U.S. v. Sarbia

Decision Date22 March 2004
Docket NumberNo. 03-10276.,03-10276.
Citation367 F.3d 1079
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Maquel SARBIA, aka Jesus Vizcarra, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Thomas S. Dougherty, Assistant United States Attorney, Las Vegas, Nevada, for the plaintiff-appellee.

Jason F. Carr, Assistant Federal Public Defender, Las Vegas, Nevada, for the defendant-appellant.

Appeal from the United States District Court for the District of Nevada, Larry R. Hicks, District Judge, Presiding.

Before: HUG, ALARCÓN, and W. FLETCHER, Circuit Judges.

ORDER AMENDING OPINION AND DENYING PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC AND AMENDED OPINION

ALARCÓN, Circuit Judge.

ORDER

This court's opinion, filed March 22, 2004, is amended as follows:

The two paragraphs on slip op. 3523 that read:

Furthermore, we have previously held that in interpreting the Sentencing Guidelines, we are not bound by the common law. See United States v. Becker, 919 F.2d 568, 572 (9th Cir.1990) (rejecting the defendant's contention that because California's definition of burglary diverged from the commonlaw definition of burglary, his California state conviction for first-degree burglary was not a "crime of violence" for purposes of section 4B1.2). Rather, "[w]hen interpreting the Sentencing Guidelines ... terms are to be given their plain meaning." United States v. Charlesworth, 217 F.3d 1155, 1159(9th Cir.2000).

In United States v. Jackson, we held that attempted first-degree burglary under California law is a "crime of violence" for purposes of section 4B1.2. 986 F.2d at 314. California law defines attempt as follows: "An attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission." Cal.Penal Code § 21a. This definition closely parallels Nevada's formulation of the rule. This similarity is not surprising given that Nevada courts often look to California law in interpreting their own statutes. E.g., United States Fid. & Guar. Co. v. Peterson, 91 Nev. 617, 540 P.2d 1070, 1071(1975) (looking to California law in determining that an implied covenant of good faith and fair dealing exists in insurance dealings); Ex parte Skaug, 63 Nev. 101, 164 P.2d 743, 750 (1945) (relying on California law in interpreting its first-degree murder statute). We are persuaded that the use of "attempt" in the commentary to section 4B1.2 encompasses Mr. Sarbia's 1994 Nevada state conviction for attempting to discharge a firearm at an occupied structure.

are deleted.

The following two paragraphs shall be inserted on slip op. 3523 and substituted for the deleted text.

It is true that Nevada has formulated the elements of attempt using slightly different language from that of the common law. Nevada requires proof that the defendant has performed "some act" rather than a "substantive step" towards the commission of the crime. Moffett, 618 P.2d at 1224. The Nevada Supreme Court has held that a conviction for attempt will be affirmed if the evidence shows that the defendant has performed a "slight act," so long as his or her intent to commit the crime is clear. Van Bell, 775 P.2d at 1275. However, after reviewing numerous Nevada Supreme Court opinions on the subject, we are persuaded that the terms "some act" or "slight act," as used in the Nevada caselaw, have the same operational meaning as "substantial step," as used in the traditional common-law definition of attempt. Compare especially Johnson v. Sheriff, Clark County, 91 Nev. 161, 532 P.2d 1037 (1975) (reversing conviction for attempted murder where defendant had several meetings with a hired assassin and made a plan for the murder and disposal of the body), with Stephens v. Sheriff, Clark County, 93 Nev. 338, 565 P.2d 1007 (1977) (affirming conviction for attempted murder where, in addition to making a plan with a hired assassin, defendant executed the first part of the plan by bringing the intended victim to the place where he was to be killed).

In short, Nevada's definition of attempt is coextensive with the federal definition. We are persuaded that the use of "attempt" in the commentary to section 4B1.2 encompasses Mr. Sarbia's 1994 Nevada state conviction for attempting to discharge a firearm at an occupied structure.

With these amendments, the panel has voted to deny the petition for rehearing. Judge W. Fletcher has voted to deny the petition for rehearing en banc. Judges Hug and Alarcón so recommend.

The full court has been advised of the petition for rehearing en banc. No judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

The petition for rehearing and the petition for rehearing en banc are DENIED.

OPINION

Maquel Sarbia appeals from the sixty-three-month sentence imposed in this matter following his conviction for possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1). The district court adjusted Mr. Sarbia's sentence upward pursuant to section 2K2.1(a)(4)(A) of the United States Sentencing Guidelines Manual ("USSG"). Mr. Sarbia claims that the district court erred in determining that his prior 1994 Nevada state court conviction of attempting to discharge a firearm at an occupied structure was a "crime of violence" as defined by section 4B1.2 of the USSG. We affirm because the Sentencing Guidelines and our prior precedent treat attempted commission and commission of an offense the same.

I

On April 13, 1994, Maquel Sarbia pled guilty in Nevada state court to a felony count of "Attempt[ed] Illegal Discharge of a Firearm with the Intent to Promote, Further or Assist a Criminal Gang" in violation of Nevada Revised Statutes §§ 202.285, 193.168, 193.169, 193.330.

