U.S. v. Cervantes-Blanco

• Decision Date: 12 October 2007
• Docket Number: No. 06-50738.,06-50738.
• Citation: 504 F.3d 576
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jorge CERVANTES-BLANCO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

504 F.3d 576

UNITED STATES of America, Plaintiff-Appellee, v. Jorge CERVANTES-BLANCO, Defendant-Appellant.

No. 06-50738.

United States Court of Appeals, Fifth Circuit.

October 12, 2007.

Joseph H. Gay, Jr., Mark Randolph Stelmach, Asst. U.S. Attys., Angela S. Raba (argued), San Antonio, TX, for U.S.

Judy Fulmer Madewell (argued), Henry Joseph Bemporad, Fed. Pub. Def., San Antonio, TX, for Defendant-Appellant.

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

Before DENNIS, CLEMENT and PRADO, Circuit Judges.

PRADO, Circuit Judge:

Defendant-Appellant Jorge Cervantes-Blanco ("Cervantes") appeals the sentence that the district court imposed after he pleaded guilty to illegal reentry after deportation in violation of 8 U.S.C. § 1326(a). Over Cervantes's objection, the district court enhanced his offense level by sixteen levels based on its conclusion that Cervantes's prior Colorado conviction for attempted second-degree kidnapping was a conviction for a crime of violence within the meaning of section 2L1.2 of the United States Sentencing Guidelines. Cervantes now appeals this enhancement. For the reasons that follow, we vacate Cervantes's sentence and remand for resentencing.

I. FACTUAL AND PROCEDURAL BACKGROUND

Cervantes pleaded guilty to a one-count indictment charging him with being in the United States unlawfully after removal, in violation of 8 U.S.C. § 1326(a). The presentence report recommended that Cervantes receive a sixteen-level sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) for his prior Colorado conviction for attempted second-degree kidnapping. Cervantes objected to this enhancement on the basis that his prior offense did not constitute a crime of violence under the Guidelines. Citing Apprendi v. New Jersey, 530 U.S. 466, 489, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Cervantes further objected that an enhancement that resulted in a sentence beyond the statutory maximum violated due process. Cervantes also raised a challenge to the application of the Guidelines based on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The district court overruled these objections and sentenced Cervantes to seventy-seven months' imprisonment.

Cervantes appealed to this court. We rejected Cervantes's Apprendi challenge, noting that his argument was foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). United States v. Cervantes-Blanco, 170 Fed.Appx. 875, 876 (5th Cir. 2006) (unpublished). We did not address Cervantes's argument that his prior conviction did not qualify as a conviction for a crime of violence; instead, we vacated Cervantes's sentence on the basis of the district court's Fanfan error and remanded for resentencing. Id. at 876-77; see United States v. Booker, 543 U.S. 220, 267-68, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

On remand, treating the Guidelines as advisory, the district court again sentenced Cervantes to seventy-seven months' imprisonment. Cervantes filed this timely appeal. On appeal, Cervantes renews his claim that the district court committed error by classifying his Colorado attempted second-degree kidnapping offense as a crime of violence, and he also renews his Apprendi objection.

II. JURISDICTION AND STANDARD OF REVIEW

Because this is an appeal from a final judgment of a district court in a criminal case, we have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. The district court's characterization of Cervantes's prior conviction is a question of law that we review de novo. United States v. Villegas, 404 F.3d 355, 359 (5th Cir.2005); United States v. Calderon-Pena, 383 F.3d 254, 256 (5th Cir. 2004) (en banc).

III. ANALYSIS

A. Cervantes's Colorado conviction for attempted second-degree kidnapping does not qualify as a conviction for a crime of violence under § 2L1.2

For violations of 8 U.S.C. § 1326, section 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines provides for a sixteen-level increase to the defendant's base offense level where the defendant was previously deported following a conviction for a felony that is a crime of violence. The Guidelines commentary defines a crime of violence as (1) any of a list of enumerated offenses, which include "kidnapping," or (2) "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).¹

In 1999, Cervantes was convicted in Colorado state court of attempted second-degree kidnapping in violation of Colorado Revised Statutes § 18-3-302. In analyzing whether this conviction qualifies as a conviction for a crime of violence, we look to the particular subdivision of the statute under which Cervantes was convicted. United States v. Fierro-Reyna, 466 F.3d 324, 327 (5th Cir.2006). The parties stated in their briefs and at oral argument that Cervantes was convicted under § 18-3-302(1), which states,

Any person who knowingly seizes and carries any person from one place to another, without his consent and without lawful justification, commits second degree kidnapping.

