U.S. v. Sanchez-Garcia

• Decision Date: 06 September 2007
• Docket Number: No. 06-2262.,06-2262.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis SANCHEZ-GARCIA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

501 F.3d 1208

UNITED STATES of America, Plaintiff-Appellee, v. Jose Luis SANCHEZ-GARCIA, Defendant-Appellant.

No. 06-2262.

United States Court of Appeals, Tenth Circuit.

September 6, 2007.

Terri J. Abernathy, Assistant United States Attorney (David C. Iglesias, United States Attorney, with her on the brief), Las Cruces, NM, for Plaintiff-Appellee.

James N. Langell, Assistant Federal Public Defender, Las Cruces, NM, for Defendant-Appellant.

Before KELLY, ANDERSON, and HENRY, Circuit Judges.

HENRY, Circuit Judge.

We are asked to decide whether unlawful use of means of transportation ("UUMT"), as defined in Ariz.Rev.Stat. § 13-1803(A)(1), is a "crime of violence" under 18 U.S.C. § 16(b). We conclude it is not. Accordingly, exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we reverse the district court's imposition of an eight-level "aggravated felony" enhancement under United States Sentencing Guidelines ("USSG") § 2L1.2(b)(1)(C), vacate the defendant's sentence, and remand for re-sentencing.

I. BACKGROUND

A. FACTUAL BACKGROUND

In May 2005, Jose Luis Sanchez-Garcia pleaded guilty in Arizona state court to UUMT in violation of Ariz.Rev.Stat. § 13-1803(A)(1), a class 5 felony. Under Ariz. Rev.Stat. § 13-1803(A)(1), "[a] person commits [UUMT] if, without intent permanently to deprive, the person . . . [k]nowingly takes unauthorized control over another person's means of transportation." Mr. Sanchez-Garcia was sentenced to one-and-a-half years' imprisonment and removed to Mexico on February 24, 2006. Less than five weeks later, on March 28, 2006, he was arrested in Luna County, New Mexico for illegally reentering the United States. He subsequently pleaded guilty to illegal reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b)(2).

B. STATUTORY BACKGROUND

For a violation of 8 U.S.C. § 1326, USSG § 2L1.2(b)(1)(C) provides that the defendant's offense level should be enhanced by eight levels if the violation followed a conviction for an "aggravated felony." For purposes of USSG § 2L1.2(b)(1)(C), "aggravated felony" is defined in the various subsections of 8 U.S.C. § 1101(a)(43). See U.S.S.G. § 2L1.2, cmt. n. 3(A). The only subsection of this statute relevant here defines an aggravated felony as "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(F).¹ Section 16, in turn, defines a "crime of violence" as

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 16.

C. PRESENTENCE INVESTIGATION REPORT

Citing USSG § 2L1.2(b)(1)(C), Mr. Sanchez-Garcia's presentence investigation report ("PSR") characterized UUMT as an aggravated felony and recommended an eight-level enhancement to Mr. Sanchez-Garcia's base offense level of eight. After a three-level reduction for acceptance of responsibility, Mr. Sanchez-Garcia's total offense level was thirteen. With a criminal history category of IV, his suggested sentencing range was twenty-four to thirty months.

D. SENTENCING

Mr. Sanchez-Garcia objected to the eight-level enhancement, arguing that UUMT is not an aggravated felony because it does not fall within § 16's alternative definitions of a crime of violence. The district court disagreed and adopted the PSR's factual findings and Guideline calculations. It then sentenced Mr. Sanchez-Garcia to twenty-four months' imprisonment followed by two years' supervised release. This timely appeal followed.

II. DISCUSSION

On appeal, the parties agree that UUMT does not qualify as a crime of violence under § 16(a) because Ariz.Rev.Stat. § 13-1803(A)(1) does not have as an element the use, attempted use, or threatened use of force. There is also no dispute that UUMT is a felony punishable by more than one year of imprisonment. Thus, the sole issue is whether UUMT, as defined in Ariz.Rev.Stat. § 13-1803(A)(1), falls within § 16(b) as a crime "that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 16(b).

A. STANDARD OF REVIEW

We review de novo the legal question of whether a prior offense constitutes a crime of violence under § 16(b) and thus justifies an aggravated felony enhancement under USSG § 2L1.2(b)(1)(C). See United States v. Treto-Martinez, 421 F.3d 1156, 1157-58 (10th Cir.2005), cert. denied, 546 U.S. 1118, 126 S.Ct. 1089, 163 L.Ed.2d 904 (2006).

