FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-10012
Plaintiff-Appellee, D.C. No.
v. 4:08-CR-00854-
MERCED MELCHOR-MECENO, JMR-BPV
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Arizona
John M. Roll, Chief District Judge, Presiding
Argued and Submitted
April 12, 2010—San Francisco, California
Filed September 1, 2010
Before: Mary M. Schroeder and N. Randy Smith,
Circuit Judges, and James Maxwell Moody, Judge.*
Opinion by Judge N.R. Smith
*The Honorable James Maxwell Moody, United States District Judge
for the District of Arkansas, sitting by designation.
13275
UNITED STATES v. MELCHOR-MECENO 13277
COUNSEL
Defendant-appellant Merced Melchor-Meceno is represented
by Jon M. Sands, Federal Public Defender, and Richard W.
Raynor, Assistant Federal Public Defender, Tucson, Arizona.
Plaintiff-appellee United States of America is represented by
Dennis K. Burke, United States Attorney, Christina M.
Cabanillas, Appellate Chief, and Celeste Benita Corlett,
Assistant United States Attorney, Tucson, Arizona.
13278 UNITED STATES v. MELCHOR-MECENO
OPINION
N.R. SMITH, Circuit Judge:
Merced Melchor-Meceno (Melchor-Meceno) pleaded
guilty to illegally re-entering the United States after deporta-
tion in violation of 8 U.S.C. § 1326. After conviction, the dis-
trict 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 Sen-
tencing 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 dis-
trict court properly applied the enhancement to Melchor-
Meceno’s sentence. We need not address whether the convic-
tion constitutes a crime of violence under the modified cate-
gorical approach.
I. BACKGROUND
Following felony convictions, the United States Immigra-
tion 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 depor-
tation after a crime of violence. Prior to the sentencing hear-
ing, Melchor-Meceno filed an objection to the proposed 16-
level enhancement, arguing that his 1995 Colorado state fel-
UNITED STATES v. MELCHOR-MECENO 13279
ony menacing conviction1 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 vio-
lence.” 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
1
In 1995, the Colorado Delta County district attorney filed an Amended
Information charging Melchor-Meceno with felony menacing under Colo-
rado Revised Statute (C.R.S.) § 18-3-206. Count 2 of the Amended Infor-
mation stated that:
On or about August 10, 1994, in Delta County, Colorado, MER-
CED MELCHOR MECENO, by threat and physical action and
by use of a deadly weapon, to-wit: a .22 cal. automatic pistol, did
unlawfully feloniously and knowingly place and attempt to place
Andronaco B.M. in fear of imminent serious bodily injury; in
violation of C.R.S. 18-3-206. FELONY MENACING (F-5).
Melchor-Meceno pleaded guilty to “Count 2 of the Amended Informa-
tion which charges the crime of Felony Menacing in violation of C.R.S.
18-3-206, a class 5 felony.” The factual basis in Melchor-Meceno’s Plea
Agreement stated:
On August 10, 1994, in Delta, Colorado, the defendant became
angry with Marta A.C.B. for talking to a boyfriend on the tele-
phone. The defendant took the weapon from his vehicle after
which he pointed at Andronaco B.M. During a scuffle for the
weapon (pistol) it went off wounding Marta.
The Amended Information also charged Melchor-Meceno in Count 1
with second degree assault. However, the government has not argued that
the assault conviction is a crime of violence.
2
The district court found a criminal history category V, a base offense
level of 8, a 16-level enhancement for deportation after a crime of vio-
lence, a 2 point deduction for acceptance of responsibility, and a 1 point
deduction for cultural assimilation, leaving a total offense level of 21 and
a sentencing range of 70 to 87 months.
13280 UNITED STATES v. 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 modi-
fied 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 omit-
ted).
III. CRIME OF VIOLENCE ENHANCEMENT
To determine whether a C.R.S. § 18-3-206 felony convic-
tion for menacing is a categorical “crime of violence” for pur-
poses of U.S.S.G. § 2L1.2, we apply the approach set forth in
Taylor v. United States, 495 U.S. 575 (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 categori-
cal] approach, we do not look to the facts of the underlying
conviction, but rather to the state statute defining the convic-
tion.” 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 com-
pare 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
UNITED STATES v. MELCHOR-MECENO 13281
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 inter-
nal 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
[1] 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 convic-
tion 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 offenses3 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 ele-
ment 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 omit-
ted). A minimal, nonviolent touching or threat to general
safety does not constitute sufficient force. See Johnson v.
