United States v. Marquez–Lobos
| Decision Date | 21 September 2012 |
| Docket Number | No. 10–10470.,10–10470. |
| Citation | 697 F.3d 759 |
| Court | U.S. Court of Appeals — Ninth Circuit |
| Parties | UNITED STATES of America, Plaintiff–Appellee, v. Florentino MARQUEZ–LOBOS, Defendant–Appellant. |
OPINION TEXT STARTS HERE
Randall M. Howe (argued), Krissa Marie Lanham, and Dennis Burke, Office of the United States Attorney, Phoenix, AZ, for plaintiff-appellee United States of America.
Theron M. Hall III (argued), The Hall Law Firm, P.C., Phoenix, AZ, for defendant-appellant Florentino Marquez–Lobos.
Appeal from the United States District Court for the District of Arizona, Roslyn O. Silver, District Judge, Presiding. D.C. No. 2:09–cr–01584–ROS–1.
Before: JOHN T. NOONAN, JR., M. MARGARET McKEOWN, and MILAN D. SMITH, JR., Circuit Judges.
The opinion filed on June 19, 2012 is amended as follows:
On slip opinion page 7089, remove the paragraph from lines 1 to 10, starting with “Finally, even if Marquez–Lobos is correct that the Arizona statute sweeps more broadly than the generic crime ...” and ending with “... in which such a prosecution occurs.”
With this amendment, the panel has unanimously voted to deny the petition for panel rehearing. Judges McKeown and Smith have voted to deny the petition for rehearing en banc, and Judge Noonan so recommends.
The full court has been advised of the petition for rehearing en banc, and no active judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.
The petition for panel rehearing and rehearing en banc is DENIED. No future petition for panel rehearing or rehearing en banc will be entertained in this case.
Florentino Marquez–Lobos appeals the 16–level enhancement of his sentence due to his prior 1985 conviction for kidnapping, under Arizona Revised Statute (ARS) § 13–1304. The district court found that his prior kidnapping conviction was a “crime of violence,” as defined under the United States Sentencing Guidelines, U.S.S.G. § 2L1.2(b)(1)(A), and sentenced him to a term of 58 months in prison for illegally entering the country after deportation. On appeal, Marquez–Lobos contends that ARS § 13–1304 does not meet the generic definition of kidnapping, and therefore does not qualify as a “crime of violence” under either the categorical or modified categorical approach.
In United States v. Gonzalez–Perez, 472 F.3d 1158, 1161 (9th Cir.2007), we held that the generic definition of kidnapping “encompasses, at a minimum, the concept of a ‘nefarious purpose’ motivating restriction of a victim's liberty” in addition to “the unlawful deprivation of another person's liberty of movement.” We hold that ARS § 13–1304 categorically meets this generic definition, and we affirm Marquez–Lobos's sentence.
Marquez–Lobos pled guilty to illegal re-entry after deportation, in violation of 8 U.S.C. § 1326(a). The probation office calculated the Sentencing Guidelines in the Presentence Report (PSR) as follows:
+-----------------------------------------+
¦Base Offense Level: ¦8 ¦
+---------------------------------+-------¦
¦Specific Offense Characteristics:¦16 ¦
+---------------------------------+-------¦
¦Adjusted Offense Level ¦24 ¦
+---------------------------------+-------¦
¦Acceptance of Responsibility ¦-3 ¦
+---------------------------------+-------¦
¦Total Offense Level ¦21 ¦
+-----------------------------------------+
The PSR recommended a 16–level enhancement because Marquez–Lobos's 1985 conviction for kidnapping under ARS § 13–1304 constituted a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A). Marquez–Lobos objected to this enhancement at sentencing, but the district court overruled his objection, and sentenced Marquez–Lobos to a term of 58 months. Marquez–Lobos appealed.
We have jurisdiction under 28 U.S.C. § 1291.
We review de novo whether a conviction constitutes a “crime of violence” under the Sentencing Guidelines. United States v. Hermoso–Garcia, 413 F.3d 1085, 1089 (9th Cir.2005).
The crime of unlawfully entering the United States under 8 U.S.C. § 1326 carries a base offense level of 8 under the Sentencing Guidelines. U.S.S.G. § 2L1.2(a). A defendant's base offense level may be increased by 16 levels if he has a prior felony conviction that qualifies as a “crime of violence.” Id.§ 2L1.2(b)(1)(A). The Sentencing Guidelines define 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 (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), 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, attempteduse, or threatened use of physical force against the person of another.
