U.S. v. Ruiz–apolonio

• Citation: 2011 Daily Journal D.A.R. 14035,11 Cal. Daily Op. Serv. 11777,657 F.3d 907
• Decision Date: 14 September 2011
• Docket Number: No. 10–50306.,10–50306.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Pablo RUIZ–APOLONIO, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

657 F.3d 907

11 Cal. Daily Op. Serv. 11,777

2011 Daily Journal D.A.R. 14,035

UNITED STATES of America, Plaintiff–Appellee,

v.Pablo RUIZ–APOLONIO, Defendant–Appellant.

No. 10–50306.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 11, 2011.Filed Sept. 14, 2011.

James Fife, Assistant Federal Public Defender, Federal Defenders of San Diego, Inc., for defendant-appellant Pablo Ruiz–Apolonio.Laura E. Duffy, United States Attorney, and Bruce R. Castetter and Daniel Earl Zipp, Assistant United States Attorneys, San Diego, CA, for plaintiff-appellee United States of America.Appeal from the United States District Court for the Southern District of California, Dana M. Sabraw, District Judge, Presiding. D.C. No. 3:10–cr–00109–DMS–1.Before: BETTY B. FLETCHER and KIM McLANE WARDLAW, Circuit Judges, and BRETT M. KAVANAUGH, Circuit Judge.^*

OPINION

WARDLAW, Circuit Judge:

Pablo Ruiz–Apolonio appeals the 46–month sentence of imprisonment imposed following his guilty plea to one count of illegal reentry under 8 U.S.C. § 1326. Because we agree with the district court that a conviction for forcible rape under California Penal Code § 261(a)(2) is categorically a “crime of violence” as defined by the Sentencing Guidelines, we hold that the district court correctly imposed a 16–level sentencing enhancement. We also hold that the district court did not commit procedural error in calculating the Guidelines range and that the sentence of 46 months was not substantively unreasonable. We therefore affirm.

I.

In 2007, Ruiz pleaded guilty under California Penal Code § 261(a)(2) to one count of forcible rape, a crime he committed in 2002. He was deported to Mexico on September 9, 2009, but reentered the United States without permission on November 13, 2009. On February 9, 2010, Ruiz pleaded guilty to one count of illegal reentry after deportation in violation of 8 U.S.C. § 1326. At sentencing, the district court found that Ruiz's prior California conviction under § 261(a)(2) constituted a “crime of violence” within the meaning of the Sentencing Guidelines and therefore warranted a 16–level upward adjustment of the offense level, resulting in a total offense level of 21. The court then found that Ruiz's criminal history score was 6, which placed him into Criminal History Category III, resulting in a Guidelines sentencing range of 46–57 months of imprisonment.

In addition to his argument that rape under California Penal Code § 261(a)(2) is not categorically a crime of violence under U.S.S.G. § 2L1.2, Ruiz raised two specific objections to the Guidelines calculation. First, while he conceded that he had committed his illegal reentry offense within two years of release from prison, he nonetheless argued that the district court's addition of two “recency” points under U.S.S.G. § 4A1.1(e) was improper. He based this argument on the Sentencing Commission's January 21, 2010 proposal to amend the Guidelines to eliminate the calculation of recency points from U.S.S.G. § 4A1.1(e), and the Commission's statement that inclusion of such recency points “only minimally improves” the predictability of recidivism. Although the proposal had not yet gone into effect on the date of sentencing, Ruiz believed that the district court should apply it. Second, Ruiz argued that, because the Bureau of Prisons allegedly calculates “good time” credits differently than does the Sentencing Commission, the Guidelines sentencing range was effectively increased to compensate for time off that Ruiz could not possibly earn.

The district court rejected both arguments without explanation and then considered the 18 U.S.C. § 3553(a) factors. Discussing what it termed “a number of aggravating facts,” the court noted that the circumstances of the 2002 rape were very serious, demonstrating that Ruiz was a danger to society. The court added that it had carefully considered the mitigating factors laid out in a letter from Ruiz's sister, as well as the Probation Office's recommendation of 57 months of imprisonment. The court concluded that a sentence at the low end of the Guidelines range was appropriate and sentenced Ruiz to 46 months of imprisonment, with two years supervised release, no fine, and a $100 special assessment.

II.

“Whether a conviction constitutes a crime of violence under the Guidelines is reviewed de novo.” United States v. Jennen, 596 F.3d 594, 600 (9th Cir.2010).

