United States v. Cordoba-Posos, No. 07-40893 (5th. Cir. 10/7/2008)
| Decision Date | 07 October 2008 |
| Docket Number | No. 07-40893.,07-40893. |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee v. MIGUEL CORDOBA-POSOS, also known as Miguel Angel Collazo-Barba, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Southern District of Texas, No. 5:07-CR-511-1.
Before: KING, DEMOSS, and PRADO, Circuit Judges.
*
Defendant-appellant Miguel Cordoba-Posos pleaded guilty to reentering the United States after being removed subsequent to a conviction of an aggravated felony in violation of 8 U.S.C. § 1326. The district court sentenced him to forty-six months of imprisonment, including an enhancement pursuant to section 2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines Manual for a previous conviction of a felony crime of violence. Cordoba-Posos appeals his sentence, asserting that the district court erred by concluding that his previous felony conviction of residential burglary under chapter 38, section 19-3 of the Illinois Criminal Code was a conviction of a crime of violence. For the following reasons, we AFFIRM.
In 1986, Miguel Cordoba-Posos, then known as Miguel Angel Collazo-Barba, was convicted of residential burglary under chapter 38, section 19-3 of the Illinois Criminal Code (), ILL. REV. STAT., ch. 38, ¶ 19-3 (1983).1 The indictment charged that he "knowingly and without authority enter[ed] the dwelling place of Daniel Andrade with the intent to commit therein a theft." A certified copy of this indictment and a "Statement of Conviction / Disposition," showing that Cordoba-Posos was found guilty and sentenced on August 28, 1986, are the only record evidence of his state court conviction.
Cordoba-Posos was subsequently removed from the United States on August 9, 1989. After Cordoba-Posos reentered the United States, he was apprehended on March 25, 2007, and charged by indictment with one count of being found in the United States without lawful consent after being removed following a conviction of an aggravated felony in violation of 8 U.S.C. § 1326(b)(2). Cordoba-Posos pleaded guilty.
The presentence report (the "PSR") assessed a base offense level of eight. Because of Cordoba-Posos's previous felony conviction under the Illinois residential burglary statute, the PSR recommended a sixteen-level, "crime-of-violence" enhancement under § 2L1.2(b)(1)(A)(ii) of the 2006 version of United States Sentencing Guidelines Manual (the "Sentencing Guidelines" or "U.S.S.G."). Crediting Cordoba-Posos three levels for acceptance of responsibility, the PSR calculated a total offense level of twenty-one. Combining that offense level with his criminal history category of III, the PSR calculated a guideline range of forty-six to fifty-seven months of imprisonment.
Cordoba-Posos objected to the PSR. He argued that the court should not apply the sixteen-level enhancement because his conviction under the Illinois residential burglary statute did not qualify as a "burglary of a dwelling," the relevant crime of violence listed in the commentary to § 2L1.2. See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). The district court overruled Cordoba-Posos's objection, applied the enhancement, and sentenced him to forty-six months of imprisonment and three years of supervised release.
Cordoba-Posos filed a timely notice of appeal on September 12, 2007. We exercise jurisdiction over his appeal from the district court's final judgment of conviction and sentence pursuant to 28 U.S.C. § 1291.
On appeal, Cordoba-Posos asserts that the sixteen-level enhancement was improper because his previous felony conviction of residential burglary did not qualify as a crime of violence under § 2L1.2(b)(1)(A)(ii). First, he argues that the Illinois residential burglary statute in effect at the time of his conviction was applied to burglary of uninhabited structures that do not qualify as "dwellings" within the generic, contemporary meaning of burglary of a dwelling. Second, he argues that chapter 38, section 5-2 of the Illinois Criminal Code (), ILL. REV. STAT., ch. 38, ¶ 5-2 (1983),2 held defendants accountable for the principal offense for soliciting, agreeing to aid another person in the planning of, or mere approving presence during the principal offense, which is more inclusive than the generic, contemporary meaning of criminal liability, as construed according to the federal law.
