U.S. v. Carbajal-Diaz

• Decision Date: 26 November 2007
• Docket Number: No. 06-41491.,06-41491.
• Citation: 508 F.3d 804
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alejandro Mauricio CARBAJAL-DIAZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

508 F.3d 804

UNITED STATES of America, Plaintiff-Appellee, v. Alejandro Mauricio CARBAJAL-DIAZ, Defendant-Appellant.

No. 06-41491.

United States Court of Appeals, Fifth Circuit.

November 26, 2007.

Michele Palacios, McAllen, TX, James Lee Turner, Asst. U.S. Atty., Houston, TX, for U.S.

Marjorie A. Meyers, Fed. Pub. Def., Margaret Christina Ling and Laura Fletcher Leavitt, Asst. Fed. Pub. Defenders, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before REAVLEY, SMITH and GARZA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Alejandro Carbajal-Diaz appeals his sentence for unlawful reentry into the United States after deportation. Because the district court did not err in applying a "crime of violence" ("COV") sentence enhancement for a prior burglary conviction, we affirm.

I.

Carbajal-Diaz, an alien, pleaded guilty of aggravated felony burglary and misdemeanor sexual misconduct in Missouri in 2001 and was deported in 2005. While on parole for the burglary offense in 2006, he illegally reentered the United States and was arrested. He pleaded guilty of knowingly and unlawfully entering the United States after deportation for commission of an aggravated felony in violation of 8 U.S.C. § 1326.

The presentence report ("PSR") began with a base offense level of 8, reduced by three levels for acceptance of responsibility. Based on the Missouri burglary conviction, the report added a sixteen-level enhancement for conviction of a "crime of violence" pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii),¹ resulting in an offense level of 21. Because of his convictions and deportation, Carbajal-Diaz had a criminal history category of IV.

The offense level and criminal history category resulted in a sentencing guideline range of 57 to 71 months' imprisonment. Adopting the PSR's findings and considering the advisory guideline range and "the sentencing objectives of rehabilitation, incapacitation, retribution and deterrence," the district court imposed a within-guideline sentence of 60 months. Carbajal-Diaz appeals his sentence, principally claiming that the court should not have treated his burglary conviction as a COV.

II.

Under U.S.S.G. § 2L1.2, a crime is a "crime of violence" if it (1) has an element involving physical force or (2) falls under one of a variety of specific enumerated offenses,² one of which is "burglary of a dwelling." The government does not contend that Carbajal-Diaz's prior burglary conviction had an element involving physical force, so the sole issue is whether the statute describes the enumerated crime of "burglary of a dwelling." In making that determination, we review de novo the district court's interpretation of the sentencing guidelines. United States v. Calderon-Pena, 383 F.3d 254, 256 (5th Cir.2004) (en banc) (per curiam).

A.

We begin with a review of the applicable law. Determining whether a crime is an enumerated COV entails a conceptual difficulty: With what level of specificity do we define the crime? At one end of the spectrum lie the circumstances of the crime as it was in fact committed, and at the other end lies the most general classification of the crime in the statute of conviction. Our approach to this challenge amounts to a three-step inquiry.

First, we employ a "categorical" analysis of the state criminal statute, looking to the elements of the crime as defined by that statute. Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); Calderon-Pena, 383 F.3d at 257. This approach defines the crime at the level of generality fixed by the statute of conviction without regard to the specific facts of the defendant's conduct. In defining the crime, we must "look only to the fact of conviction and the statutory definition of the prior offense." Taylor, 495 U.S. at 602, 110 S.Ct. 2143; see also Calderon-Pena, 383 F.3d at 257. Criminal statutes often broadly encompass a range of different behaviors such that a statutorily-defined crime could be a COV if committed in one manner but not if committed in a different manner. Although looking to the specific circumstances might allow a more precise description of the crime, we have generally resisted such a fact-intensive inquiry requiring endless mini-trials to determine what that conduct was.