We review the sentence imposed by the district court for abuse of discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc); see also Gall v. United States, 552 U.S. 38, 46, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). We will reverse the sentence only where it was procedurally erroneous or substantively unreasonable. Carty, 520 F.3d at 993. “It would be procedural error for a district court to fail to calculate—or to calculate incorrectly—the Guidelines range ... or to fail adequately to explain the sentence selected, including any deviation from the Guidelines range.” Id. (citing Gall, 552 U.S. at 51, 128 S.Ct. 586). The explanation must be sufficient “to permit meaningful appellate review.” Id. at 992 (citing Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). While the district court “need not ... articulate in a vacuum how each § 3553(a) factor influences its determination of an appropriate sentence,” when “a party raises a specific, nonfrivolous argument tethered to a relevant § 3553(a) factor in support of a requested sentence, then the judge should normally explain why he accepts or rejects the party's position.” Id. at 992–93. That said, lengthy explanations of sentencing decisions are not necessary “if ‘the record makes clear that the sentencing judge considered the evidence and arguments.’ ” United States v. Daniels, 541 F.3d 915, 922 (9th Cir.2008) (quoting Rita, 551 U.S. at 359, 127 S.Ct. 2456).

In addressing whether Ruiz's sentence was substantively unreasonable, we must consider “the totality of the circumstances.” Carty, 520 F.3d at 993. “A substantively reasonable sentence is one that is ‘sufficient, but not greater than necessary’ to accomplish § 3553(a)(2)'s sentencing goals.” United States v. Crowe, 563 F.3d 969, 977 n. 16 (9th Cir.2009) (quoting 18 U.S.C. § 3553(a)). “The touchstone of ‘reasonableness' is whether the record as a whole reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).” United States v. Tomko, 562 F.3d 558, 568 (3d Cir.2009) (quoting United States v. Grier, 475 F.3d 556, 571 (3d Cir.2007) (en banc)); see also United States v. Ellis, 641 F.3d 411, 423 (9th Cir.2011).

III.

The district court did not err by increasing Ruiz's offense level by 16 levels on the basis of Ruiz's 2007 conviction for rape in California, because a conviction under California Penal Code § 261(a)(2) is categorically a crime of violence under U.S.S.G. § 2L1.2.

California Penal Code § 261(a)(2) defines rape as “an act of sexual intercourse accomplished with a person not the spouse of the perpetrator ... [w]here it is accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another.” The illegal reentry sentencing guidelines provide that a defendant's offense level shall be increased by 16 levels “[i]f the defendant 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)(ii). To determine whether California Penal Code § 261(a)(2) is categorically a “crime of violence,” we apply the “categorical approach” set forth in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under the categorical approach, we look “ ‘not to the particular facts underlying [the defendant's prior] conviction[ ],’ but ‘only to the fact of conviction and the statutory definition of the prior offense,’ in order to determine whether the state statute could potentially criminalize conduct that would not qualify as” a crime of violence. United States v. Aguila–Montes de Oca, 655 F.3d 915, 920 (9th Cir.2011) (en banc) (alterations in original) (quoting Taylor, 495 U.S. at 600, 602, 110 S.Ct. 2143). The sentencing enhancement is applicable under the categorical approach only if “the full range of conduct covered by the state statute ... fall[s] within the scope of the federal statutory provision.” United States v. Pallares–Galan, 359 F.3d 1088, 1099–1100 (9th Cir.2004) (citation omitted).

Application Note 1(B)(iii) to U.S.S.G. § 2L1.2 defines “crime of violence” to include “forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced).” U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n.1(B)(iii) (2010). Therefore, we must decide whether California Penal Code § 261(a)(2) is a “forcible sex offense.” Before the 2008 Sentencing Guidelines became effective, Application Note 1(B)(iii) to U.S.S.G. § 2L1.2 had defined “crime of violence” to include only three types of sexual offenses: “forcible sex offenses, statutory rape, [and] sexual abuse of a minor.” See, e.g., U.S. Sentencing Guidelines Manual § 2L1.2 cmt. n.1(B)(iii) (2007). Both we and the Fifth Circuit construed the term “forcible sex offense” as requiring the use of some physical force above and beyond that required for penetration. See, e.g., United States v. Beltran–Munguia, 489 F.3d 1042, 1051 (9th Cir.2007); United States v. Luciano–Rodriguez, 442 F.3d 320, 323 (5th Cir.2006); United States v. Sarmiento–Funes, 374 F.3d 336, 341 (5th Cir.2004). In 2007, citing Sarmiento–Funes, the Fifth Circuit held that a conviction for rape under California Penal Code § 261(a)(2) was not categorically a crime of violence under the Guidelines because the statute criminalized sexual intercourse (including intercourse...