COLO.REV.STAT. § 18-3-302(1) (1999). This court's analysis is not affected by the fact that Cervantes was convicted of attempted second-degree kidnapping rather than the completed offense. See U.S.S.G. § 2L1.2 cmt. n. 5; United States v. Gonzalez-Ramirez, 477 F.3d 310, 313 (5th Cir.2007).

1. Use of force as an element

Cervantes argues that his second-degree kidnapping offense does not qualify as a crime of violence under § 2L1.2(b)(1)(A)(ii). He first maintains that his offense did not have "as an element the use, attempted use, or threatened use of physical force against the person of another." See U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii). Quoting Calderon-Pena, 383 F.3d at 260, Cervantes argues that "[i]f any set of facts would support a conviction without proof [of force]," then force "most decidedly is not an element—implicit or explicit—of the crime." Accordingly, Cervantes argues that a conviction under Colorado Revised Statutes § 18-3-302(1) does not necessarily require the use, attempted use, or threatened use of physical force against the person of another.

Cervantes points to Colorado v. Powell, 716 P.2d 1096, 1102 (Colo.1986), where the Colorado Supreme Court, in holding that language in an earlier version of § 18-3-302(1) requiring the seizure to be "knowingly, forcibly, or otherwise" was unconstitutionally vague, stated that there was not "any indication of legislative intent that `forcibly' must be an element of second degree kidnapping."<sup>2</sup> Cervantes also notes that in Colorado v. Metcalf, 926 P.2d 133, 137 (Colo.Ct.App.1996), the Colorado court of appeals, interpreting § 18-3-302(1), held that "the word `seize' encompasses a mere taking." Cervantes further points out that in Colorado v. Maass, 981 P.2d 177, 185 (Colo.Ct.App.1998), the court of appeals held that "a victim who is taken by deceit has been `seized' for purposes of a charge of second degree kidnapping."

The government does not contend that Cervantes's conviction for second-degree kidnapping constitutes a crime of violence on the basis that it "has as an element the use, attempted use, or threatened use of physical force against the person of another." Rather, the government puts forth the sole argument that Cervantes's offense qualifies as the enumerated offense of "kidnapping." Because Cervantes's arguments are persuasive, and because the government makes no attempt to argue that Cervantes's offense has the use of force as an element, we decline to uphold Cervantes's sentence on this ground.

2. Enumerated offense of "kidnapping"

a. Summary of parties' arguments

Cervantes argues that his conviction does not qualify as a conviction for the enumerated offense of "kidnapping" because the Colorado second-degree kidnapping statute is broader than the offense contemplated in the Guidelines. Citing United States v. Dominguez-Ochoa, 386 F.3d 639, 642-46 (5th Cir.2004), Cervantes maintains that this circuit defines enumerated offenses according to their "generic, contemporary meaning" and that if the generically defined offense involves a narrower range of conduct than the statute of conviction, the conviction does not qualify as an enumerated offense. He asserts that under this court's recent decisions in United States v. Gonzalez-Ramirez, 477 F.3d 310, 318-19 (5th Cir.2007), and United States v. Iniguez-Barba, 485 F.3d 790, 791-93 (5th Cir.2007), the generic definition of kidnapping contains three requirements: (1) knowing removal or confinement, (2) substantial interference with the victim's liberty, and (3) force, threat, or fraud.³

Cervantes contends that the Colorado second-degree kidnapping statute includes, at most, the first and third of these requirements, because it does not explicitly require a substantial interference with the victim's liberty. He argues that this court intended the "substantial interference" requirement to have significance apart from the other two requirements. He also maintains that if the first and third requirements were deemed sufficient to constitute "kidnapping," kidnapping for purposes of § 2L1.2 would encompass offenses as dissimilar as Colorado's first-degree kidnapping statute, COLO.REV.STAT. ANN. § 18-3-301 (2007), punishable by a minimum term of life imprisonment, and Arizona's unlawful imprisonment statute, ARIZ.REV.STAT. ANN. § 13-1303 (2007), punishable by a maximum of eighteen months' imprisonment. He claims that such a result would be inconsistent with the Sentencing Guidelines' goals of uniformity and proportionality.

The government contends that Cervantes's second-degree kidnapping conviction does qualify as the enumerated offense of "kidnapping." Quoting United States v. Izaguirre-Flores, 405 F.3d 270, 275 (5th Cir.2005), the government maintains that this court uses a "common sense...