Case: 09-50261 Document: 00511316310 Page: 1 Date Filed: 12/08/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 8, 2010
No. 09-50261
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JOSE JULIO ECHEVERRIA-GOMEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
Before JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges
PER CURIAM:
Jose Julio Echeverria-Gomez appeals the forty-eight-month sentence he
received after pleading guilty to a charge of illegally reentering the United
States following deportation in violation of 8 U.S.C. § 1326. Echeverria-Gomez
argues that the district court committed plain error by treating his prior
conviction for first-degree burglary under California Penal Code §§ 459 & 460(a)
as a conviction for an aggravated felony within the meaning of § 2L1.2(b)(1)(C)
of the United States Sentencing Guidelines. We conclude that the district court
was correct to apply the § 2L1.2(b)(1)(C) sentence enhancement, so we affirm
Echeverria-Gomez’s sentence.
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I.
Echeverria-Gomez waded across the Rio Grande River and entered the
United States in El Paso, Texas, on December 3, 2008. A United States Customs
and Border Protection Agent stopped him for questioning. Echeverria-Gomez
admitted to being a citizen and national of Mexico without immigration
documents allowing him to legally enter or remain in the United States. The
agent arrested him and subsequently discovered that Echeverria-Gomez had
been removed from the United States less than two months earlier. The
government charged him with illegally reentering the United States following
deportation in violation of 8 U.S.C. § 1326(a).1 Under the statute’s corresponding
Sentencing Guidelines provision, § 2L1.2, the offense of illegal reentry carries
a base offense level of eight.2 Because Echeverria-Gomez’s removal followed his
conviction by the state of California for committing the crime of first-degree
burglary, the government sought an enhanced penalty.3
The district court concluded that Echeverria-Gomez’s first-degree-burglary
conviction was a conviction for an “aggravated felony” within the meaning of
§ 2L1.2(b)(1)(C) and increased his base offense level by eight levels. This
enhanced base offense level combined with Echeverria-Gomez’s acceptance of
responsibility and criminal-history score to yield an advisory sentencing range
under the Guidelines of thirty-three to forty-one months. Echeverria-Gomez did
not object to the district court’s calculation of his Guidelines sentencing range.
1
See 8 U.S.C. § 1326(a) (“[A]ny alien who . . . has been . . . removed . . . while an order
of exclusion, deportation, or removal is outstanding, and thereafter . . . enters, attempts to
enter, or is at any time found in the United States . . . shall be fined under Title 18, or
imprisoned not more than 2 years, or both.”).
2
See U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(a) (2009).
3
See 8 U.S.C. § 1326(b)(2) (“Notwithstanding subsection (a) of this section, in the case
of any alien described in such subsection . . . whose removal was subsequent to a conviction
for commission of an aggravated felony, such alien shall be fined under such title, imprisoned
not more than 20 years, or both . . . .”).
2
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The district court opted to vary upwardly from the Guidelines and sentenced
Echeverria-Gomez to a term of forty-eight months imprisonment and three years
of supervised release.
II.
On appeal, Echeverria-Gomez contends the district court erred by
enhancing his sentence under § 2L1.2(b)(1)(C) based on his California conviction
for first-degree burglary. Because Echeverria-Gomez did not object to the
district court’s decision to apply the § 2L1.2(b)(1)(C) sentence enhancement, we
review that decision only for plain error.4 Plain-error review allows us to correct
an error to which the defendant failed to object in the district court if the error
is plain, affects the defendant’s substantial rights, and seriously affects the
fairness, integrity, or public reputation of judicial proceedings.5 We conclude
that the necessary predicate to plain-error review is missing here, as the district
court did not err by enhancing Echeverria-Gomez’s sentence.6
A.
Section 2L1.2(b)(1)(C) of the Sentencing Guidelines provides for an eight-
level increase to the base offense level of any defendant who “was previously
4
See, e.g., United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir.) (“Forfeiture is the
failure to make the timely assertion of a right . . . . Forfeited errors are reviewed under the
plain error standard . . . .”), cert. denied sub nom. Salazar-Palacios v. United States, 547 U.S.
1156 (2006).
5
See, e.g, United States v. Mares, 402 F.3d 511, 520 (5th Cir.) (quoting United States
v. Cotton, 535 U.S. 625, 631 (2002)), cert. denied, 546 U.S. 828 (2005).
