U.S. v. Reina-Rodriguez

• Decision Date: 15 November 2006
• Docket Number: No. 05-10475.,05-10475.
• Citation: 468 F.3d 1147
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hector REINA-RODRIGUEZ, Defendant-Appellant.

468 F.3d 1147

UNITED STATES of America, Plaintiff-Appellee, v. Hector REINA-RODRIGUEZ, Defendant-Appellant.

No. 05-10475.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 12, 2006.

Filed November 15, 2006.

COPYRIGHT MATERIAL OMITTED

Christopher R. Kilburn and Brian I. Rademacher, Assistant Federal Public Defenders, Tucson, AZ, for the defendant-appellant.

Elizabeth Berenguer, Assistant United States Attorney, Tucson, AZ, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; David C. Bury, District Judge, Presiding. D.C. No. CR-04-2415-TUC-DCB.

Before HUG, and O'SCANNLAIN, Circuit Judges, and BENITEZ,^* District Judge.

OPINION

ROGER T. BENITEZ, District Judge.

Hector Reina-Rodriguez ("Reina-Rodriguez") appeals his sentence of fifty-one months imprisonment following a conviction for illegal reentry after deportation in violation of 8 U.S.C. § 1326. He argues that application of a sixteen-level enhancement under the United States Sentencing Guidelines ("Guidelines") for his prior conviction in Utah was erroneous.¹ He also argues that the district court's sentence was unreasonable because it improperly considered, as a factor, that he did not plead guilty pursuant to a plea agreement. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and affirm.

FACTS

Reina-Rodriguez was found in Arizona after having been previously deported. He was indicted for illegal reentry in violation of 8 U.S.C. § 1326. He pled guilty to the indictment without a plea agreement.

During his change of plea hearing, Reina-Rodriguez admitted that he had a prior felony conviction. He did not admit the type of conviction or that it was a crime of violence.

At the sentencing hearing, the district court had before it two documents regarding Reina-Rodriguez's prior conviction. The first was the State's charging document entitled "Information," and the second was a judgment of conviction entitled "Minutes Sentence, Judgment, Commitment."

The "Information," as amended, read:

Amend 2nd

COUNT 1: AGGRAVATED Amend BURGLARY, a first 2nd degree felony, in violation of Utah Code Ann. § 76-6-203, as follows: That HECTOR AFEN REYNA-RODRIGUEZ . . . entered or remained unlawfully in a building or any portion of a building located at 2521 Gramercy with intent to commit a felony or theft or . . . an assault . . . and in the course of attempting, committing, or fleeing from said burglary . . . (b) used or threatened the immediate use of a dangerous weapon, or (c) possessed or attempted to use any explosive or dangerous weapon and/or intentionally did aid, assist, encourage, command or solicit another to do the same.

(Boldface type and strike-through in original). Thus, as amended, the first line of the "Information" read: "Burglary, a 2nd degree felony." The judgment of conviction stated that Reina-Rodriguez pled guilty to "Burglary (amended)—2nd Degree Felony."²

The court also had before it the Pre-Sentence Report ("PSR"), which concluded that Reina-Rodriguez's prior conviction was a crime of violence under the Guidelines. Accordingly, the PSR recommended a 16-level enhancement.³

Reina-Rodriguez objected to the PSR's finding that his prior conviction was a crime of violence. The district court overruled Reina-Rodriguez's objection.⁴ In sentencing Reina-Rodriguez, the district court recognized that the Guidelines were advisory. The court found that the base level for a conviction under 8 U.S.C. § 1326 is eight. It increased the base level by 16, however, based on Reina-Rodriguez's prior conviction. The district court then decreased the offense level by three for acceptance of responsibility, and concluded that 21 was the correct offense level. The court next determined Reina-Rodriguez to be in a criminal history category IV, which placed Reina-Rodriguez in a 57 to 71 month range.

After consulting the Guidelines, the district court considered the factors under 18 U.S.C. § 3553(a) and concluded: "since Reina-Rodriguez does plead guilty, did not take the case to trial, that a sentence of—a non-guideline sentence somewhere below the guidelines, but above the plea range, had he taken a plea agreement, might be appropriate in the case just for uniformity purposes." In that regard, the court said:

I have to show respect to the plea process. Obviously if a court sentences the defendant to the same sentence he would have had, had he taken a plea agreement, then there is no compelling reason for any defendant to take the plea offer.

The court sentenced Reina-Rodriguez to 51 months, 3 years supervised release, and assessed a $100 fine.

