U.S. v. Echeverria-Gomez

• Decision Date: 08 December 2010
• Docket Number: No. 09-50261,09-50261
• Citation: 627 F.3d 971
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Julio ECHEVERRIA-GOMEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

627 F.3d 971

UNITED STATES of America, Plaintiff-Appellee,
v.
Jose Julio ECHEVERRIA-GOMEZ, Defendant-Appellant.

No. 09-50261.

United States Court of Appeals,
Fifth Circuit.

Dec. 8, 2010.

627 F.3d 972

Joseph H. Gay, Jr., Elizabeth Berenguer, Asst. U.S. Attorneys, San Antonio, TX, for Plaintiff-Appellee.

Alex A. Melendez, El Paso, TX, for Defendant-Appellant.

Jose Julio Echeverria-Gomez, Beaumont, TX, pro se.

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

Before JOLLY, HIGGINBOTHAM and SMITH, Circuit Judges.

PER CURIAM:

Jose Julio Echeverria-Gomez appeals the forty-eight-month sentence he received after pleading guilty to a charge of illegally reentering the United States following deportation in violation of 8 U.S.C. § 1326. Echeverria-Gomez argues that the district court committed plain error by treating his prior conviction for first-degree burglary under California Penal Code §§ 459 & 460(a) as a conviction for an aggravated felony within the meaning of § 2L1.2(b)(1)(C) of the United States Sentencing Guidelines. We conclude that the district court was correct to apply the § 2L1.2(b)(1)(C) sentence enhancement, so we affirm Echeverria-Gomez's sentence.

I.

Echeverria-Gomez waded across the Rio Grande River and entered the United States in El Paso, Texas, on December 3, 2008. A United States Customs and Border Protection Agent stopped him for questioning. Echeverria-Gomez admitted to being a citizen and national of Mexico without immigration documents allowing him to legally enter or remain in the United States. The agent arrested him and subsequently discovered that Echeverria-Gomez had been removed from the United States less than two months earlier. The government charged him with illegally reentering the United States following deportation in violation of 8 U.S.C. § 1326(a).¹ Under the statute's corresponding Sentencing Guidelines provision,

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§ 2L1.2, the offense of illegal reentry carries a base offense level of eight.² Because Echeverria-Gomez's removal followed his conviction by the state of California for committing the crime of first-degree burglary, the government sought an enhanced penalty.³

The district court concluded that Echeverria-Gomez's first-degree-burglary conviction was a conviction for an "aggravated felony" within the meaning of § 2L1.2(b)(1)(C) and increased his base offense level by eight levels. This enhanced base offense level combined with Echeverria-Gomez's acceptance of responsibility and criminal-history score to yield an advisory sentencing range under the Guidelines of thirty-three to forty-one months. Echeverria-Gomez did not object to the district court's calculation of his Guidelines sentencing range. The district court opted to vary upwardly from the Guidelines and sentenced Echeverria-Gomez to a term of forty-eight months imprisonment and three years of supervised release.

II.

On appeal, Echeverria-Gomez contends the district court erred by enhancing his sentence under § 2L1.2(b)(1)(C) based on his California conviction for first-degree burglary. Because Echeverria-Gomez did not object to the district court's decision to apply the § 2L1.2(b)(1)(C) sentence enhancement, we review that decision only for plain error.⁴ Plain-error review allows us to correct an error to which the defendant failed to object in the district court if the error is plain, affects the defendant's substantial rights, and seriously affects the fairness, integrity, or public reputation of judicial proceedings.⁵ We conclude that the necessary predicate to plain-error review is missing here, as the district court did not err by enhancing Echeverria-Gomez's sentence.⁶

A.

Section 2L1.2(b)(1)(C) of the Sentencing Guidelines provides for an eight-level increase to the base offense level of any defendant who "was previously deported, or unlawfully remained in the United States, after ... a conviction for an aggravated

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felony."⁷ As used in § 2L1.2(b)(1)(C), an aggravated felony "has the meaning given that term in 8 U.S.C. § 1101(a)(43)."⁸ In turn, § 1101(a)(43)(F) defines an aggravated felony as "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year."⁹ And under 18 U.S.C. § 16:

The term "crime of violence" means-
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Therefore, we must consider whether Echeverria-Gomez's conviction of burglary first degree satisfies the definition of either § 16(a) or § 16(b).