6
The district court’s imposition of a sentence above the range recommended by the
Guidelines does not substantially alter our review. The district court must correctly calculate
the applicable Guidelines range even when it chooses to depart upwardly from that range. See
Gall v. United States, 552 U.S. 46, 51 (2007) (“Regardless of whether the sentence imposed is
inside or outside the Guidelines range, the appellate court must . . . first ensure that the
district court committed no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range . . . .”).
3
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deported, or unlawfully remained in the United States, after . . . a conviction for
an aggravated felony.”7 As used in § 2L1.2(b)(1)(C), an aggravated felony “has
the meaning given that term in 8 U.S.C. § 1101(a)(43).” 8 In turn,
§ 1101(a)(43)(F) defines an aggravated felony as “a crime of violence (as defined
in section 16 of Title 18, but not including a purely political offense) for which
the term of imprisonment [is] at least one year.”9 And under 18 U.S.C. § 16:
The term “crime of violence” means—
(a) an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another, or
(b) any other offense that is a felony and that, by its nature, involves
a substantial risk that physical force against the person or property
of another may be used in the course of committing the offense.
Therefore, we must consider whether Echeverria-Gomez’s conviction of burglary
first degree satisfies the definition of either § 16(a) or § 16(b).
Echeverria-Gomez’s conviction does not qualify as a crime of violence
under § 16(a). Under California law, the crime of first-degree burglary does not
have as an element the use, attempted use, or threatened use of physical force
against the person or property of another.10 Therefore, the propriety of the
district court’s decision to enhance Echeverria-Gomez’s sentence under
§ 2L1.2(b)(1)(C) turns on whether first-degree burglary, as defined by the
7
See U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(C) (2009).
8
See id. § 2L1.2 cmt. 3(A).
9
8 U.S.C. § 1101(a)(43)(F). Under California law, a conviction for first-degree burglary
is punishable by a term of imprisonment of more than one year. See CAL . PENAL CODE
§ 461(a).
Section 1101(a)(43) also defines the term “aggravated felony” to include “a burglary
offense for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(G).
However, as the government concedes, Echeverria-Gomez’s sentence was not subject to
enhancement under 8 U.S.C. § 1101(a)(43)(G) because the term “burglary” does not carry the
same meaning in California Penal Code §§ 459 & 460(a) that it carries in federal statutes. See
infra notes 35-37 and accompanying text.
10
See infra note 20 and accompanying text.
4
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California Penal Code, is a “crime of violence” within the meaning of 18 U.S.C.
§ 16(b).
This Court uses a categorical approach to determine whether a defendant’s
prior conviction is a conviction for a “crime of violence” under 18 U.S.C. § 16(b).11
“This means that the particular facts of the defendant’s prior conviction do not
matter . . . . The proper inquiry is whether a particular defined offense, in the
abstract, is a crime of violence under 18 U.S.C. § 16(b).”12 The categorical
approach thus focuses on the statutory elements of the prior offense, including
any judicial gloss that the courts charged with interpreting the statute have
placed on those elements.13 If it is possible to identify the crime of conviction
based solely on the language of the statute, we do so.14 Only if the “defendant’s
prior conviction is under a statute that identifies several separate offenses, some
11
See, e.g., United States v. Chapa-Garza, 243 F.3d 921, 924 (5th Cir. 2001) (“[T]he
words ‘by its nature’ require us to employ a categorical approach when determining whether
an offense is a crime of violence.” (citing United States v. Velazquez-Overa, 100 F.3d 418, 420-
21 (5th Cir. 1996))).
12
Id.; see also Leocal v. Ashcroft, 543 U.S. 1, 7 (2004) (“[Section 16(b)] directs our focus
to the ‘offense’ of conviction. . . . This language requires us to look to the elements and the
nature of the offense of conviction, rather than to the particular facts relating to petitioner’s
crime.”); Velazquez-Overa, 100 F.3d at 421 (“A sentencing court need only consider the fact
that [the defendant] was convicted and the inherent nature of the offense.” (citing United
States v. Rodriguez-Guzman, 56 F.3d 18, 21 n.4 (5th Cir. 1995))).
13
See James v. United States, 550 U.S. 192, 202 (2007) (interpreting Florida’s statute
on criminal attempt in light of Florida Supreme Court precedent that had “considerably
narrowed [the statute’s] application in the context of attempted burglary”); United States v.
