United States v. Garcia-Martinez

• Decision Date: 11 January 2017
• Docket Number: No. 14-15725,14-15725
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jose Gabriel GARCIA-MARTINEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

845 F.3d 1126

UNITED STATES of America, Plaintiff–Appellee,

v.Jose Gabriel GARCIA-MARTINEZ, Defendant–Appellant.

No. 14-15725

United States Court of Appeals, Eleventh Circuit.

Date Filed: January 11, 2017

Francis D. Murray, Yvette Rhodes, Michelle Thresher Taylor, Arthur Lee Bentley, III, U.S. Attorney's Office, Tampa, FL, Michael C. Bagge–Hernandez, U.S. Attorney's Office, Fort Myers, FL, for Plaintiff–Appellee.

Adeel Bashir, Federal Public Defender's Office, Tampa, FL, Tracy N. DaCruz, The DaCruz Law Firm, PLLC, Rosemary Cakmis, Donna Lee Elm, Federal Public Defender's Office, Orlando, FL, Russell K. Rosenthal, Federal Public Defender's Office, Fort Myers, FL, for Defendant–Appellant.

Before ED CARNES, Chief Judge, ANDERSON, Circuit Judge, and ROSENBERG,^* District Judge.

ED CARNES, Chief Judge:

Jose Gabriel Garcia-Martinez pleaded guilty to illegal reentry after deportation in violation of 8 U.S.C. § 1326(a), (b)(2) and was sentenced to 36 months imprisonment. He appeals his sentence, contending that the district court erred by applying a 16-level enhancement under United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii) (2014) for reentering the United States after having been deported for a "crime of violence."¹ His purported "crime of violence" was a Florida conviction for second degree burglary of a dwelling.

I.

In 2009 Garcia-Martinez, a Mexican citizen who was in the United States illegally, was convicted in Florida of second degree burglary of a dwelling under Florida Statute § 810.02(3). Florida defines burglary as "[e]ntering a dwelling, a structure, or a conveyance with the intent to commit an offense therein ... or ... [n]otwithsanding a licensed or invited entry, remaining in a dwelling, structure, or conveyance" with the intent to commit an offense or a forcible felony. Fla. Stat. § 810.02(1)(b). As relevant to this case, a second degree burglary is one in which:

in the course of committing the offense, the offender does not make an assault or battery and is not and does not become armed with a dangerous weapon or explosive, and the offender enters or remains in a:

(a) Dwelling, and there is another person in the dwelling at the time the offender enters or remains;

(b) Dwelling, and there is not another person in the dwelling at the time the offender enters or remains....

Id.§ 810.02(3)(a)–(b). Florida defines a "dwelling" as "a building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curtilage thereof." Id.§ 810.011(2) (emphasis added).

After his Florida conviction for second degree burglary of a dwelling, Garcia-Martinez was removed from the United States in 2010 and ordered not to enter, attempt to enter, or be in the United States for the rest of his life. Despite his removal, on June 16, 2014 immigration agents found Garcia-Martinez in a Florida jail after he had been arrested for battery. He was charged with and pleaded guilty to illegal reentry after deportation.

The presentence investigation report, using the 2014 version of the United States Sentencing Guidelines (which is also the version that we use in this appeal), assigned a base offense level of 8 under § 2L1.2(a), a 16-level increase under § 2L1.2(b)(1)(A)(ii), and a 3-level reduction for acceptance of responsibility, yielding a total offense level of 21. The PSR explained that the 16-level increase under § 2L1.2(b)(1)(A)(ii) was warranted because Garcia-Martinez's Florida conviction for second degree burglary of a dwelling counted as a crime of violence.

The district court, over Garcia-Martinez's objection, concluded that based on the facts described in the PSR, Garcia-Martinez's charging document, and his state court judgment, Garcia-Martinez's conviction counted as a crime of violence under § 2L1.2. The court adopted the PSR without change, meaning that Garcia-Martinez faced an advisory guidelines range of 41 to 51 months imprisonment, but the court varied downward and imposed a sentence of 36 months imprisonment.

II.

We review de novo whether a defendant's prior conviction is for a "crime of violence" under § 2L1.2(b)(1)(A)(ii). United States v. Estrada, 777 F.3d 1318, 1321 (11th Cir. 2015). Section 2L1.2(b)(1)(A)(ii) states that the court must increase the defendant's offense level by 16 levels "[i]f the defendant previously was deported ... after ... a conviction for a felony that is ... a crime of violence."

The commentary to § 2L1.2 defines a "crime of violence" as:

[A]ny of the following offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses ..., statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other 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.

