FILED
United States Court of Appeals
Tenth Circuit
September 25, 2013
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 13-1078
v. (D.Ct. No. 1:12-CR-00307-WYD-1)
(D. Colo.)
RICKY NAVARRO, a/k/a Elvin
Manuel Monge,
Defendant-Appellant.
______________________________
ORDER AND JUDGMENT *
Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant Ricky Navarro pled guilty to one count of illegal reentry of a
removed alien subsequent to a conviction for an aggravated felony in violation of
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
8 U.S.C. § 1326(a) and (b)(2). He now appeals his thirty-month sentence on
grounds the district court erred in applying an eight-level enhancement for his
prior felony trespass conviction, which he contends it improperly treated as an
aggravated felony theft after applying a categorical approach or modified
categorical approach. We exercise jurisdiction pursuant to 18 U.S.C. § 3742(a)
and 28 U.S.C. § 1291 and affirm Mr. Navarro’s sentence.
I. Factual and Procedural Background
Mr. Navarro, a citizen of Honduras, pled guilty in 2005 in the State of
Colorado to a felony offense of “conspiracy to commit first degree criminal
trespass-Motor Vehicle,” in violation of Colorado Revised Statute §§ 18-2-101
and 18-4-502, and received a sentence of imprisonment of one year. Several
years later, on July 8, 2012, immigration authorities discovered Mr. Navarro
illegally in this country. An indictment issued, charging Mr. Navarro with illegal
reentry of an alien after deportation and notifying him of an enhanced penalty
because his reentry was subsequent to a conviction for an aggravated felony. In a
written plea agreement, prepared in both English and Spanish, Mr. Navarro
agreed to plead guilty to violating 8 U.S.C. § 1326(a) and (b)(2) for “illegal
reentry of a previously removed alien following an aggravated felony conviction.”
However, the parties further agreed his prior conviction for an aggravated felony
would be a sentencing factor, rather than an essential element of his conviction.
He further stipulated:
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On January 27, 2006, [I] was convicted of conspiracy to commit first
degree criminal trespass, in violation of [Colorado Revised Statute
§§] 18-2-101 and 18-4-502. During the plea hearing related to that
conviction, [I] acknowledged the elements of conspiracy and also of
first degree criminal trespass. [I] admitted the element of trespass
included that [I] knowingly entered a motor vehicle with the intent to
steal anything of value. [I] was sentenced to serve one year of
imprisonment.
At the plea hearing, Mr. Navarro also stated he had read the stipulated facts and
agreed with them.
Following the district court’s acceptance of Mr. Navarro’s plea agreement,
a probation officer prepared a presentence report, calculating his sentence under
the applicable 2012 United States Sentencing Guidelines (“U.S.S.G.” or
“Guidelines”) and reiterating the stipulated facts and admissions contained in the
plea agreement, including Mr. Navarro’s admission he knowingly entered a motor
vehicle with the intent to “steal anything of value.” Based on such stipulations
and admissions, the probation officer set Mr. Navarro’s base offense level at 8,
pursuant to U.S.S.G. § 2L1.2(a), based on his crime of illegal reentry and
increased it eight levels, pursuant to § 2L1.2(b)(1)(C), for his prior aggravated
felony conviction for first-degree criminal trespass of a motor vehicle. The
probation officer then provided a three-level reduction for Mr. Navarro’s
acceptance of responsibility, for a total offense level of 13, which, together with a
criminal history category of V, resulted in an advisory Guidelines range of thirty
to thirty-seven months imprisonment.
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Prior to and at the sentencing hearing, neither party filed objections to the
presentence report. In arguing for a low-Guidelines-range sentence during the
sentencing hearing, Mr. Navarro’s counsel stated “a sentence of thirty months is
appropriate and will satisfy the conditions of [18 U.S.C. §] 3553(a).” Neither his
counsel nor Mr. Navarro, during his allocution, objected to the district court
treating his prior conviction as an aggravated felony under § 2L1.2(b)(1)(C).
After adopting the un-objected-to factual statements and Guidelines calculations
in the presentence report, the district court imposed a sentence at the low end of
the Guidelines range, as requested, of thirty months imprisonment.
II. Discussion
On appeal, Mr. Navarro claims for the first time the district court erred in
applying an eight-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C) for an
aggravated felony, based on his Colorado trespass conviction, and that in so doing
it “evidently used the modified categorical approach.” In contesting the district
court’s application of the modified categorical approach, Mr. Navarro contends
the Colorado trespass statute is divisible into a dwelling prong and a vehicle
prong, “allowing the district court to use the modified categorical approach to
determine that [his] conviction involved the vehicle prong,” but that the vehicle
prong “is not further divisible” and requires only the intent to commit “a crime”
at the time the vehicle is entered. Accordingly, to him, this leaves an inquiry on
whether “‘a crime’ is categorically a theft offense,” which he claims it is not.
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Despite this argument, Mr. Navarro concedes his argument is foreclosed by our
decision in United States v. Venzor-Granillo, 668 F.3d 1224 (10th Cir. 2012),
which involved the same vehicle prong of the same Colorado statute, but he
advises he is raising the argument for the purpose of preserving it.
Generally, in determining whether the district court properly calculated a
defendant’s sentence, we review its legal conclusions de novo and its factual
findings for clear error. See United States v. Kristl, 437 F.3d 1050, 1054 (10th
Cir. 2006) (per curiam). However, when a defendant fails to raise such an
argument in the district court, we review for plain error. See United States v.
