U.S. v. Garcia-Caraveo

• Decision Date: 03 November 2009
• Docket Number: No. 08-2140.,08-2140.
• Parties: UNITED STATE of America, Plaintiff-Appellee, v. Anastacio GARCIA-CARAVEO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

586 F.3d 1230

UNITED STATE of America, Plaintiff-Appellee, v. Anastacio GARCIA-CARAVEO, Defendant-Appellant.

No. 08-2140.

United States Court of Appeals, Tenth Circuit.

November 3, 2009.

Scott M. Davidson, Albuquerque, NM, for Defendant-Appellant.

John Anderson, Assistant United States Attorney, Albuquerque, NM, (Gregory J. Fouratt, United States Attorney, Albuquerque, NM, and Paige Messec, Assistant United States Attorney, Albuquerque, NM, on the brief) for Plaintiff-Appellee.

Before BRISCOE, EBEL, and GORSUCH, Circuit Judges.

EBEL, Circuit Judge.

Defendant-Appellant Anastacio Garcia-Caraveo appeals the sentence he received after pleading guilty to illegal reentry, following deportation, under 8 U.S.C. § 1326(a) and (b). The base offense level for this crime under the sentencing guidelines is eight. The PSR recommended a sixteen-point increase based on U.S.S.G. § 2L1.2(b)(1)(A)(ii), which provides that the court should increase a defendant's offense level for illegal reentry by sixteen points if the defendant has been deported after committing a "crime of violence." Without objection, the district court relied on Garcia-Caraveo's prior conviction in California for robbery to sustain this increase. On appeal, Garcia-Caraveo argues that it was plain error for the court to rely on his California robbery conviction to sustain this enhancement, because that offense did not constitute a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Exercising the jurisdiction granted us by 28 U.S.C. § 1291, we AFFIRM.

I. Background

Garcia-Caraveo pled guilty to a one-count information charging him with illegal reentry into the United States under 8 U.S.C. § 1326(a) and (b). His base offense level for illegal reentry was eight. See U.S.S.G. § 2L1.2(a). The presentence investigation report (PSR) recommended adding sixteen offense levels based on U.S.S.G. § 2L1.2(b)(1)(A)(ii), which provides that the court should increase a defendant's offense level for illegal reentry by sixteen points if the defendant has previously been deported after committing a "crime of violence." The PSR noted that Garcia-Caraveo had been deported subsequent to a conviction for felony robbery in California and, therefore, was subject to this sixteen-point increase. The PSR further recommended a three-level reduction for acceptance of responsibility under § 3E1.1, so Garcia-Caraveo's final recommended offense level was twenty-one. The PSR calculated Garcia-Caraveo's criminal history category as III. His Guidelines sentence range was, therefore, 46-57 months.

Garcia-Caraveo objected to the sixteen-level increase before the district court, but argued only that his conviction for felony robbery in California occurred approximately fifteen years before he was deported, and so that deportation should not be considered "subsequent to" his felony conviction. At his sentencing hearing, the district court agreed to modify the relevant language in the PSR to read that he was "deported on May 17, 2000, after a conviction in 1986 for robbery." (ROA Vol. III at 8.) Garcia-Caraveo agreed that this amendment resolved the concerns he had raised in his objection to the PSR. The district court then sentenced Garcia-Caraveo to forty-six months, the bottom end of the Guidelines range. This timely appeal followed.

II. Analysis

A. Standard of Review

For the first time in this appeal, Garcia-Caraveo argues that his felony robbery conviction in California does not constitute a "crime of violence" under Guidelines § 2L1.2(b)(1)(A)(ii). Typically, the interpretation of a provision of the Sentencing Guidelines would be a question of law that we would review de novo. See United States v. Zuniga-Soto, 527 F.3d 1110, 1116-17 (10th Cir.2008). Because Garcia did not present this argument to the district court, however, our review is limited to plain error. See United States v. Juarez-Galvan, 572 F.3d 1156, 1158 (10th Cir.2009). "We find plain error only when there is (1) error, (2) that is plain, (3) which affects substantial rights, and (4) which seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Romero, 491 F.3d 1173, 1178 (10th Cir.2007). This standard "presents a heavy burden for an appellant, one which is not often satisfied." Id.

