U.S. v. Rivera-Oros

• Decision Date: 29 December 2009
• Docket Number: No. 08-2035.,08-2035.
• Citation: 590 F.3d 1123
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rodrigo RIVERA-OROS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

590 F.3d 1123

UNITED STATES of America, Plaintiff-Appellee, v. Rodrigo RIVERA-OROS, Defendant-Appellant.

No. 08-2035.

United States Court of Appeals, Tenth Circuit.

December 29, 2009.

Scott M. Davidson, Albuquerque, NM, for Defendant-Appellant.

David N. Williams, Assistant United States Attorney (Gregory J. Fouratt, United States Attorney, with him on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Before O'BRIEN, TYMKOVICH, and HOLMES, Circuit Judges.

HOLMES, Circuit Judge.

Defendant-Appellant Rodrigo Rivera-Oros pleaded guilty to one count of reentering the United States after having been previously deported following a felony conviction, in violation of 8 U.S.C. § 1326(a), (b). The district court calculated a modified advisory Guidelines range—including a criminal history downward departure— yielding a range of forty-six to fifty-seven months' imprisonment. It sentenced Mr. Rivera-Oros to forty-six months' imprisonment. Mr. Rivera-Oros challenges the court's calculation of the Guidelines range, arguing that the district court incorrectly applied a sixteen-level enhancement to his offense level for having previously committed a crime of violence. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Finding no error, we affirm.

I. BACKGROUND

Mr. Rivera-Oros is a Mexican citizen who has lived in the United States for almost his entire life. In 2005, he was arrested and convicted in the Superior Court of Maricopa County, Arizona, of felony burglary in the second degree, which carries a maximum term of three and a half years' imprisonment.¹ Mr Rivera-Oros was sentenced to six months' imprisonment, followed by three years' probation. After serving his sentence, Mr. Rivera-Oros was released to federal immigration officers and was deported.

On October 6, 2006, Mr. Rivera-Oros was arrested by the United States Border Patrol near Hachita, New Mexico, while in the process of crossing the border into the United States. He admitted that he had entered the country illegally. Mr. Rivera-Oros was indicted in the District of New Mexico on one count of illegally reentering the United States after having been previously deported, in violation of 8 U.S.C. § 1326(a), (b). He pleaded guilty without a plea agreement. According to the presentence investigation report ("PSR"), Mr. Rivera-Oros's total offense level was 21, which included a sixteen-level enhancement for having previously committed a crime of violence, namely his 2005 burglary conviction. See United States Sentencing Guidelines Manual ("U.S.S.G.") § 2L1.2(b)(1)(A) (2007). Mr. Rivera-Oros had a criminal history score of 8, which placed him in criminal history category IV. However, concerned that his criminal history score might over-represent his future dangerousness and his risk of recidivism, the PSR suggested that Mr. Rivera-Oros was more similarly situated to defendants with a criminal history category of III.

Mr. Rivera-Oros filed a sentencing memorandum objecting to the PSR. R., Vol. I, Doc. 52 (Sentencing Mem., filed Jan. 15, 2008). However, he did not challenge the calculation of the Guidelines range. Instead, he argued that a below-Guidelines sentence was "`sufficient, but not greater than necessary.'" Id. at 3-4 (quoting 18 U.S.C. § 3553(a)).

The district court agreed that Mr. Rivera-Oros's criminal history score over-represented the seriousness of his criminal history. Therefore, pursuant to U.S.S.G. § 4A1.3(b)(1), the court departed downward, assigning Mr. Rivera-Oros to criminal history category III. Based on a criminal history category III and an offense level of 21, the modified advisory Guidelines range was forty-six to fifty-seven months' imprisonment. The court denied Mr. Rivera-Oros's requests for a variance or further departure and sentenced him to forty-six months' imprisonment, the bottom of the modified advisory Guidelines range.

This appeal followed. The only issue is whether Mr. Rivera-Oros's prior burglary conviction is a "crime of violence" supporting a sixteen-level increase to his offense level.

