U.S. v. Moreno-Florean

• Decision Date: 08 September 2008
• Docket Number: No. 07-50833.,07-50833.
• Citation: 542 F.3d 445
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Antonio MORENO-FLOREAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

542 F.3d 445

UNITED STATES of America, Plaintiff-Appellee, v. Antonio MORENO-FLOREAN, Defendant-Appellant.

No. 07-50833.

United States Court of Appeals, Fifth Circuit.

September 8, 2008.

Joseph H. Gay, Jr., Asst. U.S. Atty., Mara A. Blatt, San Antonio, TX, for Plaintiff-Appellee.

Miguel A. Torres, El Paso, TX, for Defendant-Appellant.

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

Before KING, DeMOSS and PRADO, Circuit Judges.

DeMOSS, Circuit Judge:

Defendant-Appellant Antonio Moreno-Florean (Moreno-Florean) pleaded guilty without a plea agreement to attempted illegal reentry into the United States after having been removed, in violation of 8 U.S.C. § 1326. Moreno-Florean's pre-sentence report (PSR), which relied on the 2006 Version of the Sentencing Guidelines Manual, assigned him a total offense level of twenty-one, consisting of a base offense level of eight pursuant to UNITED STATES SENTENCING GUIDELINES MANUAL (U.S.S.G.) § 2L1.2(a) (2006); a sixteen-level increase because he was removed after his 2004 California conviction for kidnapping, a conviction the PSR considered a crime of violence (COV) under § 2L1.2(b)(1)(A)(ii); and a three-level decrease pursuant to § 3E1.1(a) and (b) for acceptance of responsibility. Moreno-Florean's criminal history score of nine placed him in a criminal history category of IV, which, combined with his total offense level, yielded a guidelines range of fifty-seven to seventy-one months of imprisonment.

Moreno-Florean objected to the PSR concerning its scoring of three past criminal convictions, but he did not object with respect to his California kidnapping conviction or the sixteen-level COV enhancement. At sentencing, Moreno-Florean indicated that his objection had been resolved. The district court sentenced Moreno-Florean within the guidelines range to fifty-seven months of imprisonment and three years of supervised release. Moreno-Florean timely appealed.

Moreno-Florean argues that his California kidnapping conviction was not a COV for purposes for § 2L1.2(b)(1)(A)(ii). We agree. Thus, we will vacate Moreno-Florean's sentence and remand for resentencing.

I. ANALYSIS

A. Standard of Review

Because Moreno-Florean raises this argument for the first time on appeal, the plain-error standard of review applies. United States v. Gonzalez-Ramirez, 477 F.3d 310, 311 (5th Cir.2007). Under plain-error review, "a defendant must establish error that is plain and affects substantial rights." Id. "If these conditions are met, an appellate court may exercise its discretion to notice the forfeited error only if the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Id. at 311-12 (quotations omitted) (alteration in original). The relevant inquiry is whether the error is plain at the time of appellate consideration, not at the time of trial. United States v. Martinez-Vega, 471 F.3d 559, 561 (5th Cir.2006).

B. Crime of Violence Enhancement

1. Section 2L1.2(b)(1)(A)(ii)

Section 2L1.2(b)(1)(A)(ii) provides for a sixteen-level increase to a defendant's base offense level if he was previously deported after being convicted of a felony that is a COV. United States v. Cervantes-Blanco, 504 F.3d 576, 578-79 (5th Cir.2007). The Guidelines Manual commentary defines a COV as "(1) any of a list of enumerated offenses, including `kidnapping,' or (2) `any 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.'" Id. at 579 (quoting § 2L1.2, cmt. n. 1(B)(iii)). This court uses different tests when analyzing whether a particular offense amounts to a COV, and the test used depends on whether the offense is an enumerated one or has physical force as an element. United States v. Mendoza-Sanchez, 456 F.3d 479, 481-82 (5th Cir.2006).

"In determining whether the [California] crime at issue here is the enumerated offense of `kidnapping,' we look to the `generic, contemporary' meaning of kidnapping, employing a `common sense approach' that looks to the Model Penal Code, the LaFave and Scott treatises, modern state codes, and dictionary definitions." United States v. Iniguez-Barba, 485 F.3d 790, 791 (5th Cir.2007). State-law labels do not control this inquiry because the COV "enhancement incorporates crimes with certain elements, not crimes that happen to be labeled `kidnapping' ... under state law." Gonzalez-Ramirez, 477 F.3d at 313.

"In determining whether an offense has as an element the use, attempted use, or threatened use of physical force against the person of another, this court uses the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and examines the elements of the offense, rather than the facts underlying the conviction." Mendoza-Sanchez, 456 F.3d at 482.

