US v. Velasquez-Bosque

• Decision Date: 15 April 2010
• Docket Number: No. 09-50126.,09-50126.
• Citation: 601 F.3d 955
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Fernando Alberto VELASQUEZ-BOSQUE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

601 F.3d 955

UNITED STATES of America, Plaintiff-Appellant, v. Fernando Alberto VELASQUEZ-BOSQUE, Defendant-Appellee.

No. 09-50126.

United States Court of Appeals, Ninth Circuit.

Argued March 2, 2010.

Submitted April 8, 2010.

Filed April 15, 2010.

Davina T. Chen, Deputy Federal Public Defender, Santa Ana, CA, for defendant-appellant and cross-appellee Fernando Velasquez-Bosque.

Daniel B. Levin, Assistant United States Attorney, Los Angeles, CA, for plaintiff-appellee and cross-appellant the United States of America.

Before WILLIAM C. CANBY, JR., RONALD M. GOULD and SANDRA S. IKUTA, Circuit Judges.

IKUTA, Circuit Judge:

We are asked to decide whether carjacking under California Penal Code section 215 is a categorical crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). We hold that it is, and we reverse.

I

Fernando Velasquez-Bosque was convicted of violating 8 U.S.C. § 1326, which makes it a crime for an alien who has been removed from the United States to reenter the country. Velasquez-Bosque had a previous felony conviction for carjacking under California Penal Code section 215. At sentencing on the § 1326 conviction, the government urged the district court to increase Velasquez-Bosque's base offense level under the U.S. Sentencing Guidelines by sixteen-levels pursuant to § 2L1.2(b)(1)(A)(ii), which applies to defendants who were previously deported after being convicted of a felony that is a crime of violence. The government claimed that Velasquez-Bosque's carjacking conviction constituted a categorical crime of violence warranting the enhancement.

The district court declined to apply the enhancement. It determined that carjacking under section 215 was not a crime of violence for purposes of the Guidelines because it criminalized more conduct than the enumerated offenses listed in the relevant Guidelines' section, see § 2L1.2 cmt. n. 1(B)(iii). The court sentenced Velasquez-Bosque to fifty-one months incarceration followed by three years of supervised release. The government timely appealed.¹ We have jurisdiction under 28 U.S.C. § 1291.

II

We review de novo whether Velasquez-Bosque's prior conviction qualifies as a crime of violence under § 2L1.2 of the Guidelines, using the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). United States v. Esparza-Herrera, 557 F.3d 1019, 1021-22 (9th Cir. 2009) (per curiam).

A

Under the Guidelines, a defendant who has been convicted of a crime of violence is eligible for increased criminal penalties. U.S.S.G. § 2L1.2(b)(1)(A). The Guidelines define "crime of violence" as:

any 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 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) (2007).

To determine whether a state offense meets the Guidelines' definition of a "crime of violence," the court compares the state statute of conviction with the federal generic definition of the same crime. See Taylor, 495 U.S. at 602, 110 S.Ct. 2143. If the state statute criminalizes the same (or less) conduct as the generic crime, then the sentence enhancement applies to convictions for the state offense; if the state statute penalizes more conduct than the generic offense, however, the state offense is not categorically a crime of violence under § 2L1.2, and therefore the upward sentence enhancement for prior convictions of a crime of violence will not apply under the categorical approach. See id. at 599-600, 110 S.Ct. 2143.

The state offense at issue here is California Penal Code section 215(a), which defines carjacking as "1 the felonious taking of a motor vehicle in the possession of another, 2 from his or her person or immediate presence, or from the person or immediate presence of a passenger of the motor vehicle, 3 against his or her will and 4 with the intent to either permanently or temporarily deprive the person in possession of the motor vehicle of his or her possession, 5 accomplished by means of force or fear."

Our analysis of whether section 215 is a "crime of violence" as defined in the Guidelines is largely controlled by our decision in United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir.2008). In that case, we considered whether California's definition of "robbery" under California Penal Code section 211 constituted a crime of violence under § 2L1.2. Id. at 885. California defines "robbery" as "1 the felonious taking of personal property in the possession of another,2 from his person or immediate presence, and 3 against his will, 4 accomplished by means of force or fear." Cal.Penal Code § 211. California defines "fear" under section 211 as including the fear of injury to property. See Cal.Penal Code § 212.² Applying the categorical approach under Taylor, we concluded in Becerril-Lopez that section 211 qualified as a generic crime of violence for purposes of the Guidelines. 541 F.3d at 893.

