U.S. v. Cornelio-Pena

• Citation: 435 F.3d 1279
• Decision Date: 30 January 2006
• Docket Number: No. 04-3478.,04-3478.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raul CORNELIO-PENA, also known as Raul Puente-Cuevas, Defendant-Appellant.

435 F.3d 1279

UNITED STATES of America, Plaintiff-Appellee, v. Raul CORNELIO-PENA, also known as Raul Puente-Cuevas, Defendant-Appellant.

No. 04-3478.

United States Court of Appeals, Tenth Circuit.

January 30, 2006.

COPYRIGHT MATERIAL OMITTED

Ronald E. Wurtz, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with him on the brief), Topeka, Kansas, for Defendant-Appellant.

James A. Brown, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with him on the brief), Topeka, Kansas, for Plaintiff-Appellee.

Before KELLY, BALDOCK, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. Introduction

Defendant-Appellant Raul Cornelio-Pena was convicted in the United States District Court for the District of Kansas of illegal reentry following deportation. The district court sentenced him to fifty-seven months' custody, based in part on a sixteen-level enhancement for prior deportation after a conviction for a felony crime of violence. The district court reasoned that solicitation to commit burglary of a dwelling is a crime of violence under U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii) (2003) ("USSG" or "Guidelines"). The district court also imposed an identical alternative sentence of fifty-seven months in the event the Guide lines were declared unconstitutional. Cornelio-Pena appealed his sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Because solicitation to commit burglary of a dwelling is a crime of violence under USSG § 2L1.2, and the district court's imposition of an alternative sentence rendered its non-constitutional Booker error harmless, we affirm.

II. Background

In 1992, Cornelio-Pena, a citizen of Mexico, was convicted in Arizona of solicitation to commit burglary in the second degree.¹ He received three years' probation and was deported. Subsequently, Cornelio-Pena returned to the United States and was charged with, and pleaded guilty to, illegal reentry following deportation in violation of 8 U.S.C. § 1326(a). At sentencing, the district court applied § 2L1.2 of the November 5, 2003 version of the Guidelines. Cornelio-Pena's base offense level was eight. The district court applied a sixteen-level enhancement pursuant to USSG § 2L1.2(b)(1)(A)(ii), reasoning that solicitation of burglary is a crime of violence. The district court also applied a three-level downward adjustment for acceptance of responsibility and entry of a guilty plea, bringing Cornelio-Pena's adjusted offense level to twenty-one. Cornelio-Pena's criminal history category was determined to be IV, resulting in a Guidelines range of fifty-seven to seventy-one months. The district court sentenced Cornelio-Pena to fifty-seven months' custody. Recognizing the uncertainty surrounding the constitutionality of the Guidelines at the time of Cornelio-Pena's sentencing, the district court also announced an alternative sentence of fifty-seven months.

III. Discussion

A. Crime of Violence

Cornelio-Pena first argues the district court erred in concluding solicitation of burglary is a crime of violence under USSG § 2L1.2(b)(1)(A)(ii). We review a district court's interpretation of the Guidelines de novo. United States v. Torres-Ruiz, 387 F.3d 1179, 1180-81 (10th Cir.2004). "Generally speaking, we interpret the Sentencing Guidelines according to accepted rules of statutory construction. In interpreting a guideline, we look at the language in the guideline itself, as well as at the interpretative and explanatory commentary to the guideline provided by the Sentencing Commission. Commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline." Id. at 1181 (citations, quotations, and alteration omitted).

It is uncontested that burglary of a dwelling is a crime of violence under USSG § 2L1.2(b)(1)(A)(ii). We must decide whether solicitation to commit burglary of a dwelling is also a crime of violence under this provision. This issue is one of first impression in the Courts of Appeals.

Section 2L1.2(b)(1)(A)(ii) of the Guidelines provides for a sixteen-level enhancement if the defendant was previously deported, or unlawfully remained in the United States, after a conviction for a felony crime of violence. "Crime of violence" is defined in the section's commentary as

any of the following: 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.

USSG § 2L1.2 cmt. application n. 1(B)(iii). Application Note 5 further provides that "[p]rior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses." Id. § 2L1.2 cmt. application n. 5.

