U.S. v. Saavedra-Velazquez

• Decision Date: 21 August 2009
• Docket Number: No. 08-10078.,08-10078.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Martin SAAVEDRA-VELAZQUEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

578 F.3d 1103

UNITED STATES of America, Plaintiff-Appellee, v. Jose Martin SAAVEDRA-VELAZQUEZ, Defendant-Appellant.

No. 08-10078.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 14, 2009.

Filed August 21, 2009.

Michael K. Powell, Assistant Federal Public Defender, Reno, NV, for the defendant-appellant.

Gregory Bower, United States Attorney, Robert L. Ellman, Appellate Chief, Elizabeth A. Olson and Ronald C. Rachow, Assistant United States Attorneys, Reno, NV, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Nevada, Larry R. Hicks, District Judge, Presiding. D.C. No. CR07-065-LRH-RAM.

Before: STEPHEN REINHARDT, EUGENE E. SILER, JR.,^* and M. MARGARET McKEOWN, Circuit Judges.

REINHARDT, Circuit Judge:

As an "attempt" in the state of California requires only "slight acts in furtherance of the [criminal] design," People v. Superior Court, 41 Cal.4th 1, 58 Cal. Rptr.3d 421, 157 P.3d 1017, 1022 (2007) (emphasis added), one would reasonably expect that the California definition was categorically broader than the definition at common law, which requires a "substantial step towards committing the crime," United States v. Sarbia, 367 F.3d 1079, 1085-86 (9th Cir.2004) (emphasis added). Strangely enough, however, we are required by precedent to conclude that the two definitions are functionally equivalent.

I.

Jose Martin Saavedra-Velazquez ("Saavedra-Velazquez"), a native and citizen of Mexico, first entered the United States more than thirty years ago. He has spent the vast majority of his life in this country, was married to a United States citizen, and has a United States citizen son.

From 1999 to 2007, Saavedra-Velazquez was removed from the United States on four separate occasions, most recently on March 3, 2007. After once again illegally reentering the United States, he was arrested for a misdemeanor offense in Reno, Nevada on June 17, 2007. He was at the time on supervised release following a 2005 conviction for illegal reentry after deportation. Saavedra-Velazquez was indicted by the grand jury for illegal reentry by a deported alien in violation of 8 U.S.C. § 1326(a) and entered an unconditional guilty plea.

At sentencing, the district court placed Saavedra-Velazquez in a criminal history category VI, with an advisory Sentencing Guidelines range of 77-96 months. Saavedra-Velazquez had accumulated a number of arrests and felony convictions over the course of his time in the United States. Most resulted in relatively short periods of incarceration, none of which lasted longer than three years. For the previous ten years, Saavedra-Velazquez had no violent criminal history. In 1989, however, he was convicted of felony attempted robbery under Cal.Penal Code § 211. On account of this conviction, the district court determined that he "previously was deported ... after ... a conviction for a felony that is ... a crime of violence" and, in calculating Saavedra-Velazquez's advisory Sentencing Guidelines range, included a 16-level upward adjustment of his base offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).

Saavedra-Velazquez argued at sentencing that the California conviction for attempted robbery was not, categorically, a "crime of violence" for the purposes of U.S.S.G. § 2L1.2, and that the 16-level upward adjustment should not be applied. The district judge, relying on United States v. McDougherty, 920 F.2d 569 (9th Cir.1990), disagreed. The judge nevertheless sentenced Saavedra-Velazquez to only 41 months in prison, well below the Guidelines range,¹ due in part to his showing of "cultural assimilation" and to the fact that, for ten years, he had no violent criminal history.²

Saavedra-Velazquez appeals the determination that his attempted robbery conviction is a crime of violence and the resulting 16-level upward adjustment of his base offense level. We have jurisdiction over his appeal pursuant to 28 U.S.C. § 1291 (granting jurisdiction to hear "appeals from all final decisions of the district courts of the United States") and 18 U.S.C. § 3742 (granting jurisdiction to review a sentence "imposed as a result of an incorrect application of the sentencing guidelines"). We review de novo "a district court's determination that a prior conviction qualifies as a `crime of violence' under the Guidelines...." United States v. Rodriguez-Guzman, 506 F.3d 738, 740-41 (9th Cir.2007) (citation omitted).

