U.S. v. Juarez-Galvan

• Decision Date: 20 July 2009
• Docket Number: No. 08-3211.,08-3211.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Audon JUAREZ-GALVAN, also known as Abdon Juarez-Galvan, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

572 F.3d 1156

UNITED STATES of America, Plaintiff-Appellee, v. Audon JUAREZ-GALVAN, also known as Abdon Juarez-Galvan, Defendant-Appellant.

No. 08-3211.

United States Court of Appeals, Tenth Circuit.

July 20, 2009.

Timothy J. Henry, Assistant Federal Public Defender, Office of the Federal Public Defender for the District of Kansas, Wichita, KS, appearing for Appellant.

Leon Patton, Assistant United States Attorney (Marietta Parker, Acting United States Attorney, Brent I. Anderson, Assistant United States Attorney, and James A. Brown, Assistant United States Attorney, on the briefs), Office of the United States Attorney for the District of Kansas, Wichita, KS, appearing for Appellee.

Before TACHA, McKAY, and ANDERSON, Circuit Judges.

TACHA, Circuit Judge.

Defendant-Appellant Audon Juarez-Galvan appeals his fifty-seven-month sentence for unlawful re-entry after deportation for an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). He argues that the district court erred in applying a sixteen-level enhancement under United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") § 2L1.2(b)(1)(A)(ii) because neither of his California convictions for kidnapping and robbery qualifies as a "crime of violence." We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Finding no plain error, we AFFIRM.

I. BACKGROUND

Mr. Juarez-Galvan pleaded guilty without a plea agreement to violating 8 U.S.C. § 1326(a) and (b)(2). The presentence report ("PSR") calculated his base offense level as 8 under U.S.S.G. § 2L1.2(a). The PSR then recommended a sixteen-level enhancement under § 2L1.2(b)(1)(A)(ii) because Mr. Juarez-Galvan had previously been deported after a conviction for a crime of violence. The section of the PSR detailing Mr. Juarez-Galvan's criminal history noted that he had two 1988 convictions in California for kidnapping and second-degree robbery.

These calculations yielded an adjusted offense level of 24. The PSR recommended a three-level reduction for acceptance of responsibility under § 3E1.1(b). The total offense level was thus 21, and with Mr. Juarez-Galvan's criminal history category of IV, the PSR recommended an advisory Guidelines range of 57-71 months' imprisonment.

At sentencing, Mr. Galvan objected only to his criminal history score. He argued that his 1988 California convictions should not affect his score because they were too remote, see U.S.S.G. § 4A1.2(e), and that the PSR incorrectly added two points for committing the instant offense while on probation for another offense. See U.S. S.G. § 4A 1.1(d). The court reduced Mr. Galvan's criminal history category to III, which produced a Guidelines sentencing range of 46-57 months. Citing 18 U.S.C. § 3553(a) and noting Mr. Galvan's history of returning illegally to the United States, the court then sentenced Mr. Galvan at the top of that range.

For the first time on appeal, Mr. Juarez-Galvan argues that neither of his 1988 California convictions constitutes a crime of violence under § 2L1.2(b)(1)(A)(ii).¹

II. DISCUSSION

A. Standard of Review

Whether a conviction qualifies as a crime of violence under § 2L1.2 is a matter of statutory interpretation that we normally would review de novo. United States v. Zuniga-Soto, 527 F.3d 1110, 1116-17 (10th Cir.2008). Because Mr. Juarez-Galvan did not object to the crime-of-violence enhancement, however, we will review only for plain error. See United States v. Jordan, 890 F.2d 247, 250 (10th Cir.1989). Under plain error review, "we will reverse the judgment ... only if there is (1) error, (2) that is plain, which (3) affects substantial rights. If these three criteria are met, then we may exercise discretion to correct the error if it seriously affects the fairness, integrity, or public reputation of the judicial proceedings." United States v. Zubia-Torres, 550 F.3d 1202, 1208 (10th Cir.2008) (citation omitted). Mr. Juarez-Galvan bears the burden to establish plain error warranting relief. United States v. Gonzales, 558 F.3d 1193, 1199 (10th Cir.2009).

B. Crime of Violence Framework

Section 2L1.2(b)(1)(A)(ii) instructs district courts to apply a sixteen-level enhancement "[i]f the defendant previously was deported, or unlawfully remained in the United States, after ... a conviction for a felony that is ... a crime of violence." The commentary to that section defines the term "crime of violence":

"Crime of violence" means any of the following offenses under federal, state, or local law: 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 other 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.

