U.S. v. Gonzalez-Lopez, 02-2836.

• Decision Date: 14 July 2003
• Docket Number: No. 02-2836.,02-2836.
• Citation: 335 F.3d 793
• Parties: UNITED STATES of America, Appellee, v. Roberto GONZALEZ-LOPEZ, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

335 F.3d 793

UNITED STATES of America, Appellee, v. Roberto GONZALEZ-LOPEZ, Appellant.

No. 02-2836.

United States Court of Appeals, Eighth Circuit.

Submitted: February 11, 2003.

Filed: July 14, 2003.

James Whalen, argued, Des Moines, IA, for appellant.

Edwin F. Kelly, argued, AUSA, Des Moines, IA, for appellee.

Before HANSEN,¹ Chief Judge, LOKEN and SMITH, Circuit Judges.

HANSEN, Circuit Judge.

Roberto Gonzalez-Lopez appeals the 57-month sentence imposed by the district court² following Gonzalez-Lopez's conviction for illegal reentry by a deported alien in violation of 8 U.S.C. § 1326(a) & (b)(2) (2000). Specifically, Gonzalez-Lopez argues that his prior state court conviction for Automobile Homicide was not a "crime of violence" for purposes of United States Sentencing Guideline (USSG) Manual § 2L1.2(b)(1)(A)(ii) (2001) and that the court therefore erred in imposing a 16-level enhancement to his offense level. He also takes issue with the court's refusal to grant a downward departure. We affirm Gonzalez-Lopez's sentence.

I.

Gonzalez-Lopez was indicted on the charge of illegal reentry by a deported alien on January 24, 2002. Gonzalez-Lopez had been deported on three prior occasions: November 22, 1995, December 17, 1999, and January 25, 2000. The December 17, 1999, deportation followed Gonzalez-Lopez's conviction for Automobile Homicide in Utah, for which he received an indeterminate sentence not to exceed five years.

Gonzalez-Lopez pleaded guilty to the illegal reentry charge and the district court concluded at sentencing that Gonzalez-Lopez was subject to the statutory enhancement provided by 8 U.S.C. § 1326(b)(2) (increasing statutory maximum sentence to 20 years for reentry after commission of aggravated felony). In applying the Sentencing Guidelines, the court determined that Automobile Homicide was a crime of violence and increased Gonzalez-Lopez's offense level by 16 levels pursuant to USSG § 2L1.2(b)(1)(A)(ii). The court also declined to depart downward from the enhanced sentencing range so established, rejecting Gonzalez-Lopez's argument that his conviction for Automobile Homicide fell outside the heartland of cases fitting the definition of "crime of violence." The court sentenced Gonzalez-Lopez to 57 months of imprisonment, and Gonzalez-Lopez appeals that sentence.

II.

We review the district court's interpretation of the Sentencing Guidelines de novo. United States v. Gomez-Hernandez, 300 F.3d 974, 977 (8th Cir.2002), cert. denied, 537 U.S. 1138, 123 S.Ct. 929, 154 L.Ed.2d 831 (2003). The primary issue in this case is whether Gonzalez-Lopez's prior conviction for Automobile Homicide is a "crime of violence" as defined in USSG § 2L1.2. Because the definition of "crime of violence" was recently amended for purposes of the guideline, we review the prior definition and the reason for its amendment to better inform our analysis.

A defendant found guilty of illegal reentry following deportation is sentenced pursuant to § 2L1.2 of the Sentencing Guidelines, which provides for a base offense level of 8. A defendant whose previous deportation followed conviction for specific types of crimes receives an enhancement to his base offense level depending on the nature of the previous conviction. Prior to November 1, 2001, a defendant with a prior conviction for any aggravated felony received a 16-level enhancement. See USSG § 2L1.2 (2000). An aggravated felony was defined by reference to 8 U.S.C. § 1101(a)(43), see USSG § 2L1.2 comment. (n.1) (2000), which included "a crime of violence (as defined in section 16 of title 18...) for which the term of imprisonment is at least one year." 8 U.S.C. § 1101(a)(43)(F). Section 16 of Title 18 in turn defines "crime of violence" as

(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, [the "use" prong] 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 [the "other" prong].

18 U.S.C. § 16. Thus, before the amendment, a prior conviction for an offense that met either subsection (a) or (b) subjected the defendant to a 16-level enhancement.

