United States v. Venzor–Granillo, 10–1541.

• Decision Date: 10 February 2012
• Docket Number: No. 10–1541.,10–1541.
• Citation: 668 F.3d 1224
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Abram VENZOR–GRANILLO, also known as Sergio Lerma–Cano, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

668 F.3d 1224

UNITED STATES of America, Plaintiff–Appellee,

v.Abram VENZOR–GRANILLO, also known as Sergio Lerma–Cano, Defendant–Appellant.

No. 10–1541.

United States Court of Appeals, Tenth Circuit.

Feb. 10, 2012.

John T. Carlson, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with him on the briefs), Denver, CO, for Defendant–Appellant.

Paul Farley, Assistant United States Attorney (John F. Walsh, United States Attorney, with him on the brief), Denver, CO, for Plaintiff–Appellee.

Before MURPHY, BALDOCK, and SILER,^* Circuit Judges.MURPHY, Circuit Judge.I. Introduction

Abram Venzor–Granillo appeals the district court's application of an eight-level sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(C). He argues the district court erred by using the modified categorical approach to conclude his prior Colorado conviction for first degree criminal trespass was a theft offense, warranting the enhancement. The district court properly applied the modified categorical approach because the Colorado statute under which Venzor–Granillo was convicted is ambiguous: it reaches a broad range of conduct, some of which merits the enhancement and some of which does not. The charging document ¹ and plea agreement underlying Venzor–Granillo's prior conviction reveal he necessarily admitted all the elements of the generic offense of attempt to commit theft. Therefore, the district court did not err in imposing the sentence enhancement. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), this court affirms the sentence imposed by the district court.

II. Background

Venzor–Granillo pleaded guilty to illegally reentering the United States following a prior removal, in violation of 8 U.S.C. § 1326(a) and (b)(2). The Presentence Investigation Report (“PSR”) treated Venzor–Granillo's prior conviction for first degree criminal trespass under Colo.Rev.Stat. § 18–4–502 as an aggravated felony and therefore recommended an eight-level sentence enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(C). ² In so doing, however, the PSR recognized that the question whether Venzor–Granillo's prior conviction fell within the definition of aggravated felony was a legal issue for the district court to determine at sentencing.

Venzor–Granillo objected to the application of the eight-level sentence enhancement, claiming his prior conviction did not constitute an aggravated felony. The Colorado statute under which Venzor–Granillo was convicted states: “A person commits the crime of first degree criminal trespass if such person knowingly and unlawfully enters or remains in a dwelling of another or if such person enters any motor vehicle with intent to commit a crime therein.” Colo.Rev.Stat. § 18–4–502. Venzor–Granillo admitted he was convicted under the latter part of the statute, which criminalizes entering a motor vehicle with intent to commit a crime therein (the “trespass to a motor vehicle” part of the statute). He asserted, however, that a conviction under this part of the statute does not necessarily constitute an aggravated felony. Moreover, he argued, the district court was prohibited from applying the modified categorical approach and reviewing the charging document and plea agreement underlying his prior conviction to determine whether he was actually convicted of an aggravated felony.

The district court rejected Venzor–Granillo's argument. It determined the modified categorical approach should be applied and reviewed the charging document and plea agreement underlying Venzor–Granillo's prior conviction. These documents showed Venzor–Granillo was charged with, and pleaded guilty to, trespass to a motor vehicle with intent to commit the crime of theft. The district court therefore concluded Venzor–Granillo's prior conviction constituted a theft offense, falling within the definition of aggravated felony and warranting the eight-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C). See U.S.S.G. § 2L1.2 cmt. n. 3(A); 8 U.S.C. § 1101(a)(43)(G), (U). The district court sentenced Venzor–Granillo to thirty-six months in prison.

III. Analysis

This court reviews de novo the district court's conclusion that Venzor–Granillo's prior conviction is an aggravated felony under the Sentencing Guidelines. United States v. Venegas–Ornelas, 348 F.3d 1273, 1274 (10th Cir.2003). In interpreting the Guidelines, this court looks “at the language in the guideline itself, as well as at the interpretative and explanatory commentary to the guideline provided by the Sentencing Commission.” United States v. McConnell, 605 F.3d 822, 824 (10th Cir.2010) (quotation omitted). “Commentary to the Guidelines is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Id. (quotations omitted).