Under either approach, if the statute of conviction contains a series of disjunctive elements, this court may look beyond the statute to certain records made or used in adjudicating guilt to determine which subpart of the statute formed the basis of the conviction. United States v. Mungia-Portillo, 484 F.3d 813, 815 (5th Cir.), cert. denied, ___ U.S. ___, 128 S.Ct. 320, 169 L.Ed.2d 226 (2007); United States v. Murillo-Lopez, 444 F.3d 337, 339-40 (5th Cir.2006); see Gonzalez-Ramirez, 477 F.3d at 315. "These records are generally limited to the charging document, written plea agreement, transcript of the plea colloquy, and any explicit factual findings by the trial judge to which the defendant assented." Murillo-Lopez, 444 F.3d at 340 (quotations omitted); accord Mungia-Portillo, 484 F.3d at 815. If the statute of conviction cannot be narrowed, we consider "whether the least culpable act constituting a violation of that statute constitutes `kidnapping' for purposes of U.S.S.G. § 2L1.2." Gonzalez-Ramirez, 477 F.3d at 315-16.

In this case, the parties agree that Moreno-Florean's kidnapping conviction occurred pursuant to CAL.PENAL CODE § 207(a) as reflected in the indictment and abstract of judgment pertaining to the conviction.¹ Section 207(a) states, "Every person who forcibly, or by any other means of instilling fear, steals or takes, or holds, detains, 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." The parties do not cite, and research did not reveal, any cases from this circuit or another circuit addressing the issue whether a conviction under § 207(a) is a COV, as the term is currently defined for § 2L1.2(b)(1)(A)(ii) purposes.²

2. Use of Physical Force as an Element

With respect to whether § 207(a) constitutes a crime of violence under the categorical approach because it has as an element the use, attempted use, or threatened use of physical force against the person of another, Moreno-Florean argues that the use of physical force is not a necessary element of § 207(a) because § 207(a) makes it unlawful for the offender to act "forcibly, or by any other means of instilling fear." Count one of Moreno-Florean's indictment, the count underlying his kidnapping conviction, tracks this provision of § 207(a), charging that Moreno-Florean acted "wilfully, unlawfully, forcibly and by other means of instilling fear." The Government does not dispute that the use of force is not a necessary element of § 207(a). See People v. Majors, 33 Cal.4th 321, 14 Cal.Rptr.3d 870, 92 P.3d 360, 363 (2004) (holding that "the force used against the victim need not be physical" in order to sustain a conviction for kidnapping under § 207(a)).

The Government argues that Moreno-Florean's record of conviction establishes that his kidnapping offense involved injury to the victim based on the use of physical force. The Government relies on the fact that Moreno-Florean's abstract of judgment reflects that he pleaded guilty not only to count one of his indictment, kidnapping in violation of § 207(a), but also to count three of his indictment, willfully inflicting corporal injury in violation of CAL.PENAL CODE § 273.5(a). The Government argues that the use of physical force is a necessary element of § 273.5(a), such that the record of conviction establishes that Moreno-Florean used physical force with respect to his kidnapping conviction. See People v. Jackson, 77 Cal.App.4th 574, 91 Cal.Rptr.2d 805, 810 (2000); see also CAL.PENAL CODE § 273.5(c) (defining the term "traumatic condition").

While the indictment reflects that the kidnapping and corporal injury offenses were committed on the same day with Jane Doe as the victim, it does not establish that the conduct involved in the corporal injury offense was necessarily involved in the kidnapping offense. According to the language found in the indictment, Moreno-Florean could have kidnapped Jane Doe "by other means of instilling fear," and then later used physical force to inflict corporal injury upon her. Because we do not have a written plea agreement, transcript of the plea colloquy, or explicit factual findings by the trial judge to which the defendant assented, we cannot narrow the statute of conviction to determine which disjunctive elements of § 207(a) formed the basis of Moreno-Florean's conviction.

In determining whether a state guilty plea conviction qualifies as a drug trafficking offense under § 2L1.2(b)(1)(A)(i), we have previously considered under the categorical approach the extent to which a guilty plea serves to admit the factual averments in the indictment. See United States v. Gutierrez-Bautista, 507 F.3d 305, 307-09 (5th Cir.2007). In Gutierrez-Bautista, we looked to the law of the state of conviction, Georgia, to determine the effect of Gutierrez-Bautista's guilty plea to trafficking in methamphetamine: the plea constituted an admission of all averments of facts in the indictment. Id. at 308. Because the indictment made a...