Rose, 587 F.3d 695, 704 (5th Cir. 2009) (interpreting Texas’s aggravated robbery statute in
light of Texas Court of Criminal Appeals precedent requiring “a close nexus between the theft
and the force”), cert. denied, 130 S. Ct. 1915 (2010). James and Rose interpret, respectively,
the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B), and the Career Offender Statute, 18
U.S.C. § 3559(c). But we use the same categorical approach to classify offenses under those
statutes that we use to classify offenses under 18 U.S.C. § 16(b). See, e.g, Perez-Munoz v.
Keisler, 507 F.3d 357, 362-64 (5th Cir. 2007) (relying on the Supreme Court’s decision in James
to decide a case arising under 18 U.S.C. § 16(b)); see also Larin-Ulloa v. Gonzales, 462 F.3d
456, 463 (5th Cir. 2006) (noting that the categorical approach under 18 U.S.C. § 16(b) “has its
roots in the categorical approach adopted by the Supreme Court in Taylor”).
14
See, e.g., Zaidi v. Ashcroft, 374 F.3d 357, 360 (5th Cir. 2004) (explaining that the
categorical approach “look[s] primarily to the text of the statute violated”).
5
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violent and others not,” will we “apply the modified categorical method and look
to [the indictment] to determine ‘which statutory phrase was the basis for the
conviction.’” 15
Echeverria-Gomez was indicted for committing “first degree residential
burglary” and convicted of “burglary first degree.” Under California law, a
person commits second-degree burglary if he enters any structure with the
intent to commit larceny or a felony.16 A person commits first-degree burglary
only if he commits “burglary of an inhabited dwelling house.”17 A dwelling house
is “a structure where people ordinarily live.”18 A dwelling house is inhabited if
it is “currently being used for dwelling purposes, whether occupied or not.” 19 A
conviction for first-degree burglary under California Penal Code §§ 459 & 460(a)
thus requires proof of a total of three elements: (1) entry into a dwelling house;
(2) that was inhabited at the time of the entry; (3) with the intent to commit
larceny or a felony.20
15
United States v. Hughes, 602 F.3d 669, 674 (5th Cir. 2010) (quoting Johnson v. United
States, 130 S. Ct. 1265, 1273 (2010)), petition for cert. filed, No. 10-5289 (July 6, 2010); see also
Larin-Ulloa, 462 F.3d at 464 (“If the statute of conviction defines multiple offenses, at least
one of which does not describe an aggravated felony, we apply a modified categorical approach,
under which we may also examine certain additional documents (if contained in the record
framing the guilty plea conviction) to determine whether the conviction was ‘necessarily’ for
a particular crime defined by the statute that meets the aggravated felony criterion.”); United
States v. Montgomery, 402 F.3d 482, 486 (5th Cir. 2005) (“We allow for an examination of the
indictment only to ‘pare down’ the statute—that is, to decide under which branch of a
disjunctive statute a defendant’s conviction falls.”).
16
See CAL . PENAL CODE §§ 459 & 460(b).
17
Id. § 460(a).
18
People v. Rodriguez, 122 Cal. App. 4th 121, 132 (Cal. Ct. App. 2004) (citation and
internal quotation marks omitted).
19
CAL . PENAL CODE § 459.
20
People v. Anderson, 211 P.3d 584, 589 (Cal. 2009); see also id. (“First degree burglary
is a greater substantive offense than second degree burglary because it requires proof of all
the elements of second degree burglary and the additional element that the area entered was
used as a dwelling.”).
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B.
We hold that first-degree burglary under California Penal Code §§ 459 &
460(a) is a “crime of violence” within the meaning of 18 U.S.C. § 16(b).
California law founds its distinction between first- and second-degree burglary
“upon the risk of personal injury involved,” and “the higher degree of the
burglary law is intended to prevent those situations which are most dangerous,
most likely to cause personal injury.”21 As the Supreme Court of California has
explained:
Burglary laws are based primarily upon a recognition of the dangers
to personal safety created by the usual burglary situation—the
danger that the intruder will harm the occupants in attempting to
perpetrate the intended crime or to escape and the danger that the
occupants will in anger or panic react violently to the invasion,
thereby inviting more violence. The laws are primarily designed,
then, . . . to forestall the germination of a situation dangerous to
personal safety. . . . [E]ntry into an inhabited structure is recognized
as most dangerous and most likely to create personal injury,
justifying assignment of the greater degree [under] § 460 . . . .22
Because entry into an inhabited dwelling house is a statutory element of the
offense of first-degree burglary in California, the offense is by its nature one that
involves a substantial risk that physical force against the person or property of
another will be used in the course of committing the offense.
