United States v. Velasquez-Bosque

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-50126
Plaintiff-Appellant,
D.C. No.
v.
 8:07-cr-00275-
FERNANDO ALBERTO VELASQUEZ- JVS-1
BOSQUE,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding

Argued March 2, 2010
Submitted April 8, 2010
Pasadena, California

Filed April 15, 2010

Before: William C. Canby, Jr., Ronald M. Gould and
Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

5637
5640 UNITED STATES v. VELASQUEZ-BOSQUE

COUNSEL

Davina T. Chen, Deputy Federal Public Defender, Santa Ana,
California, for defendant-appellant and cross-appellee Fer-
nando Velasquez-Bosque.

Daniel B. Levin, Assistant United States Attorney, Los Ange-
les, California, for plaintiff-appellee and cross-appellant the
United States of America.

OPINION

IKUTA, Circuit Judge:

We are asked to decide whether carjacking under California
Penal Code section 215 is a categorical crime of violence
under U.S.S.G. § 2L1.2(b)(1)(A)(ii). We hold that it is, and
we reverse.

I

Fernando Velasquez-Bosque was convicted of violating 8
U.S.C. § 1326, which makes it a crime for an alien who has
 UNITED STATES v. VELASQUEZ-BOSQUE 5641
been removed from the United States to reenter the country.
Velasquez-Bosque had a previous felony conviction for car-
jacking under California Penal Code section 215. At sentenc-
ing on the § 1326 conviction, the government urged the
district court to increase Velasquez-Bosque’s base offense
level under the U.S. Sentencing Guidelines by sixteen-levels
pursuant to § 2L1.2(b)(1)(A)(ii), which applies to defendants
who were previously deported after being convicted of a fel-
ony that is a crime of violence. The government claimed that
Velasquez-Bosque’s carjacking conviction constituted a cate-
gorical crime of violence warranting the enhancement.

The district court declined to apply the enhancement. It
determined that carjacking under section 215 was not a crime
of violence for purposes of the Guidelines because it criminal-
ized more conduct than the enumerated offenses listed in the
relevant Guidelines’ section, see § 2L1.2 cmt. n.1(B)(iii). The
court sentenced Velasquez-Bosque to fifty-one months incar-
ceration followed by three years of supervised release. The
government timely appealed.1 We have jurisdiction under 28
U.S.C. § 1291.

II

We review de novo whether Velasquez-Bosque’s prior con-
viction qualifies as a crime of violence under § 2L1.2 of the
Guidelines, using the categorical approach set forth in Taylor
v. United States, 495 U.S. 575, 602 (1990). United States v.
Esparza-Herrera, 557 F.3d 1019, 1021-22 (9th Cir. 2009)
(per curiam).

A

[1] Under the Guidelines, a defendant who has been con-
1
Velasquez-Bosque cross-appealed the § 1326 conviction. We affirm
that conviction in a memorandum disposition filed concurrently with this
opinion.
5642 UNITED STATES v. VELASQUEZ-BOSQUE
victed of a crime of violence is eligible for increased criminal
penalties. U.S.S.G. § 2L1.2(b)(1)(A). The Guidelines define
“crime of violence” as:

any of the following offenses under federal, state, or
local law: murder, manslaughter, kidnapping, aggra-
vated assault, forcible sex offenses, statutory rape,
sexual abuse of a minor, robbery, arson, extortion,
extortionate extension of credit, burglary of a dwell-
ing, 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) (2007).

[2] To determine whether a state offense meets the Guide-
lines’ definition of a “crime of violence,” the court compares
the state statute of conviction with the federal generic defini-
tion of the same crime. See Taylor, 495 U.S. at 602. If the
state statute criminalizes the same (or less) conduct as the
generic crime, then the sentence enhancement applies to con-
victions for the state offense; if the state statute penalizes
more conduct than the generic offense, however, the state
offense is not categorically a crime of violence under § 2L1.2,
and therefore the upward sentence enhancement for prior con-
victions of a crime of violence will not apply under the cate-
gorical approach. See id. at 599-600.

