiry in Johnson, while distinct from the ex post facto inquiry in Peugh, similarly depends on principles of fair notice, as well as avoiding arbitrary enforcement of sentencing provisions. It is unlikely that the Supreme Court would conclude that those concerns are implicated only if a vague provision creates a legal certainty of a higher sentence, especially given the Court's emphasis in Peugh on the Guidelines' critical role as the starting point and "lodestone" of sentencing. 133 S. Ct. at 2084. Thus, the United States concedes that the career offender guideline's residual clause is unconstitutionally vague. C. The Application of Johnson to this Case Because Madrid did not raise a vagueness challenge to the career offender guideline's residual clause at sentencing, this Court reviews his claim for plain error only. Under plain error review, Madrid must demonstrate that the district court erred, the error was plain, that it affected his substantial rights, and that the error "seriously affect[ed] 10
Appellate Case: 14-2159 Document: 01019478724 Date Filed: 08/20/2015 Page: 17 Case: 14-10396 Date Filed: 09/02/2015 Page: 47 of 72 the fairness, integrity or public reputation of judicial proceedings." Henderson v. United States, 133 S. Ct. 1121, 1126-27 (2013). Should this Court reject the government's argument that Madrid's prior aggravated sexual assault conviction is a forcible sex offense, the United States concedes that Madrid can establish that the district court committed reversible plain error by relying on the career offender residual clause to enhance his sentence. Johnson applies to all cases "pending on direct review or not yet final" as of June 26, 2015. Griffi."th v. Kentucky, 479 U.S. 314, 328 (1987). Reliance on an unconstitutionally vague guideline provision therefore was error that was plain. Without the career offender enhancement, Madrid's total offense level would have been 23, which would have resulted in an advisory guideline sentencing range of 92 to 115 months in prison, rather than 188 to 235 months. Given that the district court imposed a bottom of the guidelines sentence of 188 months, there is a reasonable probability that Madrid would have received a substantially lower sentence had the district court not applied the career offender enhancement. Because of the substantial difference in the two advisory guideline ranges, the error seriously affected the fairness of Madrid's 11
Appellate case: 14-2159 Document: 01019478724 Date Filed: 08/20/2015 Page: 18 Case: 14-10396 Date Filed: 09/02/2015 Page: 48 of 72 sentencing proceeding. Thus, if the Court finds that Madrid's prior offense does not qualify as a forcible sex offense, it should remand the case to the district court for resentencing. Johnson, however, does not affect the application of other provisions of the career offender guideline. Courts still may classify a defendant as a career offender based on an offense listed in the commentary to 4B 1.2 even if the offense could not fall within any part of the definition of "crime of violence" other than the residual clause. Guidelines commentary that "interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." Stinson v. United States, 508 U.S. 36, 38 (1993). In Stinson, the Court held that the career offender guideline commentary that excludes felonin-possession offenses from the definition of"crime of violence," while not "compelled by the guideline text," was "a binding interpretation of the phrase 'crime of violence."' Id. at 47. Likewise, the Commission's interpretation of "crime of violence" to include the offenses listed in the commentary, including forcible sex offenses, "does not run afoul of the Constitution or a federal statute" and "is not plainly erroneous or 12
Appellate Case: 14-2159 Document: 01019478724 Date Filed: 08/20/2015 Page: 19 Case: 14-10396 Date Filed: 09/02/2015 Page: 49 of 72 inconsistent with 4Bl.2." Id. (internal quotation marks omitted). The commentary's list of enumerated offenses is independent of the residual clause and remains valid. See, e.g., United States v. Rodriguez, 664 F.3d 1032, 1038-39 (6th Cir. 2011) (court "need not reach the residual clause" to determine whether conviction for aggravated assault qualifies as a crime of violence). Although the district court relied on the residual clause to find that Madrid's prior offense was a crime of violence, the government may defend the district court's judgment on any ground supported by the record. Yeager v. United States, 557 U.S. 110, 126 (2009) ("We recognize the Government's right, as the prevailing party..., to defend its judgment on any ground properly raised below whether or not that ground was relied upon, rejected, or even considered by the District Court..." (citation and internal quotation marks omitted)). As argued in the government's answer brief at pages 10 through 18, Madrid's prior aggravated sexual assault conviction qualifies as a forcible sex offense. In addition, on August 12, 2015, the Sentencing Commission published for comment a proposed amendment to the career offender 13
