U.S. v. Hernandez-Castellanos

• Decision Date: 25 April 2002
• Docket Number: No. 01-10301.,01-10301.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Manuel HERNANDEZ-CASTELLANOS, aka Manuel Francisco Hernandez-Castellanos, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

287 F.3d 876

UNITED STATES of America, Plaintiff-Appellee, v. Manuel HERNANDEZ-CASTELLANOS, aka Manuel Francisco Hernandez-Castellanos, Defendant-Appellant.

No. 01-10301.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 10, 2002.

Filed April 25, 2002.

Douglas R. Zanes, Reyna & Zanes, Tucson, AZ, for the defendant-appellant.

Christina M. Cabanillas, Assistant United States Attorney, Tucson, AZ, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona, Frank R. Zapata, District Judge, Presiding. D.C. No. CR-00-1506-TRUC-FRZ.

Before BEEZER, THOMAS, and W. FLETCHER, Circuit Judges.

THOMAS, Circuit Judge.

Manuel Hernandez-Castellanos appeals the 46-month sentence he received after pleading guilty to illegal reentry in violation of 8 U.S.C. § 1326. He contends that the district court erred in concluding that his prior Arizona conviction for felony endangerment constitutes an aggravated felony and in refusing to depart downward. We lack jurisdiction to review the district court's discretionary decision not to depart downward, but we agree with Hernandez-Castellanos that felony endangerment under Arizona law is not, categorically, an aggravated felony. Accordingly, we reverse in part, dismiss in part, and remand for resentencing.

I

Hernandez-Castellanos, a citizen of Mexico, was arrested in Arizona and charged with illegal reentry after deportation in violation of 8 U.S.C. § 1326(a). He pled guilty. Over Hernandez-Castellanos's objection, the district court enhanced Hernandez-Castellanos's sentence on the ground that he had been convicted of an aggravated felony prior to being deported. See 8 U.S.C. § 1326(b)(2) (increasing the maximum sentence for illegal reentry if the defendant was convicted of an "aggravated felony" prior to being deported); U.S.S.G. § 2L1.2(b)(1)(A) (2000) (providing for a 16-level increase in illegal reentry's base offense level if the reentry occurred subsequent to an aggravated felony). The district court departed downward by two levels because Hernandez-Castellanos had agreed to reinstatement of removal and participated in fast-track sentencing procedures, but declined to depart downward on other grounds and as far down as Hernandez-Castellanos desired. Hernandez-Castellanos timely appeals. We have jurisdiction under 28 U.S.C. § 1291.

II

The district court based the aggravated felony enhancement on Hernandez-Castellanos's prior Arizona conviction for felony endangerment. Before he was deported, Hernandez-Castellanos had been arrested in Arizona while driving under the influence of alcohol in an automobile missing its right front tire. His four minor children were passengers in the car. He apparently pled guilty to felony endangerment in violation of Arizona Revised Statutes § 13-1201 and misdemeanor driving under the influence.¹

We review de novo whether this conviction is an aggravated felony. United States v. Rivera-Sanchez, 247 F.3d 905, 907 (9th Cir.2001) (en banc). A prior conviction is an aggravated felony for purposes of enhancing an illegal reentry sentence under 8 U.S.C. § 1326(b) if it falls within one of the definitions of "aggravated felony" set forth in 8 U.S.C. § 1101(a)(43). Subsection (F) of § 1101(a)(43) defines "aggravated felony" to include "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]² at least one year." Section 16 of Title 18, in turn, provides:

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.

The parties agree that § 16(a) is not applicable to this case. See State v. Hinchey, 165 Ariz. 432, 799 P.2d 352, 357 (1990) (holding that endangerment does not "involve, by statutory definition, the use or threat of violence as a necessary element"). Thus, the issue is whether felony endangerment under Arizona law falls within § 16(b).

To decide this question, we apply the analytical model set forth by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under Taylor, federal courts do not examine the conduct underlying the prior offense, but "look only to the fact of conviction and the statutory definition of the prior offense." 495 U.S. at 602, 110 S.Ct. 2143. If the statute criminalizes conduct that would not constitute an aggravated felony under federal sentencing law, then the conviction may not be used for sentence enhancement unless the record includes "`documentation or judicially noticeable facts that clearly establish that the conviction is a predicate conviction for enhancement purposes.'" Rivera-Sanchez, 247 F.3d at 908 (quoting United States v. Casarez-Bravo, 181 F.3d 1074, 1077 (9th Cir.1999)). "`[I]f the statute and the judicially noticeable facts would allow the defendant to be convicted of an offense other than that defined as a qualifying offense by the guidelines, then the conviction does not qualify as a predicate offense.'" Id. (quoting Casarez-Bravo, 181 F.3d at 1077).