Ventura-Perez, 666 F.3d 670, 674 (10th Cir. 2012). To establish plain error, the
defendant has the burden of establishing: (1) an error occurred; (2) that was plain;
and (3) which affected his substantial rights. Id. If these conditions are met, he
must show the error seriously affected the fairness, integrity, or public reputation
of judicial proceedings. Id.
Turning to the applicable legal principles, “aggravated felony” is defined
under the Guidelines and statutory law to include, in part, a “theft offense,”
including receipt of stolen property, or a “burglary offense,” for which the term of
imprisonment is at least one year. See 8 U.S.C. § 1101(a)(43); U.S.S.G.
§ 2L1.2(b)(1)(C) cmt. n.3(A). Generally, when a defendant contests whether his
prior conviction is an “aggravated felony,” courts take a categorical approach by
looking only to the fact of the conviction and the statutory definition of that prior
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offense. See United States v. Hernandez-Rodriguez, 388 F.3d 779, 782 (10th Cir.
2004) (relying on Taylor v. United States, 495 U.S. 575, 602 (1990)). However,
where the statute involves conduct which may or may not encompass conduct
constituting an aggravated felony, an exception exists allowing the district court
to “look to the charging paper and judgment of conviction” to determine if the
actual offense the defendant was convicted of qualifies as a violent or an
aggravated felony. Id. at 782-83 (internal quotation marks omitted). This
exception is considered a modified categorical approach. Ventura-Perez, 666
F.3d at 673. In applying a modified categorical approach to determine if the prior
offense warrants an enhancement, “a court is ‘generally limited to examining the
statutory definition, charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to which the
defendant assented.’” United States v. Austin, 426 F.3d 1266 1270-71 (2005)
(quoting Shepard v. United States, 544 U.S. 13, 16 (2005)). The purpose of this
modified categorical approach “is to enable the sentencing court to identify those
facts that necessarily supported a prior conviction,” including “whether the jury
necessarily had to find, or the defendant necessarily admitted, facts” satisfying
the definition or elements of the offense for which an enhancement may be given.
Venzor-Granillo, 668 F.3d at 1229, 1231.
Turning to the statute at issue, Colorado Revised Statute § 18-4-502 states,
“A person commits the crime of first degree criminal trespass if such person
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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.” As Mr.
Navarro points out, we have previously considered whether a prior conviction for
trespass of a vehicle under this statute constitutes an aggravated felony by
applying the modified categorical approach to determine if the generic word
“crime” in the trespass of the motor vehicle prong included a theft offense. See
Venzor-Granillo, 668 F.3d at 1226-27. In that case, both the prior conviction
charging document and the plea agreement revealed the defendant received a
conviction for entering a motor vehicle “with intent to commit therein the crime
of THEFT.” Id. at 1232. We determined the defendant necessarily admitted all
the elements of attempted theft, as used in 8 U.S.C. § 1101(a)(43)(G) concerning
aggravated crimes, because theft “is a taking of property or an exercise of control
over property without consent with the criminal intent to deprive the owner of
rights and benefits of ownership, even if such deprivation is less than total or
permanent.” Id. (internal quotation marks omitted).
While the facts in this case are similar, the sentencing judge here was not
required to apply the modified categorical approach. This is because Mr. Navarro
admitted in his instant plea agreement he was previously “convicted of conspiracy
to commit first degree criminal trespass, in violation of [Colorado Revised Statute
§§] 18-2-101 and 18-4-502” and that “[d]uring the plea hearing related to that
conviction, [he] acknowledged the elements of conspiracy and also of first degree
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criminal trespass” and “admitted the elements of trespass included that he
knowingly entered a motor vehicle with the intent to steal anything of value” and
“was sentenced to serve one year of imprisonment.” Therefore, Mr. Navarro did
not admit to some generic crime requiring a categorical or modified categorical
approach, but to an intent to steal, which certainly, like “theft,” involves the
taking of property without consent with the criminal intent to deprive the owner
of it. 1 As a result, Mr. Navarro admitted in the instant proceeding all the
elements of the crime of theft necessary for a Guidelines enhancement for
aggravated felony under 8 U.S.C. § 1101(a)(43)(G) and U.S.S.G.
§ 2L1.2(b)(1)(C). Alternatively, even if we or the sentencing court applied a
modified categorical approach, we would arrive at the same conclusion, given Mr.
Navarro’s same admission that “he knowingly entered a motor vehicle with the
intent to steal anything of value.” See Venzor-Granillo, 668 F.3d at 1232-33.
Given Mr. Navarro’s admissions and stipulations in the plea agreement, the
district court reasonably concluded Mr. Navarro’s prior Colorado trespass
conviction constituted an “aggravated felony,” and it did not commit any error,
plain or otherwise, in making such a finding and applying the eight-level
enhancement. Because the district court properly calculated Mr. Navarro’s
1
To steal is defined as taking something from one in lawful possession,
without right, and with the intention to wrongfully keep. See Morissette v. United
States, 342 U.S. 246, 272 (1952); United States v. Hill, 835 F.2d 759, 763 (10th
Cir. 1987).
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sentence and sentenced him within the applicable Guidelines range, his sentence
is presumptively reasonable, and he has not otherwise rebutted this presumption
by demonstrating his sentence is unreasonable in light of the sentencing factors in
§ 3553(a). See Kristl, 437 F.3d at 1053-54. Indeed, Mr. Navarro received the
very term of imprisonment he requested.
III. Conclusion
For these reasons, we AFFIRM Mr. Navarro’s sentence.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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