In reaching this conclusion, we compared section 211 with two crimes listed in the Application Note of the Guidelines as "crimes of violence": robbery and extortion. Id. at 891-92 (citing § 2L1.2 cmt. n. 1(B)(iii)). We defined generic robbery as "aggravated larceny, containing at least the elements of misappropriation of property under circumstances involving immediate danger to the person." Id. at 891 (emphasis omitted) (adopting the Fifth Circuit's definition from United States v. Santiesteban-Hernandez, 469 F.3d 376, 380 (5th Cir.2006)). We determined that despite being a robbery offense, section 211 criminalized more conduct than generic robbery, because section 211 encompasses threats to property as well as to persons (as indicated in section 212's definition of "fear"), while generic robbery is limited to threats to persons. Id.

Notwithstanding section 211's additional element, we determined that our categorical analysis of section 211 could look beyond generic robbery and compare section 211 to generic extortion as well. Id. We reasoned that a state offense that criminalizes more conduct than generic robbery will still constitute a categorical crime of violence if the elements of the state offense that are not included in generic robbery qualify as elements of generic extortion. Id. at 891-92. According to Becerril-Lopez, the generic offenses of robbery and extortion may be combined under the Taylor categorical framework because of those crimes' historical relationship: extortion was "created in order to plug a loophole in the robbery law by covering sundry threats which will not do for robbery." Id. at 892 (quoting 3 Wayne R. LaFave, Substantive Criminal Law § 20.4(b) (2d ed.2003) hereinafter LaFave).

Accordingly, Becerril-Lopez next considered whether the element in section 211 not included in generic robbery was included in the elements of generic extortion. Id. at 892-93. Becerril-Lopez defined generic extortion as "obtaining something of value from another with his consent induced by the wrongful use of force, fear, or threats." 541 F.3d at 891-92 (quoting Scheidler v. National Organization for Women, Inc., 537 U.S. 393, 409, 123 S.Ct. 1057, 154 L.Ed.2d 991 (2003)) (discussing the Hobbs Act, 18 U.S.C. § 1951(b)(2)); see also United States v. Anderson, 989 F.2d 310, 312-13 (9th Cir.1993) (adopting the Hobbs Act definition as the generic federal offense of extortion in analyzing whether extortion is a crime of violence under the Armed Career Criminal Act). We determined that "unlike robbery, the threats that can constitute extortion under the modern statutes include threats to harm property and to cause other unlawful injuries." Becerril-Lopez, 541 F.3d at 892.

In comparing section 211 to this definition of generic extortion, we noted a difference between the two: under the generic definition of extortion, the defendant must obtain the property from another "with consent," while under section 211, the defendant must obtain property from a person "against the will" of that person. Id. at 892 n. 9. We held that "the `with consent' element of generic extortion is not inconsistent with the `against the will' element of a Cal.Penal Code § 211 conviction for a taking involving threats to property," id., because "in spite of the different expressions, there is no difference here, for both crimes equally require that the defendant's threats induce the victim to give up his property, something which he would not otherwise have done," id. (quoting 3 LaFave § 20.4(b)). Accordingly, we concluded "that if a conviction under Cal.Penal Code § 211 involved a threat not encompassed by generic robbery, it would necessarily constitute generic extortion and therefore be a `crime of violence' under U.S.S.G. § 2L1.2." Id. at 892.

The analysis set forth in Becerril-Lopez guides our analysis of California Penal Code section 215, which is substantially similar to section 211 in all material respects. See Nieves-Medrano v. Holder, 590 F.3d 1057, 1058 (9th Cir.2010) (order). Both section 215 and section 211 involve: 1 taking personal property in the possession of another person 2 from his or her immediate presence, 3 against that person's will, and 4 accomplished by means of force or fear. To the extent that the elements in section 211 are identical to those in section 215, Becerril-Lopez requires us to reach the conclusion that section 215 is also a crime of violence because it criminalizes the same or less conduct as the combination of generic robbery and generic extortion. See United States v. Harris, 572 F.3d 1065, 1066 (9th Cir.2009) (per curiam) (relying on Becerril-Lopez to hold that a Nevada robbery statute was a crime of violence under U.S.S.G §...