FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 12, 2009
Elisabeth A. Shumaker
TENTH CIRCUIT
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 08-2012
v. (D.C. No. CR-07-1999-JAP)
(D.N.M.)
CHRISTIAN DE LA CRUZ-
MADRIGAL,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HARTZ, TYMKOVICH, and HOLMES, Circuit Judges.
Christian De La Cruz-Madrigal pleaded guilty to one count of illegal
reentry of a removed alien, in violation of 8 U.S.C. § 1326(a) and (b). At
sentencing, Mr. De La Cruz-Madrigal was given a sixteen-level increase to his
base offense level because he had previously been deported subsequent to a
conviction for a crime of violence enumerated in United States Sentencing
Guidelines Manual (“U.S.S.G.”) § 2L1.2 cmt. n.1(B)(iii). On appeal, Mr. De La
*
This Order and Judgment is not binding precedent, except under the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.
Cruz-Madrigal contends that the district court erred in imposing this
enhancement.
The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We
exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM.
BACKGROUND
Mr. De La Cruz-Madrigal pleaded guilty to one count of illegal reentry of a
removed alien, in violation of 8 U.S.C. § 1326(a) and (b). The presentence report
(“PSR”) recommended a sixteen-level increase to his base offense level pursuant
to U.S.S.G. § 2L1.2(b)(1)(A). The enhancement was predicated on Mr. De La
Cruz-Madrigal having been previously deported subsequent to being convicted of
attempted kidnapping and attempted sexual assault in Arizona. Mr. De La Cruz-
Madrigal made two objections to the PSR. He objected to the sixteen-level
enhancement, arguing that his prior convictions were not crimes of violence. He
also objected to the “characterization of the facts surrounding his prior felony
offense in paragraph 20 of the presentence report.” R., Vol. II, at 2 (PSR
Addendum, dated Nov. 6, 2007). However, the PSR author found that Mr. De La
Cruz-Madrigal’s prior convictions were crimes of violence and that the
characterization of the facts surrounding his prior convictions was accurate.
At sentencing, Mr. De La Cruz-Madrigal renewed both of his objections to
the PSR. The district court determined that Mr. De La Cruz-Madrigal’s prior
convictions were crimes of violence and that paragraph 20 of the PSR was true
-2-
and accurate. The district court judge also stated, “In [applying the crime of
violence adjustment], I have not taken into account the statements of fact in
paragraph 20 of the Presentence Report . . . to influence my decision that the
offenses identified in paragraph 20 are properly characterized as crimes of
violence. I think the Arizona statutes [and the] guideline language justify that
conclusion independent of the underlying facts.” R., Vol. III, Tr. at 16
(Sentencing Tr., dated Jan. 3, 2008). The district court imposed a 46-month
sentence, the bottom of the advisory Guidelines range. Mr. De La Cruz-Madrigal
timely appealed.
DISCUSSION
Mr. De La Cruz-Madrigal contends on appeal that neither attempted
kidnapping nor attempted sexual assault under Arizona law is a crime of violence.
He argues that Arizona’s kidnapping statute is significantly broader than the
generic meaning of kidnapping and that Arizona’s sexual assault statute does not
contain an element of force. Section 2L1.2 only requires one prior crime of
violence conviction to support the sixteen-level enhancement. See U.S.S.G. §
2L1.2(b)(1)(A)(ii). Accordingly, we need only determine whether one of Mr. De
La Cruz-Madrigal’s prior convictions is a crime of violence. Because we find
that attempted sexual assault under Arizona law is a crime of violence, we need
not address attempted kidnapping.
The district court’s interpretation of the Sentencing Guidelines is a legal
-3-
question we review de novo. United States v. Ruiz-Gea, 340 F.3d 1181, 1185
(10th Cir. 2003); see United States v. Torres-Ruiz, 387 F.3d 1179, 1180-81 (10th
Cir. 2004). Section 2L1.2(b)(1)(A)(ii) of the Guidelines allows for a sixteen-level
increase to a defendant’s base level “if the defendant previously was deported, or
unlawfully remained in the United States, after a conviction for a felony that is . .
. a crime of violence.” The Guidelines define a crime of violence as one of
twelve enumerated offenses, including kidnapping and forcible sex offenses, 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). 1
We treat this definition as disjunctive—enumerated offenses are
categorically “crimes of violence,” while unenumerated offenses must involve the
“use of physical force.” See United States v. Munguia-Sanchez, 365 F.3d 877,
880-81 (10th Cir. 2004). “When determining whether a prior conviction is a
crime of violence, the Supreme Court has instructed sentencing courts to take ‘a
formal categorical approach, looking only to the statutory definitions of the prior
offenses, and not to the particular facts underlying those convictions.’” United
States v. Perez-Vargas, 414 F.3d 1282, 1284 (10th Cir. 2005) (quoting Taylor v.