B. THE CATEGORICAL APPROACH

To determine whether a prior offense is a "crime of violence" under § 16(b), we apply the categorical approach outlined in Taylor v. United States, 495 U.S. 575, 588-89, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See United States v. Venegas-Ornelas, 348 F.3d 1273, 1275 (10th Cir.2003). Under this approach, we examine only the elements of the statute of conviction and disregard the specific factual circumstances underlying the defendant's prior offense. United States v. Lucio-Lucio, 347 F.3d 1202, 1204 (10th Cir. 2003); United States v. Reyes-Castro, 13 F.3d 377, 379 (10th Cir.1993). Accordingly, for a prior offense to be a crime of violence under § 16(b), the "substantial risk" of "physical force" must inhere in the elements of the prior offense rather than from the specific conduct in which the defendant engaged. See United States v. Frias-Trujillo, 9 F.3d 875, 877 (10th Cir. 1993) ("There is no indication that Congress intended that a particular crime might sometimes count towards enhancement and sometimes not, depending on the facts of the case.") (internal quotation marks omitted).

While we are prohibited from examining "the underlying facts of the charged crime," we may take into account certain records of the prior conviction, such as the charging document and comparable judicial records, if the statutory definition of the prior offense is "ambiguous on its face because it reaches different types of conduct under different sets of elements." Venegas-Ornelas, 348 F.3d at 1275 n. 1 (emphasis in original). This examination does not involve "a subjective inquiry as to whether [the] particular factual circumstances [underlying the conviction] involve a risk of violence." McCann v. Rosquist, 185 F.3d 1113, 1117 n. 4 (10th Cir.1999), vacated on other grounds, 529 U.S. 1126, 120 S.Ct. 2003, 146 L.Ed.2d 953 (2000); see United States v. Rodriguez, 979 F.2d 138, 141 (8th Cir.1992) ("[T]he term `by its nature' in [§ 16(b)] would be rendered superfluous if the sentencing courts were saddled with the task of examining each individual offense committed to determine whether it actually involved substantial risk of physical force."). Rather, we simply examine these documents to determine which "part of the statute was charged against the [d]efendant" and, thus, "which portion of the statute to examine on its face." Venegas-Ornelas, 348 F.3d at 1275 n. 1.

C. ANALYSIS

As set forth above, Ariz.Rev.Stat. § 13-1803(A)(1) provides that a person commits felony UUMT when "[a] person . . ., without intent permanently to deprive . . . [k]nowingly takes unauthorized control over another's means of transportation." To establish UUMT, the State of Arizona need only prove that a defendant "(1) knowingly t[ook] control; (2) without authority; . . . (3) of another person's means of transportation. The phrase `without intent to permanently deprive' . . . does not describe an element of the crime which the state must prove." State v. Kamai, 184 Ariz. 620, 911 P.2d 626, 630 (Ct.App.1995).

Because Ariz.Rev.Stat. § 13-1803(A)(1) does not reach different types of conduct under different sets of elements, there is no need to examine any records relating to Mr. Sanchez-Garcia's UUMT conviction. Cf. Venegas-Ornelas, 348 F.3d at 1276 (examining judicial records of the defendant's prior conviction for first degree criminal trespass when the statute of conviction expressly covered a person who "`knowingly and unlawfully enters or remains in the dwelling of another or . . . enters any motor vehicle with intent to commit a crime therein'") (quoting Colo.Rev.Stat. Ann. § 18-4-502) (emphasis added). Under the categorical approach, then, the critical question is whether knowingly taking unauthorized control over another's means of transportation is an offense "that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing [it]." 18 U.S.C. § 16(b).

To answer this question, we start with the plain language of § 16(b), which "simply covers offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense." Leocal v. Ashcroft, 543 U.S. 1, 10, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). In interpreting § 16(b), we have stated that the "`use of force' language implies that some intentional availment of force is required before an offense rises to the level of a crime of violence." United States v. Moore, 420 F.3d 1218, 1223 (10th Cir.2005) (some internal quotation marks omitted). We also have provided that the term "force" refers to "destructive or violent force," Venegas-Ornelas, 348 F.3d at 1275 (internal quotation marks omitted), and that the term "substantial risk" requires a "high probability" that such force may be employed, id. at 1277. In addition, the phrase "in the course of committing the offense" focuses our inquiry on "the risk of force used to carry out the offense itself, rather than the risk of force resulting from the offense." Id. at 1276 (internal quotation marks omitted). In other words, § 16(b) is not concerned...