United States v. Godoy-Castaneda

• Decision Date: 07 July 2015
• Docket Number: No. 13-41038,13-41038
• Parties: UNITED STATES OF AMERICA, Plaintiff - Appellee v. ELMER GODOY-CASTANEDA, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

UNITED STATES OF AMERICA, Plaintiff - Appellee v. ELMER GODOY-CASTANEDA, Defendant - Appellant

No. 13-41038

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

July 7, 2015

Summary Calendar

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

U.S.D.C. No. 7:13-CV-902

Before KING, JOLLY, and HAYNES, Circuit Judges.

PER CURIAM:^*

Defendant Elmer Godoy-Castaneda pleaded guilty to being unlawfully present in the United States following deportation. Godoy-Castaneda appeals his sentence, arguing that the district court incorrectly concluded that his prior conviction in New York for conspiracy in the second degree and solicitation in the second degree relating to second-degree murder was a crime of violence under § 2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines Manual ("U.S.S.G." or the "Guidelines"). We AFFIRM the district court's judgment.

I.

Godoy-Castaneda was charged with being unlawfully present in the United States after deportation in violation of 8 U.S.C. § 1326(a) and (b). Godoy-Castaneda pleaded guilty to the charge without a plea agreement.

The presentence report ("PSR") concluded that Godoy-Castaneda had a total offense level of 22 and a criminal history category of IV, applying a 16-level enhancement for a crime of violence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). The enhancement was based upon Godoy-Castaneda's previous conviction in New York state for five counts of second-degree conspiracy and five counts of second-degree solicitation in connection with a second-degree murder.¹ With an additional one-level reduction for acceptance of responsibility, the Guidelines range became 57 to 71 months. Godoy-Castaneda objected to the 16-level crime of violence enhancement only on the following grounds: (1) that solicitation is not listed in the application notes to § 2L1.2 and (2) that the definition of "conspiracy" under New York law does not fit within the generic, contemporary meaning of "conspiracy."

The district court overruled Godoy-Castaneda's objections and sentenced Godoy to 57 months. Godoy-Castaneda timely appealed.

II.

Where a sentencing error is preserved, we review a district court's interpretation or application of the Guidelines de novo and its factual findings for clear error. United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (citation omitted). If the defendant fails to preserve an error, we review only for plain error. United States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012). "Plain error review requires four determinations: whether there was error at all; whether it was plain or obvious; whether the defendanthas been substantially harmed by the error; and whether this court should exercise its discretion to correct the error in order to prevent a manifest miscarriage of justice." Id.

On appeal, Godoy-Castaneda argues for the first time that the district court erred in applying the 16-level enhancement because neither conspiracy in the second degree nor solicitation in the second degree under New York law qualifies as a crime of violence. Godoy-Castaneda further argues that the district court plainly erred in finding that the underlying offense, second-degree murder under New York law, qualifies as "murder" under § 2L1.2. Reviewing for plain error, we disagree.

Under the Guidelines, a defendant convicted of illegal reentry is subject to a 16-level sentencing enhancement if he was deported following a prior conviction for a crime of violence. See § 2L1.2(b)(1)(A)(ii). The Application Notes define a "crime of violence" in two ways: first, as one of several enumerated offenses, including murder and conspiracy, and, second, as "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." § 2L1.2, comment n.1(B)(iii). This court applies "slightly different methodologies to determine whether a prior conviction constitutes a crime of violence under each respective definition." United States v. Herrera-Alvarez, 753 F.3d 132, 137 (5th Cir. 2014). Both methodologies are "iterations of the elements-based categorical approach." Id. For the enumerated offenses, "we conduct a 'common-sense' categorical approach, looking to various sources—such as 'the Model Penal Code, the LaFave and Scott treatises, modern state codes, and dictionary definitions'—to define each crime by its 'generic, contemporary meaning.'" Id. (quoting United States v. Moreno-Florean, 542 F.3d 445, 449 (5th Cir. 2008)); see also United States v. Rodriguez, 711 F.3d 541, 552 n.17 (5th Cir.) (en banc), cert. denied, 134 S. Ct. 512 (2013). For thesecond category, "we analyze whether the offense has as an element the use, attempted use, or threatened use of physical force." Herrera-Alvarez, 753 F.3d at 137. Under this provision, force "must rise to the level of 'destructive or violent force'; mere 'offensive touching' with a deadly weapon is insufficient." Id. (quoting United States v. Dominguez, 479 F.3d 345, 348 (5th Cir. 2007)). "Under both approaches, we determine the elements to which a defendant pleaded guilty by analyzing the statutory definition of the offense, not the defendant's underlying conduct." Id. at 137-38 (citing Descamps v. United States, 133 S. Ct. 2276, 2281 (2013)).

