United States v. Perez
| Decision Date | 11 July 2019 |
| Docket Number | No. 17-10216,17-10216 |
| Citation | 929 F.3d 1106 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Aaron David PEREZ, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Jerome E. Matthews (argued) and Elizabeth McKenna, Assistant Federal Public Defender; Steven G. Kalar, Federal Public Defender; Office of the Federal Public Defender, Oakland, California; for Defendant-Appellant.
Susan B. Gray (argued), Assistant United States Attorney; J. Douglas Wilson, Chief, Appellate Division; United States Attorney’s Office, San Francisco, California; for Plaintiff-Appellee.
Before: Eugene E. Siler,* Richard A. Paez, and Sandra S. Ikuta, Circuit Judges.
Aaron Perez’s appeal of his sentence for being a felon in possession of a firearm and ammunition raises the question whether a prior state conviction for battery resulting in serious bodily injury, in violation of section 243(d) of the California Penal Code, qualifies as a "crime of violence" as defined in § 4B1.2(a)(1) of the United States Sentencing Guidelines. We conclude that it does. For the reasons set forth below and in our concurrently-filed memorandum disposition, United States v. Perez , ––– F. App’x ––––, 2019 WL 3037044 (9th Cir. 2019), we affirm.
In May 2016, Perez was convicted of a single count of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). According to the presentence report, Perez had a lengthy criminal history, including a conviction for felony battery resulting in serious bodily injury in violation of California Penal Code section 243(d).
In light of this prior conviction, the presentence report determined that Perez had a base offense level of 20, which is applicable if "the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense." U.S. Sentencing Guidelines Manual § 2K2.1(a)(4) (U.S. Sentencing Comm’n 2016). After taking into account various adjustments, the presentence report concluded that Perez had an adjusted offense level of 19 and a criminal history category of VI, resulting in an advisory Guidelines range of 63 to 78 months. The presentence report recommended a downward variance to a below-Guidelines sentence of 46 months.
At sentencing, the district court concluded that Perez’s conviction under section 243(d) qualified as a crime of violence as defined in U.S.S.G. § 4B1.2. It imposed a sentence of 61 months’ imprisonment, followed by three years of supervised release. On appeal, Perez challenges the court’s determination that section 243(d) is a crime of violence. The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.
Whether a prior conviction qualifies as a crime of violence is a question of law that this court reviews de novo.
United States v. Rivera-Muniz , 854 F.3d 1047, 1048–49 (9th Cir. 2017). In order to determine whether a conviction qualifies as a crime of violence as defined in U.S.S.G. § 4B1.2(a)(1), we apply the categorical approach set forth in Taylor v. United States , 495 U.S. 575, 600–02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). "Under this categorical approach, if the state statute of conviction criminalizes more conduct than the federal generic offense, then the state offense is not categorically included in the definition of the federal generic offense." Rodriguez-Castellon v. Holder , 733 F.3d 847, 853 (9th Cir. 2013). If the state statute of conviction criminalizes the same conduct or less conduct than the federal generic offense, then it qualifies as a generic federal offense. Barragan-Lopez v. Holder , 705 F.3d 1112, 1115 (9th Cir. 2013).1
In determining "whether a state statute meets a generic definition appearing in the Guidelines," we may consider the interpretation of the statute provided by state courts. United States v. Laurico-Yeno , 590 F.3d 818, 822 & n.2 (9th Cir. 2010). "When the state statute’s greater breadth is not apparent from the language of the statute itself, a defendant must point to ‘cases in which the state courts in fact did apply the statute in the special (nongeneric) manner’ to show the statute applies to conduct outside the federal definition." Id. at 822 (quoting Gonzales v. Duenas-Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ). There must be "a realistic probability, not a theoretical possibility" that the State would apply its statute in such a manner. Duenas-Alvarez , 549 U.S. at 193, 127 S.Ct. 815. A court’s "focus on the minimum conduct criminalized by the state statute is not an invitation to apply ‘legal imagination’ to the state offense." Moncrieffe v. Holder , 569 U.S. 184, 191, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013) (quoting Duenas-Alvarez , 549 U.S. at 193, 127 S.Ct. 815 ).
