FILED
United States Court of Appeals
Tenth Circuit
July 29, 2008
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 07-2207
v. (D.C. No. 07-CR-00822 MCA)
(D.N.M.)
KIRINO CARRILLO-JAIME,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before LUCERO, TYMKOVICH, and GORSUCH, Circuit Judges.
Kirino Carrillo-Jaime, a citizen of Mexico, appeals his sentence of 46
months’ imprisonment imposed following his plea of guilty to one count of illegal
reentry by a previously deported alien in violation of 8 U.S.C. § 1326(a) and (b).
He raises a single issue on appeal: Whether the district court erred in adding 16
levels to his base offense level under the United States Sentencing Guidelines
(“Guidelines”) based on its finding that his prior conviction for residential
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
burglary in the State of Washington amounted to a “crime of violence” under
U.S.S.G. § 2L1.2(b)(1)(A). For its part, the government raises an antecedent
question: Whether Carrillo-Jaime waived the issue now advanced by conceding it
at his sentencing hearing.
Because we agree with the government that Carrillo-Jaime waived his only
asserted ground for appeal, we affirm the sentence. Our jurisdiction arises under
28 U.S.C. § 1291 and 18 U.S.C. § 3742.
I
On March 3, 2007, agents from United States Customs and Border
Protection apprehended Carrillo-Jaime after he entered the United States without
authorization near Columbus, New Mexico. Two months later, Carrillo-Jaime
pleaded guilty to a one count information charging him with illegal reentry under
8 U.S.C. § 1326(a) and (b). His Presentence Investigation Report (“PSR”) noted
a base offense level of 8, see U.S.S.G. § 2L1.2(a), but added a 16-level
adjustment under § 2L1.2(b)(1)(A) because he had previously been convicted of a
felony “crime of violence.” Application Note 1(B)(iii) to § 2L1.2 defines
“burglary of a dwelling” as a “crime of violence,” and the PSR listed a 2005
conviction for “Residential Burglary-Domestic Violence” in Wenatchee,
Washington as the predicate for the adjustment. After deducting 3 points for
acceptance of responsibility, see § 3E1.1, the PSR calculated a final offense level
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of 21 and a criminal history category of III. Taken together, these determinations
yielded an advisory sentencing range of 46-57 months’ imprisonment.
Following release of the PSR, Carrillo-Jaime lodged written objections with
the district court. Relevant to this appeal, he claimed that the 16-level adjustment
under § 2L1.2(b)(1)(A) was improper because the Washington statute under
which he was convicted, Wash. Rev. Code. § 9A.52.025(1), encompasses conduct
which would not qualify as “burglary of a dwelling” under federal law. See
Taylor v. United States, 495 U.S. 575, 599-602 (1990). In support of this
proposition, he cited United States v. Wenner, 351 F.3d 969 (9th Cir. 2003), in
which the Ninth Circuit held that § 9A.52.025(1) is broader than federal “burglary
of a dwelling” because the Washington definition of a “dwelling” includes
structures that fall outside the federal definition of the same term. 1 Carrillo-Jaime
separately maintained that the adjustment was also improper under the so-called
“modified categorical approach,” which permits a federal court to look to certain
documents from the prior conviction to determine whether the defendant was
actually charged with and convicted of all of the elements of the federal crime.
See Shepard v. United States, 544 U.S. 13, 15 (2005). He contended that the
1
Washington law defines a “dwelling” as “any building or structure, though
movable or temporary, or a portion thereof, which is used or ordinarily used by a
person for lodging.” Wash. Rev. Code. § 9A.04.110(7). In addition to having its
ordinary meaning, a “building” can be “any dwelling, fenced area, vehicle,
railway car, cargo container, or any other structure used for lodging of persons or
for carrying on business therein, or for the use, sale or deposit of goods . . . .”
§ 9A.04.110(5).
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documents used to support the adjustment did not reveal whether he was
convicted of entering a “dwelling,” as defined by federal law.
In response to Carrillo-Jaime’s objection, the United States Probation
Office (“Probation Office”) filed an addendum to the PSR and attached a copy of
the state court document charging him with “Residential Burglary-Domestic
Violence.” That information charged that Carrillo-Jaime had “unlawfully and
feloniously with intent to commit a crime against a person or property therein,
enter[ed] or remain[ed] unlawfully in a dwelling other than a vehicle located at
[123 Main St.], Wenatchee, WA, to wit: the residence of [Jane Doe].” 2
At the sentencing hearing, the district court asked counsel for Carrillo-
Jaime whether, given the addendum to the PSR and the judgment and sentence
entered in the state case, counsel wished to address the written objection to the
adjustment “any further.” The following dialogue ensued:
Counsel: I have to admit, now that we have seen the information,
and I apologize if I misread that or overlooked the
important residence language.
