U.S. v. Ruvalcaba

• Citation: 627 F.3d 218
• Decision Date: 22 December 2010
• Docket Number: No. 09-3782,09-3782
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jaime RUVALCABA, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

627 F.3d 218

UNITED STATES of America, Plaintiff-Appellee,

v.Jaime RUVALCABA, Defendant-Appellant.

No. 09-3782.

United States Court of Appeals,Sixth Circuit.

Argued: Dec. 10, 2010.

Decided and Filed: Dec. 22, 2010.

ARGUED: Amy B. Cleary, Office of the Federal Public Defender, Cleveland, Ohio, for Appellant. Blas E. Serrano, Assistant United States Attorney, Cleveland, Ohio, for Appellee. ON BRIEF: Amy B. Cleary, Office of the Federal Public Defender, Cleveland, Ohio, for Appellant. Blas E. Serrano, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

Before: MARTIN and SILER, Circuit Judges; BELL, District Judge. ^*

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Jaime Ruvalcaba appeals the district court's reliance on his prior state convictions to apply the career offender enhancement in calculating his advisory Guidelines sentencing range. However, the district court properly applied the career offender enhancement and we therefore AFFIRM Ruvalcaba's sentence at the lower end of the properly calculated Guidelines range.

I.

Ruvalcaba pled guilty to conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846 (2006). Under the plea agreement, Ruvalcaba accepted responsibility for distributing at least 500 grams but less than two kilograms of cocaine, which put him at a base offense level of twenty-six. The government agreed to recommend a three-level reduction based on Ruvalcaba's acceptance of responsibility. Ultimately, the agreement recommended a total offense level of twenty-three.

The plea did not contain any agreement on Ruvalcaba's criminal history, but stated that the government would not oppose a sentence at the low end of the applicable Guidelines range if Ruvalcaba's criminal history were category V or higher. Additionally, although the district court later entertained argument on this issue from Ruvalcaba, the plea agreement contained a provision prohibiting Ruvalcaba from requesting a downward departure or variance.

The Presentence Report initially conformed to the parties' expectations in the plea agreement, finding Ruvalcaba to be at a total offense level of twenty-three, criminal history category V, with a resulting advisory range of seven years to eight years and nine months imprisonment. However, a revised Presentence Report determined that Ruvalcaba should be sentenced as a career offender pursuant to the provision in section 4B1.1 of the United States Sentencing Commission Guidelines Manual. The Probation Office suggested this enhancement based on Ruvalcaba's two prior convictions for unlawfullydischarging a firearm at an occupied structure in violation of Ohio law.

Applying the career offender enhancement moved Ruvalcaba up to a base offense level of thirty-four and a criminal history category of VI. The three-level reduction in the plea agreement for accepting responsibility brought Ruvalcaba to a total offense level of thirty-one. Accordingly, after applying the career offender provisions, Ruvalcaba's Guidelines advisory range more than doubled to fifteen years and eight months to nineteen years and seven months imprisonment.

The district court followed the recommendations in the revised Presentence Report, applied the career offender enhancement, and sentenced Ruvalcaba to fifteen years and eight months imprisonment-the lower bound of the Guidelines range. In a written opinion explaining its application of the career offender enhancement, the district court reviewed the relevant sentencing factors outlined in 18 U.S.C. 3553(a) in detail, and stated that it would still impose a sentence of fifteen years and eight months even if the career offender enhancement did not apply.

II.

"The touchstone of appellate review of a district court's sentencing decision is reasonableness, a concept that has both a procedural and a substantive component." United States v. Gunter, 620 F.3d 642, 645 (6th Cir.2010) (citing Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Grossman, 513 F.3d 592, 595 (6th Cir.2008)). When reviewing a district court's sentencing determination, we endeavor to "ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence." Gall, 552 U.S. at 51, 128 S.Ct. 586. We typically employ the abuse of discretion standard to reasonableness review. United States v. Thompson, 515 F.3d 556, 560 (6th Cir.2008).

