U.S. v. De La Fuente

• Decision Date: 29 December 2003
• Docket Number: No. 03-50056.,03-50056.
• Citation: 353 F.3d 766
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jacob DE LA FUENTE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

353 F.3d 766

UNITED STATES of America, Plaintiff-Appellee, v. Jacob DE LA FUENTE, Defendant-Appellant.

No. 03-50056.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 5, 2003 — Pasadena, California.

Filed December 29, 2003.

COPYRIGHT MATERIAL OMITTED

Maria E. Stratton, Federal Public Defender, Los Angeles, California, for the defendant-appellant.

Rodrigo A. Castro-Silva, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; George H. King, District Judge, Presiding. D.C. No. CR-02-00326-GHK.

Before: Betty B. FLETCHER, Pamela Ann RYMER, and Susan P. GRABER, Circuit Judges.

BETTY B. FLETCHER, Circuit Judge:

Jacob De La Fuente pled guilty to two counts of mailing threats to injure in violation of 18 U.S.C. § 876(c). Pursuant to the Mandatory Victims Restitution Act of 1996 (MVRA), 18 U.S.C. § 3663A, the district court ordered De La Fuente to pay $39,492.56 in total restitution to the United States Postal Service (USPS), the Los Angeles County Fire Department's Hazardous Materials Division (LA HazMat) and the Los Angeles County Health Department (LAHD). De La Fuente challenges the district court's restitution order on appeal. He argues that the MVRA does not apply because his was not a "crime of violence." He also argues that USPS, LA HazMat and LAHD do not qualify as victims entitled to restitution under the MVRA. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I.

On October 15 and 16, 2001, De La Fuente mailed two letters that contained a white powder and that included notes with the following text: "Surprise Anthrax Yor[sic] it Die Bitch." De La Fuente sent his first letter to Diane Olin, a former boss. He sent his second letter to Laura Caudillo, a former girlfriend.

A USPS employee at a mail processing and distribution center in California found the letter addressed to Laura Caudillo when it broke open during processing. Acting in response to the white powder that spilled out of De La Fuente's letter, USPS evacuated 229 employees from its processing and distribution center, lost 1,374 employee work hours, and incurred cleanup costs, for a total monetary loss of $37,550. Three LA HazMat officials also spent six hours responding to the incident, for a total LA HazMat loss of $1,609.92. LAHD tested De La Fuente's letters for anthrax; its testing services were valued at $332.64. LAHD's tests established that the white powder in De La Fuente's letters was not anthrax.

On March 29, 2002, the government filed an indictment charging De La Fuente with two counts of mailing threats to injure in violation of 18 U.S.C. § 876. After De La Fuente pled guilty to both counts, the district court sentenced him to thirty-seven months' imprisonment and three years' supervised release. The district court also ordered De La Fuente to pay $37,550 in restitution to USPS, $1,609.92 to LA HazMat and $332.64 to LAHD.

II.

Congress passed the MVRA in 1996 as a supplement to the Victim and Witness Protection Act of 1982 (VWPA), 18 U.S.C. § 3663. See United States v. Grice, 319 F.3d 1174, 1177 (9th Cir.) (per curiam), cert. denied, ___ U.S. ___, 123 S.Ct. 2625, 156 L.Ed.2d 641 (2003). Restitution under the VWPA is discretionary, and the district court must consider a defendant's resources when deciding if restitution is appropriate. 18 U.S.C. § 3663(a)(1)(A), (B). The MVRA eliminates district courts' discretion with respect to restitution for certain classes of crimes. 18 U.S.C. § 3663A(a)(1). If the MVRA applies, a restitution order is mandatory regardless of the defendant's ability to pay. Id; see also Grice, 319 F.3d at 1177.

The MVRA applies, inter alia, to "crime[s] of violence," as defined in 18 U.S.C. § 16, if an "identifiable victim or victims has suffered a physical injury or pecuniary loss." 18 U.S.C. § 3663A(c)(1). On appeal, De La Fuente argues that his was not a crime of violence subject to the MVRA.

A.

