United States v. Sanchez-Rodriguez

• Decision Date: 08 July 2016
• Docket Number: No. 15-41056,15-41056
• Citation: 830 F.3d 168
• Parties: United States of America, Plaintiff–Appellee v. Benito Sanchez–Rodriguez, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

830 F.3d 168

United States of America, Plaintiff–Appellee

v.Benito Sanchez–Rodriguez, Defendant–Appellant.

No. 15-41056

United States Court of Appeals, Fifth Circuit.

Filed July 8, 2016

Andrew R. Gould, Renata Ann Gowie, Assistant U.S. Attorneys, U.S. Attorney's Office Southern District of Texas, Houston, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Federal Public Defender, Scott Andrew Martin, H. Michael Sokolow, Assistant Federal Public Defenders, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant–Appellant.

Before KING, JOLLY, and ELROD, Circuit Judges.

PER CURIAM:

Defendant–Appellant Benito Sanchez-Rodriguez was convicted in 2002 of dealing in stolen property in a Florida state court. On April 30, 2015, Sanchez-Rodriguez pleaded guilty to one count of illegal reentry in violation of 8 U.S.C. § 1326(a)

and (b)(1). In sentencing him, the district court concluded that Sanchez-Rodriguez's 2002 Florida conviction was an aggravated felony within the meaning of U.S.S.G. § 2L1.2(b)(1)(C). However, because the relevant Florida statute applies to conduct outside the definition of the generic crime under the sentencing Guidelines, we cannot agree that Sanchez-Rodriguez's conviction was an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C). Accordingly, we VACATE Sanchez-Rodriguez's sentence and REMAND for re-sentencing.

I. FACTUAL AND PROCEDURAL BACKGROUND

In June 2002, the State of Florida filed a three-count criminal information against Defendant–Appellant Benito Sanchez-Rodriguez. As relevant here, the third count charged Sanchez-Rodriguez with “Dealing in Stolen Property,” in violation of Florida Statute § 812.019

. Specifically, the third count stated that Sanchez-Rodriguez “unlawfully traffic[ked] or endeavor[ed] to traffic in stolen property ... and in so doing [Sanchez-Rodriguez] knew or should have known that said property was stolen.” Sanchez-Rodriguez subsequently pleaded guilty to this count in Florida state court, and he was sentenced to three years' imprisonment, which was suspended for three years' probation. Following this conviction, Sanchez-Rodriguez, who is a citizen of Mexico and who had no legal status in the United States, was deported to Mexico in December 2002.

In May 2014, Sanchez-Rodriguez was arrested for driving while intoxicated in Texas. Immigration and Customs Enforcement agents encountered Sanchez-Rodriguez while he was detained at a local jail following his arrest, and he admitted to them that he was a citizen of Mexico without legal status in the United States. Sanchez-Rodriguez was subsequently indicted on one count of illegal reentry in violation of 8 U.S.C. § 1326(a)

and (b)(1). On April 30, 2015, he pleaded guilty to the indictment without a plea agreement, and the district court accepted his plea in August 2015.

A United States Probation Officer prepared a presentence investigation report (PSR) using the 2014 edition of the United States Sentencing Guidelines (U.S.S.G.). Under U.S.S.G. § 2L1.2(a)

, Sanchez-Rodriguez was assigned a base offense level of eight. The base offense level was enhanced by eight levels because, according to the PSR, Sanchez-Rodriguez's 2002 Florida conviction for dealing in stolen property qualified as an “aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C). Sanchez-Rodriguez's offense level was reduced by three levels based on his acceptance of responsibility and his guilty plea, yielding a total offense level of 13. See U.S.S.G. § 3E1.1. Based on his criminal history, Sanchez-Rodriguez was assigned a criminal history category of IV. With an offense level of 13 and a criminal history category of IV, the Guidelines range for Sanchez-Rodriguez was 24 to 30 months' imprisonment.

Sanchez-Rodriguez filed written objections to the PSR, arguing that his stolen-property conviction was not an aggravated felony as defined by U.S.S.G. § 2L1.2(b)(1)(C)

or 8 U.S.C. § 1101(a)(43) and that, therefore, he was not eligible for the eight-level enhancement. Sanchez-Rodriguez also objected to the enhancement at sentencing, arguing that “the Florida statute is overly broad.” The district court overruled Sanchez-Rodriguez's objections and adopted the PSR in full. The court then sentenced him to 27 months' imprisonment—the middle of the Guidelines range. Sanchez-Rodriguez timely appealed, challenging the aggravated-felony enhancement based on overbreadth.

