USA v. Melchor-meceno

• Decision Date: 01 September 2010
• Docket Number: No. 09-10012.,09-10012.
• Citation: 620 F.3d 1180
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Merced MELCHOR-MECENO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

620 F.3d 1180

UNITED STATES of America, Plaintiff-Appellee,

v.Merced MELCHOR-MECENO, Defendant-Appellant.

No. 09-10012.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted April 12, 2010.

Filed Sept. 1, 2010.

Jon M. Sands, Federal Public Defender, and Richard W. Raynor, Assistant Federal Public Defender, Tucson, AZ, for Defendant-appellant Merced Melchor-Meceno.

Dennis K. Burke, United States Attorney, Christina M. Cabanillas, Appellate Chief, and Celeste Benita Corlett, Assistant United States Attorney, Tucson, AZ, for Plaintiff-appellee United States of America.

Appeal from the United States District Court for the District of Arizona, John M. Roll, Chief District Judge, Presiding. D.C. No. 4:08-CR-00854-JMR-BPV.

Before MARY M. SCHROEDER and N. RANDY SMITH, Circuit Judges, and JAMES MAXWELL MOODY, Judge. ^*

OPINION

N.R. SMITH, Circuit Judge:

Merced Melchor-Meceno (Melchor-Meceno) pleaded guilty to illegally re-entering the United States after deportation in violation of 8 U.S.C. § 1326. After conviction, the district court sentenced him to a seventy-five month term of imprisonment. The length of the term of imprisonment included an enhancement pursuant to the United States Sentencing Guidelines Manual (U.S.S.G.) § 2L1.2 for Melchor-Meceno's prior conviction of a crime of violence. Melchor-Meceno appeals, claiming his prior Colorado state conviction for menacing does not qualify as a “crime of violence.” Because the Colorado felony menacing statute is categorically a crime of violence (as outlined in U.S.S.G. § 2L1.2), the district court properly applied the enhancement to Melchor-Meceno's sentence. We need not address whether the conviction constitutes a crime of violence under the modified categorical approach.

I. BACKGROUND

Following felony convictions, the United States Immigration and Customs Enforcement twice deported Melchor-Meceno (a citizen of Mexico) from the United States in 2000 and 2007. On June 13, 2008, Border Patrol agents found Melchor-Meceno back again in the United States near Sells, Arizona. A grand jury subsequently indicted Melchor-Meceno for illegally re-entering the United States after deportation in violation of 8 U.S.C. § 1326.

After pleading guilty to the charge, the probation officer prepared a Pre-Sentence Report (PSR) recommending that Melchor-Meceno's sentence be enhanced 16 levels for deportation after a crime of violence. Prior to the sentencing hearing, Melchor-Meceno filed an objection to the proposed 16-level enhancement, arguing that his 1995 Colorado state felony menacing conviction ¹ was not a crime of violence. At the sentencing hearing, the district court concluded that the 1995 conviction constituted a crime of violence and applied the 16-level enhancement to Melchor-Meceno's sentence.

The district court noted that “looking at the totality of the charges, the predicate facts, which are the basis of the charges, that clearly what the defendant was convicted of was a crime of violence and menacing is in fact a crime of violence.” The district court applied the 16-level enhancement and sentenced Melchor-Meceno to a seventy-five month term of imprisonment. ² The district court found Melchor-Meceno was convicted of a crime of violence, but did not specifically state whether the court applied the categorical or modified categorical approach in making such a finding. Melchor-Meceno argues, on appeal, that the statute could not be found to be a crime of violence under either the categorical or modified categorical approach.

II. STANDARD OF REVIEW

“We review de novo a sentencing court's interpretation of the Guidelines, including its determination whether a prior conviction is a crime of violence for the purposes of U.S.S.G. § 2L1.2.”

United States v. Laurico-Yeno, 590 F.3d 818, 820 (9th Cir.2010) (citation and internal quotation marks omitted).

