U.S. v. Velez-Alderete

• Decision Date: 02 June 2009
• Docket Number: No. 08-20557.,08-20557.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pablo VELEZ-ALDERETE, also known as Pablo E. Velez, also known as Pablo Alderrette Velez, also known as Pablo Velez Alderete, also known as Pablo Alderetti Velez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

569 F.3d 541

UNITED STATES of America, Plaintiff-Appellee, v. Pablo VELEZ-ALDERETE, also known as Pablo E. Velez, also known as Pablo Alderrette Velez, also known as Pablo Velez Alderete, also known as Pablo Alderetti Velez, Defendant-Appellant.

No. 08-20557.

United States Court of Appeals, Fifth Circuit.

June 2, 2009.

Amy Howell Alaniz, McAllen, TX, James Lee Turner, Asst. U.S. Atty., Houston, TX, for U.S.

Marjorie A. Meyers, Sarah Beth Landau, H. Michael Sokolow, Fed. Pub. Defenders, Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, GARWOOD and DAVIS, Circuit Judges.

PER CURIAM:

Pablo Velez-Alderete pleaded guilty to being found in the United States after having been deported. The district court sentenced him to 70 months' imprisonment based on, among other things, a 16-level enhancement for a prior conviction of a crime of violence due to Velez-Alderete's arson conviction in Texas. Now, Velez-Alderete asserts that the district court erred in calculating his sentence by concluding that his prior conviction was a crime of violence. According to him, Texas's arson statute does not fall within the generic, contemporary meaning of arson because it proscribes the burning of personal property without explicitly requiring a threat of harm to a person. Because we conclude that the generic meaning of arson involves the willful and malicious burning of property and that Texas's arson statute falls within this meaning, we affirm Velez-Alderete's sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 7, 2008, Pablo Velez-Alderete was indicted in the United States District Court for the Southern District of Texas for violating 8 U.S.C. § 1326(a) and (b)(2) by being found in the United States after having been deported. Velez-Alderete pleaded guilty to the charge on June 3, 2008, and the district court sentenced him to 70 months' imprisonment and three years' supervised release on August 22, 2008.

During the June 3, 2008 rearraignment at which Velez-Alderete pleaded guilty, the prosecutor proffered facts showing that: Velez-Alderete is a citizen of Mexico; he was convicted on October 30, 1995, of arson and possession of a controlled substance in Houston, Texas; he was deported to Mexico from Hidalgo, Texas, on July 25, 1997; he was found in Houston, Texas, on January 15, 2004; he was convicted of manufacturing and delivering a controlled substance on June 6, 2005; and he had not obtained consent to reapply for admission into the United States from the Attorney General or the Department of Homeland Security. Velez-Alderete agreed to the accuracy of these facts.

In the presentence report (the "PSR"), the probation officer determined that Velez-Alderete had an offense level of 21 by starting with a base offense level of eight, see U.S.S.G. § 2L1.2(a); adding a 16-level, crime-of-violence enhancement for the 1995 arson conviction, see U.S.S.G. § 2L1.2(b)(1)(A)(ii); and subtracting three levels for acceptance of responsibility, see U.S.S.G. § 3E1.1(a), (b).

Velez-Alderete filed objections to the PSR, contesting, among other things, the calculation of his offense level. He alleged that his arson conviction was not a crime of violence because Texas's arson statute is broader than the generic, contemporary definition of arson.

At the sentencing hearing, Velez-Alderete reurged his objections; however, the district court was unpersuaded by Velez-Alderete's argument that the 16-level enhancement should not apply. As a result, the court calculated that the Sentencing Guidelines (the "Guidelines") provided an advisory sentencing range of 70 to 87 months' imprisonment. The district court sentenced Velez-Alderete to 70 months' imprisonment and three-years' supervised release.

Velez-Alderete filed a timely notice of appeal challenging the district court's application of the 16-level enhancement based on his Texas arson conviction.

II. DISCUSSION

We review the district court's interpretation or application of the Guidelines de novo. See United States v. Gonzalez-Terrazas, 529 F.3d 293, 296 (5th Cir.2008); United States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir.2008).

For a conviction of reentering the country after having been deported, the Guidelines provide a 16-level enhancement if the defendant was previously deported after a conviction for a crime of violence. U.S.S.G. § 2L1.2(b)(1)(A)(ii); see also United States v. Mungia-Portillo, 484 F.3d 813, 815 (5th Cir.2007). We have said that a "crime of violence," based on the Application Notes to § 2L1.2, consists of:

(1) any of a list of enumerated offenses ... or (2) "any 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."