[3] The state offense at issue here is California Penal Code
section 215(a), which defines carjacking as “[1] the felonious
taking of a motor vehicle in the possession of another, [2]
from his or her person or immediate presence, or from the
person or immediate presence of a passenger of the motor
vehicle, [3] against his or her will and [4] with the intent to
either permanently or temporarily deprive the person in pos-
session of the motor vehicle of his or her possession, [5]
accomplished by means of force or fear.”
 UNITED STATES v. VELASQUEZ-BOSQUE 5643
[4] Our analysis of whether section 215 is a “crime of vio-
lence” as defined in the Guidelines is largely controlled by
our decision in United States v. Becerril-Lopez, 541 F.3d 881
(9th Cir. 2008). In that case, we considered whether Califor-
nia’s definition of “robbery” under California Penal Code sec-
tion 211 constituted a crime of violence under § 2L1.2. Id. at
885. California defines “robbery” as “[1] the felonious taking
of personal property in the possession of another, [2] from his
person or immediate presence, and [3] against his will, [4]
accomplished by means of force or fear.” Cal. Penal Code
§ 211. California defines “fear” under section 211 as includ-
ing the fear of injury to property. See Cal. Penal Code § 212.2
Applying the categorical approach under Taylor, we con-
cluded in Becerril-Lopez that section 211 qualified as a
generic crime of violence for purposes of the Guidelines. 541
F.3d at 893.

In reaching this conclusion, we compared section 211 with
two crimes listed in the Application Note of the Guidelines as
“crimes of violence”: robbery and extortion. Id. at 891-92
(citing § 2L1.2 cmt. n.1(B)(iii)). We defined generic robbery
as “aggravated larceny, containing at least the elements of
misappropriation of property under circumstances involving
immediate danger to the person.” Id. at 891 (emphasis omit-
ted) (adopting the Fifth Circuit’s definition from United States
v. Santiesteban-Hernandez, 469 F.3d 376, 380 (5th Cir.
2006)). We determined that despite being a robbery offense,
section 211 criminalized more conduct than generic robbery,
because section 211 encompasses threats to property as well
2
California Penal Code § 212 provides:
The fear mentioned in Section 211 may be either:
1. The fear of an unlawful injury to the person or property of
the person robbed, or of any relative of his or member of his fam-
ily; or,
2. The fear of an immediate and unlawful injury to the person
or property of anyone in the company of the person robbed at the
time of the robbery.
5644 UNITED STATES v. VELASQUEZ-BOSQUE
as to persons (as indicated in section 212’s definition of
“fear”), while generic robbery is limited to threats to persons.
Id.

Notwithstanding section 211’s additional element, we
determined that our categorical analysis of section 211 could
look beyond generic robbery and compare section 211 to
generic extortion as well. Id. We reasoned that a state offense
that criminalizes more conduct than generic robbery will still
constitute a categorical crime of violence if the elements of
the state offense that are not included in generic robbery qual-
ify as elements of generic extortion. Id. at 891-92. According
to Becerril-Lopez, the generic offenses of robbery and extor-
tion may be combined under the Taylor categorical frame-
work because of those crimes’ historical relationship:
extortion was “created in order to plug a loophole in the rob-
bery law by covering sundry threats which will not do for rob-
bery.” Id. at 892 (quoting 3 Wayne R. LaFave, Substantive
Criminal Law § 20.4(b) (2d ed. 2003) [hereinafter LaFave]).

Accordingly, Becerril-Lopez next considered whether the
element in section 211 not included in generic robbery was
included in the elements of generic extortion. Id. at 892-93.
Becerril-Lopez defined generic extortion as “obtaining some-
thing of value from another with his consent induced by the
wrongful use of force, fear, or threats.” 541 F.3d at 891-92
(quoting Scheidler v. National Organization for Women, Inc.,
537 U.S. 393, 409 (2003) (discussing the Hobbs Act, 18
U.S.C. § 1951(b)(2)); see also United States v. Anderson, 989
F.2d 310, 312-13 (9th Cir. 1993) (adopting the Hobbs Act
definition as the generic federal offense of extortion in ana-
lyzing whether extortion is a crime of violence under the
Armed Career Criminal Act). We determined that “[u]nlike
robbery, the threats that can constitute extortion under the
modern statutes include threats to harm property and to cause
other unlawful injuries.” Becerril-Lopez, 541 F.3d at 892.