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (emphasis added).² Thus, we have explained that there are two ways that a felony conviction³ could constitute a crime of violence. Zuniga-Soto, 527 F.3d at 1115. First, a felony qualifies if it is one of the twelve enumerated offenses under § 2L1.2 cmt. n. 1(B)(iii). Id. In the alternative, a felony is a crime of violence if it "has as an element the use, attempted use, or threatened use of physical force against the person of another...." Id. (quoting § 2L1.2 cmt. n. 1(B)(iii)). In this case, the government concedes that neither offense contains an element of the use, attempted use, or threatened use of physical force. Accordingly, we must determine whether at least one of Mr. Juarez-Galvan's California convictions was for an offense enumerated in the commentary to § 2L1.2.

Both kidnapping and robbery are listed as enumerated offenses for purposes of § 2L1.2(b)(1)(A)(ii). Mr. Juarez-Galvan was convicted of kidnapping under Cal.Penal Code § 207(a) and second-degree robbery under Cal.Penal Code. § 211. California's designation of those offenses, however, is not dispositive. See United States v. Servin-Acosta, 534 F.3d 1362, 1366 (10th Cir.2008) ("A State's designation of a criminal provision as its `robbery' statute does not necessarily mean that it qualifies as `robbery' under § 2L1.2."). Instead, we must consider "the uniform generic definition" of the enumerated offense, and then determine whether the state statute corresponds to that generic definition. See id. at 1367; see also Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).⁴ If it does, then the conviction qualifies as a crime of violence. See United States v. Cummings, 531 F.3d 1232, 1234 (10th Cir.2008) (describing this as the "categorical approach"); see also Taylor, 495 U.S. at 602, 110 S.Ct. 2143.

C. Kidnapping Conviction

As noted above, Mr. Juarez-Galvan was convicted of kidnapping under Cal.Penal Code § 207(a). The version of that statute in effect in 1988 stated:

Every person who forcibly steals, takes, or arrests any person in this state, and carries the person into another country, state, or county, or into another part of the same county, is guilty of kidnapping.

Cal.Penal Code § 207(a) (West 1988).⁵

The PSR did not explain why the kidnapping conviction should be considered a crime of violence, and because Mr. Juarez-Galvan did not object to the PSR's recommendation, the district court also provided no reasons. On appeal, the parties' sole disagreement regarding the kidnapping issue is whether Cal.Penal Code § 207(a) is broader than the generic definition of kidnapping.

Our analysis focuses on the second prong of the plain error test. The district court did not commit "plain" error because, if it erred at all, the error was not "clear or obvious." See Gonzales, 558 F.3d at 1200. Mr. Juarez-Galvan cites, and our research has uncovered, only one federal case addressing this issue. In United States v. Moreno-Florean, 542 F.3d 445 (5th Cir.2008), the Fifth Circuit looked to the Model Penal Code ("MPC") to determine the generic definition of kidnapping, concluding that the current version of § 207(a) is broader than that generic definition. Id. at 452-56. Specifically, the court reasoned that § 207(a) contained only two elements—(1) the removal or confinement of a person (2) by force, threat or fraud—whereas the MPC's definition contained an additional aggravating element such as a specified purpose in the taking.⁶ Id. at 454.

Other authority, however, suggests a contrary conclusion. In United States v. De Jesus Ventura, 565 F.3d 870 (D.C.Cir. 2009), the District of Columbia Circuit observed that a critical distinction between generic kidnapping and broader state definitions of the offense is the "element of intent or severity"—an element that the court deemed present in § 207(a)'s requirement that the victim be taken to another location. Id. at 877-78 & n. 11.

In addition, the Fifth Circuit in Moreno-Florean arrived at the uniform generic definition of kidnapping by considering only the MPC and a variety of kidnapping statutes from other states. Moreno-Florean, 542 F.3d at 452. But courts have noted that the generic definition of an enumerated offense should be formulated after consulting a variety of sources, including Black's Law Dictionary. See United States v. Iniguez-Barba, 485 F.3d 790, 793 (5th Cir.2007) (relying on Black's definition of "kidnapping" in determining whether kidnapping under New York law was a crime of violence under § 2L1.2(b)(1)(A)(ii)); United States v. Fierro-Reyna, 466 F.3d 324, 327 (5th Cir. 2006) ("To establish the generic contemporary meaning of an enumerated offense, we consider, inter alia, the Model Penal Code, Professors LaFave's and Scott's treatises, modern state codes, and dictionaries."). Black's Law Dictionary, in turn, defines "kidnapping" in terms comparable to the elements of § 207(a). See Black's Law Dictionary 886 (8th ed.2004) (kidnapping is "[t]he crime of seizing and taking away a person by force or fraud....").

Given the lack of...