Arizona Revised Statutes § 13-1201 provides:

A person commits endangerment by recklessly endangering another person with substantial risk of imminent death or physical injury.... Endangerment involving a substantial risk of imminent death is a class 6 felony.

A felony conviction under this statute requires proof that the "defendant (1) disregarded a substantial risk that his conduct would cause imminent death of a victim (the culpable mental state) and (2) that his conduct did in fact create such a substantial risk as to each victim (the required act)." State v. Doss, 192 Ariz. 408, 966 P.2d 1012, 1015 (1998) (emphasis omitted); see also State v. Garcia, 141 Ariz. 97, 685 P.2d 734, 740 (1984) ("The elements of endangerment are: (1) recklessly endangering another person, (2) with a substantial risk of imminent death or physical injury.").

We have considered Arizona's endangerment statute on one prior occasion. See United States v. Bailey, 139 F.3d 667 (9th Cir.1998). Bailey had been convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Id. at 667. The Sentencing Guidelines provide that when determining the base offense level for this crime, the court should consider the nature of the defendant's prior convictions. U.S.S.G. § 2K2.1(a). Certain adjustments are made for prior convictions that are "crime[s] of violence." Id. To decide if a prior crime is a "crime of violence" in this context, courts look not to 18 U.S.C. § 16, but to United States Sentencing Guideline 4B1.2(a). See id. application note 5. This Guideline provides in part that a crime of violence is a felony that "involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2). In Bailey, we held that Arizona's endangerment statute qualified as a crime of violence under this definition, an unsurprising conclusion given that the two provisions closely track each other's language. Bailey, 139 F.3d at 668.

In this case, however, we compare Arizona's endangerment statute not to United States Sentencing Guideline § 4B1.2, but to 18 U.S.C. § 16(b). These provisions differ in a significant way: Guideline § 4B1.2 requires a risk of "physical injury," whereas § 16(b) requires a risk of "physical force" being used. We have adopted Black's Law Dictionary's definition of "physical force," which is "`[f]orce applied to the body; actual violence.'" United States v. Ceron-Sanchez, 222 F.3d 1169, 1172 (9th Cir.2000) (quoting Black's Law Dictionary 1147 (6th ed. 1990)) (alteration in original).³

Endangerment under Arizona law is not, categorically, an aggravated felony because a "substantial risk of imminent death or physical injury" is not the same thing as a "substantial risk that physical force ... may be used," which is necessary under 18 U.S.C. § 16(b). Citing a commission report prepared prior to the enactment of Arizona's endangerment statute, the Arizona Supreme Court has explained that the endangerment "statute was designed to punish such conduct as recklessly discharging firearms in public, pointing firearms at another, obstructing public highways, or abandoning life-threatening containers attractive to children." Hinchey, 799 P.2d at 357 (citing Arizona Revised Criminal Code, Commission Report 134 (1975)); see also State v. Morgan, 128 Ariz. 362, 625 P.2d 951, 955-56 (1981) (quoting the same language from the Commission Report).

Abandoning life-threatening containers that are attractive to children, meaning that the children might become trapped in the containers and thereby be hurt, does not create a risk that physical force or actual violence will be used against the children's bodies. We have noted that "involuntary manslaughter, by its nature, involves the death of another person, which is highly likely to result from violent force against that person." Park v. INS, 252 F.3d 1018, 1023 (9th Cir.2001). The same is not true for reckless endangerment. A child could die from being left in a closed car on a hot day or from climbing into a container containing a hazardous substance without any force or violence having been applied to the child. See Dalton v. Ashcroft, 257 F.3d 200, 207 (2d Cir.2001) ("There are many crimes that involve a substantial risk of injury but do not involve the use of force. Crimes of gross negligence or reckless endangerment, such as leaving an infant alone near a pool, involve a risk of injury without the use of force."); see also Ye v. INS, 214 F.3d 1128, 1133-34 (9th Cir.2000) (holding that burglarizing a car by gaining access through an open window, with...