259 F.3d 1140 (9th Cir. 2001), 00-10013, United States v. Aquino

Docket Nº00-10013
Citation259 F.3d 1140
Case DateAugust 08, 2001
CourtUnited States Courts of Appeals, Court of Appeals for the Ninth Circuit

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259 F.3d 1140 (9th Cir. 2001)




No. 00-10013

United States Court of Appeals, Ninth Circuit

August 8, 2001

Submission Vacated May 8, 2001 Argued and Submitted November 13, 2000--San Francisco, California

Submission Vacated May 8, 2001

Resubmitted June 8, 2001

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Counsel Michael A. Rotker (argued), Assistant United States Attorney, San Francisco, California, and Lisa Simotas, Criminal Division,

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U.S. Department of Justice, Washington, D.C., for the plaintiff-appellant.

Steven Kalar (argued), Assistant Public Defender, San Francisco, California, for the defendant-appellee.

Appeal from the United States District Court for the Northern District of California Vaughn R. Walker, District Judge, Presiding D.C. No. CV-99-00307-VRW

Before: Alex Kozinski, Michael Daly Hawkins, and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Hawkins; Dissent by Judge Kozinski

The government appeals Miguel Trinidad-Aquino's sentence for illegally re-entering the United States following deportation, a violation of 8 U.S.C. §§ 1326. We are asked to decide whether Trinidad-Aquino should have received a sixteen-level increase in base offense level under Sentencing Guidelines §§ 2L1.2(b)(1)(A) because he was previously deported after conviction for an "aggravated felony." The answer turns on a question of law: does a California conviction for driving under the influence of alcohol with injury to another constitute a "crime of violence" as defined at 18 U.S.C. §§ 16?


In October 1999, Trinidad-Aquino pled guilty to illegally re-entering the United States following deportation in violation of 8 U.S.C. §§ 1326. His plea was made without a government plea agreement.

Sentencing for violation of §§ 1326 is controlled by Sentencing Guidelines §§ 2L1.2, which provides a sixteen-level increase in base offense level if the defendant was previously deported after conviction for an "aggravated felony." The government argued to the district court at sentencing that Trinidad-Aquino met this standard and should receive the increase.

The government's argument was based on Trinidad-Aquino's June 1994 conviction in California state court for driving under the influence of alcohol with bodily injury ("DUI"), a violation of California Vehicle Code §§ 23153, and hit and run resulting in death or injury, a violation of California Vehicle Code §§ 20001. Because the government did not pursue its argument under the hit and run statute on appeal, our review is limited to the DUI conviction.

The district court agreed with Trinidad-Aquino that since either of these felonies requires merely a negligence mens rea, neither qualifies as an "aggravated felony." The court sentenced Trinidad-Aquino to the maximum term available at the unadjusted base sentencing level, twenty-one months, and the government took this appeal.


The district court's interpretation of the Sentencing Guidelines is reviewed de novo. United States v. Kakatin, 214 F.3d 1049, 1051 (9th Cir. 2000). A trial court's decision that a prior conviction may not be used for purposes of sentencing enhancement is reviewed de novo. See United States v. Phillips, 149 F.3d 1026, 1031 (9th Cir. 1998).


I. Federal Statutory Framework

Sentencing Guidelines §§ 2L1.2(b)(1)(A) requires a sixteen-level increase in offense level if the defendant was previously deported after conviction for an "aggravated felony." According to the application notes, "aggravated felony" is defined at 8 U.S.C. §§ 1101(a)(43).

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Section 1101(a)(43) contains a list of many crimes which constitute "aggravated felonies," only one of which is at issue here. This case centers around §§ 1101(a)(43)(F), which defines an "aggravated felony" as "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year." The general issue in this case is whether Trinidad-Aquino's DUI conviction meets the definition of "crime of violence" found at 18 U.S.C. §§ 16.

II. Nature of our Review

We held in United States v. Lomas, 30 F.3d 1191, 1193 (9th Cir. 1994), that to determine whether a state crime is an "aggravated felony," we look at the statutory definition of the crime. See also United States v. Sandoval-Barajas, 206 F.3d 853, 855-56 (9th Cir. 2000). Since Trinidad-Aquino did not go to trial on his state charges and his state plea colloquy was not made part of the record, "the issue is not whether [the] actual conduct constituted an aggravated felony, but whether the full range of conduct encompassed by [the state statute] constitutes an aggravated felony." Sandoval-Barajas, 206 F.3d at 856. Thus, if there is any way that Trinidad-Aquino could have violated California Vehicle Code §§ 23153 without committing an "aggravated felony" (here a"crime of violence"), the district court was correct in not applying the sixteen-level sentencing enhancement.