Because De La Fuente challenges the district court's crime-of-violence determination for the first time on appeal,¹ we review that determination only for plain error. Fed.R.Crim.P. 52(b); see also United States v. Zink, 107 F.3d 716, 718 (9th Cir.1997) (applying plain error standard in restitution context); United States v. Johnson, 183 F.3d 1175, 1178-79 (10th Cir.1999) (applying plain error standard to crime-of-violence determination made under MVRA). An error is plain if it is clear or obvious under current law. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). An error cannot be plain where there is no controlling authority on point and where the most closely analogous precedent leads to conflicting results. See United States v. Thompson, 82 F.3d 849, 855-56 (9th Cir. 1996). Plain error merits reversal if it affected the defendant's substantial rights and if it seriously affected the fairness, integrity or public reputation of judicial proceedings. Fed.R.Crim.P. 52(b); Olano, 507 U.S. at 735-36, 113 S.Ct. 1770.

B.

A crime qualifies as a "crime of violence" if it is

(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. 18 U.S.C. § 16. In this case, only § 16(a) is potentially applicable. The crime of sending a threat to injure is complete when the perpetrator places his threatening letter in the mail, and there is little risk of physical force being used in the course of writing or mailing a threatening letter. See United States v. Nilsen, 967 F.2d 539, 543 (11th Cir.1992) (per curiam) (crime of mailing threatening letters with intent to extort a thing of value, 18 U.S.C. § 876(b), was complete when defendant put letters in the mail).

In deciding whether the district court committed plain error in determining that the crime of mailing a threat to injure is a crime of violence under § 16(a), we apply the categorical approach set out in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See United States v. Pimentel-Flores, 339 F.3d 959, 967-68 (9th Cir.2003) (applying Taylor's categorical approach to the 16-level crime-of-violence enhancement in U.S.S.G. § 2L1.2). We have not yet applied Taylor in the specific context of the MVRA, but the text of § 16 mandates a categorical inquiry because it directs the court's attention to the "element[s]" and "nature" of the defendant's crime. See United States v. David H., 29 F.3d 489, 493-94 (9th Cir.1994) (per curiam) (interpreting materially identical wording in 18 U.S.C. § 5032); see also United States v. Hernandez-Castellanos, 287 F.3d 876, 879 (9th Cir.2002) (applying categorical approach to crime-of-violence determination made under § 16); Sareang Ye v. INS, 214 F.3d 1128, 1133 (9th Cir.2000) (same).

When applying Taylor's categorical approach, we first "look to the statutory definition of the crime, rather than to the defendant's specific conduct." United States v. Sandoval-Venegas, 292 F.3d 1101, 1106 (9th Cir.2002) (quoting United States v. Casarez-Bravo, 181 F.3d 1074, 1077 n. 1 (9th Cir.1999)). If the statute reaches both conduct that would constitute a crime of violence and conduct that would not, we turn to a modified categorical approach, which allows us to examine documentation or judicially noticeable facts that clearly establish that the defendant's actual offense qualifies as a crime of violence. See id.

C.

The two elements of the crime of mailing a threat to injure are that (1) the defendant's letter contained a threat to injure and (2) that the defendant knowingly caused the threatening letter to be deposited in the mail. 18 U.S.C. § 876(c);² see also United States v. Sirhan, 504 F.2d 818, 819 (9th Cir.1974) (per curiam). Although we have never decided whether the threat to injure required by § 876(c) satisfies the "use, attempted use, or threatened use of physical force" requirement in § 16(a), we have held that a criminal statute requiring the creation and use of a "fear of ... unlawful injury" includes the element of a "threatened use of physical force." See David H., 29 F.3d at 494 (explaining that California's robbery statute requiring the use of either "force" or "fear" satisfies the use, attempted use or threatened use of physical force requirement in § 16(a) where "fear" is defined as "fear of an unlawful injury to the person"); see also United States v. Ceron-Sanchez, 222 F.3d 1169, 1173 (9th Cir.2000) (holding that provision of Arizona's assault statute requiring that the defendant intentionally place the victim in "reasonable apprehension of imminent physical injury" satisfies the "use, attempted use, or threatened use of physical force" requirement in § 16(a)). Because the threat of injury required for a conviction in this case is not materially different from the fear or apprehension of injury required by the statutes at issue in David H. and Ceron-Sanchez, the district court did not plainly err in deciding that the elements of De La Fuente's crime satisfy § 16(a)'s "threatened use of physical force" requirement.³

De La Fuente argues that his own offense conduct undermines our analysis because a threat of anthrax poisoning is not a threat of forceful conduct, as the term "force" ordinarily would be understood. We are not persuaded. Anthrax is a physical substance that causes injury to the human body, and De La Fuente's letters clearly threatened death by way of physical contact with anthrax spores. The injury and pain caused by anthrax infection may not always be immediately obvious to the person exposed, but the bacteria's physical effect on the body is no less violently forceful than the effect of a kick or blow.⁴...