United States v. Estrada
| Decision Date | 06 February 2015 |
| Docket Number | No. 14–10230.,14–10230. |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Rudy ESTRADA, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Cherie Krigsman, Arthur Lee Bentley, III, U.S. Attorney's Office, Tampa, FL, Jesus M. Casas, U.S. Attorney's Office, Fort Myers, FL, for Plaintiff–Appellee.
Mara Allison Guagliardo, Federal Public Defender's Office, Tampa, FL, Rosemary Cakmis, Donna Lee Elm, Federal Public Defender's Office, Orlando, FL, for Defendant–Appellant.
Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 2:08–cr–00110–JES–UAM–1.
Before HULL, ROSENBAUM, and JULIE CARNES, Circuit Judges.
Defendant Rudy Estrada pled guilty to illegal re-entry after being deported subsequent to an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(2). He now appeals the 48–month sentence imposed by the district court, arguing that the district court erred in applying a 16–level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).
This particular enhancement is triggered when, among other things, a defendant has been convicted of a crime of violence prior to his deportation. The district court found that Defendant's prior conviction for a violation of Florida Statute § 790.19 was a conviction for a crime of violence within the meaning of the enhancement. The government acknowledges that, since the district court's imposition of sentence, this Court has issued an opinion that vindicates Defendant's earlier claim of error. Accordingly, the government concedes that the 16–level enhancement was erroneously applied based on this particular conviction. After our own review, we agree and remand for resentencing.
In August 2004, Defendant, a Mexican citizen, was convicted in a Florida state court of throwing a deadly missile, in violation of Florida Statute § 790.19. Subsequently, Defendant was deported to Mexico, but he later illegally reentered the United States. Defendant's illegal reentry into the United States was discovered after his arrest on state drug charges, and he thereafter pled guilty in the criminal case that is now before us.
Prior to sentencing, the probation office prepared a presentence report (“PSR”) that calculated a base offense level of 8, a 16–level enhancement for a previous crime of violence, and a 3–level reduction for acceptance of responsibility, pursuant to U.S.S.G. § 2L1.2(a), § 2L1.2(b)(1)(A)(ii), and § 3E1.1(a) and (b), respectively. These calculations yielded a total offense level of 21. Defendant has a lengthy criminal record that includes felony convictions for burglary, grand theft, battery, and drug trafficking. As a result of his numerous convictions, Defendant was assessed 17 criminal history points, placing him in the highest criminal history category of the Guidelines: Category VI. Based on a total offense level of 21 and a criminal history category of VI, the PSR calculated a guideline range of 77–96 months' imprisonment.
Prior to and during his sentencing hearing, Defendant objected to the 16–level crime of violence enhancement. Defendant argued that his prior Florida § 790.19 conviction did not qualify as a crime of violence within the meaning of § 2L1.2(b)(1)(A)(ii). The commentary for this section of the Guidelines defines “crime of violence” as either being one of the enumerated offenses set out therein or any offense “that has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2, comment. (n.1(B)(iii)). The prior Florida conviction at issue was not one of the enumerated offenses set out in the application note and Defendant argued that it did not have an element that required the use, attempted use, or threatened use of physical force against another person. Defendant, however, conceded that an 8–level aggravated felony enhancement pursuant to § 2L1.2(b)(1)(C) was appropriate in lieu of the 16–level enhancement.1
Concluding that the Florida statute in question did qualify as a crime of violence, the district court therefore overruled Defendant's objection to the 16–level enhancement. Nevertheless, the district court agreed to downwardly vary from the calculated range of 77–96 months, and he sentenced Defendant to a 48–month sentence of imprisonment.
On appeal, Defendant argues, and the government concedes, that our recent decision in United States v. Estrella, 758 F.3d 1239 (11th Cir.2014), requires a conclusion that the district court erred in applying the 16–level enhancement because Defendant's prior § 790.19 conviction was not a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii).