United States, 130 S.Ct. 1265, 1268, 1269-70 (2010) (holding
that a “Florida felony offense of battery by actually and inten-
tionally touching another person [does not have] as an ele-
ment the use of physical force” because the offense may occur
by the slightest offensive touching (alterations and internal
3
The enumerated offenses include “murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses (including where consent to the
conduct is not given or is not legally valid, such as where consent to the
conduct is involuntary, incompetent, or coerced), statutory rape, sexual
abuse of a minor, robbery, arson, extortion, extortionate extension of
credit, [and] burglary of a dwelling.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iii)
(2007).
13282 UNITED STATES v. MELCHOR-MECENO
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).
[2] 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 negli-
gence is enough.” Grajeda, 581 F.3d at 1191 (citations omit-
ted). 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 appli-
cation of physical force against another” (citation and internal
quotation marks omitted)).
[3] 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 immi-
nent serious bodily injury. Menacing is a class 3 mis-
demeanor, 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 reason-
ably 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
4
The fact that C.R.S. § 18-3-206 permits a misdemeanor or felony
charge does not preclude our categorical analysis. See Laurico-Yeno, 590
UNITED STATES v. MELCHOR-MECENO 13283
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 substan-
tial 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).
[4] 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 cate-
gory 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 immi-
nent serious bodily harm.
A. Use of Physical Force
Melchor-Meceno asserts that his felony menacing convic-
tion is categorically not a crime of violence because it does
not require active violent force.
F.3d at 821-23 (holding that a Cal. Penal Code § 273.5 conviction for will-
ful infliction of a corporal injury is a categorical “crime of violence” even
though the statute of conviction was a wobbler statute permitting a defen-
dant to be charged with either a felony or misdemeanor); see also Cal.
Penal Code § 273.5; People v. Sillas, 123 Cal. Rptr. 2d 340, 341 (Cal. Ct.
App. 2002) (concluding that Cal. Penal Code § 273.5 is a wobbler statute).
13284 UNITED STATES v. MELCHOR-MECENO
It is impossible to conceive of a situation involving fear of
imminent serious bodily injury without a threat of force. See
United States v. De La Fuente, 353 F.3d 766, 771 (9th Cir.
2003) (holding that “a criminal statute requiring the creation
and use of a fear of unlawful injury includes the element of
a threatened use of physical force” (citations, alterations and
internal quotation marks omitted)).
Other circuits have similarly concluded that menacing
involves a threat of force. The Tenth Circuit expressly held
that a felony menacing conviction under C.R.S. § 18-3-206
constitutes a violent felony under the Armed Career Criminal
Act (ACCA)5 because “[k]nowingly placing someone in fear
by the use of a deadly weapon certainly constitutes threaten-
ing someone.” United States v. Herron, 432 F.3d 1127, 1138
(10th Cir. 2005) (alteration and internal quotation marks omit-
ted); see also United States v. Hernandez, 568 F.3d 827, 831
(10th Cir. 2009) (concluding that an offense requiring “the
purposeful threatened use of physical force against the person
of another” constitutes a violent felony (emphasis omitted)).
The Third, Sixth, and Eleventh Circuits have also held that
similar menacing statutes constitute crimes of violence under
18 U.S.C. § 16(a), which defines a crime of violence as “an
offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property
of another.”6 See Singh v. Gonzales, 432 F.3d 533, 539 (3d
Cir. 2006) (holding that a conviction under a statute providing
that “[a] person is guilty of assault if he attempts by physical
menace to put another in fear of imminent serious bodily inju-
ry” qualified as a crime of violence (citation and alteration
5
Similar to U.S.S.G. § 2L1.2, cmt. n.1(B)(iii), the ACCA provides that
a violent felony “means any crime punishable by imprisonment for a term
exceeding one year . . . that . . . has as an element the use, attempted use,
or threatened use of physical force against the person of another.” 18
U.S.C. § 924(e)(2)(B)(I).
6
“[T]he relevant definitions under [18 U.S.C.] § 16(a) and U.S.S.G.
§ 2L1.2 are identical,” making the reasoning behind each interchangeable.
Grajeda, 581 F.3d at 1190 (citation and footnote reference omitted).
UNITED STATES v. MELCHOR-MECENO 13285
omitted)); United States v. Page, 167 F.3d 325, 332 n.5 (6th
Cir. 1999) (concluding that a menacing statute prohibiting
“knowingly causing another to believe that the offender will
cause physical harm to the person” satisfied the definition of
a crime of violence (alteration and citation omitted)); United
States v. Drummond, 240 F.3d 1333, 1337 (11th Cir. 2001)
(determining that a menacing offense that required the defen-
dant to “intentionally place[ ] or attempt[ ] to place another in
fear of physical injury, serious injury, or death by displaying
a deadly weapon or instrument,” was a crime of violence
(citation omitted)).