B. Garcia-Caraveo's Conviction for Robbery in California Constituted a Conviction for a "Crime of Violence" Under U.S.S.G. § 2L1.2(b)(1)(A)(ii)

Our first step in conducting plain-error review is to determine whether the district court committed error at all, and we conclude that it did not. Garcia-Caraveo argues that his 1986 conviction for robbery in California should not subject him to the sixteen-level increase for prior commission of a crime of violence. See U.S.S.G. § 2L1.2(b)(1)(A)(ii). The Guidelines' commentary on § 2L1.2(b)(1)(A) provides that a "crime of violence" includes:

any of the following offenses under federal, state, or local law: Murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other 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.

Id. cmt. (1)(B)(iii) (emphasis added).

To determine whether a particular state's criminal statute falls within the ambit of the term "crime of violence" under the Guidelines, we look not to how a state has labeled its statute, but rather consider whether the statute corresponds with the "uniform generic definition" of the crime, using the analytical framework set out in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).¹ To do so, we examine whether the state's statute "roughly correspond[s] to the definitions of [the crime] in a majority of the States' criminal codes," id. at 589, 110 S.Ct. 2143, as well as prominent secondary sources, such as criminal law treatises and the Model Penal Code. See, e.g., United States v. Santiesteban-Hernandez, 469 F.3d 376, 379 (5th Cir.2006).

Under California law, robbery is "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." Cal.Penal Code § 211. The California courts have explained that the use of force or fear during either the perpetration of the theft, or while attempting to get away, converts a theft into a robbery. See People v. Gomez, 43 Cal.4th 249, 74 Cal. Rptr.3d 123, 179 P.3d 917, 921 (2008); People v. Flynn, 77 Cal.App.4th 766, 91 Cal. Rptr.2d 902, 906 (2000) ("The use of force or fear to escape or otherwise retain even temporary possession of the property constitutes robbery.").

At common law, however, robbery occurred only when the perpetrator used force or intimidation before or during the taking itself; force used to retain the property or to escape did not suffice to transform larceny into robbery. See 3 Wayne R. LaFave, Substantive Criminal Law § 20.3(e) (2d ed. 2003) ("[U]nder the traditional view it is not robbery to steal property without violence or intimidation ... although the thief later, in order to retain the stolen property or make good his escape, uses violence or intimidation upon the property owner."). By defining as robbery crimes in which the accused uses force or violence either during the taking or the getting away, Garcia-Caraveo argues that California Penal Code § 211 is broader than the "uniform generic definition" of robbery. We disagree.

Before turning to the merits of this issue, we first note that this court's decision in United States v. Servin-Acosta, 534 F.3d 1362 (10th Cir.2008)—although it dealt with nearly identical facts—does not dictate the outcome here. In Servin-Acosta, the defendant pled guilty to illegal reentry. At sentencing, the district court increased his offense level by sixteen because he had been deported after being convicted of felony robbery in California, under California Penal Code § 211. Id. at 1364. On appeal, the defendant argued that the sixteen-level increase for a crime of violence was inappropriate because "the California [robbery] statute is broader than generic robbery." Id. at 1366. Specifically, the defendant argued that "[t]he California statute is broader ... because it encompasses the use of force to effect an escape after the taking has occurred." Id.

In Servin-Acosta, the government conceded that the California robbery statute was broader than the "uniform generic definition" of robbery. Nonetheless, the government argued that it should still constitute a "crime of violence" because "`robbery' is one of the felonies enumerated in § 2L1.2's definition of crime of violence [and t]he fact that the robbery statute in California may not include the same application of force as a generic robbery is irrelevant." Servin-Acosta, 534 F.3d at 1366 (internal quotation omitted, emphasis in original). This court rejected this argument, further noting that the government had "conceded that second-degree robbery in California is broader than generic robbery, and it [] presented no evidence that Mr. Servin-Acosta's specific offense was generic robbery.... Accordingly, we must remand for further sentencing proceedings." Id. at 1367. Although factually similar to the case currently before us, Servin-Acosta is not binding precedent for the proposition that California's definition of robbery is broader than the "uniform generic definition" because it encompasses violence in the taking away. This court did not actually decide that issue; it merely accepted the government's concession that California's statute was broader than the generic definition.² Thus, that...