U.S. v. Vigil

• Citation: 334 F.3d 1215
• Decision Date: 08 July 2003
• Docket Number: No. 02-1367.,02-1367.
• Parties: UNITED STATES of America, Plaintiff-Appellee v. Jose Patrick VIGIL, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

334 F.3d 1215

UNITED STATES of America, Plaintiff-Appellee v. Jose Patrick VIGIL, Defendant-Appellant.

No. 02-1367.

United States Court of Appeals, Tenth Circuit.

July 8, 2003.

Lynn Hartfield, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, and Charles Szekely, Assistant Federal Public Defender, on the briefs), Office of the Federal Public Defender for the Districts of Colorado and Wyoming, Denver, CO, appearing for Appellant.

Joshua Stein, Assistant United States Attorney (John Suthers, United States Attorney, with him on the brief), Office of the United States Attorney, Denver, CO, appearing for Appellee.

Before TACHA, Chief Circuit Judge, BRORBY, Senior Circuit Judge, and O'BRIEN, Circuit Judge.

TACHA, Chief Circuit Judge.

Defendant-Appellant, Jose Patrick Vigil, appeals his sentence for possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). Specifically, he appeals the district court's determination that his prior state conviction for aggravated incest constituted a prior conviction for a "crime of violence" within the meaning of U.S.S.G. § 4B1.2, resulting in a base offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(A) and a sentence of 27 months imprisonment. We exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

I. BACKGROUND

The parties do not dispute the relevant facts. Before his conviction for the offense at issue in this case, Vigil sustained two felony convictions, including a conviction for aggravated incest in violation of section 18-6-302 of the Colorado Revised Statutes. Specifically, in 1989, Vigil was convicted of sexually penetrating his natural child over a period of slightly less than two years.¹

The acts supporting conviction in the instant case occurred between approximately April 1996 and June 2000, when Vigil repeatedly pawned and redeemed a rifle at a pawn shop in Security, Colorado. He was subsequently charged with, and pleaded guilty to, one count of possession of a firearm by a previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). The district court entered judgment against him on August 26, 2002.

At sentencing, the parties disputed the appropriate base offense level under the United States Sentencing Guidelines. The government argued that aggravated incest, as defined by Colo.Rev.Stat. § 18-6-302, constitutes a "crime of violence" within the meaning of U.S.S.G. § 4B1.2, and that Vigil's base offense level should accordingly be increased from 14 to 20 under U.S.S.G. § 2K2.1(a)(4)(A). Vigil argued that the Colorado statute did not define a crime of violence for purposes of § 4B1.2, and that his base offense level should therefore be 14.² The district court requested briefing on this issue, and both parties filed written submissions.

In determining whether Vigil's 1989 conviction for aggravated incest constituted a crime of violence under § 4B1.2 for purposes of calculating his base offense level under § 2K2.1, the district court declined to consider the Presentencing Report from the 1989 Colorado case. To determine the age of Vigil's daughter at the time her father sexually penetrated her, the district court considered only the charging document and judgment of conviction from the 1989 aggravated incest case. Based upon these documents, the district court found that Vigil's daughter would have been approximately 18 years old at the time of the offense.³

To determine whether aggravated incest under section 18-6-302 of the Colorado Revised Statutes constituted a crime of violence for purposes of § 4B1.2, the district court relied on the methodology set forth in United States v. Dwyer, 245 F.3d 1168, 1171 (10th Cir.2001). Under Dwyer, a court generally considers only the statutory elements of the crime; if, however, the statute's language is ambiguous or broad enough to encompass both violent and nonviolent crimes, a court may look beyond the statute to certain records of the prior proceeding, such as the charging documents, the judgment, any plea thereto, and findings by the court. Id.

Applying Dwyer, the district court determined that aggravated incest as defined by the Colorado statute is, categorically, a crime of violence for purposes of § 4B1.2. Specifically, the district court concluded that "when a father inflicts sexual penetration or sexual intrusion on a child that's ... 18 years old ... that implies force and ... that implied force is sufficient to make this aggravated incest a crime of violence within the meaning of section 4B1.2." Based on this conclusion, the district court increased Vigil's base offense level under U.S.S.G. § 2K2.1(a)(4)(A) and held that the "sporting exception" set forth in § 2K2.1(b)(2) did not apply to reduce his base offense level.⁴ The district court sentenced Vigil to 27 months imprisonment, followed by two years of supervised release. This appeal followed.

