United States v. Delgado-Enriquez

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _______________ No. 98-51003 Summary Calendar _______________ UNITED STATES OF AMERICA, Plaintiff-Appellee, VERSUS GILBERTO DELGADO-ENRIQUEZ, Defendant-Appellant. _________________________ Appeal from the United States District Court for the Western District of Texas _________________________ September 10, 1999 Before SMITH, BARKSDALE, and I. PARKER, Circuit Judges. In March 1998, Delgado applied for admission to the United States from Mexico, JERRY E. SMITH, Circuit Judge: presenting a resident alien card that did not belong to him. He admitted to using his broth- Gilbert Delgado-Enriquez (“Delgado”) er’s documents and that he was a native and pleaded guilty to illegal re-entry as a deported citizen of Mexico. Immigration records alien in violation of 8 U.S.C. § 1326. He showed that he had been removed from the appeals the sixteen-level enhancement of his United States in November 1995 after having sentence, arguing that his previous conviction been convicted in the United States of first of first degree criminal trespass is not an degree criminal trespass. aggravated felony within the meaning of U.S.S.G. § 2L1.2(b)(1)(A). We affirm. Delgado was indicted for illegal re-entry after deportation in violation of 8 U.S.C. § 1326. A notice informed him he would be subject to enhanced penalties upon conviction guilty of unlawfully entering the United States because of his previous conviction. He plead- after being previously deported on the basis of ed guilty in August 1998. a criminal conviction may receive a sixteen- level enhancement if the previous conviction Under the 1997 version of the United was an aggravated felony.1 The term States Sentencing Commission Guidelines “aggravated felony” is defined at 8 U.S.C. Manual, the offense level for Delgado’s illegal § 1101(a)(43). U.S.S.G. § 2L1.2, comment. re-entry conviction was calculated under n.1. U.S.S.G. § 2L1.2. The pre-sentence report (“PSR”) recommended that sixteen levels be The government asserts that Delgado’s of- added to the base offense level of 8 because fense should be construed as a “crime of vio- the conviction of first degree criminal trespass lence” under § 1101(a)(43)(F). This sub- is an aggravated felony within the meaning of section provides t hat a “crime of violence” is U.S.S.G. § 2L1.2(b)(1)(A). The PSR also an aggravated felony when it meets the recommended, however, that the court reduce definition found in 18 U.S.C. § 16 for non- the offense level by three for acceptance of political offenses for which the term of im- responsibility under U.S.S.G. § 3E1.1. prisonment is more than one year. Section 16 defines a crime of violence as: Delgado objected to the sixteen-level enhancement, arguing that his conviction for (a) an offense that has as an element the first degree criminal trespass did not rise to the use, attempted use, or threatened use of level of “aggravated felony.” The court physical force against the person or overruled his objection, stating “The fact property of another, or remains that he broke into the house and he remained there with intent to commit theft or other things . . . .” Delgado was then sentenced to seventy months in prison 1 United States Sentencing Commission, followed by three years of supervised release. Guidelines Manual, § 2L1.2(b)(2) (Nov. 1998). The commentary to § 2L1.2 was amended on November 1, 1997, to delete application notes 6-7. II. See U.S.S.G. Manual, Appendix C, amend. 562 A. (Nov. 1997). As a result, the definition of A sentence must be affirmed unless it was “aggravated felony” in the guidelines conforms to imposed in violation of the law or was based the amended definition of the same term in the on an erroneous application of the sentencing Illegal Immigration and Immigrant Responsibility Act, Pub. L. 104-208, 110 Stat. 3009, which is guidelines. United States v. Galvan- still found at 8 U.S.C. § 1101(a)(43). Delgado Rodriguez, 169 F.3d 217, 218 (5th Cir. 1999), was sentenced after the new amendments became petition for cert. filed (May 20, 1999) effective on November 1, 1997, so we rely on the (No. 98-9509). We review a challenge to an amended definition of aggravated felony. For pur- interpretation of the Guidelines de novo. Id. poses of this appeal, the new amendments do not change the analysis of § 2L1.2(b) that we B. announced in cases such as Galvan-Rodriguez, Under § 2L1.2, a defendant who is found because we rely on portions of § 1101(a)(43) that have not been changed. 