U.S. v. Rodriguez-Rodriguez

• Decision Date: 20 April 2004
• Docket Number: No. 03-50146.,No. 03-50147.,03-50146.,03-50147.
• Citation: 393 F.3d 849
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jorge RODRIGUEZ-RODRIGUEZ, Defendant-Appellee. United States of America, Plaintiff-Appellee, v. Jorge Rodriguez-Rodriguez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

393 F.3d 849

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

United States of America, Plaintiff-Appellee, v. Jorge Rodriguez-Rodriguez, Defendant-Appellant.

No. 03-50146.

No. 03-50147.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 30, 2004.

Filed April 20, 2004.

Amended January 5, 2005.

COPYRIGHT MATERIAL OMITTED

Carol C. Lam, United States Attorney, Deborah J. Rhodes, Assistant U.S. Attorney (on the brief), Lawrence E. Spong, Assistant U.S. Attorney (at oral argument), United States Attorney's Office, San Diego, CA, for the plaintiff-appellant/cross-appellee.

Steven F. Hubacheck and Vincent J. Brunkow, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellee/cross-appellant.

Appeal from the United States District Court for the Southern District of California; M. James Lorenz, District Judge, Presiding. D.C. No. CR-02-02456-MJL.

Before HALL, TROTT, and CALLAHAN, Circuit Judges.

ORDER

TROTT, Circuit Judge:

The Opinion filed April 20, 2004, and appearing at 364 F.3d 1142 (9th Cir.2004) is amended as follows. Replace Section D with the following:

D. Sentencing

The sentencing judge's application of the Sentencing Guidelines, including whether a prior conviction is a "crime of violence" or an "aggravated felony" for the purposes of U.S.S.G. § 2L1.2, is reviewed de novo. United States v. Bonilla-Montenegro, 331 F.3d 1047, 1049 (9th Cir.2003).

The Guidelines provide that a sentence is enhanced by sixteen levels if an alien "previously 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). For an aggravated felony, the enhancement is only eight levels. U.S.S.G. § 2L1.2(b)(1)(C). The application notes specifically provide that "burglary of a dwelling" is a "crime of violence." See U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii).

The sentencing judge enhanced Rodriguez's sentence by eight levels, characterizing his prior burglary conviction as an "aggravated felony," rather than a "crime of violence." At the sentencing hearing, the defense argued that, under Taylor v. United States, California's generic burglary definition was too broad to apply the "crime of violence" guideline, and that Rodriguez's role as a lookout warranted application of the lesser "aggravated felony" enhancement. See 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

Although the application note specifically includes "burglary of a dwelling" in the definition of "crime of violence," see U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii), 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." United States v. Wenner, 351 F.3d 969, 972 (9th Cir.2003). Under Taylor, a state conviction meets the generic definition of burglary if the burglary statute "contains at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." Taylor, 495 U.S. at 598, 110 S.Ct. 2143. The definition of "burglary of a dwelling" is the same as the "Taylor definition of burglary, with the narrowing qualification that the burglary occur in a dwelling." Wenner, 351 F.3d at 973.

Taylor sets forth a categorical approach, which "generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense." 495 U.S. at 602, 110 S.Ct. 2143. Using that approach, Rodriguez's California first degree burglary conviction does not constitute generic burglary because California Penal Code Sections 459 and 460 do not require "unlawful or unprivileged entry" for a burglary conviction. See Taylor, 495 U.S. at 599, 110 S.Ct. 2143 ("A few States' burglary statutes, however, define burglary more broadly, e.g., by eliminating the requirement that the entry be unlawful."); see also People v. Frye, 18 Cal.4th 894, 954, 77 Cal.Rptr.2d 25, 959 P.2d 183 (Cal.1998) (holding that in California "one may be convicted of burglary even if he enters with consent").

Where, as here, the state burglary statute is broader than the Taylor definition of burglary, we employ a modified categorical approach, under which we consider whether the documentation or judicially noticeable facts show that the defendant was convicted of all elements of generic burglary under Taylor. See Wenner, 351 F.3d at 972.