In comparing section 211 to this definition of generic extor-
tion, we noted a difference between the two: under the generic
 UNITED STATES v. VELASQUEZ-BOSQUE 5645
definition of extortion, the defendant must obtain the property
from another “with consent,” while under section 211, the
defendant must obtain property from a person “against the
will” of that person. Id. at 892 n.9. We held that “[t]he ‘with
consent’ element of generic extortion is not inconsistent with
the ‘against the will’ element of a Cal. Penal Code § 211 con-
viction for a taking involving threats to property,” id., because
“in spite of the different expressions, there is no difference
here, for both crimes equally require that the defendant’s
threats induce the victim to give up his property, something
which he would not otherwise have done,” id. (quoting 3
LaFave § 20.4(b)). Accordingly, we concluded “that if a con-
viction under Cal. Penal Code § 211 involved a threat not
encompassed by generic robbery, it would necessarily consti-
tute generic extortion and therefore be a ‘crime of violence’
under U.S.S.G. § 2L1.2.” Id. at 892.

[5] The analysis set forth in Becerril-Lopez guides our
analysis of California Penal Code section 215, which is sub-
stantially similar to section 211 in all material respects. See
Nieves-Medrano v. Holder, 590 F.3d 1057, 1058 (9th Cir.
2010) (order). Both section 215 and section 211 involve: [1]
taking personal property in the possession of another person
[2] from his or her immediate presence, [3] against that per-
son’s will, and [4] accomplished by means of force or fear. To
the extent that the elements in section 211 are identical to
those in section 215, Becerril-Lopez requires us to reach the
conclusion that section 215 is also a crime of violence
because it criminalizes the same or less conduct as the combi-
nation of generic robbery and generic extortion. See United
States v. Harris, 572 F.3d 1065, 1066 (9th Cir. 2009) (per
curiam) (relying on Becerril-Lopez to hold that a Nevada rob-
bery statute was a crime of violence under U.S.S.G § 4B1.1,
the career offender provision, on the basis that the Nevada
statute was indistinguishable from California section 211).

B

Velasquez-Bosque attempts to distinguish Becerril-Lopez
by focusing on the few differences between section 215 and
5646 UNITED STATES v. VELASQUEZ-BOSQUE
section 211. Velasquez-Bosque argues that each of these dif-
ferences compels the conclusion that section 215 does not
meet Becerril-Lopez’s combined definition of generic robbery
and generic extortion, and that therefore section 215 is not a
categorical crime of violence under the Guidelines. We ana-
lyze these arguments in turn.

1

[6] The primary distinction between section 215 and sec-
tion 211 emphasized by Velasquez-Bosque is that California
carjacking can be violated by a taking with the intent to “tem-
porarily deprive the person” of the car, Cal. Penal Code § 215,
while robbery in California requires the permanent depriva-
tion of property, see Cal. Penal Code § 211; California v.
Scott, 101 Cal. Rptr. 3d 875, 881 (Ct. App. 2009). Applying
the Taylor categorical analysis to section 215, Velasquez-
Bosque claims that neither generic robbery nor generic extor-
tion may be accomplished by the temporary deprivation of
property. Because section 215 criminalizes temporary takings,
Velasquez-Bosque concludes that it criminalizes more con-
duct than the combination of generic robbery and extortion,
and therefore section 215 does not constitute a crime of vio-
lence. For the same reason, Velasquez-Bosque contends that
Becerril-Lopez is not controlling here.