[5] Colorado menacing is distinguishable from cases where
the defendant caused injury by deception rather than physical
force. The Colorado menacing statute requires the defendant
to cause fear of injury rather than simply causing the injury
itself. Cf. United States v. Beltran-Munguia, 489 F.3d 1042,
1046 (9th Cir. 2007) (determining that sexual abuse was not
a crime of violence because the defendant could commit the
offense “by surreptitiously adding to his victim’s drink a drug
that affects one’s judgment”). The means of placing a person
in fear of imminent serious bodily injury is a threat of force.
We have only found one case holding that Colorado felony
menacing is not a categorical crime of violence. See United
States v. Perez-Veleta, 541 F. Supp. 2d 1173 (D. N.M. 2008).
The district court in Perez-Veleta reasoned that, because Col-
orado defines “deadly weapon” as including materials and
substances, then “one can place another in imminent fear
through the use of smoke or poison,” which does not neces-
sarily include force. Id. at 1179 (citing C.R.S.§ 18-1-901(e)).
We find Perez-Veleta unpersuasive. One cannot knowingly
place another in fear of being poisoned without threatening to
force the poison on the victim. See De La Fuente, 353 F.3d
at 770-71 (concluding that a threat of anthrax poisoning con-
stituted a threat of force because the defendant’s “letters
clearly threatened death by way of physical contact with
anthrax spores”).
13286 UNITED STATES v. MELCHOR-MECENO
Melchor-Meceno also argues that menacing does not con-
stitute a crime of violence, because the offense includes hold-
ing a weapon to the side rather than pointing it at a person.
This argument lacks merit. Holding a weapon to one’s side
constitutes a threat of physical force,7 and a threat of physical
force is sufficient to constitute a crime of violence under
U.S.S.G. § 2L1.2.
[6] We conclude that C.R.S. § 18-3-206 requires active
violent force. It requires some threat or physical action know-
ingly causing or attempting to cause fear of imminent serious
bodily injury.
B. Mens Rea
Melchor-Meceno argues that his menacing conviction is
not categorically a crime of violence, because the menacing
statute only requires recklessness and is missing the mens rea
element of intentional use or threatened use of violent force.
[7] Melchor-Meceno failed to cite any cases demonstrating
that menacing is a crime of recklessness. Rather, menacing is
a general intent crime that requires the defendant to know-
ingly place another person in fear of imminent serious bodily
harm. See Dist. Court of Colorado’s Seventeenth Judicial
Dist., 926 P.2d at 571; see also C.R.S. § 18-3-206.
7
The Colorado courts have held that “[b]ecause felony menacing is
committed when a person knowingly places or attempts to place another
in fear of imminent serious bodily injury by using or threatening use of a
deadly weapon, it necessarily involves the threat of force.” People v. Mon-
tez, No. 07CA0139, 2010 WL 961652, at *6 (Colo. Ct. App. March 18,
2010) (citing People v. Gallegos, 563 P.2d 937, 938-39 (Colo. 1977) (en
banc)); see also People v. Hines, 780 P.2d 556, 559 (Colo. 1989) (en banc)
(concluding that “an offender may commit felony menacing by the use of
a firearm without actually pointing the firearm at another person” (internal
quotation marks omitted)); People v. Shawn, 107 P.3d 1033, 1035 (Colo.
Ct. App. 2004) (concluding that scratching and pinching the victim while
stating “I’m HIV positive” constituted felony menacing).
UNITED STATES v. MELCHOR-MECENO 13287
[8] Therefore, the predicate offense of menacing includes
the requisite mens rea of intent for a crime of violence. See
Grajeda, 581 F.3d at 1197 (holding that assault, a general
intent crime requiring an intentional act and actual knowledge
that the act will probably result in the application of physical
force, satisfies the mens rea requirement for a crime of vio-
lence).
V. CONCLUSION
[9] Because the Colorado menacing statute involves active
violent force and satisfies the mens rea requirement, we hold
that it is categorically a crime of violence within U.S.S.G.
§ 2L1.2 and that enhancement of Melchor-Meceno’s sentence
was proper.
Melchor-Meceno’s motion to strike Appellee’s Supplemen-
tal Excerpts of Record is denied.
AFFIRMED.