Applying the modified categorical approach, we conclude that Rodriguez was convicted of a "burglary of a dwelling," triggering the sixteen level enhancement. Rodriguez pled guilty to "willfully and unlawfully enter[ing] a building with the intent to commit theft" where the building was an "inhabited dwelling house [or other residential building] ... within the meaning of Penal Code section 460." By pleading guilty, Rodriguez admitted the factual allegations in the indictment. See United States v. Velasco-Medina, 305 F.3d 839, 852 (9th Cir.2002); United States v. Williams, 47 F.3d 993, 995 (9th Cir.1995). Because Rodriguez's conviction included the unlawful entry requirement absent in California's statutory definition of burglary, his conviction meets the definition of "burglary of a dwelling" under Taylor and is, therefore, a "crime of violence" under the Sentencing Guidelines. See U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii); see also Velasco-Medina, 305 F.3d at 852-52 (holding that a California burglary conviction was burglary under a modified-categorical approach because Velasco-Medina pled guilty where the indictment alleged "unlawful" entry).

Rodriguez's alternate argument, that his limited role as a lookout warrants application of the lesser enhancement, also fails. The application notes specifically include convictions for aiding and abetting, conspiring, and attempting to commit the listed offenses in U.S.S.G. § 2L1.2(b)(1). U.S.S.G. § 2L1.2, cmt. n. 5. Under Taylor, we look to the statutory definitions of the prior offenses and avoid "inquiries into the underlying facts that would essentially turn the sentencing hearings into mini-trials on the issue of whether the prior crimes were committed." United States v. Bonat, 106 F.3d 1472, 1476 (9th Cir.1997) (citing Taylor, 495 U.S. at 601, 110 S.Ct. 2143).

Because the sentencing judge misapplied U.S.S.G. § 2L1.2(b)(1) in determining that Rodriguez's sentence should only be enhanced eight levels for an aggravated felony instead of sixteen levels for a crime of violence, we vacate Rodriguez's sentence and remand to the district court for resentencing in accordance with this opinion.

With these amendments, the panel as constituted above has voted to deny the petition for rehearing. Judges Trott and Callahan have voted to deny the petition for rehearing en banc, and Judge Hall so recommends.

The full court has been advised of the suggestion for rehearing en banc and no judge of the court has requested a vote on it. Fed. R.App. P. 35(b).

The petition for rehearing and the petition for rehearing en banc are DENIED.

OPINION

Jorge Rodriguez-Rodriguez ("Rodriguez") was convicted of one count of illegal entry under 8 U.S.C. § 1326 and sentenced to twenty-one months in custody. The United States ("government") appeals the sentencing judge's application of United States Sentencing Guideline (U.S.S.G.) § 2L1.2(b)(1)(A), arguing that Rodriguez's prior burglary constitutes a "crime of violence." Rodriguez cross-appeals, arguing that (1) the government's failure to allege voluntary entry in the indictment renders it insufficient, (2) the government used statements that were taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and (3) Rodriguez was denied his rights under the Confrontation Clause when the court denied his request to cross examine a witness regarding INS recordkeeping.

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b). We affirm Rodriguez's conviction. We vacate Rodriguez's sentence and remand to the district court for resentencing consistent with this opinion.

BACKGROUND

On June 21, 2002, Rodriguez was apprehended by border patrol. After admitting that he was a citizen and national of Mexico illegally in the United States, he was arrested and transported to the Imperial Beach Border Patrol station. He was detained at the station, where he was fingerprinted and his photo and fingerprints were run against the INS records, which revealed that he had previously been deported.

At the station, Border Patrol Agent Overton read Rodriguez his Miranda rights in English and Spanish. After Rodriguez signed a Miranda waiver, witnessed by another agent, he responded to a number of questions. The agents noted that he had "needle tracks" on his arms, but observed that he was coherent, interactive, and normal. After he was questioned, Rodriguez underwent a routine health examination. The medical record indicates that Rodriguez was alert and oriented, but it did go on to diagnose him with "acute heroin withdrawal." Miguel Ahuage, the author of the report, testified that "acute" does not mean "severe," and that only patients undergoing mild or moderate withdrawal are permitted in the clinic where he works, while the more serious cases must be treated elsewhere.

Rodriguez was charged with being a previously deported alien found in the United States without the consent of the Attorney General under 8 U.S.C. § 1326.

Prior to trial, Rodriguez unsuccessfully moved to dismiss the action, claiming the indictment was insufficient because it failed to allege voluntary entry. Rodriguez also unsuccessfully moved to suppress the statements he made at the border patrol station, claiming that he could not have voluntarily waived his right to counsel under Miranda, because he was suffering from heroin withdrawal during the course of questioning. During the Miranda hearing, Rodriguez attempted to call an expert...