U.S. v. Pereira-Salmeron

• Decision Date: 04 August 2003
• Docket Number: No. 02-10071.,02-10071.
• Citation: 337 F.3d 1148
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Esly PEREIRA-SALMERON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

337 F.3d 1148

UNITED STATES of America, Plaintiff-Appellant, v. Esly PEREIRA-SALMERON, Defendant-Appellee.

No. 02-10071.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 5, 2002.

Filed August 4, 2003.

Virginia C. Kelly and Serra A. Tsethlikai, Office of the U.S. Attorney, Tucson, AZ, for the Appellant.

Hector A. Montoya, Tucson, AZ, for the Appellee.

Appeal from the United States District Court for the District of Arizona; Raner C. Collins, District Judge, Presiding. D.C. No. CR-01-01002-RCC.

Before B. FLETCHER, RAWLINSON and CLIFTON, Circuit Judges.

CLIFTON, Circuit Judge.

This case presents the question of whether a prior felony conviction under Virginia Code § 18.2-63, for carnal knowledge of a child between 13 and 15 years of age, constitutes a conviction for a "crime of violence" under the Federal Sentencing Guidelines provision governing sentences for unlawful re-entry into the United States, U.S.S.G. § 2L1.2 (2002). Under the November 2001 amendments to the Sentencing Guidelines, a defendant convicted of unlawful re-entry may be subject to a greater sentence if he had previously been deported following a felony conviction. The level of sentence enhancement varies according to the nature of the defendant's prior crime. The district court in this case held that Pereira-Salmeron's 1999 conviction for "carnal knowledge of a child" constituted an "aggravated felony" under the Sentencing Guidelines, for which an 8-level enhancement was appropriate, but was not a "crime of violence," for which a 16-level enhancement would have applied. We disagree, and conclude that Pereira-Salmeron's prior Virginia conviction did involve a "crime of violence," warranting a 16-level sentencing enhancement. We therefore vacate the district court's sentence and remand for resentencing.

BACKGROUND

In April 1998, defendant Esly Pereira-Salmeron, an alien and a citizen of El Salvador, rented a room in a private home in Virginia. After several months, his landlady began to suspect that Pereira-Salmeron, then 26, was developing a disturbingly close relationship with her 13-year-old daughter. She asked him to leave her home immediately. He left, and soon afterwards, the daughter ran away to live with him in Texas. In December 1998, the landlady appeared on a television show, pleading for her missing daughter to return home. Her daughter saw this and turned herself in to the police. Upon her arrival home in Virginia, it was discovered that she was pregnant with Pereira Salmeron's child.

Pereira-Salmeron was arrested in Texas, returned to Virginia, and convicted of a "Class 4 felony" under the Virginia statute for "carnally know[ing], without the use of force, a child thirteen years of age or older but under fifteen years of age." Va.Code § 18.2-63 (2002) (emphasis added).¹ He was sentenced to 8 years of imprisonment, with 6 years and 10 months suspended, and 5 years of probation. After serving 14 months in prison, he was deported to El Salvador on April 28, 2000.

On June 22, 2001, Pereira-Salmeron was arrested in Arizona. He was charged with illegal re-entry into the United States after deportation, in violation of 8 U.S.C. § 1326. On September 10, 2001, he pled guilty to that charge pursuant to a written plea agreement, admitting that prior to his deportation he had been convicted of statutory rape, an aggravated felony.

Pereira-Salmeron's Presentence Investigation Report calculated his total offense level at 21. This resulted from a base offense level of 8, enhanced by 16 levels for the Virginia aggravated felony conviction under U.S.S.G. § 2L1.2(b)(1)(A), and reduced by 3 levels for acceptance of responsibility. The presentence report noted, however, that a then-pending amendment to § 2L1.2 providing for graduated enhancements could potentially reduce Pereira-Salmeron's enhancement from 16 to 8 levels if the amendment became effective before the sentencing hearing took place.

The sentencing hearing was held on January 2, 2002 — by which time the amendment had gone into effect — and the district court applied the lower, 8-level enhancement. The district court opined that although the plea bargain had contemplated a 16-level enhancement, the 8-level enhancement was more appropriate under the amended Guideline. This resulted in a total offense level of 13, and an imprisonment range of 18-24 months. The district court sentenced Pereira-Salmeron at the high end of the range, with 24 months in custody followed by 36 months of supervised release.