Cornelio-Pena argues that because solicitation is not expressly mentioned in the application note, solicitation of a crime that otherwise meets the definition of "crime of violence" is not itself a crime of violence under the canon of statutory construction expressio unius est exclusio alterius (the expression of one thing is the exclusion of another). Cornelio-Pena cites United States v. Cardenas, in which this court held that 18 U.S.C. § 924(c) does not prohibit transportation of firearms. 864 F.2d 1528, 1534 (10th Cir.1989). In Cardenas, we noted that the statute at issue expressly prohibited only using or carrying a firearm during a drug trafficking offense. Id. Moreover, we found it persuasive that another provision of the same statute used the term "transport" in criminalizing the transportation of firearms in interstate commerce. Id. Thus, we concluded Congress knew how to use the term "transport," and Congress' failure to include the term in the relevant statutory provision indicated its intent not to prohibit the transportation of firearms during a drug trafficking offense. Id. at 1534.

The term "solicitation" is used throughout the Guidelines,² and thus it is clear the Sentencing Commission knew how to use the term. The Commission's failure to include solicitation in the application note in § 2L1.2, however, is not dispositive of the Commission's intent in this case. Unlike the statute in Cardenas, which expressly criminalized only using or carrying a firearm, the application note at issue here uses the term "include" before listing aiding and abetting, conspiracy, and attempt. USSG § 2L1.2 cmt. application n. 5. We must give effect to the term "include." See Chickasaw Nation v. United States, 534 U.S. 84, 94, 122 S.Ct. 528, 151 L.Ed.2d 474 (2001).

"Include" can be interpreted both as a word of illustrative application and as a word of limitation. Black's Law Dictionary 763 (6th ed.1990). The commentary to the Guidelines' general application principles, however, expressly states that "[t]he term `includes' is not exhaustive." USSG § 1B1.1 cmt. application n. 2. Thus, by using the term "include" in the application note, the Commission clearly expressed its intent that the offenses listed in the note were not exhaustive, and we do not apply expressio unius est exclusio alterius. Instead, based on the Commission's articulation, offenses similar to aiding and abetting, conspiring, and attempting to commit offenses that otherwise meet the definition of "crime of violence" are included in § 2L1.2(b)(1)(A)(ii).

Although no circuit has addressed the crime of solicitation under USSG § 2L1.2, several circuits have addressed solicitation under § 4B1.1, a similarly constructed provision of the Guidelines. Section 4B1.1 provides for sentencing enhancements for career offenders. A career offender is defined as a person who, inter alia, "has at least two prior felony convictions of either a crime of violence or a controlled substance offense." Id. § 4B1.1(a). Similar to the application note at issue in this case, the career offender provision contains an application note which states, "`[c]rime of violence' and `controlled substance offense' include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses." Id. § 4B1.2 cmt. application n. 1. In United States v. Shumate, the Ninth Circuit examined whether solicitation of delivery of marijuana qualifies as a controlled substance offense under the career offender provision. 329 F.3d 1026, 1028 (9th Cir.2003). The court reasoned that the omission of solicitation from the offenses listed in the application note was not legally significant because, under the Guidelines, the term "includes" is not exhaustive. Id. at 1030-31. Thus, the court concluded solicitation of delivery of marijuana is a controlled substance offense. Id.

The Sixth Circuit reached the opposite result in United States v. Dolt when it concluded that solicitation to traffic in cocaine is not a controlled substance offense under the career offender provision. 27 F.3d 235, 240 (6th Cir.1994). The court noted that "the fact that the Sentencing Commission did not include solicitation in its list of predicate crimes in [the application note] is evidence that it did not intend to include solicitation as a predicate offense for career offender status." Id. at 239. The court, however, did not address the use of the term "include" or the definition of that term provided in the Guidelines' general application principles. See Shumate, 329 F.3d at 1031.

Finally, the Second Circuit has implicitly concluded that because of the term "include," the list of offenses in the application note to the career offender provision is merely illustrative. United States v. Liranzo, 944 F.2d 73, 79 (2d Cir.1991). In Liranzo, the Second Circuit...