U.S. v. Aguila-Montes De Oca

• Citation: 523 F.3d 1071
• Decision Date: 28 April 2008
• Docket Number: No. 05-50170.,05-50170.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Guillermo AGUILA-MONTES DE OCA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

523 F.3d 1071

UNITED STATES of America, Plaintiff-Appellee, v. Guillermo AGUILA-MONTES DE OCA, Defendant-Appellant.

No. 05-50170.

United States Court of Appeals, Ninth Circuit.

Argued February 9, 2006.

Submitted February 29, 2008.

Filed April 28, 2008.

Vincent J. Brunkow, San Diego, CA, for the appellant.

Steven E. Stone, Assistant United States Attorney, San Diego, CA, for the appellee.

Appeal from the United States District Court for the Southern District of California; Roger T. Benitez, District Judge, Presiding. D.C. No. CR-04-02175-RTB.

Before: DAVID R. THOMPSON, T.G. NELSON, and RONALD M. GOULD, Circuit Judges.

THOMPSON, Senior Circuit Judge:

Guillermo Aguila-Montes De Oca ("Aguila-Montes") appeals the sentence imposed upon him for attempting to reenter the United States following deportation, in violation of 8 U.S.C. § 1326. Aguila-Montes challenges the district court's sixteen-level sentence enhancement resulting from the court's determination that his prior conviction for first degree residential burglary, in violation of section 459 of the California Penal Code, constituted a crime of violence under section 2L1.2(b)(1)(A) of the United States Sentencing Guidelines Manual ("Guidelines").¹ We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We hold that Aguila-Montes's prior California burglary conviction constituted a crime of violence under the Guidelines, and affirm his sentence with the sixteen-level sentence enhancement.

I. Background

Aguila-Montes, a Mexican citizen, queued up at the San Ysidro Point of Entry on July 5, 2004. Customs and Border Protection officers arrested him after verifying by computer that he was a deported alien. The government charged him with violating 8 U.S.C. § 1326 by attempting to reenter the United States. A jury convicted him, and the district court sentenced him to 120 months in prison and two years of supervised release.

During sentencing, the district court concluded that Aguila-Montes had previously been convicted of a crime of violence as defined by section 2L1.2 of the Guidelines, and for that reason enhanced his sentence sixteen levels. The prior conviction was from 1988, when Aguila-Montes pleaded guilty to first degree residential burglary in violation of section 459 of the California Penal Code. Aguila-Montes argues that because this 1988 state conviction could have been based upon criminal liability for aiding and abetting or for other conduct not included within the definition of burglary of a dwelling in section 2L1.2 of the Guidelines, the district court erred in applying the sixteen-level sentence enhancement.

II. Discussion

A. Legal Framework

Section 2L1.2 of the Guidelines addresses sentencing for the crime of unlawfully entering or remaining in the United States. It provides sentencing enhancements based on prior convictions for other offenses. Subsection (b)(1) lists the predicate offenses and their corresponding enhancements. It provides a sixteen-level enhancement for a prior "crime of violence." U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A) (2006). The Guidelines' application notes specifically state that "burglary of a dwelling" constitutes a crime of violence. Id. § 2L1.2 cmt. n. 1(B)(iii).

Aguila-Montes disputes the district court's determination that his 1988 conviction for first degree residential burglary constituted burglary of a dwelling, a crime of violence under the Guidelines.

"The sentencing judge's application of the Sentencing Guidelines, including whether a prior conviction is a `crime of violence' ... for the purposes of U.S.S.G. § 2L1.2, is reviewed de novo." United States v. Rodriguez-Rodriguez, 393 F.3d 849, 856 (9th Cir.2005) (citing United States v. Bonilla-Montenegro, 331 F.3d 1047, 1049 (9th Cir.2003)). To determine whether Aguila-Montes's prior conviction qualifies as burglary of a dwelling under the Guidelines, we use the analytical approach outlined in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See United States v. Wenner, 351 F.3d 969, 972 (9th Cir.2003) (citing United States v. Becker, 919 F.2d 568, 570 (9th Cir.1990)).

A Taylor analysis requires a comparison between the defendant's prior conviction (in this case, California residential burglary) and the offense incorporated into the Guidelines (burglary of a dwelling); if the elements of the two match, sentencing enhancement is proper. See id.