II. DISCUSSION

A. Standard of Review

Whether a statute defines a "crime of violence" for purposes of U.S.S.G. § 4B1.2 is a question of statutory construction, which we review de novo. United States v. Riggans, 254 F.3d 1200, 1203 (10th Cir.2001), cert. denied, 534 U.S. 932, 122 S.Ct. 297, 151 L.Ed.2d 220 (2001); United States v. Spring, 80 F.3d 1450, 1463 (10th Cir.1996).

B. Overview of Applicable Law

1. Section 4B1.2 of the United States Sentencing Guidelines

Pursuant to U.S.S.G § 2K2.1(a)(4)(A), Vigil's base offense level for violation of 18 U.S.C. § 922(g)(1) would be 20 if he "committed any part of the instant offense subsequent to sustaining one felony conviction of ... a crime of violence." Under the Guidelines, [t]he term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(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.

U.S.S.G. § 4B1.2(a). The application notes following § 4B1.2 explain that "crime of violence" includes, inter alia, "murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling." Id., Application note 1 (emphasis added).

In determining whether a particular felony offense constitutes a crime of violence within the meaning of § 4B1.2, we employ a "categorical" approach that omits consideration of the particular facts of the case. See United States v. Pierce, 278 F.3d 282, 286 (4th Cir.2002) (determination of whether state conviction for taking indecent liberties with a child constitutes a crime of violence under § 4B1.2 requires a "categorical approach, which takes into account only the definition of the offense and the fact of conviction"); United States v. Reyes-Castro, 13 F.3d 377, 379 (10th Cir.1993) (same categorical approach applies to "crime of violence" determinations under 18 U.S.C. § 16(b)); see also Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (determination of whether burglary constitutes a predicate crime of violence under 18 U.S.C. § 924(e) "mandates a formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions"). "When the definition of the predicate offense is ambiguous and does not reveal whether it is a crime of violence, we may discover the nature of the offense for which the defendant was actually convicted by looking at the charging document and the jury instructions ... [but this] inquiry must never `involve [] a factual inquiry into the facts previously presented and tried.'" Pierce, 278 F.3d at 286 (citation omitted). Thus, our inquiry begins—and in this case ends—with an examination of the Colorado statute under which Vigil was convicted in 1989.

2. The Colorado Aggravated Incest Statute

The portion of the statute of conviction under which Vigil entered his guilty plea provides:

A person commits aggravated incest when he or she knowingly:

(a) Marries his or her natural child or inflicts sexual penetration or sexual intrusion on or subjects to sexual contact, as defined in section 18-3-401, his or her natural child, stepchild, or child by adoption.... For the purpose of this paragraph (a) only, "child" means a person under twenty-one years of age.

Colo.Rev.Stat. § 18-6-302(1)(a).⁵ The information to which Vigil pled guilty charged that "[b]etween July 2, 1983 and March 31, 1985, Jose Patrick Vigil did unlawfully, knowingly and feloniously inflict sexual penetration upon ... his natural child; In violation of Colorado Revised Statutes 18-6-302." Colorado defines "sexual penetration" as follows: "`Sexual penetration' means sexual intercourse, cunnilingus, fellatio, analingus, or anal intercourse. Emission need not be proved as an element of any sexual penetration. Any penetration, however slight, is sufficient to complete the crime." Colo.Rev. Stat. § 18-3-401(6).

C. Analysis

In this case, the question before us is whether, without reference to the underlying facts of the case, the offense set forth in Colo.Rev.Stat. § 18-6-302 "has as an element the use, attempted use, or threatened use of physical force against the person of another," thereby satisfying the first prong of U.S.S.G. § 4B1.2, or "otherwise involves conduct that presents a serious potential risk of physical injury to another," thereby satisfying section 4B1.2's second prong. We consider each question in turn.

The district court held that Colorado's aggravated incest statute defines a crime of violence based on the first prong of section 4B1.2, concluding that section 18-6-302 contains as an element the threatened use of physical force. As Vigil points out, the district court did so in spite of the fact that the...