United States v. Ramirez, 557 F.3d 200, 205 (5th Cir.2009) (quoting U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii)); see also United States v. Gomez-Gomez, 547 F.3d 242, 244 (5th Cir.2008) (en banc) ("[A] prior offense is a crime of violence if it: (1) has physical force as an element, or (2) qualifies as one of the enumerated offenses.").

The Application Notes list arson as an enumerated offense. See U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii). Velez-Alderete argues that his Texas arson conviction does not fall within the meaning of "arson" as enumerated in the Application Notes. To define arson, as with any enumerated offense, we apply "a `common sense approach'" and give the offense its "`generic, contemporary meaning.'" United States v. Fierro-Reyna, 466 F.3d 324, 327 (5th Cir.2006) (quoting United States v. Sanchez-Ruedas, 452 F.3d 409, 412 (5th Cir.2006)); see also Mungia-Portillo, 484 F.3d at 816. In order to determine the generic, contemporary meaning of arson, we may look to, among other things, modern state codes, federal statutes, and the Model Penal Code. United States v. Muñoz-Ortenza, 563 F.3d 112, 115 (5th Cir. 2009); Fierro-Reyna, 466 F.3d at 327.¹

In determining whether Velez-Alderete's prior conviction qualifies as arson according to the Guidelines, "we do not look to his actual conduct." Gomez-Gomez, 547 F.3d at 244. "Instead, we consider the offense categorically by looking `only to the fact of conviction and the statutory definition of the prior offense.'" Id. (quoting Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). If the full range of conduct prohibited by the Texas arson statute falls under the generic, contemporary meaning of arson, then Velez-Alderete's prior conviction was for a "crime of violence." See id. at 244-45.

In Texas, the statute under which Velez-Alderete was convicted stated that a person commits the offense of arson "if he starts a fire or causes an explosion with intent to destroy or damage":

(1) any vegetation, fence, or structure on open-space land; or

(2) any building, habitation, or vehicle:

(A) knowing that it is within the limits of an incorporated city or town;

(B) knowing that it is insured against damage or destruction;

(C) knowing that it is subject to a mortgage or other security interest;

(D) knowing that it is located on property belonging to another;

(E) knowing that it has located within it property belonging to another; or

(F) when he is reckless about whether the burning or explosion will endanger the life of some individual or the safety of the property of another.

TEX. PENAL CODE ANN. § 28.02 (1993).

Velez-Alderete contends that under the common law and the Model Penal Code, the definition of arson involves an explicit risk of harm to a person, not merely property, and that the generic meaning of arson covers property likely to be occupied.² That is, he argues that the generic definition of arson requires more than the mere burning of personal property without an explicit risk of harm to a person. Texas's statute prohibits conduct outside the range of this proposed definition, according to Velez-Alderete, because it proscribes the burning of private property that does not involve the threat of harm to a person. For example, the Texas statute covers burning a vehicle when the perpetrator knows it is insured against damage or, to use Velez-Alderete's example, when the perpetrator is reckless concerning whether the burning will endanger the safety of another's property.³

Velez-Alderete's narrow definition of arson, however, ignores the consensus among state statutes that defines contemporary arson as involving the malicious burning of property, personal or real, without requiring that the burning threaten harm to a person. See United States v. Velasquez-Reyes, 427 F.3d 1227, 1230-31 n. 2 (9th Cir.2005) (rejecting the same objection to a 16-level enhancement based on a broader interstate consensus as evidenced by the statutes of 36 states, including Texas, that extend arson to personal property)⁴; see also United States v. Whaley, 552 F.3d 904, 906 (8th Cir.2009) (stating that "a review of criminal codes shows that the contemporary meaning of arson has diverged from the common-law definition" in holding that a prior Missouri conviction for "knowingly burning or exploding" constitutes a violent felony as arson under the Armed Career Criminal Act). Further, the federal arson statute similarly extends to personal property without regard to the possible harm to a person. It forbids the setting fire to any vessel, machinery, building materials, supplies, and military and naval stores. See 18 U.S.C. § 81; see also Velasquez-Reyes, 427 F.3d at 1231 (stating that "the federal statute lends guidance to the meaning of the term `arson' as used in the Sentencing Guidelines" and that the federal statute "extends to personal property"). All of these statutes include as arson the burning of personal property without any separate requirement of possible harm to a person. Indeed, Velez-Alderete fails to point to any decision supporting his definition of arson as explicitly requiring the...