U.S. v. Torres-Ruiz

• Decision Date: 02 November 2004
• Docket Number: No. 03-4160.,03-4160.
• Citation: 387 F.3d 1179
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose TORRES-RUIZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1179

387 F.3d 1179

UNITED STATES of America, Plaintiff-Appellee, v. Jose TORRES-RUIZ, Defendant-Appellant.

No. 03-4160.

United States Court of Appeals, Tenth Circuit.

November 2, 2004.

Appeal from the United States District Court for the District of Utah, Tena Campbell, J.

Scott Keith Wilson, Assistant Federal Public Defender, (Steven B. Killpack, Federal Public Defender, with him on the brief), Salt Lake City, UT, for the defendant-appellant.

Wayne T. Dance, Assistant United States Attorney, (Paul M. Warner, United States Attorney, with him on the brief), Salt Lake City, UT, for the plaintiff-appellee.

Before HENRY, BRISCOE, and O'BRIEN, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Jose Torres-Ruiz appeals the sentence imposed after he pled guilty to illegal reentry following deportation, in violation of 8 U.S.C. § 1326. Torres-Ruiz contends the district court erred in characterizing a prior California state conviction for felony driving under the influence as a "crime of violence" for purposes of U.S.S.G. § 2L1.2. We exercise jurisdiction pursuant to 28 U.S.C. § 1291, vacate Torres-Ruiz' sentence, and remand for resentencing.

I.

On January 13, 2003, Torres-Ruiz was arrested after he jumped from a bus as it was traveling on Interstate 15 in Utah. In a post-arrest interview with a special agent of the Immigration and Naturalization Service (INS), he admitted that he was a native and citizen of Mexico. INS documents indicated he had been deported to Mexico on July 20, 2000, and an INS investigation revealed that he had no applications or petitions pending or approved that would have allowed him to legally enter or remain in the United States. Torres-Ruiz was indicted on one count of illegally reentering the United States following deportation.

Torres-Ruiz' presentence investigation report (PSR) noted that on April 28, 1996, he was convicted in Los Angeles County Superior Court (California) of the felony offense of driving under the influence. The PSR stated that "court documents reflect that the defendant was driving a vehicle with a .28 BAC level, ran a red light and struck a five-year-old girl causing lacerations and bruising." ROA, Vol. III at 4. In calculating Torres-Ruiz' offense level, the PSR concluded the California conviction constituted a "crime of violence" and recommended that his offense level be increased by 16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A).¹ In response to Torres-Ruiz' objection to the PSR, the government provided the court with a copy of the information containing the charge to which Torres-Ruiz pled. Count 2 of the information stated:

On or about April 28, 1996, in the County of Los Angeles, the crime of DRIVING WITH .20% BLOOD ALCOHOL CAUSING INJURY, in violation of VEHICLE CODE SECTION 23153(b), a Felony, was committed by JOSE TORRES RUIZ, who did willfully and unlawfully while having 0.08 percent and more, by weight, of alcohol in his/ her blood, drive a vehicle and in so driving did an act forbidden by law, to wit: FAILURE TO STOP RED LIGHT, and neglected a duty imposed by law which proximately caused bodily injury to ISA SILVA.

It is further alleged that the defendant(s) had a blood alcohol content of 0.20 percent and more within the meaning of Vehicle Code Section 23206.1.

ROA I, Doc. 16 attachment. At sentencing, the district court agreed with the PSR and concluded Torres-Ruiz' prior conviction qualified as a "crime of violence" under § 2L1.2(b)(1)(A). The court stated: "I find that taking the wheel when drunk certainly has an element of volition, at least recklessness, and that will be the holding." Id., Vol. II at 19. The district court sentenced Torres-Ruiz to a term of imprisonment of 46 months (at the low end of the guideline range of 46 to 57 months).

II.

The issue presented is whether the district court erred in concluding that Torres-Ruiz' 1996 California conviction for felony driving under the influence qualified as a "crime of violence" for purposes of § 2L1.2(b)(1)(A)(ii).² Because this issue hinges on the interpretation of § 2L1.2(b)(1)(A)(ii) and the commentary thereto, we review it de novo. See United States v. Drewry, 365 F.3d 957, 962 (10th Cir.2004) (noting district court's interpretation of sentencing guidelines is reviewed de novo). Generally speaking, we interpret the Sentencing Guidelines according to accepted rules of statutory construction. United States v. Robertson, 350 F.3d 1109, 1112 (10th Cir.2003). "In interpreting a guideline, we look at the language in the guideline itself, as well as at the `interpretative and explanatory commentary to the guideline' provided by the Sentencing Commission." Id. (quoting United States v. Frazier, 53 F.3d 1105, 1112 (10th Cir. 1995)). "`[C]ommentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.'" Id. (quoting Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993)).