Under the categorical approach, we examine California's statutory definition of first degree residential burglary to determine if all convictions under that statute constitute burglary of a dwelling under the Guidelines. See id. Under the modified categorical approach, we additionally consider "the `charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented'" to determine whether Aguila-Montes's conviction constituted burglary of a dwelling under the Guidelines. See United States v. Almazan-Becerra, 482 F.3d 1085, 1088 (9th Cir.2007) (quoting Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)); Wenner, 351 F.3d at 972.

Because burglary of a dwelling under the Guidelines is the object of comparison in both approaches, its definition is critical to the analysis. See United States v. Corona-Sanchez, 291 F.3d 1201, 1204 (9th Cir. 2002) (en banc).

As a starting point in defining burglary of a dwelling, we know that the Guidelines do not simply incorporate the convicting state's formulation of that offense or any other. See id. at 1205 (citing Taylor, 495 U.S. at 590-91, 110 S.Ct. 2143). Instead, "when Congress described predicate offenses, it meant to incorporate `the generic sense in which the term is now used in the criminal codes of most States.'" Id. (quoting Taylor, 495 U.S. at 598, 110 S.Ct. 2143). Thus, burglary of a dwelling under the Guidelines takes on its generic, contemporary meaning, and includes the following elements: the "`unlawful or unprivileged entry into, or remaining in, a building or other structure [that is a dwelling], with intent to commit a crime.'" See Rodriguez-Rodriguez, 393 F.3d at 852 (quoting Taylor, 495 U.S. at 598, 110 S.Ct. 2143; Wenner, 351 F.3d at 973).

The Supreme Court recently considered how aiding and abetting liability fits into the generic definitions of predicate offenses. In Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007), the Court held that the generic term "theft offense" in the Immigration and Nationality Act includes the crime of aiding and abetting a theft offense. Id., 127 S.Ct. at 820. The Court concluded that because the distinction between the liability of first-degree principals, second-degree principals, and accessories before the fact has been abolished in all American jurisdictions, "`the generic sense in which' the term `theft' `is now used in the criminal codes of most States,' covers such `aiders and abettors' as well as principals." Id. (quoting Taylor, 495 U.S. at 598, 110 S.Ct. 2143). Therefore, the Court held that "the criminal activities of ... aiders and abettors of a generic theft must ... fall within the scope of the term `theft' in the federal statute." Id.

In the Guidelines context — as opposed to the immigration context — it is also important to note that the Sentencing Commission added the following application note to section 2L1.2 of the post-2001 Guidelines: "Prior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses." U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n. 5 (2006). It is therefore clear that, at least since this amendment to the post-2001 Guidelines, generic offenses under section 2L1.2(b) of the Guidelines, such as burglary of a dwelling, include a predicate state conviction that resulted from aiding and abetting conduct.

B. Categorical Approach

As with all California crimes, first degree residential burglary encompasses aiders and abettors. See Cal.Penal Code §§ 31, 971 (West 1985 & 1999) (providing equal culpability for traditional principals and traditional aiders and abettors). If, however, the California offense includes broader liability than its generic Guidelines counterpart, the two will not categorically match. See Wenner, 351 F.3d at 972 ("If the state statute criminalizes conduct that is not a crime of violence under [the Guidelines], then [the] conviction is not a categorical match.").

"In the course of the 20th century, ... American jurisdictions eliminated the distinction" between first-degree principals, second-degree principals, and accessories before the fact. Duenas-Alvarez, 127 S.Ct. at 820 (citing Standefer v. United States, 447 U.S. 10, 16-19, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980); Nye & Nissen v. United States, 336 U.S. 613, 618, 69 S.Ct. 766, 93 L.Ed. 919 (1949)). Most states recognize, however, that a person who first becomes involved with a crime after its completion cannot be considered a principal or aider and abettor, but may instead qualify for a less-culpable status whose title varies among states (e.g., "accessory after the fact" or "obstructor" of justice). See id. (recognizing that an accessory after the fact is the only category of liability that remains separate from the others); 1 Charles E. Torcia, Wharton's Criminal Law § 35 (15th ed.2006). Most states also recognize that, assuming all other elements are met, burglary is completed upon the perpetrator's entry. See 3 Charles E. Torcia, Wharton's Criminal Law § 324 (15th ed.2006). Therefore, generically, an aider and abettor to burglary must be involved prior to or contemporaneous with the perpetrator's entry, whereas a person who first becomes involved afterwards constitutes an accessory after the fact or the like.

California follows the typical rule that a person who first becomes involved with a crime after its...