2 (b) any other offense that is a felony and vehicle4 are crimes of violence under § 16(b), that, by its nature, involves a substantial and, therefore, aggravated felonies under risk that physical force against the per- § 2L1.2. In all of these cases, we found that son or property of another may be used because the criminal act at issue created a in the course of committing the offense. “substantial risk that physical force will be used against the person or property of another 18 U.S.C. § 16 (1994) (emphasis added). in the course of committing the offense,” § 16(b), these crimes qualified as crimes of As we held in United States v. Velazquez- violence for purposes of § 16(b). Overa, 100 F.3d 418, 421 (5th Cir. 1996), the phrase “by its nature” requires courts to de- Delgado’s trespass conviction was under termine whether an offense constitutes a crime Colorado law, under which a “person commits of violence without examining the underlying the crime of first degree criminal trespass if he facts surrounding the conviction. Galvan- knowingly and unlawfully enters or remains in Rodriguez, 169 F.3d at 219. This categorical a dwelling or if he enters any motor vehicle approach requires courts “only to consider the with intent to steal anything of value.” COLO. fact that [the defendant] was convicted and the REV. STAT. ANN. § 18-4-502 (West 1991). inherent nature of the offense.” Id. We must decide whether committing criminal trespass, by its very nature, creates a sub- C. stantial risk that the perpetrator will use physi- Delgado contends that because there is no cal force against the person or property of strong probability that physical force will be another.” When analyzing the phrase “sub- used in a criminal trespass offense, his prior stantial risk,” we have stated that it is not conviction cannot be considered a crime of necessary that the risk “must occur in every violence within the meaning of 18 U.S.C. instance; rather a substantial risk requires a § 16(b). He points out because his guideline strong probability that the event, in this case range would have been 21 to 27 months with- the application of physical force during the out the sixteen-level enhancement for aggra- commission of the crime, will occur.” vated felony, he was harmed by the alleged Rodriguez-Guzman, 56 F.3d at 20. misapplication of the Guidelines. The court did not err when it found that the We have not heretofore considered whether act of criminal trespass, which specifically re- criminal trespass qualifies as a crime of vio- quires entering or remaining in the dwelling of lence for purposes of § 16. In previous cases, another, is a crime of violence under § 16(b). however, this court has found that a burglary Entering or remaining in a dwelling of another of a vehicle,2 a burglary of a non-residential creates a substantial risk that physical force building,3 and the unauthorized use of a motor will be used against the residents in the dwell- 2 (...continued) Galvan-Rodriguez, 169 F.3d at 219. (1997). 3 United States v. Ramos-Garcia, 95 F.3d 369, 4 371 (5th Cir. 1996), cert. denied, 519 U.S. 1083 United States v. Rodriguez-Guzman, 56 F.3d (continued...) 18, 20 (5th Cir. 1995). 3 ing. Indeed, even when the perpetrator has illegally entered a nonresidential building, we have found a “substantial risk of physical force” being used against the property of another. Rodriguez-Guzman, 56 F.3d at 11. Therefore, we conclude that criminal trespass is a crime of violence within the meaning of § 16(b) and an aggravated felony for purposes of § 2L1.2(b)(1)(A).5 AFFIRMED. 5 There is also some indication that trespass has been considered a crime that may invoke violence. See, e.g., LA. REV. STAT. ANN. § 14:19 (West 1999) (providing that the use of force or violence is justifiable to prevent a forcible offense or trespass against property in a person’s lawful possession); Bell v. Maryland, 378 U.S. 226, 328 n.15 (1964) (noting that historians of early English law have concluded that “‘to allow men to make forcible entries on land . . . is to invite violence’”) (citation omitted); Castillo v. First City Bancor- poration, Inc., 43 F.3d 953 (5th Cir. 1994) (noting in civil context that common law actions in civil trespass involved some violence, although the amount might be minimal). 4