[7] We disagree with this argument’s premise, which
assumes that generic robbery and generic extortion include
the element of a permanent taking of property. Velasquez-
Bosque does not identify any case holding that generic rob-
bery includes such an element, and our case law points in the
opposite direction. Becerril-Lopez defined generic robbery as
a form of larceny, 541 F.3d at 891, and we equate larceny
with generic theft for purposes of a categorical analysis. See
United States v. Corona-Sanchez, 291 F.3d 1201, 1204 (9th
Cir. 2002) (en banc) (“The contemporary crime of ‘theft’
stems from the common law crime of larceny.” (alteration and
internal quotation marks omitted)), superceded on other
 UNITED STATES v. VELASQUEZ-BOSQUE 5647
grounds by U.S.S.G. § 2L1.2. Generic theft is “a taking of
property or an exercise of control over property without con-
sent 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. at 1205 (internal quotation marks
omitted); see also, e.g., Verdugo-Gonzalez v. Holder, 581
F.3d 1059, 1061 (9th Cir. 2009); United States v. Vidal, 504
F.3d 1072, 1077 (9th Cir. 2007) (en banc). This definition of
generic theft has been adopted by the Supreme Court, see
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 189 (2007), and
has also been adopted by other circuits that have defined the
offense, see Vidal, 504 F.3d at 1077 n.6 (citing cases from the
Second, Third, Seventh, and Tenth Circuits). Because generic
robbery is a theft offense, we conclude it does not include the
element that the stolen property be taken permanently.

[8] Nor does generic extortion, as defined in Becerril-
Lopez, contain any requirement that property be taken perma-
nently. See 541 F.3d at 891-92. Nevertheless, Velasquez-
Bosque argues that Scheidler, 537 U.S. 393, and the Model
Penal Code’s definition of extortion require us to read this
requirement into the statute. We disagree on both points.

In Scheidler, the Supreme Court held that anti-abortion pro-
testers who took actions that interfered with or obstructed
abortion clinics would not be guilty of extortion under the
Hobbs Act because protesters did not “obtain” property from
the clinics that “they could exercise, transfer, or sell.” Id. at
405. Relying on Scheidler’s holding that extortion under the
Hobbs Act requires physical acquisition of property,
Velasquez-Bosque extrapolates that a person would not be
guilty of extortion if property was acquired only temporarily.
The district court based its decision not to apply the sentence
enhancement on similar reasoning. Because the district court
interpreted a “temporary taking [a]s . . . akin to an interfer-
ence with the use of property,” it surmised that, under
Scheidler, a temporary deprivation of property was insuffi-
cient to constitute extortion.
5648 UNITED STATES v. VELASQUEZ-BOSQUE
We disagree that Scheidler reached or decided the issue
before us. In holding that to “obtain” property under the
Hobbs Act there must be more than mere interference with
property, id., the Supreme Court did not discuss whether the
acquisition of property must be permanent. In fact, nothing in
Scheidler suggests that the Court meant to restrict extortion
under the Hobbs Act to permanent takings. Accordingly, the
district court erred in relying on Scheidler to deny the
enhancement, and Velasquez-Bosque’s arguments on this
point are inapposite.

Velasquez-Bosque also argues that we are bound by the
Model Penal Code’s definition of extortion, which he claims
requires a permanent taking of property. The Model Penal
Code defines extortion as “obtain[ing] property of another” by
proscribed means, Model Penal Code § 223.4, and defines
“obtain” as “bring[ing] about a transfer or purported transfer
of a legal interest in the property,” id. § 223.0(5). According
to Velasquez-Bosque, because extortion requires that a legal
interest be transferred, extortion cannot occur through the
temporary taking of property.