Appellate case: 14-2159 Document: 01019478724 Date Filed: 08/20/2015 Page: 20 Case: 14-10396 Date Filed: 09/02/2015 Page: 50 of 72 guideline. I The proposed amendment not only eliminates the residual clause in light of the Supreme Court's decision in Johnson, but it also "amends 4Bl.2 to clarify and revise the list of'enumerated' offenses.... The proposed amendment makes some revisions to the list of enumerated offenses, moves all enumerated offenses to the guideline, and provides definitions for the enumerated offenses in the commentary." Proposed Amendment at 2. The proposed amendment clarifies that a "forcible sex offense" is "any offense requiring a sexual act or sexual contact to which consent to the actor's conduct (i) is not given, or (ii) is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced." Id. at 5. Although the proposed amendment only has been published for comment, should it be enacted, the Court may consider clarifying amendments to the Guidelines to help it understand an older version of the Guidelines. See United States v. Groves, 369 F.3d 1178, 1182 (10th Cir. 2004) ("[W]e have repeatedly held that it is proper to consider amendments to the guidelines enacted after 1 This proposed amendment is available at www.ussc.gov/guidelinesmanual/amendments-guidelines-manual. For the Court's convenience, a copy is attached to this brief. 14
Appellate case: 14-2159 Document: 01019478724 Date Filed: 08/20/2015 Page: 21 Case: 14-10396 Date Filed: 09/02/2015 Page: 51 of 72 the date of the offense so long as they are only 'clarifying,' as opposed to 'substantive."'). Because the Texas legislature has made clear that a child under fourteen cannot consent to sexual activity under any circumstances, even ifthe child purportedly consented to the activity, the child's consent would be legally invalid. Madrid's prior aggravated sexual assault conviction therefore constitutes a forcible sex offense. The Court should affirm Madrid's sentence. CONCLUSION The Court should affirm the district court's judgment because Madrid's prior conviction for aggravated sexual assault on a child under fourteen is a forcible sex offense. If this Court concludes otherwise, it should remand the case to the district court for resentencing.. Respectfully submitted, DAMON P. MARTINEZ United States Attorney s\ Laura Fashing LAURA FASHING Assistant U.S. Attorney NM Bar No. 8013 P. 0. Box 607 Albuquerque, NM 87103 (505) 346-7274 15
Appellate case: 14-2159 Document: 01019478724 Date Filed: 08/20/2015 Page: 22 Case: 14-10396 Date Filed: 09/02/2015 Page: 52 of 72 BRIEF FORMAT CERTIFICATION Pursuant to Federal Rules of Appellate Procedure 32(a) and (c), and this Court's July 24, 2015 order, I certify that this brief is proportionately spaced, has a typeface of 14 points, and is no more than 15 pages. I relied on my word processor to obtain the count. My wordprocessor software is Word 2010. I certify that the information on this form is true and correct to the best of my knowledge and belief formed after reasonable inquiry. DATED this 20th day of August, 2015. s \ Laura Fashing LAURA FASHING Assistant United States Attorney 16
Appellate Case: 14-2159 Document: 01019478724 Date Filed: 08/20/2015 Page: 23 Case: 14-10396 Date Filed: 09/02/2015 Page: 53 of 72 CERTIFICATE OF SERVICE AND DIGITAL SUBMISSION I HEREBY CERTIFY that the foregoing brief was filed with the Clerk of the Court for the United States Court of Appeals for the Tenth Circuit by using the appellate CM/ECF system on this 20th day of August, 2015, and that the original and seven photocopies of the foregoing brief will be sent by Federal Express to the United States Court of Appeals for the Tenth Circuit, Office of the Clerk, located at the Byron White United States Courthouse, 1823 Stout Street, Denver, Colorado 80257, within two business days of the electronic filing. I ALSO CERTIFY that Gregory J. Garvey, attorney for Defendant- Appellant Jonathan M. Madrid, is a registered CM/ECF user, and that service will be accomplished by the appellate CM/ECF system. I ALSO CERTIFY that any required privacy redactions have been made, and the copy of this document filed using the CM/ECF system is an exact copy of the hard copies filed with the Clerk. I ALSO CERTIFY that the digital submission of this document has been scanned for viruses with scanning program Trend Micro OfficeScan 10.6.5614 Service Pack 3, most recently updated 8/19/2015, and, according to the program, the file is free of viruses. 17 s\ Laura Fashing LAURA FASHING Assistant United States Attorney