The Government timely appealed, asking that the sentence be vacated and that this case be remanded for resentencing.

DISCUSSION

This court reviews a district court's interpretation of the Sentencing Guidelines de novo. See United States v. Alexander, 287 F.3d 811, 818 (9th Cir. 2002). The Guideline relevant to this case was amended on November 1, 2001, and this case presents a question of first impression in this circuit.

As indicated above, prior to November 2001, the Sentencing Guidelines at § 2L1.2(b)(1) provided a 16-level sentencing enhancement for any defendant convicted of illegal reentry following deportation for any aggravated felony. Eventually, concerns that a blanket 16-level enhancement was disproportionately harsh for some felonies prompted the Sentencing Commission to provide graduated enhancements for subcategories of aggravated felonies. See U.S.S.G.App. C, amend. 632 (2001). Effective November 2001, the relevant section of the Sentencing Guidelines, § 2L1.2(b)(1), provided as follows:

(1) Apply the Greatest:

If the defendant previously was deported, or unlawfully remained in the United States, after —

(A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months; (ii) a crime of violence; (iii) a firearms offense; (iv) a child pornography offense; (v) a national security or terrorism offense; (vi) a human trafficking offense; or (vii) an alien smuggling offense committed for profit, increase by 16 levels;

(B) a conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less, increase by 12 levels;

(C) a conviction for an aggravated felony, increase by 8 levels;

(D) a conviction for any other felony, increase by 4 levels....

Two of the categories, (A) and (C), are potentially relevant here. The government argues that Pereira-Salmeron's prior conviction was for a "crime of violence," warranting a 16-level enhancement under § 2L1.2(b)(1)(A)(ii). Pereira-Salmeron acknowledges that his Virginia conviction qualified as an aggravated felony, supporting an enhancement of 8 levels under § 2L1.2(b)(1)(C), but opposes any further enhancement.

The phrase "crime of violence" is defined in the Application Notes to § 2L1.2, which were also adopted as part of the 2001 amendment:

"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 force against the person of another; and

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

U.S.S.G. § 2L1.2, cmt. n. 1(B)(ii) (2002).

Pereira-Salmeron contends that his prior Virginia conviction does not fall within the Guidelines definition for a "crime of violence" because the statute under which he was convicted explicitly addresses conduct undertaken "without the use of force." Va.Code § 18.2-63. He argues that the Virginia statute thus contradicts the subpart (I) requirement of "use, attempted use, or threatened use of force," and fails to constitute a "forcible sex offense" as enumerated under subpart (II). (Emphasis added.) Pereira-Salmeron notes that he did not physically coerce the 13-year-old girl and that their sexual activity was consensual.

Despite the Sentencing Commission's use of the conjunctive "and" between subparts (I) and (II), we read the two subparts as presenting alternative definitions of "crime of violence," rather than a two-pronged test requiring satisfaction of both subparts. Any offense listed in subpart (II) is inherently deemed to be a "crime of violence" for the purposes of this Guideline, whether or not the use, attempted use, or threatened use of force against the person of another, as set forth in subpart (I), is an element of the given offense. That is the logical reading of the definition.

We note that subpart (II) begins with the word "includes." That word inherently weighs against the notion that subpart (II) is a separate prong that must be satisfied, since it plainly indicates that the list to follow is not exhaustive. To read this definition to require that the prior conviction must satisfy both subparts would effectively ignore that word, something we are not free to do.

We further observe that some of the offenses listed in subpart (II), notably extortionate extension of credit and burglary of a dwelling, do not include the use of force as an element. Under the interpretation urged by Pereira-Salmeron, those crimes could not qualify as crimes of violence for purposes of this definition. But the explicit inclusion of those crimes within subpart (II) was obviously meant to have some purpose, and those words cannot properly be treated as if they were not there. See United States v. Fuentes-Rivera, 323 F.3d 869, 872 (11th Cir.2003) (burglary of a dwelling was a "crime of violence" for the purposes of § 2L1.2, because the Sentencing Commission enumerated burglary in its application note 1(B)(ii)(II), despite its lacking an element of physical force, and because an alternative reading would render subpart "mere surplusage"). See also United States v. Rayo-Valdez, 302 F.3d 314, 316 (5th Cir.2002), and United States v. Gomez-Hernandez, 300 F.3d 974, 979 (8th Cir.2002), cert. denied, 537 U.S. 1138, 123 S.Ct. 931, 154...