On October 9, 2002, federal prosecutors filed an indictment in the United States District Court for the District of Nevada against Mr. Sarbia alleging that he was a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).1 Mr. Sarbia went to trial on this charge on February 5, 2003. A jury found Mr. Sarbia guilty as charged.

At Mr. Sarbia's sentencing hearing the district court enhanced Mr. Sarbia's base offensive level from fourteen to twenty pursuant to section 2K2.1(a)(4)(A).2 The district court determined that Mr. Sarbia's 1994 state court conviction for attempted discharge of a firearm fits within the definition of "crime of violence" in section 4B1.2. Section 4B1.2 defines "crime of violence" for purposes of section 2K2.1. The district court based its decision to enhance Mr. Sarbia's sentence on the commentary to section 4B1.2 and United States v. Riley, 183 F.3d 1155 (9th Cir.1999). During the sentencing hearing, the district court quoted from the following language in Riley:

[T]he Commentary to section 4B1.2, which we must consider, provides that the term crime of violence "include(s) the offense of aiding, abetting, conspiring and attempting to commit such offenses." Moreover, we have generally found attempts to commit crimes of violence, enumerated or not, to be themselves crimes of violence.

183 F.3d at 1160(quoting U.S. Sentencing Guidelines Manual § 4B1.2, cmt. n. 1) (alteration in original).

The district court sentenced Mr. Sarbia to sixty-three-months imprisonment based on a total offensive level of twenty and a criminal history category of IV. We have jurisdiction over this timely appeal pursuant to 18 U.S.C. § 3742(a)(2) and 28 U.S.C. § 1291.

II

Mr. Sarbia contends that the district court erred in determining that his prior 1994 state court conviction for attempted discharge of a firearm was a "crime of violence," as that term is used in section 4B1.2. We review de novo a district court's interpretation of the Sentencing Guidelines. United States v. Jones, 231 F.3d 508, 519 (9th Cir.2000); United States v. Garcia, 135 F.3d 667, 669 (9th Cir.1998). The district court's application of the Sentencing Guidelines to the facts of a case is reviewed for abuse of discretion. Garcia, 135 F.3d at 669.

The commentary to section 2K2.1 states that for purposes of that section, "`[c]rime of violence' has the meaning given that term in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2." U.S. Sentencing Guidelines Manual § 2K2.1, cmt. n. 5. Section 4B1.2 defines a "crime of violence" as

[a]ny offense under federal or state law, punishable by imprisonment for a term exceeding one year, that —

(1) 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. Sentencing Guidelines Manual § 4B1.2(a)(emphasis added).

To determine whether a conviction is a crime of violence, the court considers whether "the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted ... by its nature, presented a serious potential risk of physical injury to another." U.S. Sentencing Guidelines Manual § 4B1.2, cmt. n. 1. Under our precedents, we must apply a categorical approach to this question. That is, "we first `generally look to the statutory definition of the crime, rather than to the defendant's specific conduct.'" United States v. Sandoval-Venegas, 292 F.3d 1101, 1106(9th Cir.2002) (quoting United States v. Casarez-Bravo, 181 F.3d 1074, 1077 n. 1 (9th Cir.1999)). In applying the categorical approach "we may also `examine documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction for enhancement purposes.'" Id. at 1106 (quoting Casarez-Bravo, 181 F.3d at 1077).

We have previously held that discharging a firearm at an inhabited building qualifies as a crime of violence under section 4B1.2. In United States v. Weinert, 1 F.3d 889(9th Cir.1993) (per...

To continue reading

Request your trial
21 cases
  • Commonwealth v. Bell
    • United States
    • Appeals Court of Massachusetts
    • 11 d5 Janeiro d5 2013
    ...been recognized by Federal courts to impose the same standard as Federal common law and the Model Penal Code. See United States v. Sarbia, 367 F.3d 1079, 1086 (9th Cir.), cert. denied, 543 U.S. 912, 125 S.Ct. 122, 160 L.Ed.2d 192 (2004); United States v. Saavedra–Velazquez, 578 F.3d 1103, 1......
  • Ahmed v. Keisler
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 16 d2 Outubro d2 2007
    ... ...         Ahmed: We do not have any political opinion for Bangladesh. Our only main protest was to send us to Pakistan. We, we cannot live this kind of living. We cannot live in this way, and we just want some kind of arrangement to be made by which we can ... ...
  • U.S. v. Saavedra-Velazquez
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 21 d5 Agosto d5 2009
    ...broader than the definition at common law, which requires a "substantial step towards committing the crime," United States v. Sarbia, 367 F.3d 1079, 1085-86 (9th Cir.2004) (emphasis added). enough, however, we are required by precedent to conclude that the two definitions are functionally e......
  • U.S. v. Hickey
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 2 d3 Setembro d3 2009
    ...by Citizens of another State" applies to suits brought against a state by a citizen of the same state). 3. See United States v. Sarbia, 367 F.3d 1079, 1086 (9th Cir.2004) (holding that "the terms `some act' or `slight act,' as used in the Nevada caselaw, have the same operational meaning as......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT