U.S. v. De Jesus Ventura, 07-3099.

• Citation: 565 F.3d 870
• Decision Date: 15 May 2009
• Docket Number: No. 07-3099.,07-3099.
• Parties: UNITED STATES of America, Appellee v. Manuel DE JESUS VENTURA, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

565 F.3d 870

UNITED STATES of America, Appellee v. Manuel DE JESUS VENTURA, Appellant.

No. 07-3099.

United States Court of Appeals, District of Columbia Circuit.

Argued December 5, 2008.

Decided May 15, 2009.

Appeal from the United States District Court for the District of Columbia, (No. 04cr00288-01).

Beverly G. Dyer, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender. Laura G. Quint, Assistant Federal Public Defender, entered an appearance.

Justin E. Dillon, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jeffrey A. Taylor, U.S. Attorney, and Roy W. McLeese III and Elizabeth Trosman, Assistant U.S. Attorneys.

Before: ROGERS, BROWN, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GRIFFITH.

GRIFFITH, Circuit Judge:

Appellant Manuel De Jesus Ventura challenges the sentence imposed for his crime of entering the United States after being deported for a felony conviction. Ventura argues that his prior conviction was not a "crime of violence," as the district court found, but was instead an "aggravated felony," which triggers a less severe sentencing range under the Federal Sentencing Guidelines. We agree, vacate, and remand for resentencing in light of the correct range.

I.

Ventura, a citizen of El Salvador, first entered the United States illegally in 1997 and was deported within a month. He returned to the United States illegally in 1999 and while here committed the crime that is at the center of this case. In 2000, the Commonwealth of Virginia charged Ventura with felonious abduction in violation of VA.CODE § 18.2-47, which prohibits unlawfully seizing or detaining another person. Ventura pleaded nolo contendere. The Virginia court found him "guilty as charged in the indictment." Tr. of Plea Colloquy at 17, Commonwealth v. Hernandez-Chacon, No. 98623 (Va.Cir.Ct. Dec. 18, 2000),¹ and sentenced him to eighteen months in prison. When the immigration authorities learned Ventura had reentered the country illegally, they deported him again in November 2002.

Ventura soon returned to the country and to his criminal ways. In 2004 the D.C. Superior Court sentenced him to six years in prison for, among other crimes, armed assault with intent to commit robbery. While Ventura was serving that sentence, federal authorities realized he was once again in the country illegally. The government charged him with the crime of reentering the United States after having been deported following conviction for an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2).² The aggravated felony was the Virginia abduction. Ventura pleaded guilty.

The district court sentenced Ventura on March 7, 2005. The central dispute at sentencing was the calculation of the appropriate Guidelines range. The base offense level for the crime of unlawful reentry is 8. See U.S. SENTENCING GUIDELINES MANUAL (U.S.S.G.) § 2L1.2(a) (2004). The Guidelines direct the court to apply the greatest of several possible increases based on the criminal conviction that preceded the defendant's deportation. If the defendant was convicted of an "aggravated felony," the court applies an eight-level increase. Id. § 2L1.2(b)(1)(C). Because Ventura pleaded guilty to reentering the country after conviction for an aggravated felony, he did not contest the eight-level increase. But some aggravated felonies are also "crimes of violence," which instead trigger a sixteen-level increase under the Guidelines. Id. § 2L1.2(b)(1)(A)(ii). The presentence investigation report (PSR) concluded that Ventura's Virginia conviction was one of those crimes. Ventura disputed the PSR's conclusion, arguing that his aggravated felony conviction was not a crime of violence.

Reading United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), to relieve him of the need to make a specific finding about the applicable Guidelines range, the district judge saw no need to resolve this dispute. Instead, the court weighed the various factors set out in 18 U.S.C. § 3553(a) and sentenced Ventura to 93 months' imprisonment, a sentence within the applicable Guidelines range had the court expressly found that Ventura was convicted of a crime of violence. Ventura appealed, and we reversed, explaining that under Booker "sentencing courts remain obligated to calculate and consider the appropriate guidelines range." United States v. Ventura, 481 F.3d 821, 823 (D.C.Cir.2007). Because the district court had "expressly eschewed making a specific finding as to the guidelines range applicable to Ventura," id., we remanded for it to do so. On remand, the district court concluded that the Virginia conviction was for a crime of violence and applied a sixteen-level increase to Ventura's base offense level. The resulting sentencing range was 77 to 96 months.³ The court sentenced Ventura to 84 months' imprisonment, to be served after the six-year D.C. Superior Court sentence and to be followed by three years' supervised release. Ventura appeals.

II.

The question we must decide under the Sentencing Guidelines is whether Ventura's Virginia conviction for abduction was for a crime of violence, as the district court concluded, or for an aggravated felony, as Ventura contends. If it was a crime of violence, the sixteen-level enhancement was appropriate. If not, the court should have applied the eight-level enhancement for aggravated felony convictions, and Ventura's Guidelines sentencing range would have been only 33 to 41 months.⁴

A.

Distinguishing between the two can be a complicated task. The commentary to the sentencing guideline for unlawful reentry, which controls our interpretation, see Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993), defines "crime of violence" as murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.

U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii). A sentencing court applying this definition immediately encounters an obstacle: there is no uniformly accepted meaning of any of the listed crimes—a consequence of the federalism principles that have shaped criminal law in the United States.

The Supreme Court confronted this problem in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), when it was asked to determine for sentencing purposes under the Armed Career Criminal Act, 18 U.S.C. § 924(e), whether a defendant had been convicted of a "violent felony." That statute defines "violent felony" in the same way the Guidelines define "crime of violence"—by listing qualifying crimes and elements of crimes. Among the crimes listed in the Armed Career Criminal Act is "burglary." Noting that "the criminal codes of the States define burglary in many different ways," Taylor, 495 U.S. at 580, 110 S.Ct. 2143, the Court reasoned that Congress could not have intended the length of a sentence to turn on the definition of burglary in the state of conviction. "That would mean that a person convicted of unlawful possession of a firearm would, or would not, receive a sentence enhancement based on exactly the same conduct, depending on whether the State of his prior conviction happened to call that conduct `burglary.'" Id. at 590-91, 110 S.Ct. 2143. Because the statute must be uniformly applied, the Court held that the only appropriate definition of "burglary" is "the generic sense in which the term is now used in the criminal codes of most States." Id. at 598, 110 S.Ct. 2143. Most states define "burglary" to include three common elements. Thus "a person has been convicted of burglary" in the generic sense "if he is convicted of any crime, regardless of its exact definition or label, having [these three] basic elements." Id. at 599, 110 S.Ct. 2143.

Once it has identified the generic crime, the sentencing court must determine whether a defendant was convicted of that crime. To answer that question, the Court in Taylor adopted what it called a "formal categorical approach" restricted to the express language of the statute under which the defendant was convicted. Id. at 600, 110 S.Ct. 2143. It directed the district court on remand to determine whether the statute under which the defendant was convicted required proof of the three elements of generic burglary. If so, the defendant was convicted of burglary, which is a violent felony for purposes of the Armed Career Criminal Act. But under some statutes, conviction is possible without proving each of those three elements. In those circumstances, the Court allowed that a sentencing court may modify the categorical approach by conducting a limited inquiry into the particular facts of the defendant's conviction to determine if he was nevertheless convicted of generic burglary. For example, a defendant is convicted of the generic crime if the jury instructions require a finding of all the elements of the generic crime. See id. at 602, 110 S.Ct. 2143.

The Court later applied this "modified" categorical approach in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). In that case the defendant had pleaded guilty to violating a statute that was, by its categorical terms, broader than generic burglary. The Court found it proper to look to the charging document, the plea agreement, and the transcript of the plea colloquy to determine whether the defendant "necessarily admitted" the elements of the generic offense. Id. at 26, 125 S.Ct. 1254. These documents offer the same certainty about the conviction as the hypothetical jury instructions discussed in Taylor. By contrast, the Court found it improper to rely on police reports...