We first consider whether the underlying offense, second-degree murder, constitutes a crime of violence. See United States v. Ellis, 564 F.3d 370, 372 (5th Cir. 2009) (considering first whether the crime underlying defendant's "attempt" conviction would constitute a crime of violence). Murder is one of the enumerated offenses in comment 1(B)(iii) of U.S.S.G. § 2L1.2. We therefore consider whether New York's statute is consistent with the generic, contemporary meaning of murder. See Rodriguez, 711 F.3d at 549.

Under New York Penal Law § 125.25, a person is guilty of murder in the second degree, a Class A felony, when:

1. With intent to cause the death of another person, he causes the death of such person or of a third person . . . ; or

. . .

3. . . . he commits or attempts to commit robbery, burglary, kidnapping, arson, rape in the first degree, criminal sexual act in the first degree, sexual abuse in the first degree, aggravated sexual abuse, escape in the first degree, or escape in the second degree, and, in the course of and in furtherance of such crime or of immediate flight therefrom, he, or another participant, if there be any, causes the death of a person other than one of the participants . . . ;

. . . .

N.Y. PENAL LAW § 125.25(1),(3).

Godoy-Castaneda contends that the third subsection of the statute is broader than the contemporary, generic meaning of murder. Though LaFave and the Model Penal Code recognize felony murder, Godoy-Castaneda argues that the third subsection does not necessarily involve conduct that is "dangerous to life." See 2 W.R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 14.5(b) (2d ed. 2003) (noting that for felony murder, the "felony attempted or committed by the defendant must be dangerous to life"). For example, under New York law, a person is guilty of sexual abuse in the first degree if he "subjects another person to sexual contact . . . [b]y forcible compulsion." N.Y. PENAL LAW § 130.65. Godoy-Castaneda contends that a person could be convicted of second-degree murder in New York for touching another person's leg, which is "sexual contact" by "forcible compulsion," and, when running away, that person knocks a third person down, causing that person's death. Godoy-Castaneda argues that this hypothetical is far from the dangerous felonies required by the Model Penal Code.

Godoy-Castaneda points to no New York case employing such a far-fetched approach. See United States v. Teran-Salas, 767 F.3d 453, 460 (5th Cir. 2014) (requiring a "realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime" (internal quotation marks and citations omitted)), cert. denied, 135 S. Ct. 1892 (2015). Even putting that aside and assuming arguendo that Godoy-Castaneda is correct that New York's second-degree murder statute is broader than the enumerated offense of murder, where a divisible statute has some sections that qualify as a crime of violence and some that do not, we apply the "modified categorical approach":

Under the modified categorical approach, we may consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction. The court can then do what the categoricalapproach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime, or, as the case may be, assess whether the crime of conviction has as an element the use, attempted use, or threatened use of physical force. Those records are generally limited to . . . the charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented. By reviewing the extra-statutory materials approved in those cases, courts c[an] discover 'which statutory phrase' contained within a statute listing 'several different' crimes, 'covered a prior conviction.'

Herrera-Alvarez, 753 F.3d at 138 (internal citations and quotation marks omitted); see also Shepard v. United States, 544 U.S. 13, 16 (2005) (holding that, under the modified categorical approach, courts are "generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented").

Godoy-Castaneda's indictment and judgment do not explicitly identify the statutory subsection for the underlying offense of second-degree murder. For the five conspiracy counts, the indictment states that...