Id.§ 2L1.2 Application Notes 1.B.iii (emphasis added).
The PSR cited Marquez–Lobos's prior conviction under ARS § 13–304, which, at the time of Marquez–Lobos's conviction, read as follows:
A. A person commits kidnapping by knowingly restraining another person with the intent to:
1. Hold the victim for ransom, as a shield or hostage; or
2. Hold the victim for involuntary servitude; or
3. Inflict death, physical injury or a sexual offense on the victim, or to otherwise aid in the commission of a felony; or
4. Place the victim or a third person in reasonable apprehension of imminent physical injury to the victim or the third person; or
5. Interfere with the performance of a governmental or political function; or
6. Seize or exercise control over any airplane, train, bus, ship or other vehicle.
B. Kidnapping is a class 2 felony unless the victim is released voluntarily by the defendant without physical injury in a safe place before arrest and before accomplishing any of the further enumerated offenses in subsection A of this section in which case it is a class 4 felony. If the victim is released pursuant to an agreement with the state and without any physical injury, it is a class 3 felony. If the victim is under fifteen years of age kidnapping is a class 2 felony punishable pursuant to § 13–705. The sentence for kidnapping of a victim under fifteen years of age shall run consecutively to any other sentence imposed on the defendant and to any undischarged term of imprisonment of the defendant.
ARS § 13–1304 (emphasis added).
Arizona defines the term “restrain” as follows:
“Restrain” means to restrict a person's movements without consent, without legal authority, and in a manner which interferes substantially with such person's liberty, by either moving such person from one place to another or by confining such person. Restraint is without consent if it is accomplished by:
(a) Physical force, intimidation or deception; or
(b) Any means including acquiescence of the victim if the victim is a child less than eighteen years old or an incompetent person and the victim's lawful custodian has not acquiesced in the movement or confinement.
ARS § 13–1301(2) (emphasis added).
We apply the categorical and modified categorical approaches set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to determine whether a defendant's prior conviction constitutes a “crime of violence” for the purposes of U.S.S.G. § 2L1.2(b)(1)(A). United States v. Pimentel–Flores, 339 F.3d 959, 968 (9th Cir.2003). We first apply the categorical analysis. Under this approach, we “do not examine the facts underlying the prior offense, but look only to the fact of conviction and the statutory definition of the prior offense.” Id. at 967 (quoting United States v. Corona–Sanchez, 291 F.3d 1201, 1203 (9th Cir.2002) (en banc), superseded on other grounds by U.S.S.G. § 2L.1, CMT. n. 4 (2002)). If the statutory definition of the prior offense criminalizes conduct that would not constitutea “crime of violence,” then the statute is not a categorical fit, and we must consider whether the prior conviction may still be used for a sentencing enhancement under the modified categorical approach. Pimentel–Flores, 339 F.3d at 967. Under this approach, a prior conviction may only be used for a sentencing enhancement if “the record includes documentation or judicially noticeable facts that clearly establish that the conviction is a predicate for enhancement purposes.” Id. (quoting Corona–Sanchez, 291 F.3d at 1203).
Finally, if both the statute and the documents containing judicially noticeable facts would allow the defendant to be convicted of an offense that would not be a “crime of violence,” then the sentencing enhancement may not be applied. See Corona–Sanchez, 291 F.3d at 1203–04.
To apply the categorical analysis in this case, we compare the statute that Marquez–Lobos violated—ARS § 13–1304—with the generic definition of a “crime of violence,” and determine if there is a categorical fit. In other words, does all conduct that could be criminalized under ARS § 13–1304 constitute a “crime of violence?”
Marquez–Lobos first urges us to ignore the PSR's reference to ARS § 13–1304 because the PSR did not specify the subsection of the statute under which Marquez–Lobos was previously convicted. He equates this general statutory reference in the PSR with not referring to a statute at all. In Pimentel–Flores, the PSR only stated that the defendant had a prior conviction for “assault in violation of court order, a felony,” and did not list a corresponding statutory provision for the conviction. 339 F.3d at 967–68. We held that it was improper for the sentencing court to...
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