We first construe the generic federal definition of "crime of violence" provided by U.S.S.G. § 4B1.2(a)(1). This section defines "crime of violence" as "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—(1) has as an element the use, attempted use, or threatened use of physical force against the person of another .... " U.S.S.G. § 4B1.2(a)(1).2 In interpreting this language, the Supreme Court defined "physical force" to mean "violent force—that is, force capable of causing physical pain or injury to another person." Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). Said otherwise, "the force necessary to constitute a crime of violence [ ] must actually be violent in nature." Singh v. Ashcroft , 386 F.3d 1228, 1233 (9th Cir. 2004) (alteration in original) (quoting United States v. Ceron-Sanchez , 222 F.3d 1169, 1172 (9th Cir. 2000) ). Further, the use of force must be intentional, requiring "active employment" and a "higher degree of intent than negligent or merely accidental conduct." Leocal v. Ashcroft , 543 U.S. 1, 9, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). "The bedrock principle of Leocal is that to constitute a federal crime of violence an offense must involve the intentional use of force against the person or property of another." Fernandez-Ruiz v. Gonzales , 466 F.3d 1121, 1132 (9th Cir. 2006) (en banc). Accordingly, for a state crime of conviction to constitute a "crime of violence" as defined in § 4B1.2(a)(1), it must have as an element the intentional "use, attempted use, or threatened use" of violent physical force against another person.
We now consider the state crime of conviction in this case, section 243(d) of the California Penal Code. Section 243(d) states: "When a battery is committed against any person and serious bodily injury is inflicted on the person, the battery is punishable by imprisonment in a county jail not exceeding one year or imprisonment pursuant to subdivision (h) of Section 1170 for two, three, or four years."
Section 242 of the California Penal Code defines "battery" to mean "any willful and unlawful use of force or violence upon the person of another." Cal. Penal Code § 242. Consistent with long-established interpretations in tort and criminal law, California courts have concluded that "the least touching may constitute battery." People v. Mansfield , 200 Cal. App. 3d 82, 88, 245 Cal.Rptr. 800 (1988) (internal quotation marks and citation omitted). A battery "need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark." Id. (citation omitted).
Other key terms in section 243(d) also have statutory definitions. The word "willfully" means "a purpose or willingness to commit the act, or make the omission referred to." Cal. Penal Code § 7 ; see Laurico-Yeno , 590 F.3d at 821 (). The term "serious bodily injury" means "a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement." Cal. Penal Code § 243(f)(4). Accordingly, section 243(d) criminalizes an intentional use of physical force that results in serious bodily injury.
In light of these definitions, section 243(d) can be a categorical match to § 4B1.2(a)(1) only if the use of physical force that results in serious bodily injury constitutes the use of violent physical force.
In construing a similar state statute, we concluded that force that results in an injury requiring medical treatment constitutes violent physical force. See United States v. Colon-Arreola , 753 F.3d 841 (9th Cir. 2014). In Colon-Arreola , we considered whether a defendant’s conviction under section 243(c)(2) of the California Penal Code was a "crime of violence" for purposes of U.S.S.G. § 2L1.2, id. at 843–44, which uses the same terminology as § 4B1.2. Section 243(c) criminalizes a "battery" that is "committed against a peace officer engaged in the performance of his or her duties" which results in "an injury ... inflicted on [the] victim." Cal. Penal Code § 243(c).3
Colon-Arreola first acknowledged our prior decision in Ortega-Mendez v. Gonzales , which held that battery alone, as defined in section 242 of the California Penal Code, does not constitute a crime of violence, because "the statute does not require the use of violent force." Colon-Arreola , 753 F.3d at 844 (citing Ortega-Mendez v. Gonzales , 450 F.3d 1010, 1016 (9th Cir. 2006) ). But we distinguished Ortega-Mendez on the ground that " § 243(c)(2) requires proof of an element that § 242 does not, namely, that an ‘injury is inflicted on [a peace officer] victim.’ " Id. Because the term "injury" is defined as "any physical injury which requires professional medical treatment," Cal. Penal Code § 243(...
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