Despite the general rule that a prior crime is defined categorically by the statute of conviction, we have nevertheless permitted some narrowing of the crime's definition based on specific facts contained in the charging papers. This narrowing analysis constitutes the second step of our inquiry; it proceeds differently depending on whether we are determining whether the prior crime falls under § 2L1.2's reference to other crimes with an element involving the use of physical force, or instead if we are determining whether the crime amounts to one of § 2L1.2's enumerated offenses. In both instances, we may look to the charging papers to narrow the definition of the crime; but in each respective instance we look for different things.

In Calderon-Pena, this court explained the narrowing analysis to be undertaken when assessing whether a crime has an element involving use of physical force. We relied heavily on § 2L1.2's explicit textual reference to "elements"³ involving use of force, and we held that "a court may look to the indictment or jury instructions, for the limited purpose of determining which of a series of disjunctive elements a defendant's conviction satisfies." Calderon-Pena, 383 F.3d at 258 (internal quotation marks and citation omitted). In other words, "whenever a statute provides a list of alternative methods of commission ... we may look to charging papers to see which of the various statutory alternatives are involved in the particular case." Id.

In Calderon-Pena, for example, the Texas child endangerment statute made it a crime "intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, [to] engage[] in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment." Id. at 256. We observed that this disjunctive list of elements "proscribes a range of conduct, from intentional acts that create a mortal danger to negligent omissions that risk mental impairment." Id. at 260. Specific facts in the indictment could thus be used "to narrow down the statutory options" so that the crime is defined as "knowingly ... by act ... engag[ing] in conduct that places a child younger than 15 years in imminent danger of ... bodily injury." Id.

Crucially, however, the disjunctive statutory elements—"knowingly," "by act," etc.—remain irreducible and cannot be further narrowed by the specific facts of the case. This approach takes judicial economy and the need for settled expectations as its animating principles, and it finds these principles rooted in § 2L1.2's choice of the word "element."⁴

Although we adopted a formalistic, element-by-element approach to crimes of violence involving use of force, we have taken a different approach to COV's based on enumerated offenses. When considering whether a crime constitutes an enumerated offense, § 2L1.2's reference to the whole crime rather than the particular "elements" has dictated a less formal and more functional narrowing analysis.⁵ Here, in what we have dubbed the "common sense approach," specific facts contained in the indictment or jury instructions can be used more freely to define the crime with a somewhat greater level of specificity.⁶

A court still cannot conduct a mini-trial to retry all the specific facts, but it can look to those facts contained in the charging papers and that are necessary to the verdict or the plea. The animating principle behind this approach appears to be fairness to the defendant: An indictment's stated facts can be considered in defining the crime, but only to the extent they were necessary to the verdict or plea. This allows a more specific "common sense" definition of the crime, while avoiding the prospect of endless dispute over the specific facts of that crime. The search for such facts ends with the charging papers, the plea or verdict, and the fact of conviction.⁷

We elaborated on this approach in United States v. Rodriguez-Duberney, 326 F.3d 613, 616-17 (5th Cir.2003), in which we considered whether an indictment could be used to determine that a Travel Act violation was in fact a drug trafficking offense subject to guideline enhancement. We held that the district court could "look to the indictment to see if a Travel Act violation involved drug trafficking," id. at 617, reasoning that "[a] jury was required to find drug trafficking in order to convict Duberney of the Travel Act violation, and there is no danger of the district court undertaking an elaborate fact-finding process in order to determine the nature of the defendant's underlying offense," id.

This common sense approach to enumerated offenses, permitting us to look beyond the statutory elements to necessary facts contained in the indictment, also accords with the Supreme Court's approach to similar enumerated offenses triggering enhancement under the Armed Career Criminal Act. In determining whether a prior burglary amounted to an enumerated offense of "generic burglary" (deemed to exclude burglary of an automobile), the Court offered an illustration:

[T]he sentencing court [may] go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of generic burglary. For example, in a State whose burglary statutes include entry of an automobile as well as a building, if the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction for enhancement.

Taylor, ...