Section 2L1.2—structure and history

Section 2L1.2 of the Sentencing Guidelines sets forth the base offense level, with certain enhancements to the base offense level, for defendants convicted of unlawfully entering or remaining in the United States. More specifically, subsection (a) establishes a base offense level of eight for such crimes. Subsection (b) provides a range of enhancements, from four to sixteen levels, if the defendant previously was deported after being convicted of various crimes.

Prior to November 1, 2001, a defendant whose previous deportation followed a conviction for any aggravated felony received a 16-level enhancement under subsection (b). See U.S.S.G. § 2L1.2 (2000). An aggravated felony was defined by reference to 8 U.S.C. § 1101(a)(43), see id. cmt. n. 1, which included "a crime of violence (as defined in section 16 of Title 18 ...) for which the term of imprisonment [was] at least one year." 8 U.S.C. § 1101(a)(43)(F). Section 16 of Title 18 defined (and still defines) "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. Thus, prior to November 1, 2001, a defendant who was deported after being convicted of an offense that fell within the scope of § 16(a) or (b) was subject to a 16-level enhancement to his base offense level.

Section 2L1.2 was amended by the Sentencing Commission effective November 1, 2001. "The amendment was a response to concern within the legal community that the 16-level enhancement that applied to all aggravated felonies resulted in disproportionate penalties." United States v. Gonzalez-Lopez, 335 F.3d 793, 796 (8th Cir.2003) (citing U.S.S.G. Supp. to App. C, amend. 632). "Because the prior guideline incorporated the broad definition of aggravated felony found in 8 U.S.C. § 1101(a)(43), `a defendant who previously was convicted of murder, for example, receive[d] the same 16-level enhancement as a defendant previously convicted of simple assault.'" Id.

As amended, § 2L1.2 "now provides `a sliding scale of enhancements from eight to sixteen levels based on the seriousness of the [prior] aggravated felony as defined in the amended guideline.'" Id. (quoting United States v. Gomez-Hernandez, 300 F.3d 974, 976 (8th Cir.2002)). An eight-level enhancement now applies to the broad category of "aggravated felonies," which the Sentencing Commission continues to define by reference to the § 1101(a)(43) definition (which, as noted above, in turn refers to the § 16 definitions). U.S.S.G. § 2L1.2(b)(1)(C) & cmt. n. 2. The 16-level enhancement is reserved for a more narrow and serious category of crimes, referred to as "crime[s] of violence."³ U.S.S.G. § 2L1.2(b)(1)(A) & cmt. n. 1. At the time the district court sentenced Torres-Ruiz on June 18, 2003, the commentary to § 2L1.2 defined a "crime of violence" as:

an offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another; and ... includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including sexual abuse of a minor), robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.

U.S.S.G. § 2L1.2 cmt. n. 1(B)(ii) (2002).⁴

Prior California conviction

The crime of felony driving under the influence is not specifically included in § 2L1.2 as a "crime of violence." Thus, the only way it can be classified as such is if it "ha[d] as an element the use, attempted use, or threatened use of physical force against the person of another." Because the express focus of this inquiry is on the elements of the state crime at issue rather than the unique underlying circumstances of the crime, we examine the California statute under which Torres-Ruiz was convicted. Cf. Taylor v. United States, 495 U.S. 575, 588-89, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (applying similar categorical approach in interpreting Armed Career Criminal Act); United States v. Venegas-Ornelas, 348 F.3d 1273, 1275 (10th Cir.2003) (applying similar categorical approach in interpreting U.S.S.G. § 2L1.2(b)(1)'s definition of "aggravated felony").⁵

Torres-Ruiz' conviction for felony driving under the influence arose under California Vehicle Code § 23153(b), which states:

It is unlawful for any person, while having 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle and concurrently do any act forbidden by law, or neglect any duty imposed by law in driving the vehicle, which act or neglect proximately causes bodily injury to any person other than the driver.

The...