We find direct support for our holding in the Ninth Circuit’s decision
United States v. Becker.23 There, the Ninth Circuit also concluded that
“California convictions for first-degree burglary fit 18 U.S.C. § 16(b)’s . . .
21
People v. Wilson, 208 Cal. App. 3d 611, 615 (Cal. Ct. App. 1989) (citations, internal
quotation marks, and emphasis omitted).
22
People v. Montoya, 874 P.2d 903, 911-12 (Cal. 1994) (citations and internal quotation
marks omitted).
23
919 F.2d 568 (9th Cir. 1990), cert. denied, 499 U.S. 911 (1991).
7
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statutory definition of a ‘crime of violence.’”24 The court reasoned that “[a]ny
time a burglar enters a dwelling with felonious or larcenous intent there is a risk
that in the course of committing the crime he will encounter one of its lawful
occupants, and use physical force against that occupant either to accomplish his
illegal purpose or to escape apprehension.” 25
Supreme Court precedent interpreting an analogous provision of the
Armed Career Criminal Act (“the ACCA”) further undergirds our conclusion
that California’s first-degree-burglary offense is a “crime of violence” under 18
U.S.C. § 16(b). In James v. United States,26 the Court held that an attempted
burglary conviction under Florida law was a violent felony within the meaning
of a clause in the ACCA that defines a violent felony as a crime that “‘involves
conduct that presents a serious risk of physical injury to another.’”27 The Court
emphasized that “the proper inquiry” under the categorical approach “is whether
the conduct encompassed by the elements of the offense, in the ordinary case,
presents a serious potential risk of injury to another.”28 Attempted burglary is
such an offense, the Court explained, because “[t]he main risk of burglary arises
not from the simple physical act of wrongfully entering onto another’s property,
but rather from the possibility of a face-to-face confrontation between the
24
Id. at 569-70. In Becker, the defendant received a sentence enhancement under the
1988 version of the “career offender” provision of the Sentencing Guidelines. See id. at 569.
At that time, a defendant was a career offender if he had at least two prior felony convictions
for crimes of violence. See id. (quoting U.S. SENTENCING GUIDELINES MANUAL § 4B1.1 (1988)).
“The 1988 version of the Guidelines provided that the term ‘crime of violence’ was to be defined
as under 18 U.S.C. § 16.” Id. (citing U.S. SENTENCING GUIDELINES MANUAL § 4B1.2 (1988)).
25
Id. at 571.
26
550 U.S. 192 (2007).
27
Id. at 196 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). This clause is commonly referred to
as the Residual Clause.
28
Id. at 208.
8
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burglar and a third party,” such as “an occupant.”29 The same risk attends a
burglary that California law classifies as a first-degree burglary. By definition,
such a burglary targets a residence, a structure that is likely to contain
occupants.30 By its nature, then, residential burglary presents a substantial risk
of a face-to-face confrontation between the burglar and an occupant of the
residence and a substantial corresponding risk that the burglar will use physical
force against the occupant to aid in the commission of the burglary.31
Echeverria-Gomez argues that our prior decisions in United States v.
Gonzales-Terrazas32 and United States v. Ortega-Gonzaga 33 dictate a contrary
conclusion. Both cases apply the Supreme Court’s holding in Taylor v. United
States34 that when Congress uses the term “burglary” in a federal statute, it
intends for that term to carry its “generic, contemporary meaning,” which
includes as an element an unlawful or unprivileged entry into a structure.35
Burglary under California Penal Code § 459 does not include as an element an
29
Id.. at 203
30
See supra notes 21-25 and accompanying text.
31
See Leocal, 543 U.S. at 10 (observing in dicta that “[a] burglary would be covered
under § 16(b) . . . because burglary, by its nature, involves a substantial risk that the burglar
will use force against a victim in completing the crime”); Becker, 919 F.2d at 572
(“[R]esidential burglaries carry with them significant risks to personal safety and valued
personal property.”); United States v. Flores, 875 F.2d 1110, 1113 (5th Cir. 1989) (“Whenever
a private residence is broken into, there is always a substantial risk that force will be used”).