III. CRIME OF VIOLENCE ENHANCEMENT

To determine whether a C.R.S. § 18-3-206 felony conviction for menacing is a categorical “crime of violence” for purposes of U.S.S.G. § 2L1.2, we apply the approach set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See United States v. Grajeda, 581 F.3d 1186, 1189 (9th Cir.2009); see also Laurico-Yeno, 590 F.3d at 820-21. “Under[the categorical] approach, we do not look to the facts of the underlying conviction, but rather to the state statute defining the conviction.” Laurico-Yeno, 590 F.3d at 821. “In order for a violation of the state statute to qualify as a predicate offense, the full range of conduct covered by the state statute must fall within the scope of the federal statutory provision.” Id. (citation, alteration and internal quotation marks omitted). Therefore, to determine whether the state statute falls within the scope of the federal statutory provision, we look at the least egregious end of the state statute's range of conduct. See id. We compare the terms of U.S.S.G. § 2L1.2 with the elements of the state statute. See id.

If the state conviction is a categorical crime of violence then “our inquiry is complete.” Grajeda, 581 F.3d at 1189. “If not, we turn to the modified categorical approach to determine if there is sufficient evidence in the record to conclude that [Melchor-Meceno] was convicted of the elements of the generically defined crime.” Id. (citations, alterations and internal quotation marks omitted). Because we conclude that the state conviction is categorically a crime of violence, we do not apply the modified categorical approach here.

IV. DISCUSSION

Under U.S.S.G. § 2L1.2, a 16-level enhancement is warranted “[i]f the defendant previously was deported, or unlawfully remained in the United States, after (A) a conviction for a felony that is ... (ii) a crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2007). An offense constitutes a crime of violence if it is one of the enumerated offenses ³ or if the crime “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). This is referred to as the element prong or test. See Grajeda, 581 F.3d at 1189.

Under the element prong, the nature of the crime should “be in the category of violent, active crimes.” Laurico-Yeno, 590 F.3d at 821 (citation and internal quotation marks omitted). A minimal, nonviolent touching or threat to general safety does not constitute sufficient force. See Johnson v. United States, --- U.S. ----, 130 S.Ct. 1265, 1268, 1269-70, 176 L.Ed.2d 1 (2010) (holding that a “Florida felony offense of battery by actually and intentionally touching another person [does not have] as an element the use of physical force” because the offense may occur by the slightest offensive touching (alterations and internal quotation marks omitted)); see also United States v. Jones, 231 F.3d 508, 519 n. 6, 520 (9th Cir.2000) (concluding that a stalking statute requiring a “threat with the intent to place [a] person in reasonable fear for his or her safety” was not a crime of violence because a threat to general safety did not mean only physical safety).

In addition to requiring a certain degree of force, “a predicate offense must [also] require intentional use, attempted use, or threatened use of force to constitute a crime of violence under § 2L1.2; neither recklessness nor negligence is enough.” Grajeda, 581 F.3d at 1191 (citations omitted). Such intentionality may be found in a general intent crime. See Grajeda, 581 F.3d at 1196-97 (holding that assault, a general intent crime, satisfied the mens rea requirement for a crime of violence, because it requires “an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another” (citation and internal quotation marks omitted)).

We must then compare this guideline language (as defined by the statute and case law) to the Colorado menacing statute. The statute provides:

A person commits the crime of menacing if, by any threat or physical action, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury. Menacing is a class 3 misdemeanor, but, it is a class 5 felony if committed: (a) By the use of a deadly weapon or any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon; or (b) By the person representing verbally or otherwise that he or she is armed with a deadly weapon. ⁴

C.R.S. § 18-3-206. Under C.R.S. § 18-3-206, “[m]enacing, whether a misdemeanor or a felony, is a general intent crime.” People v. Dist. Court of Colorado's Seventeenth Judicial Dist., 926 P.2d 567, 571 (Colo.1996) (en banc) (citation and footnote reference omitted). “Serious bodily injury means bodily injury which, either at the time of the actual injury or at a later time, involves a substantial risk of death, a substantial risk of serious permanent disfigurement, a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree.” C.R.S. § 18-1-901(p).

Comparing the guideline language to felony menacing under C.R.S. § 18-3-206, the statute is categorically a crime of violence under the element prong of U.S.S.G. § 2L1.2. The nature of the force required for felony menacing is in the category of violent active crimes, because it penalizes imminent serious bodily injury, rather than a minimal, non-violent touching, and necessarily involves a threat to physical safety, rather than general safety. Furthermore, the predicate offense of menacing, a general intent crime, includes the requisite mens rea of intent for a crime of violence. It requires the defendant to knowingly place another person in fear of imminent serious bodily harm.

A. Use of Physical Force

Melchor-Meceno asserts that his felony menacing conviction is...