Where, as here, the defendant objects at sentencing to the district court's interpretation or application of the Sentencing Guidelines, thus preserving the issue for appeal, we review de novo. See United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008); United States v. Juarez-Duarte, 513 F.3d 204, 211 (5th Cir. 2008) (per curiam); United States v. Santiesteban-Hernandez, 469 F.3d 376, 378 (5th Cir. 2006).
Section 2L1.2(b)(1)(A)(ii) provides a sixteen-level enhancement to a defendant's base offense level when that defendant was previously removed subsequent to a conviction of a crime of violence.3 Application note one of the commentary to § 2L1.2 defines "burglary of a dwelling" as a qualifying crime of violence.4 U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Moreover, application note five provides that "[p]rior convictions of offenses counted under subsection (b)(1) include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses." U.S.S.G. § 2L1.2 cmt. n.5. Thus, the Sentencing Guidelines are consistent with the modern trend that "treats aiders and abettors during and before the crime the same way it treats principals." United States v. Duenas-Alvarez, 549 U.S. 183, 190 (2007); see also 18 U.S.C. § 2(a) ().
To determine whether a conviction under the Illinois residential burglary statute constitutes a conviction of burglary of a dwelling, we employ the categorical approach developed by the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990). See United States v. Carbajal-Diaz, 508 F.3d 804, 807 (5th Cir. 2007). For crimes of violence enumerated in the commentary to § 2L1.2, such as burglary of a dwelling, we define the potentially equivalent crime of conviction by reference to its statutory definition. See, e.g., United States v. Lopez-Deleon, 513 F.3d 472, 474-75 (5th Cir. 2008). We then compare that crime of conviction to the generic, contemporary and uniform meaning of the enumerated crime of violence using a common sense approach to ensure that the defendant was found guilty of, at minimum, the elements of that generic crime. See Taylor, 495 U.S. at 598 (); United States v. Murillo-Lopez, 444 F.3d 337, 339-40 (5th Cir. 2006) ().5 The Supreme Court in Duenas-Alvarez recently clarified that:
[T]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute's language. It requires a realistic probability, not a theoretical possibility, that the State would apply itsstatute to conduct that falls outside the generic definition of a crime. To show that realistic possibility, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.
With this framework in mind, we compare residential burglary under section 19-3 to the generic, contemporary meaning of burglary of a dwelling. The generic meaning is well-settled in this court. In Murillo-Lopez, this court held that burglary of a dwelling "includes the elements of generic burglary as stated in Taylor," 444 F.3d at 345, which are "an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime," Taylor, 495 U.S. at 598. In addition, the Murillo-Lopez court added that "a building or other structure" includes "at a minimum, tents or vessels used for human habitation." 444 F.3d at 344-45. Thus, burglary of a dwelling for purposes of a sentencing enhancement under § 2L1.2(b)(1)(A)(ii) is the unlawful or unprivileged entry into, or remaining in, a building, structure, tent, or vessel used for human habitation, with intent to commit a crime. See id.; United States v. Castillo-Morales, 507 F.3d 873, 875 (5th Cir. 2007) (); see also United States v. Ortega-Gonzaga, 490 F.3d 393, 395 (5th Cir. 2007) ().
Having defined the generic, contemporary crime of burglary of a dwelling, we next turn to Cordoba-Posos's assertions that the Illinois residential burglary and accountability statutes criminalize conduct outside of this generic meaning.
Cordoba-Posos claims that the district court erred in applying the crime-of-violence enhancement pursuant to § 2L1.2(b)(1)(A)(ii) because the Illinois residential burglary statute criminalized burglary of uninhabited structures that do not qualify as dwellings within the generic, contemporary meaning of burglary of a dwelling. At the time of Cordoba-Posos's conviction, section 19-3 defined residential burglary as follows: "A person commits residential burglary who knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft." ILL. REV. STAT.,...
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