A. The Categorical Approach

U.S.S.G. § 2L1.2(b)(1)(C) requires an eight-level increase in the base offense level of a defendant who unlawfully reenters the United States after a previous removal following a conviction for an aggravated felony. Aggravated felony includes “a theft offense ... for which the term of imprisonment [is] at least one year” and an attempt to commit a theft offense. 8 U.S.C. § 1101(a)(43)(G), (U); see also U.S.S.G. § 2L1.2 cmt. n. 3(A). This enhancement provision refers to the generic offenses of theft and attempted theft, i.e., it refers to those offenses as they are generally committed. Nijhawan v. Holder, 557 U.S. 29, 129 S.Ct. 2294, 2298–99, 174 L.Ed.2d 22 (2009). Thus, in determining whether a prior conviction warrants an enhancement as a theft offense or attempted theft offense, the court must use 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), and Shepard v. United States, 544 U.S. 13, 25–26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Id.; see also United States v. Martinez–Hernandez, 422 F.3d 1084, 1086 (10th Cir.2005) (stating the categorical approach applies “when the language of the enhancement confines the court's inquiry to the terms of the statute of conviction” (quotation and alteration omitted)). Indeed, several other circuits apply the categorical approach to determine whether a defendant's prior conviction warrants an enhancement as a theft offense or attempted theft offense under § 2L1.2(b)(1)(C) and 8 U.S.C. § 1101(a)(43)(G) and (U). See Ngaeth v. Mukasey, 545 F.3d 796, 800–01 (9th Cir.2008); United States v. Martinez–Garcia, 268 F.3d 460, 464–66 (7th Cir.2001); Lopez–Elias v. Reno, 209 F.3d 788, 791 (5th Cir.2000); see also Gonzales v. Duenas–Alvarez, 549 U.S. 183, 185–86, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) (“In determining whether a conviction ... falls within the scope of a listed offense ( e.g., ‘theft offense’), the lower courts uniformly have applied” the categorical approach.).

Under the categorical approach, a sentencing court determines whether a prior conviction requires application of a sentence enhancement by “looking not to the particular facts of the prior conviction but to the terms of the underlying statute.” Martinez–Hernandez, 422 F.3d at 1086; see also Taylor, 495 U.S. at 600, 110 S.Ct. 2143 (stating that under the categorical approach a court may look “only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions”). In the case of a generic offense enhancement provision, the categorical approach “requires a comparison of the elements of the relevant state statute with the basic elements of [the generic offense].” ³ United States v. Barney, 955 F.2d 635, 638 (10th Cir.1992). “If the relevant statute is in substantial accord with the [generic offense], the conviction may be used for enhancement purposes.” Id.; see also Taylor, 495 U.S. at 602, 110 S.Ct. 2143.

B. The Modified Categorical Approach

In certain circumstances, application of the categorical approach requires courts to look beyond the terms of the statute of conviction. “When the underlying statute reaches a broad range of conduct, some of which merits an enhancement and some of which does not, courts resolve the ambiguity by consulting reliable judicial records, such as the charging document, plea agreement, or plea colloquy” to determine whether the defendant's prior conviction warrants an enhancement. Martinez–Hernandez, 422 F.3d at 1086; see also Shepard, 544 U.S. at 26, 125 S.Ct. 1254; Taylor, 495 U.S. at 599–602, 110 S.Ct. 2143. This process of applying the categorical approach, and if necessary, going beyond the terms of the underlying statute to determine whether the particular defendant's conviction warrants an enhancement, is commonly referred to as the modified categorical approach. United States v. Torres–Romero, 537 F.3d 1155, 1158 (10th Cir.2008).

Relying on this court's decisions in United States v. Zuniga–Soto, 527 F.3d 1110, 1113 (10th Cir.2008), and United States v. Herrera, 286 Fed.Appx. 546, 555 (10th Cir.2008), Venzor–Granillo argues the sole purpose of the modified categorical approach is to determine which part of a divisible statute was charged against a defendant and, therefore, which part of the statute to examine on its face. Venzor–Granillo admits that because the Colorado statute he was convicted under criminalizes both trespass to a dwelling and trespass to a motor vehicle, the modified categorical approach can be used to determine which of these parts of the statute he violated. Thus, he concedes the district court appropriately applied the modified categorical approach to determine he was convicted under the trespass to a motor vehicle part of the statute. He argues, however, the modified categorical approach cannot be further applied to that part, i.e., to determine what crime he intended to commit when he entered the motor vehicle. Therefore, his argument continues, once the district court used the modified categorical approach to determine he was...