STANDARD OF REVIEW

In reviewing a sentence, "the first step is to determine if the district court made a material error in its Guidelines calculation that serves as the starting point for its sentencing decision." United States v. Kilby, 443 F.3d 1135, 1140 (9th Cir.2006) (citing United States v. Cantrell, 433 F.3d 1269, 1280 (9th Cir.2006)). This court reviews "de novo a district court's decision that a prior conviction is a crime of violence under the Sentencing Guidelines." United States v. Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir.2005) (citing United States v. Rivera-Sanchez, 247 F.3d 905, 907 (9th Cir.2001) (en banc)). A district court's conclusion that a prior conviction may be used for purposes of sentencing enhancement is also reviewed de novo. See United States v. Gallaher, 275 F.3d 784, 790 (9th Cir.2001) (citation omitted).

REINA-RODRIGUEZ'S UTAH BURGLARY CONVICTION JUSTIFIES A 16-LEVEL ENHANCEMENT UNDER U.S.S.G. § 2L1.2(b)(1)(A).

"Section 2L1.2(b)(1)(A)(ii) provides for a 16-level enhancement if [a] defendant [convicted of illegal entry] has a prior conviction for a crime of violence." Velasquez-Reyes, 427 F.3d at 1229; see also United States v. Rodriguez-Rodriguez, 393 F.3d 849, 851 (9th Cir.2005) (citation omitted). Under the Application Notes⁵ to Section 2L1.2(b)(1)(A)(ii), a "crime of violence" includes "burglary of a dwelling or 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." U.S.S.G. § 2L1.2 application n. 1(B)(iii).⁶ Moreover, an attempt to commit these crimes of violence is itself a crime of violence. Id. § 2L1.2 application n. 5.

We must now determine whether Reina-Rodriguez's prior conviction fits the definition of a "crime of violence" under the Guidelines. See, e.g., Rodriguez-Rodriguez, 393 F.3d at 852 ("Although the application note specifically includes `burglary of a dwelling' in the definition of `crime of violence,' a conviction for burglary of a dwelling must meet the generic, uniform definition of burglary to fall under the definition of `burglary of a dwelling.'" (citations omitted)). We determine this by employing two methods: (1) the categorical approach; and (2) the "modified" categorical approach. See United States v. Wenner, 351 F.3d 969, 972 (9th Cir.2003).

1. Categorical Approach

Using the categorical approach, we look "only to the fact of conviction and the statutory definition of the prior offense." Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (citations omitted); see also United States v. De La Fuente, 353 F.3d 766, 770 (9th Cir.2003) (citations omitted). In doing so, we are bound by the state court's interpretation of the statute. See Guaranty Trust Co. v. Blodgett, 287 U.S. 509, 513, 53 S.Ct. 244, 77 L.Ed. 463 (1933) (citations omitted).

Reina-Rodriguez was convicted in Utah of a felony burglary in the second degree. Utah statutes provide that one can be convicted of felony burglary in the second degree if one commits: (1) an attempted aggravated burglary; or (2) a burglary of a dwelling. Specifically, under Utah's general burglary statute, "[a]n actor is guilty of burglary if he enters or remains unlawfully in a building or any portion of a building with intent to commit [a crime]." Utah Code Ann. § 76-6-202(1). If the actor commits the burglary "in a dwelling . . . it is a felony of the second degree." Id. § 76-6-202(2). Further, in Utah, a person is "guilty of aggravated burglary if in attempting, committing, or fleeing from a burglary the actor or another participant in the crime": (a) causes bodily injury to any person . . .; (b) uses or threatens the immediate use of a dangerous weapon against any person . . .; or (c) possesses or attempts to use any explosive or dangerous weapon. Id. § 76-6-203 ("Aggravated burglary").

"Aggravated burglary . . . is a first degree felony regardless of whether a dwelling is involved." State v. Porter, 705 P.2d 1174, 1178 (Utah 1985) (citation omitted). However, "attempted aggravated burglary [is] a felony of the second degree. . . ." State v. Harding, 576 P.2d 1284 (Utah 1978); see also Utah Code Ann. § 76-4-102(2) (attempt to commit a first degree felony, other than murder, kidnaping, or a sexual offense, is a second degree felony).

Against this backdrop, we must now determine whether the "full range of conduct encompassed" or prohibited by Utah's statute of conviction for felony burglary in the second degree fits a "crime of violence" under the Guidelines. Kepilino v. Gonzales, 454 F.3d 1057, 1061 (9th Cir. 2006) (citing Cuevas-Gaspar v. Gonzales, 430 F.3d 1013, 1018 (9th Cir.2005)). In other words, in order for Reina-Rodriguez's prior conviction to categorically fit a "crime of violence" under the Guidelines, the full range of conduct proscribed by Utah's statute of conviction for burglary of a dwelling or an attempted aggravated burglary must both fall within that definition.

A "crime of violence" under the Guidelines includes "burglary of a dwelling." U.S.S.G. § 2L1.2 application n. 1(B)(iii). Reina-Rodriguez's conviction for burglary in the second degree does not categorically fit "burglary of a dwelling" under the Guidelines because, in Utah, a conviction for an attempted...