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (emphasis added). "[A] felony conviction qualifies as a crime of violence under § 2L1.2 if either (1) the defendant was convicted of one of the enumerated offenses; or (2) the use, attempted use, or threatened use of physical force was an element of the offense." United States v. Palomino Garcia, 606 F.3d 1317, 1326 (11th Cir. 2010). We refer to the first part of the definition as the enumerated offenses clause and the second part as the elements clause. Because it is clear that a Florida conviction for second degree burglary of a dwelling does not count under § 2L1.2's elements clause, see Fla. Stat. § 810.02(3), the decisive question is whether it counts under § 2L1.2's enumerated offenses clause.²

To answer that question, we use the framework the Supreme Court has set out for determining whether a conviction under a state or federal statute counts as a predicate offense for purposes of the Armed Career Criminal Act (ACCA). The ACCA calls for an enhanced sentence when a defendant has three or more convictions for crimes that qualify as predicate offenses. 18 U.S.C. § 924(e)(1). One type of qualifying offense is a "violent felony." Id.§ 924(e)(2)(B)(ii). Although § 2L1.2 defines a crime of violence for guidelines enhancement purposes differently from how the ACCA defines a violent felony, we have used the framework for determining whether a conviction qualifies under the ACCA to decide whether one qualifies under § 2L1.2. See, e.g., United States v. Ramirez - Flores, 743 F.3d 816, 820–21 & n.2 (11th Cir. 2014) ; United States v. Ramirez - Garcia, 646 F.3d 778, 782–83 (11th Cir. 2011) ; United States v. Krawczak, 331 F.3d 1302, 1306 (11th Cir. 2003). We do so again in this case.

The first step is to determine the generic definition of the enumerated offense. See Taylor v. United States, 495 U.S. 575, 598–99, 110 S.Ct. 2143, 2158, 109 L.Ed.2d 607 (1990). Then the court must use the "categorical approach" to compare the statute under which the defendant was convicted to the generic offense. Id. at 599–602, 110 S.Ct. at 2158–60. In doing that a court may look at only the elements of the statute of conviction and not at the underlying facts of the offense. Id.; cf. United States v. Gundy, 842 F.3d 1156, 1161 (11th Cir. 2016) ("[F]ocusing on the elements of the statute of conviction is, and always has been, the essential principle governing ACCA cases."). If the statute's elements are the same or narrower than those in the generic definition, the statutory offense qualifies. Taylor, 495 U.S. at 599, 110 S.Ct. at 2158 ; Descamps v. United States, 570 U.S. ––––, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013).

A conviction cannot categorically qualify as a predicate offense if the conviction was for violating a statute that is broader than the generic definition of the enumerated offense. Descamps, 133 S.Ct. at 2283 ; Gundy, 842 F.3d at 1162. If that is the situation, the court must decide whether it is appropriate to use what is called the "modified categorical approach" and look at "a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of." Mathis v. United States, 579 U.S. ––––, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016). It is appropriate to use the modified categorical approach only if the statute at issue is "divisible," or "comprises multiple, alternative versions of the crime." Descamps, 133 S.Ct. at 2284 ; accord Mathis, 136 S.Ct. at 2249 (describing a divisible statute as one that "list[s] elements in the alternative, and thereby define[s] multiple crimes"). If the statute is "indivisible," meaning that it "sets out a single (or ‘indivisible’) set of elements to define a single crime.... no conviction under that law could count as [a] ... predicate." Mathis, 136 S.Ct. at 2248–49.

A.

While § 2L1.2 counts "burglary of a dwelling" as a predicate offense, U.S.S.G. § 2L1.2 cmt. n.1(B)(iii), the ACCA counts "burglary" as a predicate offense, 18 U.S.C. § 924(e)(2)(B)(ii). In Taylor the Supreme Court held that the generic definition of burglary, as used in the ACCA, is the "unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." 495 U.S. at 599, 110 S.Ct. at 2158. But that definition is not the end of our inquiry because, unlike the ACCA, § 2L1.2 specifies that the offense must be "burglary of a dwelling." U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (emphasis added); see United States v. Ramirez, 708 F.3d 295, 301 (1st Cir. 2013) ("We disagree that Taylor's strict definition of ‘generic burglary’ automatically dictates the Guidelines' definition of ‘burglary of a dwelling.’ "); United States v. Rivera - Oros, 590 F.3d 1123, 1129 (10th Cir. 2009) ("[S]ince the Supreme Court's decision in Taylor was based on the ACCA's language and purpose, we...