32
529 F.3d 293 (5th Cir. 2008).
33
490 F.3d 393 (5th Cir.), cert. denied sub nom. Ayala-Cordovoa v. United States, 552
U.S. 964 (2007).
34
495 U.S. 575 (1990).
35
Id. at 598. Taylor construed the term “burglary” in the ACCA. We subsequently held
that there is “no reason to create a separate, parallel federal common-law definition for
‘burglary’” and that “Taylor’s definition of ‘burglary’ controls when defining the ‘burglary’ part
of ‘burglary of a dwelling’ under the Guidelines.” Ortega-Gonzaga, 490 F.3d at 395.
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unlawful or unprivileged entry into a structure,36 so Gonzales-Terrazas and
Ortega-Gonzaga hold that a burglary conviction under California Penal Code
§ 459 is not a conviction for the enumerated offense of “burglary of a dwelling”
under § 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines.37
Those holdings do not control here. Section 2L1.2(b)(1)(A)(ii) does provide
for a sixteen-level base-offense-level increase for a defendant who has prior
conviction for a “crime of violence.” However, it bears emphasizing that the
term “crime of violence” does not carry the same meaning in § 2L1.2(b)(1)(A)(ii)
that it carries in 18 U.S.C. § 16.38 Although the “catch-all” provision in the
commentary to § 2L1.2(b)(1)(A)(ii) is identical to 18 U.S.C. § 16(a), the
Guidelines replace the language of 18 U.S.C. § 16(b) with a list of specific crimes,
one of which is “burglary of a dwelling.” As the Ninth Circuit explained in
Becker, “18 U.S.C. § 16 mentions no specific crimes at all. It speaks only in
descriptive terms of felonies that carry with them a substantial risk that force
will be used. . . . [B]urglary of a residence . . . falls within this description.” 39
Indeed, in Taylor itself the Supreme Court took care to note that offenses that
do not qualify as the enumerated offense of “burglary,” including “offenses
36
See supra notes 16-20 and accompanying text; see also Ortega-Gonzaga, 490 F.3d at
395-96.
37
See Gonzalez-Terrazas, 529 F.3d at 296-98; Ortega-Gonzaga, 490 F.3d at 395-96.
38
Compare U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 cmt. 1(B)(iii) (2009) (defining
“crime of violence” as used in § 2L1.2(b)(1)(A)(iii) to mean any one of twelve enumerated
offenses as well as “any other 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”),
with 18 U.S.C. § 16.
39
919 F.2d at 572 (distinguishing Taylor). The Ninth Circuit has subsequently
reaffirmed the soundness of its reasoning in Becker. In Sareang Ye v. I.N.S., 214 F.3d 1128
(9th Cir. 2000), that court held that a person who had been convicted of burglary of a vehicle
under California Penal Code § 459 had not committed a crime of violence within the meaning
of 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16(b). Id. at 1133-34. In so holding, the court took
care to distinguish its prior decision in Becker. See id. at 1134 (“We also reject the INS’s
analogy to residential burglary. A person who enters a home or occupied building to commit
theft may well encounter people inside and resort to physical force to carry out his plan.”).
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similar to generic burglary,” might nonetheless authorize a sentence
enhancement under a statutory provision similar to 18 U.S.C. § 16(b).40 That a
first-degree burglary in California could, in theory, involve a privileged or lawful
entry does not change the fact that, “in the ordinary case,”41 there is a
substantial risk that a burglar will use physical force against the occupant of a
residence to aid in the commission of a residential burglary.
III.
First-degree burglary, as defined in California Penal Code §§ 459 & 460(a),
is a “crime of violence” within the meaning of 18 U.S.C. § 16(b) and therefore
qualifies as an “aggravated felony” under § 2L1.2(b)(1)(C) of the Sentencing
Guidelines. The district court correctly applied the eight-level base-offense-level
increase under § 2L1.2(b)(1)(C) when it calculated Echeverria-Gomez’s sentence.
Therefore, the district court’s judgment is AFFIRMED.
40
See Taylor, 495 U.S. at 600 n.9 (discussing the ACCA’s Residual Clause).
41
James, 550 U.S. at 208 (emphasis added); see also Perez-Munoz v. Keisler, 507 F.3d
357, 364 (5th Cir. 2007) (emphasizing that every act that falls within the definition of a crime
“need not be violent” for the crime “to be a crime of violence by its nature”).
11