We do not agree that the Model Penal Code provides a con-
trolling definition of generic extortion. Our case law does not
follow the Model Penal Code’s definition of the word “ob-
tain,” which the Model Penal Code uses generally to insert the
element of a permanent taking of property into all theft
offenses containing that word, not just extortion. See id.
§§ 223.2-223.9. As explained supra at page 5646-47, the
Supreme Court does not define theft offenses as requiring a
permanent taking of property. See Duenas-Alvarez, 549 U.S.
at 189. Nor do we or other circuits. See Verdugo-Gonzalez,
581 F.3d at 1061; Vidal, 504 F.3d at 1077; Corona-Sanchez,
291 F.3d at 1204; see also Jaggernauth v. U.S. Att’y Gen.,
432 F.3d 1346, 1353 (11th Cir. 2005) (per curiam); Nugent v.
Ashcroft, 367 F.3d 162, 174 (3d Cir. 2004); United States v.
Vasquez-Flores, 265 F.3d 1122, 1125 (10th Cir. 2001);
Hernandez-Mancilla v. INS, 246 F.3d 1002, 1009 (7th Cir.
 UNITED STATES v. VELASQUEZ-BOSQUE 5649
2001). Given this rejection of the Model Penal Code’s defini-
tion of “obtain” in the context of theft offenses, we see no rea-
son to give it weight in defining extortion.

Because neither Scheidler nor the Model Penal Code
requires us to define generic extortion as including the ele-
ment of a permanent deprivation of property, we decline to do
so here. This conclusion comports with that of other circuits
to have considered whether the Hobbs Act permits temporary
takings. See United States v. Lewis, 797 F.2d 358, 365 (7th
Cir. 1986) (“Even a temporary loss of the use of money con-
stitutes a deprivation of property under [the Hobbs Act].”);
United States v. Lance, 536 F.2d 1065, 1068 (5th Cir. 1976)
(under the Hobbs Act, “[t]he loss of the use of money, even
temporarily, must be considered a deprivation of property”).

Therefore, we conclude that section 215’s express state-
ment that it includes temporary takings does not cause it to
criminalize more conduct than Becerril-Lopez’s combined
definition of generic robbery and generic extortion.

2

[9] The second distinction between section 215 and section
211 raised by Velasquez-Bosque is that section 215 can be
committed against an unconscious victim, whereas section
211 requires the victim to be conscious. See People v. Hill, 3
P.3d 898, 903 (Cal. 2000). Velasquez-Bosque relies on Hill to
argue that an unconscious victim can be carjacked, and that
the only force required for carjacking in California is there-
fore the force required to move a person. This force does not,
according to Velasquez-Bosque, constitute the violent physi-
cal force required for a sentence enhancement under § 2L1.2,
see United States v. Grajeda, 581 F.3d 1186, 1191 (9th Cir.
2009), and sets section 215 apart from robbery under section
211, which generally cannot be committed against an uncon-
scious victim. See, e.g., People v. Kelley, 269 Cal. Rptr. 900,
906 (Ct. App. 1990) (citing cases).
5650 UNITED STATES v. VELASQUEZ-BOSQUE
[10] Velasquez-Bosque’s argument misreads the California
Supreme Court’s discussion of “force or fear” in Hill. See 3
P.3d at 901, 903. In that case, the defendant appealed his con-
viction for two counts each of kidnapping and carjacking fol-
lowing the forcible taking of a mother and her seven-month-
old baby as they exited their car at their residence. Id. at 899.
With the baby unbuckled from the car seat, the defendant
accosted the mother and took her jewelry. Id. The defendant
drove away with the mother and baby, and the mother was
raped after being told to take her clothes off or the baby
would be shot. Id. The California Supreme Court upheld the
carjacking conviction as to the baby as well as the mother,
even though the baby may not have been able to “apprehend
any force used against her.” Id. at 901.

[11] Contrary to Velasquez-Bosque’s argument, Hill does
not stand for the proposition that section 215 can be violated
when violent force is neither used nor threatened. Instead, the
California Supreme Court determined that a reasonable jury
could have found that the force or fear “was directed at both”
the mother and the baby. Id. Force and threatened force
existed as to the baby because the defendant “snatched the
baby as well [as] the mother,” “threatened to shoot the baby”
in order to coerce the mother’s cooperation, and drove away
with the baby rolling around in the front seat unbuckled from
her car seat. Id. The California court upheld the conviction not
because force or fear is not required to carjack a baby, but
because the facts demonstrated that such force or fear was
used. Id. at 903. Velasquez-Bosque’s reliance on Hill to show
that carjacking does not require the use or threatened use of
violent physical force, and hence his argument that section
211 and section 215 can be distinguished on this basis, must
therefore be rejected.3
3
Because Velasquez-Bosque’s theory does not distinguish the elements
of section 215 from section 211, we remain bound by Becerril-Lopez and
therefore do not reach Velasquez-Bosque’s related arguments that generic
robbery or generic extortion require victims to be conscious.
 UNITED STATES v. VELASQUEZ-BOSQUE 5651
3