II. DISCUSSION

A. Standard of Review

Whether a prior offense is a "crime of violence" under U.S.S.G. § 2L1.2(b) is a question of law that we generally review de novo. United States v. Maldonado-Lopez, 517 F.3d 1207, 1208 (10th Cir.2008); see also United States v. Juarez-Galvan, 572 F.3d 1156, 1158 (10th Cir.), cert. denied ___ U.S. ___, 130 S.Ct. 762, ___ L.Ed.2d ___, 2009 WL 3415133 (2009). But when a defendant fails to object to the district court's application of a Guidelines enhancement, we review only for plain error. United States v. Romero, 491 F.3d 1173, 1176-77 (10th Cir.2007); see also United States v. Garcia-Caraveo, 586 F.3d 1230, 1232 (10th Cir.2009); Juarez-Galvan, 572 F.3d at 1158. Mr. Rivera-Oros concedes that he did not object to the district court's application of the sixteen-level enhancement for having committed a crime of violence. Therefore plain error review applies. To prevail under the plain error standard, the appellant must prove that the district court (1) committed an error, (2) that was "clear or obvious under current law," and which (3) affects the appellant's "substantial rights." United States v. Goode, 483 F.3d 676, 681 (10th Cir.2007) (internal quotation marks omitted); see United States v. Olano, 507 U.S. 725, 733-37, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). If these requirements are met, "this Court may exercise discretion to correct the error if it seriously affects the fairness, integrity, or public reputation of judicial proceedings." Goode, 483 F.3d at 681 (internal quotation marks omitted); see Juarez-Galvan, 572 F.3d at 1158-59. However, we conclude that the district court did not commit any error, plain or otherwise, and consequently, we affirm.

B. Crime of Violence Framework

The Guidelines impose a sixteen-level enhancement if an alien "was deported, or unlawfully remained in the United States, after . . . a conviction for a felony that is . . . a crime of violence." U.S.S.G. § 2L1.2(b)(1). A "crime of violence" is defined as:

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 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) (2007) (emphasis added).² This definition is disjunctive. A felony conviction qualifies as a crime of violence if either (1) the defendant was convicted of one of the twelve enumerated offenses; or (2) the use, attempted use, or threatened use of physical force was an element of the offense. United States v. Zuniga-Soto, 527 F.3d 1110, 1115 (10th Cir.2008); see Juarez-Galvan, 572 F.3d at 1159 ("[W]e have explained that there are two ways that a felony conviction could constitute a crime of violence." (footnote omitted)). The only issue before us is whether Mr. Rivera-Oros was convicted of the enumerated offense of "burglary of a dwelling." The government does not claim, nor is there any reason to believe, that the use of force was an element of his 2005 burglary conviction.

The definition and scope of the enumerated offenses are questions of federal law. The label that a state attaches to a crime under its laws does not determine whether it is a Guidelines enumerated offense. United States v. Servin-Acosta, 534 F.3d 1362, 1366 (10th Cir.2008) ("[W]e have rejected the notion that whether a state conviction was for an enumerated but undefined crime `depends upon how the crime is characterized under state law.'" (quoting United States v. Vasquez-Flores, 265 F.3d 1122, 1124 (10th Cir.2001))); see Juarez-Galvan, 572 F.3d at 1159 (noting that California's "designation" of the offenses at issue is "not dispositive").

Instead, the enumerated offenses of § 2L1.2 are defined by their "generic, contemporary meaning." Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990); see also Juarez-Galvan, 572 F.3d at 1159 ("[W]e must consider `the uniform generic definition' of the enumerated offense, and then determine whether the state statute corresponds to that generic definition."). We look to a wide range of sources to determine the generic meaning of an enumerated offense, including federal and state statutes, the Model Penal Code, dictionaries, and treatises. Taylor, 495 U.S. at 598, 110 S.Ct. 2143; see Garcia-Caraveo, 586 F.3d at 1233 (noting that we employ "the analytical framework set out" in Taylor, looking to state statutes "as well as prominent secondary sources, such as criminal law treatises and the Model Penal Code"); accord United States v. Torres-Diaz, 438 F.3d 529, 536 (5th Cir.2006) (noting that as "a source of generic contemporary meaning, we turn to the Model Penal Code and to Professors LaFave and Scott's treatise, Substantive Criminal Law"). To determine whether a previous conviction satisfies the generic meaning of the offense, ordinarily we apply "a formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions." Taylor, 495 U.S. at 600, 110 S.Ct. 2143.

The government argues that the district court correctly applied the sixteen-level enhancement. It notes that, in Taylor, the Supreme Court defined generic burglary as "any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Id. at 599, 110 S.Ct. 2143. Mr. Rivera-Oros was convicted of second-degree burglary, which, under Arizona law, is defined as "entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein." Ariz.Rev. Stat. Ann. § 13-1507(A). The government...