II. STANDARD OF REVIEW

We review a district court's sentencing decision “for reasonableness.” United States v. Anderson , 559 F.3d 348, 354 (5th Cir. 2009)

. In doing so, we review the district court's interpretation of the Guidelines de novo . United States v. Cisneros–Gutierrez , 517 F.3d 751, 764 (5th Cir. 2008). If the defendant fails to object at sentencing, our review is only for plain error. Anderson , 559 F.3d at 354. Sanchez-Rodriguez argues that the appropriate standard of review is de novo , while the Government contends that plain error review applies. However, the court, not the parties, must determine the appropriate standard of review. United States v. Torres

–

Perez , 777 F.3d 764, 766 (5th Cir. 2015).

To preserve an error, an objection must be sufficiently specific to alert the district court to the nature of the alleged error and to provide an opportunity for correction. United States v. Ocana , 204 F.3d 585, 589 (5th Cir. 2000)

. Sanchez-Rodriguez filed a written objection and objected at sentencing, raising essentially the same—if not as refined—argument that he raises on appeal. Thus, the district court was adequately notified of the grounds upon which Sanchez-Rodriguez's objection was made. See, e.g. , United States v. Garcia

–

Perez , 779 F.3d 278, 282 (5th Cir. 2015) (determining that, although the defendant refined his argument on appeal, his objection to the classification of his prior conviction as a crime of violence was sufficient to preserve the issue on appeal). Because the district court was adequately notified of the grounds of Sanchez-Rodriguez's objection, our review is de novo . See id. ; Ocana , 204 F.3d at 588–89.

III. AGGRAVATED FELONY UNDER U.S.S.G. § 2L1.2(b)(1)(C)

Under U.S.S.G. § 2L1.2(b)(1)(C)

, a defendant's base offense level will be increased by eight levels “[i]f the defendant previously was deported, or unlawfully remained in the United States, after ... a conviction for an aggravated felony.” Id . The commentary to the Guidelines provides that “[f]or the purposes of subsection (b)(1)(C), ‘aggravated felony’ has the meaning given that term in section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(43) ), without regard to the date of conviction for the aggravated felony.” U.S.S.G. § 2L1.2 cmt. n.3(A); see also

United States v. McKinney , 520 F.3d 425, 429 (5th Cir. 2008) (“The commentary's interpretation of the guidelines is generally authoritative.”). That statute defines “aggravated felony” as “a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(G). In this case, the district court concluded that Sanchez-Rodriguez's 2002 Florida conviction for dealing in stolen property constituted an aggravated felony within this definition. We disagree and hold that Sanchez-Rodriguez's Florida conviction is not an aggravated felony within this definition and that, therefore, the district court erred in applying a sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(C)

.

“To determine whether a prior conviction qualifies as an offense under the Sentencing Guidelines, we begin with the categorical approach described in Taylor v. United States , 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)

.” United States v. Rodriguez

–

Negrete , 772 F.3d 221, 224–25 (5th Cir. 2014). This court has previously explained:

[W]hen applying the categorical approach, courts “compare the elements of the statute forming the basis of the defendant's conviction with the elements of the ‘generic’ crime—i.e. , the offense as commonly understood” that triggers the sentencing enhancement. “If the [offense of conviction] has the same elements as the ‘generic’ ... crime [in the sentencing enhancement], then the prior conviction can serve as [the] predicate; so too if the statute defines the crime more narrowly, because anyone convicted under that law is ‘necessarily ... guilty of all the [generic crime's] elements.’ ”

United States v. Schofield , 802 F.3d 722, 727–28 (5th Cir. 2015)

(alterations in original) (citation omitted) (quoting Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2281, 2283, 186 L.Ed.2d 438 (2013) ). Where, as here, a defendant was convicted of violating a divisible statute,¹ we employ the modified categorical approach, which “helps implement the categorical approach when a defendant was convicted of violating a divisible statute.” Descamps , 133 S.Ct. at 2285. “[T]he modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction.” Id . at 2281. Having made this determination, “[t]he court can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.” Id .

Here, the generic crime is “a theft offense (including receipt of stolen property) or burglary offense for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(G)

. “The provision does not define ‘theft offense.’ ” United States v. Medina

–

Torres , 703 F.3d 770, 774 (5th Cir. 2012) (per curiam). Accordingly, we have previously applied “ ‘the generic, contemporary meaning’ of ‘theft offense’ under § 1101(a)(43)(G),” which is “a taking of property or an exercise of control over property without consent with the criminal intent to deprive the owner of rights and benefits of...