The third distinction between section 211 and section 215
raised by Velasquez-Bosque is that section 215 explicitly
applies not only to the person who owns the car but also to
any passengers in the car, which is language not included in
section 211. Again, this in fact is not a difference between the
statutes, because robbery in California does not require “that
the victim have an absolute right to possession of the proper-
ty,” but rather also applies to persons who have “loose cus-
tody over the property [or are] currently exercising dominion
over” the property. California v. Hamilton, 47 Cal. Rptr. 2d
343, 347 (Ct. App. 1995) (“As a rule, robbery may be com-
mitted against a person who is not the owner of property
. . . .”); see also People v. Coleman, 53 Cal. Rptr. 3d 505, 509
(Ct. App. 2007) (explaining that the possession requirement
in the carjacking statute is the same requirement as in the rob-
bery statute). Accordingly, Velasquez-Bosque’s attempt to
avoid Becerril-Lopez on this ground is unavailing.

4

[12] Finally, Velasquez-Bosque asserts that section 215
differs from section 211 because section 215 does not permit
a defense that the property was taken under a claim of right.
Cf. Becerril-Lopez, 541 F.3d at 892-93. This is dispositive,
Velasquez-Bosque claims, because generic robbery does per-
mit a claim of right defense. Under the Taylor categorical
approach, however, we “look only to the fact of conviction
and the statutory definition of the prior offense” to determine
whether the offense satisfies the generic definition. Taylor,
495 U.S. at 602; see also United States v. Asberry, 394 F.3d
712, 715 (9th Cir. 2005) (“Under the categorical approach, we
consider only the statutory elements of the offense . . . .”).
The availability of an affirmative defense is not relevant to the
categorical analysis. See United States v. Charles, 581 F.3d
927, 935 (9th Cir. 2009) (declining to “expand the categorical
approach analysis to incorporate widely accepted defenses”
5652 UNITED STATES v. VELASQUEZ-BOSQUE
and reiterating that the categorical approach compares only
the elements of offenses). Velasquez-Bosque’s argument is
thus inapposite.4

III

[13] We conclude that Becerril-Lopez, which held that sec-
tion 211 was a crime of violence for purposes of § 2L1.2, con-
trols our decision regarding section 215, which is materially
identical. Velasquez-Bosque’s efforts to distinguish section
215 from section 211 are unavailing. We therefore reverse the
decision of the district court, and hold that section 215 is a
crime of violence for purposes of § 2L1.2.5

REVERSED and REMANDED.

4
Because of our decision that section 215 is a crime of violence under
§ 2L1.2 as a combination of generic robbery and generic extortion, we
need not reach Velasquez-Bosque’s argument that section 215 does not
qualify as one of the other crimes enumerated in the Guidelines’ definition
of “crime of violence.” Nor do we reach Velasquez-Bosque’s statement,
in passing, that section 215 criminalizes more conduct than generic rob-
bery because the state offense can be accomplished through non-
intentional force. This argument was not coherently developed in the
briefs on appeal. See Fed. R. App. P. 28(a)(9)(A); Kohler v. Inter-Tel
Techs., 244 F.3d 1167, 1182 (9th Cir. 2001); United States v. Kimble, 107
F.3d 712, 715 n.2 (9th Cir. 1997).
5
In supplemental briefing, the government argues that the reasoning of
Nieves-Medrano, which held that the California carjacking statute at issue
here was a crime of violence for immigration purposes under 18 U.S.C.
§ 16, compels the holding that California carjacking is a § 2L1.2 crime of
violence as well. Because we reach the same conclusion through the cate-
gorical analysis, we do not address this alternative theory.