The Court: It’s very specific.
Counsel: Correct. The wind has been taken out of the sails of the
argument to a certain extent involving the 16 level
increase. When you look at the Washington statute, it’s
clearly ambiguous to a certain extent. But under the
modified clerical [sic] approach, the Court can look at
the information, and it would appear, Judge, that does
2
For privacy purposes, we have changed the street address and victim name
noted in the Washington information.
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satisfy. . . . I think that it would appear that the
information satisfies the crime of violence requirement
of 2L1.2.
Following this exchange, Carrillo-Jaime did not again object to the legal or
factual applicability of the § 2L1.2 adjustment. He instead acknowledged that the
“16 level increase for the residential burglary [was] warranted . . . under the
guidelines,” and argued only that the resulting sentencing range was “excessive”
in light of the 18 U.S.C. § 3553(a) sentencing factors. The district court
concluded that the adjustment was properly applied and ultimately sentenced
Carrillo-Jaime to 46 months’ imprisonment, the bottom of the relevant sentencing
range. This timely appeal followed.
II
As the sole issue he presents for our review, Carrillo-Jaime seeks to
resuscitate his original objection to the 16-level adjustment under U.S.S.G.
§ 2L1.2(b)(1)(A). He maintains that Washington law defines burglary more
broadly than federal law, because “residential burglary” in that state includes
burglary of a fenced area, a railway car, or a cargo container. See Wenner, 351
F.3d at 972; see also Wash. Rev. Code §§ 9A.52.025, 9A.04.110(5) & (7). Thus,
he concludes, we must apply the “modified categorical approach” described in
Shepard, 544 U.S. at 15. Under this approach, Carrillo-Jaime urges that the
underlying documents relied upon by the district court to impose the
adjustment—the information and judgment from his prior conviction—do not
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“exclude the possibility that the [Washington] offense was, for instance, burglary
committed in the victim’s fenced backyard area.” Without addressing the merits
of this issue, the government contends that we may not review the argument now
asserted because Carrillo-Jaime affirmatively waived his objection to the
adjustment at sentencing. Given the record before us, we agree with the
government.
A defendant who fails to properly object to an error in the district court,
thereby forfeiting any challenge thereto, may nonetheless obtain relief on appeal
upon review for plain error. See United States v. Teague, 443 F.3d 1310, 1314
(10th Cir. 2006); Fed. R. Crim. P. 52(b). But a defendant who waives an issue by
intentionally relinquishing or abandoning it in the court below is precluded from
seeking any appellate review of that question. United States v. Carrasco-Salazar,
494 F.3d 1270, 1272 (10th Cir. 2007) (“[W]aiver is accomplished by intent, but
forfeiture comes about through neglect. . . . [A] party that has waived a right is
not entitled to appellate relief.” (quotation and alteration omitted)).
In Carrasco-Salazar, we addressed a case strikingly similar to the instant
one. We specifically considered whether a criminal defendant had waived his
prior objection to the § 2L1.2(b)(1)(A) crime-of-violence adjustment by
representing to the court at sentencing that all of his objections had been resolved.
Id. As in this case, following the defendant’s written objection to the crime-of-
violence adjustment, the Probation Office submitted an addendum to the PSR that
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included a copy of the relevant state charging document. See id. at 1271. We
held that, by later indicating to the sentencing court that all of his objections to
the PSR had been resolved, the defendant waived the sentencing objection and
was not entitled to appellate review. Id. at 1273. We reasoned that “[t]here can
be no clearer intentional relinquishment or abandonment of a known right . . .
than when the court brings the defendant’s prior objection to his attention, asks
whether it has been resolved, and the defendant affirmatively indicates that it
has.” Id. (quotation omitted).
Carrillo-Jaime’s remarks at sentencing establish intentional abandonment
even more clearly than the statement at issue in Carrasco-Salazar. Not only did
Carrillo-Jaime fail to pursue any factual or legal argument against application of
the adjustment, but he also conceded that the addendum to the PSR had taken the
wind “out of the sails of the argument,” that “the information satisfies the crime
of violence requirement of 2L1.2,” and that the adjustment was “warranted . . .
under the guidelines.” By these statements, he plainly conveyed to the court that
he was abandoning his previous objection. See id. at 1273; see also United States
v. Martinez-Jimenez, 294 F.3d 921, 923 (7th Cir. 2002). He has therefore waived
the question now pursued and is not entitled to appellate review of its merits.
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III
For the reasons stated, we AFFIRM the sentence.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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