III. Trinidad-Aquino's State Conviction

California Vehicle Code §§ 23153 reads, in pertinent part:

(a) It is unlawful for any person, while under the influence of any alcoholic beverage and [or] drug, to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.

The statute plainly provides, and the government does not dispute, that violation can occur through negligent acts, so long as the driver is legally intoxicated when those negligent acts are committed. The precise issue before us then is whether negligent conduct satisfies the 18 U.S.C. §§ 16 definition of "crime of violence."

IV. Federal Statutory Analysis

A. Construing "Aggravated Felonies" Generally

We have construed the meaning of several of the"aggravated felonies" listed at 8 U.S.C. §§ 1101(a)(43). The case law shows that we have developed two alternative methodologies for defining these "aggravated felonies."

First, in United States v. Baron-Medina, 187 F.3d 1144, 1146 (9th Cir. 1999), we employed the ordinary, contemporary, and common meaning of "sexual abuse of a minor" to define that term, listed as an "aggravated felony " at §§ 1101(a)(43)(A). We coupled the dictionary definition of "abuse" with the common understanding of "sexual" and "minor" to conclude that a conviction under California Penal Code §§ 288(a) (lewd or lascivious act on a minor) constituted such a conviction. Id.

Second, in Ye v. INS, 214 F.3d 1128, 1131 (9th Cir. 2000), we construed "burglary offense," listed as an"aggravated felony" at §§ 1101(a)(43)(G). Rather than use the ordinary, contemporary, and common meaning of the term, we looked to a Supreme Court case, Taylor v. United States , 495 U.S. 575 (1990), which crafted a detailed, uniform definition of "burglary." Id. We adopted this definition, using it to define "burglary offenses." Id.

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Recently in United States v. Corona-Sanchez 234 F.3d 449 (9th Cir 2000), we considered the meaning of"theft offense," which is defined as an "aggravated felony" at §§ 1101(a)(43)(G). We noted the divergent methodologies developed in Baron-Medina and Ye and explained when each should be applied. Id. at 451-53. We summarized the cases thus:

Baron-Medina and Ye take two different approaches to testing a prior conviction for aggravated felony status. Baron-Medina considered the ordinary meaning of the words "sexual abuse of a minor" and tested whether the conduct reached by the specific state statute at issue fell within the common, everyday meaning of those words. Ye, on the other hand, followed Taylor's approach by adopting a"uniform definition independent of the labels used by state codes" for burglary, identical to the one in Taylor. In other words, Baron-Medina did not set forth the elements or a "uniform definition" of "sexual abuse of a minor."

Id. at 451 (internal citations omitted). We held that the issue presented in Corona-Sanchez was more like Ye and followed the categorical approach in adopting the Model Penal Code definition of "theft" to define "theft offense." Id. at 451-53. In so deciding, we stressed that, like burglary, theft"is a more traditional crime containing distinct elements." Id. at 453.

This case is more like Baron-Medina than Ye. "Crime of violence" is not a traditional common law crime. Like "sexual abuse of a minor," it can only be construed by considering the ordinary, contemporary, and common meaning of the language Congress used in defining the crime. 1

B. Construing "Crime of Violence"

We construed 18 U.S.C. §§ 16 in United States v. CeronSanchez, 223 F.3d 1169 (9th Cir. 2000), where we held that an Arizona conviction for aggravated assault qualified as a "crime of violence." In so holding, we stressed that "the force necessary to constitute a crime of violence [ ] must actually be violent in nature." Id. at 1172. We rejected an argument by the appellant that since one could be convicted of aggravated assault in Arizona with a recklessness mens rea, the crime was not a "crime of violence," holding that reckless conduct satisfies the §§ 16 definitions. Id. at 1173. The government urges us to extend this holding to cover negligent conduct as well. Because we believe that the definition of"crime of violence" found at §§ 16 contains a volitional requirement absent from negligence, the government's argument must be rejected.

18 U.S.C. §§ 16 defines "crime of violence " as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk...

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