U.S. v. Marquez, 09-50372

Citation626 F.3d 214
Decision Date10 November 2010
Docket NumberNo. 09-50372,09-50372
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Francisco Javier MARQUEZ, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
626 F.3d 214

UNITED STATES of America, Plaintiff-Appellee,
v.
Francisco Javier MARQUEZ, Defendant-Appellant.


No. 09-50372.

United States Court of Appeals,
Fifth Circuit.


Nov. 10, 2010.

626 F.3d 214

Joseph H. Gay, Jr., Mara Asya Blatt, Asst. U.S. Attys., San Antonio, TX, Melissa Arbus Sherry (argued), U.S. Dept. of Justice, Office of Sol. Gen., Washington, DC, for U.S.

Philip J. Lynch, Asst. Fed. Pub. Def. (argued), Henry Joseph Bemporad, Fed. Pub. Def., San Antonio, TX, for Defendant-Appellant.

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

Before BARKSDALE, DENNIS and OWEN, Circuit Judges.

626 F.3d 215

OWEN, Circuit Judge:

Francisco Javier Marquez contends that his prior conviction for possession of a deadly weapon by a prisoner is not a crime of violence within the meaning of section 4B1.2(a)(2) of the Sentencing Guidelines1 and therefore that the district court erred in sentencing him as a career offender under section 4B1.1.2 We affirm.

I

Marquez pled guilty to possessing more than 100 kilograms of marijuana with the intent to distribute it. The presentence report recommended that the district court sentence Marquez under the career-offender guidelines based on Marquez's prior New Mexico convictions for possession of cocaine with the intent to distribute and possession of a deadly weapon by a prisoner. Only the latter conviction is at issue in this appeal. The New Mexico statute under which Marquez was convicted provides that "[p]ossession of [a] deadly weapon or explosive by [a] prisoner in lawful custody" is a second degree felony. 3 His indictment charged him under this statute, alleging that he "possess[ed] a deadly weapon, a club[,] contrary to Section 30-22-16, NMSA 1978," while an "inmate of the Bernalillo County Detention Center." A deadly weapon is defined under applicable New Mexico law as "any weapon which is capable of producing death or great bodily harm," and great bodily harm "means an injury to the person which creates a high probability of death; or which causes serious disfigurement; or which results in permanent or protracted loss or impairment of the function of any member or organ of the body."4

Marquez objected to the presentence report, arguing that his offense of possession of a deadly weapon by a prisoner was not a crime of violence in light of the Supreme Court's decision in Begay v. United States.5 Marquez contends that his prior conviction is not for an offense that "is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another."6 He argues that his properly calculated Guidelines' sentencing range is 92 to 155 months of imprisonment. The district court determined that the career-offender enhancement applied and overruled the objection. The court concluded that the advisory Guidelines' range was 188 to 235 months of imprisonment and sentenced Marquez to 188 months' imprisonment. This appeal followed.

II

We review the district court's interpretation of the Sentencing Guidelines de novo.7 A defendant may be sentenced as a career offender under the Guidelines if "the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense" and the defendant "has at least two prior felony convictions of either a crime of violence or a controlled substance offense."8 The term

626 F.3d 216
"crime of violence" is defined in section 4B1.2 as
any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.9

The parties agree that we are concerned only with what is sometimes called "the residual clause" of section 4B1.2(a)(2),10 and therefore, we must determine whether Marquez's conviction under New Mexico law "otherwise involves conduct that presents a serious potential risk of physical injury to another." We do not write on a clean slate, and we begin with the context in which we must consider the answer to this question.

The comments to section 4B1.1 of the Guidelines reflect that sections 4B1.1 and 4B1.2, embodying the career offender guidelines, were promulgated to implement the directive in 28 U.S.C. § 994(h), which "mandates that the Commission assure that certain 'career' offenders receive a sentence of imprisonment 'at or near the maximum term authorized.' "11 The term "crime of violence" is not defined in § 994(h); however, 18 U.S.C. § 16 does define that term.12 The comments to section 4B1.1 explain that the Commission implemented the directive in § 994(h) by "tracking in large part the criteria set forth in 28 U.S.C. § 994(h)," but that "the Commission has modified this definition in several respects to focus more precisely on the class of recidivist offenders for whom a lengthy term of imprisonment is appropriate and to avoid 'unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct.' " 13

The black letter text of the definition of "crime of violence" in section 4B1.2 of the Guidelines is very similar to the definition of "violent felony" in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B). 14 Within subsections (1)

626 F.3d 217
and (2), the only difference is that the Guidelines have inserted "of a dwelling" after "burglary."15 However, the application notes to section 4B1.2 of the Guidelines gives further guidance to how the term "crime of violence" is to be applied, including additional enumerated offenses not included in the ACCA and an elaboration regarding the residual clause:
"Crime of violence" includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as "crimes of violence" if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another.16

The commentary to section 4B1.2 expressly provides that possession of a firearm by a felon is not a crime of violence unless the weapon is "a sawed-off shotgun or sawed-off rifle, silencer, bomb, or machine gun."17 Marquez's prior conviction was not, however, for being a felon in possession of a firearm. He was convicted under state law for possession of a deadly weapon by an inmate, which is similar to the federal offense defined in 18 U.S.C. § 1791, prohibiting an inmate's possession of "a weapon (other than a firearm or destructive device), or an object that is designed or intended to be used as a weapon or to facilitate escape from a prison."18

Our construction of the career-offender Guideline sections are further informed by two decisions of the Supreme Court construing the ACCA.19 Although the text of the ACCA defining "violent felony" and the Guidelines definition and commentary regarding a "crime of violence" are not identical, as discussed above, our court as well as other circuit courts have concluded that the Supreme Court's decisions interpreting the meaning of "violent felony" under the ACCA are at least instructive.20 In Begay, the Court held that driving under the influence of alcohol was not a "violent felony" within the meaning of the

626 F.3d 218
ACCA.21 In Chambers, the Court held that a "failure to report" for penal confinement was not a violent felony under the ACCA.22 Prior to the issuance of these decisions, our court had held that the knowing possession of a deadly weapon in a penal institution is a crime of violence under U.S.S.G. § 4B1.2(a)(2).23 Marquez contends that our construction of section 4B1.2 was erroneous in light of Begay.

We therefore begin our analysis with a consideration of the Supreme Court's reasoning in Begay and its subsequent decision in Chambers. The Court concluded in Begay that the presence of the enumerated offenses of burglary, arson, extortion, or offenses that involve the use of explosives "indicates that the statute covers only similar crimes, rather than every crime that 'presents a serious potential of risk of physical injury to another.' " 24 The Court noted that the enumerated offenses "all typically involve purposeful, 'violent,' and 'aggressive' conduct."25 This was important because such conduct makes it "more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim."26 The crime of driving under the influence was not such a crime. "By way of contrast, statutes that forbid driving under the influence ... typically do not insist on purposeful, violent, and aggressive conduct."27 The Court explained that DUI offenses "are, or are most nearly comparable to, crimes that impose strict liability, criminalizing conduct in respect to which the offender need not have had any criminal intent at all."28 Drunk driving "need not be purposeful or deliberate."29 It involves negligence or recklessness, the Court reasoned. The ACCA "focuses upon the special danger created when a particular type of offender—a violent criminal or drug trafficker—possesses a gun."30 To determine which offenders fall into this category, "the Act looks to past crimes. This is because an offender's criminal history is relevant to ... the kind or degree of danger the offender would pose were he to possess a gun."31 The Court concluded that although driving under the influence "reveal[s] a degree of callousness...

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