II.

The first question before us is whether completed robbery under Cal.Penal Code § 211 is a "crime of violence" for purposes of the Sentencing Guidelines. Saavedra-Velazquez has conceded, and we agree, that intervening case law since the filing of his appeal has settled this question definitively in the affirmative. See United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir.2008).

III.

We next consider whether California's definition of "attempt" is broader than the common law definition, such that attempted robbery is not a "crime of violence."

A.

Saavedra-Velazquez makes this argument for the first time on appeal. We generally review arguments not raised before the district court for plain error. See Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). However, we are not limited to this standard of review when we are presented with a question that "is purely one of law" and where "the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court...." United States v. Echavarria-Escobar, 270 F.3d 1265, 1267-68 (9th Cir. 2001). In Echavarria-Escobar, an alien convicted of illegal reentry under 8 U.S.C. § 1326 challenged his sentence enhancement for the first time on appeal on the ground that his prior conviction was not, as a matter of law, an aggravated felony. Because the question presented was purely legal, we did not restrict ourselves to plain error review. Here, too, the question whether an "attempt" under California law is broader than an "attempt" at common law is a pure question of law, and the government, which has fully briefed the issue, suffers no prejudice. We therefore will not apply plain error review.

B.

The Sentencing Guidelines provide for a 16-level upward adjustment "[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). "Robbery," among other enumerated offenses, is a "crime of violence." U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii). "[A]iding and abetting, conspiring, and attempting, to commit" an offense that would be a "crime of violence" if completed qualifies as such, as well. U.S.S.G. § 2L1.2 cmt. n. 5 (emphasis added).

Saavedra-Velazquez argues that, under the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), his prior attempted robbery conviction is a "crime of violence" only if California's definition of both "robbery" and "attempt" are coextensive with the respective common law definitions. We agree.³ In United States v. Sarbia, which is dispositive here, we engaged in precisely this two-pronged analysis to determine whether in Nevada an attempt to commit a "crime of violence" is itself a "crime of violence" under U.S.S.G. § 2L1.2. 367 F.3d at 1084-86. In United States v. Taylor, we analyzed whether Arizona's definition of "attempt" is broader than the federal or common law definition in order to determine whether "attempted armed robbery" is a "crime of violence" under the Guidelines. 529 F.3d 1232, 1237-38 (9th Cir.2008). We further explained in Rebilas v. Mukasey that

[t]o hold that [the] conviction was categorically a conviction for attempted sexual abuse of a minor ..., we would have to hold not only that Arizona's definition of public sexual indecency to a minor ... was categorically sexual abuse of a minor, but also that Arizona's definition of attempt ... was a categorical match with the federal definition of attempt. This would require a second Taylor analysis, comparing the elements of attempt under Arizona law and the elements of attempt under [federal law].

527 F.3d 783, 787 (9th Cir.2008). We reaffirm here that a prior state conviction for an attempt to commit an offense that would qualify as a "crime of violence" is itself categorically a "crime of violence" only if the state definition of attempt is no broader than the corresponding federal or common law definition.

C.

The final question is whether the definition of "attempt" under California law is coextensive with the common law meaning. We resolve that question by adhering, as we are bound to do, to Sarbia, in which we held that Nevada's definition of "attempt"—which appears to be virtually indistinguishable from that in California—is coextensive with the federal or common law definition. 367 F.3d at 1086. We do so notwithstanding what in all other circumstances would be an outright contradiction between the language of the two definitions.

"At common law an `attempt[ ]' was defined as the specific intent to engage in criminal conduct and ... an overt act which is a substantial step towards committing the crime." Sarbia, 367 F.3d at 1085-86 (citations and quotation marks omitted) (emphasis added). The Model Penal Code has defined "attempt" in a similar fashion:

A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he .... purposely does or omits to do anything that, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.

Model Penal Code § 5.01(1)(c) (emphasis added). In interpreting the federal definition of attempt, we have held that the "step toward commission of the crime" must be "of such substantiality that, unless frustrated, the crime would have...