1
“In interpreting a guideline, we look at the language in the guideline
itself, as well as the interpretative and explanatory commentary to the guideline
provided by the Sentencing Commission.” United States v. Yanez-Rodriguez, 555
F.3d 931, 944 n.6 (10th Cir. 2009) (internal quotation marks omitted).
-4-
United States, 495 U.S. 575, 600 (1990)); see United States v. Ruiz-Rodriguez,
494 F.3d 1273, 1275 (10th Cir. 2007). However, when a statute is ambiguous or
broad enough to encompass both violent and nonviolent crimes, the sentencing
court may undergo a modified categorical approach, looking beyond the statute to
certain records of the prior proceedings, such as “‘the terms of the charging
document, the terms of a plea agreement or transcript of colloquy between judge
and defendant in which the factual basis for the plea was confirmed by the
defendant, or to some comparable judicial record of this information.’” United
States v. Romero-Hernandez, 505 F.3d 1082, 1086 (10th Cir. 2007) (quoting
Shepard v. United States, 544 U.S. 13, 26 (2005)); see Perez-Vargas, 414 F.3d at
1284. “The court may also rely on any admissions the defendant has made
regarding the facts of the prior conviction.” Romero-Hernandez, 505 F.3d at
1086; Perez-Vargas, 414 F.3d at 1284-85.
Following the categorical approach, we look first to the language of the
statute to determine whether Mr. De La Cruz-Madrigal was convicted of a crime
of violence. Here, because we conclude that Arizona’s sexual assault statute
unambiguously prohibits only conduct that is categorically a crime of violence
under § 2L1.2, our analysis ends with the language of the statute, and we need not
proceed to apply the modified categorical approach.
-5-
Mr. De La Cruz-Madrigal pleaded guilty to attempted sexual assault, 2 in
violation of A.R.S. §§ 13-1001, 1406. Arizona defines sexual assault as
“intentionally or knowingly engaging in sexual intercourse or oral sexual contact
with any person without consent of such person.” A.R.S. § 13-1406 (emphasis
added). Mr. De La Cruz-Madrigal argues that this statute does not contain an
element of force and, therefore, cannot be considered a “forcible sexual offense.” 3
However, Mr. De La Cruz-Madrigal cites no caselaw to support this contention.
Moreover, his argument directly conflicts with our holding in Romero-Hernandez,
where we held that “[w]hen an offense involves sexual contact with another
person, it is necessarily forcible when that person does not consent.” Romero-
2
For purpose of § 2L1.2(b)(1)(A), a conviction for “attempted” sexual
assault may qualify as the enumerated offense of sexual assault. See U.S.S.G. §
2L1.2 cmt. n.5; cf. United States v. Gonzalez-Ramirez, 477 F.3d 310, 312 (5th
Cir. 2007) (“[A] conviction for attempted ‘kidnapping’ may qualify as the
enumerated offense of kidnapping for purposes of section 2L1.2(b)(1)(A).”). The
commentary to § 2L1.2 states that “[p]rior convictions of offenses counted under
subsection (b)(1) include the offenses of aiding and abetting, conspiring, and
attempting, to commit such offenses.” U.S.S.G. § 2L1.2 cmt. n.5 (emphasis
added). Therefore, the analysis is not affected by Mr. De La Cruz-Madrigal
having been convicted of attempted sexual assault rather than sexual assault. See
Gonzalez-Ramirez, 477 F.3d at 312-13.
3
Arizona’s sexual assault statute would qualify as a “crime of
violence” if it either has as “an element the use, attempted use, or threatened use
of physical force against the person of another” or if it constitutes an enumerated
offense for purposes of § 2L1.2. U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). The
government does not argue that Arizona’s sexual assault law could meet the “use
of physical force” definition. Therefore, we only address whether Mr. De La
Cruz-Madrigal’s prior crime constitutes an enumerated offense for purposes of §
2L1.2, i.e., “forcible sex offense.”
-6-
Hernandez, 505 F.3d at 1089 (emphasis added); see also United States v. Yanez-
Rodriguez, 555 F.3d 931, 945 (10th Cir. 2009) (“[B]ased on the precedent
established in Romero-Hernandez, a conviction under a statute is a ‘forcible sex
offense’ when the statute prohibits nonconsensual sexual contact with another
person.”). We reasoned that “where one party has sufficient control of a situation
to overcome the [sic] another’s free will, force is present.” Romero-Hernandez,
505 F.3d at 1088. Here, Arizona’s sexual assault statute under which Mr. De La
Cruz-Madrigal was convicted only prohibits nonconsensual sexual contact.
Therefore, it is properly considered a forcible sexual offense.
Accordingly, Mr. De La Cruz-Madrigal’s prior conviction for attempted
sexual assault under Arizona law is a crime of violence under U.S.S.G. §
2L1.2(b)(1)(A)(ii). The district court consequently did not err in applying the
sixteen-level enhancement.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s judgment.
Entered for the Court
Jerome A. Holmes
Circuit Judge
-7-