However, a district court's determination that a prior conviction is a "crime of violence" under section 4B1.1 of the Guidelines is reviewed de novo. United States v. Hargrove, 416 F.3d 486, 494 (6th Cir.2005). In determining whether a conviction was for a crime of violence, we use the "categorical approach" and look "only to the fact of conviction and the statutory definition-not the facts underlying the offense-to determine whether that definition supports a conclusion that the conviction was for a crime of violence." United States v. Bartee, 529 F.3d 357, 359 (6th Cir.2008). Under this approach, courts consider the offense "generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion." Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008).¹

A. Whether Ruvalcaba's Prior Convictions Are Void.

After the district court sentenced Ruvalcaba, the Ohio Supreme Court held inState v. Singleton, 124 Ohio St.3d 173, 920 N.E.2d 958, 964 (2009), that sentences for offenders who did not receive proper post-release control notice are void. From this, Ruvalcaba argues that his prior convictions are therefore void and cannot be considered in determining whether he meets the definition of a career offender because he did not receive proper post-release control notice. However, a panel of this Court recently rejected another defendant's identical argument. United States v. Aguilar-Diaz, 626 F.3d 265, 269-70 (6th Cir.2010). Although a defendant in Ruvalcaba's position may be able to challenge his or her prior convictions as void under recent decisions from the Ohio Supreme Court through state channels for seeking post conviction relief, attempting to do so during sentencing for unrelated crimes in federal court is an impermissible collateral attack. Id.; see also Custis v. United States, 511 U.S. 485, 496, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994). Therefore, because Ohio has not declared Ruvalcaba's prior convictions void, the district court did not err by considering them.

B. Whether Ruvalcaba's Prior Convictions Are "Crimes of Violence."

A defendant is a career offender if (1) he or she was at least eighteen years old when he or she committed the instant offense; (2) the instant offense is a felony that is either a crime of violence or a controlled substance offense; and (3) he or she has been convicted of at least two prior felony crimes of violence or controlled substance offenses. U.S.S.G. § 4B1.1(a) (2010). Ruvalcaba was over eighteen years old when he committed the instant felony drug offense, satisfying the first and second requirements. Therefore, the only issue is whether Ruvalcaba's two prior convictions for discharging a firearm at or into a habitation in violation of Ohio Revised Code § 2923.161(A)(1) are "crimes of violence."

The Guidelines define a "crime of violence" as an offense that warrants at least a year in prison and "(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. § 4B1.2(a); see United States v. Ford, 560 F.3d 420, 421 (6th Cir.2009). The statute Ruvalcaba violated does not require the use of physical force against another. Ohio Rev.Code Ann. § 2923.161 (West 2010). Similarly, Ruvalcaba's prior convictions under this statute are not for any of the specifically enumerated crimes in the career offender provision. Therefore, violation of this statute is only a "crime of violence" under the career offender provision of the Guidelines if it "presents a serious potential risk of physical injury to another."

In pertinent part, section 2923.161 provides that:

(A) No person, without privilege to do so, shall knowingly do any of the following:

(1) Discharge a firearm at or into an occupied structure that is a permanent or temporary habitation of any individual[.]

Id. The code goes on to define "occupied structure":

(C) "Occupied structure" means any house, building, outbuilding, watercraft, aircraft, railroad car, truck, trailer, tent, or other structure, vehicle, or shelter, or any portion thereof, to which any of the following applies:

(1) It is maintained as a permanent or temporary dwelling, even though it is temporarily unoccupied and whether or not any person is actually present.

(2) At the time, it is occupied as the permanent or temporary habitation of any person, whether or not any person is actually present.

(3) At the time, it is specially adapted for the overnight accommodation of any person, whether or not any person is actually present.

(4) At the time, any person is present or likely to be present in it.

Id. § 2909.01. We proceed to consider whether violation of this statute presents a serious potential risk of physical injury to another and whether the crime is sufficiently similar to the enumerated crimes in section 4B1.2(a)(2) of the Guidelines to qualify as a crime of violence.

1. Risk of physical injury.

As the district court concluded, firing a gun at even an unoccupied structure in violation of section 2923.161 inherently...