We review de novo whether a defendant's prior conviction qualifies as a crime of violence under the Sentencing Guidelines. Estrella, 758 F.3d at 1244. Pursuant to Florida Statute § 790.19 :
Whoever, wantonly or maliciously, shoots at, within, or into, or throws any missile or hurls or projects a stone or other hard substance which would produce death or great bodily harm, at, within, or in any public or private building, occupied or unoccupied, or public or private bus or any train, locomotive, railway car, caboose, cable railway car, street railway car, monorail car, or vehicle of any kind which is being used or occupied by any person, or any boat, vessel, ship, or barge lying in or plying the waters of this state, or aircraft flying through the airspace of this state shall be guilty of a felony of the second degree.
Fla. Stat. § 790.19.
Estrella was also an illegal reentry case, in which Estrella's prior § 790.19 conviction was based on an assault that he directed at an occupied vehicle. Likewise in this case, the PSR indicates that defendant Estrada's assault was also targeted at an occupied automobile. In Estrella, we first examined whether § 790.19 had as an element the use, attempted use, or threatened use of physical force against the person of another, which is required before a statute can be deemed a crime of violence for purposes of § 2L1.2. We noted that, as a categorical matter, it did not, because some prongs of the statute did not contain an element requiring that the physical force threatened, attempted, or used be directed against a person, as opposed to property. This meant that the statute punished some conduct that would fit the Guidelines' definition of a crime of violence, but it also punished some conduct that would not satisfy that definition. Estrella, 758 F.3d at 1248. Stated more simply, some parts of the statute would permit conviction even when the defendant had not directed physical force against a person, as opposed to physical property.
Our analysis did not stop there, however. We looked further to see whether the statute could be considered to be a divisible statute, as set out in Descamps v. United States, 570 U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). If the statute were considered to be divisible, we could then proceed to analyze whether, under a modified categorical test, the particular conviction meshed with those elements required for an offense to constitute a crime of violence. If the statute were deemed, indivisible, however, the inquiry was over and the particular conviction could not be considered a crime of violence for purposes of enhancing the defendant's sentence. Estrella, 758 F.3d at 1245–47.
In examining § 790.19, we concluded that it was a divisible statute; that is, it “effectively create[s] several different crimes.”Id. at 1249 (alteration in original) (citation omitted). Given that conclusion, we then applied the modified categorical test to determine whether defendant Estrella had been effectively convicted of an offense with elements equivalent to those elements found in an offense for a crime of violence. We concluded that Estrella could be deemed to have been convicted of a crime of violence if his conviction was for wanton conduct, because Florida law defines “wanton” to mean that one has acted intentionally or with reckless indifference to the consequences and with knowledge that damage is likely to be done to some person. Id. at 1253. But if instead Estrella had been convicted of only malicious conduct, the latter was satisfied by knowledge that injury or damage would be done to a person or to property and, in that case, Estrella would not be deemed to have been convicted of a crime of violence.
Having set up the analytical model, we then looked to Shepard -approved2 documents to see if we could determine on which of the above two mental elements the defendant had been convicted. That review revealed only a charging document which showed that Estrella had been charged in the disjunctive with “ ‘wantonly or maliciously’ targeting ‘a vehicle being used or occupied by a person.’ ” Id. at 1254. Accordingly, as the only document before us did not clarify which of the two alternative mental states formed the basis for the defendant's conviction and as one of those mental states would preclude the offense from being deemed a crime of violence, we concluded that Estrella's prior conviction was not a qualifying conviction for purposes of the § 2L1.2(b)(1)(A)(ii) enhancement. Id.
Summarizing, Estrella held that a conviction under Florida Statute § 790.19 is not categorically a crime of violence for purposes of application of the 16–level crime-of-violence enhancement under § 2L1.2(b)(1)(A)(ii). But that is not the end of the analysis because Estrella also concluded that § 790.19 is a divisible statute and hence use of the modified categorical test is appropriate. To apply that test here, we must next examine any Shepard -approved documents to see whether those documents identify the particular mens rea element upon which the prior conviction of the defendant in this case rested. But the government has conceded that the only Shepard -approved document here is the information...
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