Echeverria-Gomez's conviction does not qualify as a crime of violence under § 16(a). Under California law, the crime of first-degree burglary does not have as an element the use, attempted use, or threatened use of physical force against the person or property of another.¹⁰ Therefore, the propriety of the district court's decision to enhance Echeverria-Gomez's sentence under § 2L1.2(b)(1)(C) turns on whether first-degree burglary, as defined by the California Penal Code, is a "crime of violence" within the meaning of 18 U.S.C. § 16(b).

This Court uses a categorical approach to determine whether a defendant's prior conviction is a conviction for a "crime of violence" under 18 U.S.C. § 16(b).¹¹ "This means that the particular facts of the defendant's prior conviction do not matter.... The proper inquiry is whether a particular defined offense, in the abstract, is a crime of violence under 18 U.S.C. § 16(b)."¹² The categorical approach thus focuses on the statutory elements of the prior offense, including any judicial gloss that the courts charged with

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interpreting the statute have placed on those elements.¹³ If it is possible to identify the crime of conviction based solely on the language of the statute, we do so.¹⁴ Only if the "defendant's prior conviction is under a statute that identifies several separate offenses, some violent and others not," will we "apply the modified categorical method and look to [the indictment] to determine 'which statutory phrase was the basis for the conviction.' "¹⁵

Echeverria-Gomez was indicted for committing "first degree residential burglary" and convicted of "burglary first degree." Under California law, a person commits second-degree burglary if he enters any structure with the intent to commit larceny or a felony.¹⁶ A person commits first-degree burglary only if he commits "burglary of an inhabited dwelling house." ¹⁷ A dwelling house is "a structure where people ordinarily live." ¹⁸ A dwelling house is inhabited if it is "currently being used for dwelling purposes, whether occupied or not."¹⁹ A conviction for first-degree burglary under California Penal Code §§ 459 & 460(a) thus requires proof of a total of three elements: (1) entry into a dwelling house; (2) that was inhabited at the time of the entry; (3) with the intent to commit larceny or a felony.²⁰

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B.

We hold that first-degree burglary under California Penal Code §§ 459 & 460(a) is a "crime of violence" within the meaning of 18 U.S.C. § 16(b). California law founds its distinction between first- and second-degree burglary "upon the risk of personal injury involved," and "the higher degree of the burglary law is intended to prevent those situations which are most dangerous, most likely to cause personal injury."²¹ As the Supreme Court of California has explained:

Burglary laws are based primarily upon a recognition of the dangers to personal safety created by the usual burglary situation-the danger that the intruder will harm the occupants in attempting to perpetrate the intended crime or to escape and the danger that the occupants will in anger or panic react violently to the invasion, thereby inviting more violence. The laws are primarily designed, then, ... to forestall the germination of a situation dangerous to personal safety.... [E]ntry into an inhabited structure is recognized as most dangerous and most likely to create personal injury, justifying assignment of the greater degree [under] § 460....²²

Because entry into an inhabited dwelling house is a statutory element of the offense of first-degree burglary in California, the offense is by its nature one that involves a substantial risk that physical force against the person or property of another will be used in the course of committing the offense.

We find direct support for our holding in the Ninth Circuit's decision United States v. Becker.²³ There, the Ninth Circuit also concluded that "California convictions for first-degree burglary fit 18 U.S.C. § 16(b)'s ... statutory definition of a 'crime of violence.' "²⁴ The court reasoned that "[a]ny time a burglar enters a dwelling with felonious or larcenous intent there is a risk that in the course of committing the crime he will encounter one of its lawful occupants, and use physical force against that occupant either to accomplish his illegal purpose or to escape apprehension." ²⁵

Supreme Court precedent interpreting an analogous provision of the Armed Career Criminal Act ("the ACCA") further undergirds our conclusion that California's first-degree-burglary offense is a "crime of violence" under 18 U.S.C. § 16(b). In James v. United States,²⁶ the Court held that an attempted burglary conviction under Florida law was a violent felony within the meaning of a clause in the ACCA that defines a violent felony as a crime that " 'involves conduct that presents a serious

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risk of physical injury to another.' "²⁷ The Court emphasized that "the proper inquiry" under the categorical approach "is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to...