The Sentencing Commission significantly rewrote section 2L1.2 in 2001, and it now provides "a sliding scale of enhancements from eight to sixteen levels based on the seriousness of the [prior] aggravated felony as defined in the amended guideline." Gomez-Hernandez, 300 F.3d at 976 (discussing change in guideline). The amendment was a response to concern within the legal community that the 16-level enhancement that applied to all aggravated felonies resulted in disproportionate penalties. See USSG Supp. to App. C, amend. 632. Because the prior guideline incorporated the broad definition of aggravated felony found in 8 U.S.C. § 1101(a)(43), "a defendant who previously was convicted of murder, for example, receive[d] the same 16-level enhancement as a defendant previously convicted of simple assault." Id.

"[T]he Commission intended the guideline amendment to break up aggravated felonies by providing the sixteen-level increase only in the case of the more serious offenses ..., while providing lesser penalties for less serious, but still aggravated, offenses...." United States v. Caicedo-Cuero, 312 F.3d 697, 711 (5th Cir.2002) (discussing the amendments to USSG § 2L1.2), cert. denied, ___ U.S. ___, 123 S.Ct. 1948, 155 L.Ed.2d 864 (2003). To achieve this result, "the Commission developed two categories of crimes of violence..., separating those acts that are more serious from those that are less so." Id. It included in the application notes a narrow definition of "crime of violence" to which the 16-level enhancement applied. USSG § 2L1.2, comment. (n.1(B)(ii)). The Commission continued to define an "aggravated felony," which now results in an eight-level enhancement, by reference to the § 1101(a)(43) definition, which includes the broader definition of crime of violence. USSG § 2L1.2(b)(1)(C) & comment. (n.2). The narrower definition (resulting in a 16-level enhancement if applicable) contained in the application notes states that "crime of violence"

(I) means an 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, and

(II) includes murder, manslaughter, kidnaping, aggravated assault, forcible sex offenses[ ], robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.

USSG § 2L1.2, comment. (n.1(B)(ii)).

Subsection (I) of the amended guideline definition of crime of violence is identical to the Title 18 U.S.C. § 16(a) definition except that the guideline definition applies only to physical force used against the person, but not the property, of another. Subpart (II) of the guideline definition is significantly different from 18 U.S.C. § 16(b), however, in that it contains a list of specific crimes and does not include § 16(b)'s catchall phrase "any other offense... that by its nature involves a substantial risk that physical force may be used... in the course of committing the offense"-the "other" prong. Thus, after the amendment, offenses that meet the "other" prong of § 16(b), but do not meet the "use" prong of the guideline's subsection (I) or are not specifically listed in the guideline's subsection (II), subject the defendant to an 8-level enhancement rather than the 16-level enhancement under the prior guideline.

Although most cases addressing the issue of whether a negligent homicide is a crime of violence in varying contexts have relied on the "other" prong in the relevant crime of violence definition, see, e.g., Omar v. INS, 298 F.3d 710, 718-20 (8th Cir.2002) (holding that the Minnesota offense of criminal vehicular homicide is a crime of violence under 18 U.S.C. § 16(b)) and cases cited therein, some courts have addressed the issue of whether a negligent homicide offense meets the "use" prong of the definition, with a resulting circuit conflict. The conflict arises over the issue of whether or not the "use" prong contains an element of intent-must the offense contemplate an intentional use of force. Compare United States v. Vargas-Duran, 319 F.3d 194, 198-99 (5th Cir.2003) (holding that crime of violence under the current § 2L1.2 definition of crime of violence did not require an intent to use force and the defendant's prior conviction for intoxicated assault met the "use" prong of the guideline definition), United States v. Santana-Garcia, No. 98-2234, 211 F.3d 1271, 2000 WL 491510, at *2-3 (6th Cir. Apr.18, 2000) (unpublished) (holding that an Indiana conviction for vehicular homicide is a crime of violence under both prongs of § 16), and Le v. U.S. Atty. Gen., 196 F.3d 1352, 1354 (11th Cir.1999) (holding that the crime of driving under the influence with serious bodily injury is a crime of violence under § 16(a) because "[c]learly, serious bodily injury is included as an element of this offense," which element "includes the actual use of physical force") with Bazan Reyes v. INS, 256 F.3d 600, 609 (7th Cir. 2001) (holding that the "use" prong contained in § 16(a) required an intentional use of force and therefore a defendant's prior conviction for homicide by intoxicated use of a vehicle is not a crime of violence under § 16(a)) and United States v. Trinidad-Aquino, 259 F.3d 1140, 1145 (9th Cir.2001) (noting that by employing the term "use," both prongs of § 16 require some volitional act-intentional or at least reckless-and that a prior conviction for the offense of driving while intoxicated resulting in physical injury to another, for which a defendant could be convicted based on the defendant's mere negligence, did not provide sufficient mens rea to meet the volitional element imposed by the term "use"). The Third Circuit has stated...