United States v. Mario Avila

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4606

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

MARIO VASQUEZ AVILA, a/k/a Mario Sanchez, a/k/a Mario
Vasquez,

Defendant – Appellant.

Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:12-cr-00022-RLV-DSC-1)

Argued: September 19, 2014 Decided: November 4, 2014

Before KING, SHEDD, and AGEE, Circuit Judges.

Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge King and Judge Shedd joined.

ARGUED: Michael E. Archenbronn, Winston-Salem, North Carolina,
for Appellant. William Michael Miller, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON
BRIEF: Anne M. Tompkins, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
AGEE, Circuit Judge:

Mario Vasquez Avila (“Avila”) appeals the thirty-seven

month sentence he received after pleading guilty to illegal

reentry in violation of 8 U.S.C. § 1326(a). On appeal, Avila

does not challenge his conviction, but argues the district court

committed reversible error at sentencing by concluding that his

prior conviction for first-degree burglary under California

Penal Code §§ 459 and 460(a) qualified for an eight-level

sentencing enhancement. Avila further argues that the district

court’s explanation of its chosen sentence was insufficient.

For the reasons that follow, we affirm the judgment of the

district court.

I.

Avila, a native and citizen of Mexico, has a long history

of illegally entering the United States and engaging in criminal

activity while here. First unlawfully entering the United

States in 1990, Avila was arrested for shoplifting and

voluntarily returned to Mexico. After reentering again, Avila

was arrested on multiple charges in California and ultimately

convicted of assault and sentenced to one year in prison in

1993. At the conclusion of his sentence, he was removed to

Mexico.

2
 Reentering the United States almost immediately, Avila was

arrested in 1994 in San Diego, California, and charged with

three counts of first-degree robbery, one count of first-degree

burglary, one count of assault with a deadly weapon, and one

count of assault with a firearm. Upon a guilty plea to first-

degree burglary, Avila was sentenced to twelve years in prison.

Immigration officials again removed Avila to Mexico upon his

release.

Avila again illegally returned to the United States and was

twice arrested and convicted in North Carolina for driving while

impaired, ultimately receiving prison sentences of thirty days

and six months. Avila spent additional time in jail after a

conviction for malicious conduct by a prisoner. For reasons not

explained in the record, immigration officials were apparently

unaware of Avila’s presence in the North Carolina penal system.

Following his release from confinement in North Carolina,

Avila assaulted a woman and a police officer, and made several

threats against the officer’s family. Avila was subsequently

charged with two counts of simple assault and one count of

communicating a threat in North Carolina state court.

This time immigration authorities did learn of Avila’s

pending charges and interviewed him on March 23, 2012. Avila

lied during the interview, claiming that he was a United States

citizen. After further investigation, authorities confirmed

3
that Avila was in the United States unlawfully. A federal grand

jury subsequently indicted him for illegal reentry following an

aggravated felony conviction, in violation of 8 U.S.C. § 1326(a)

and (b)(2). On October 10, 2012, Avila pled guilty to this

charge without the benefit of a written plea agreement.

In preparation for sentencing, the United States Probation

Office prepared a presentence investigation report (“PSR”) which

calculated Avila’s total offense level at fourteen and his

criminal history category at V, resulting in a guidelines

sentencing range of thirty to thirty-seven months incarceration.

In computing Avila’s offense level, the PSR included an

enhancement under U.S.S.G. § 2L1.2(b)(1)(C), which provides for

an eight-level increase to the base offense level of any

defendant who “previously was deported, or unlawfully remained

in the United States, after . . . a conviction for an aggravated

felony.” Over Avila’s objection, the probation office

determined that his 1994 California conviction for first-degree

burglary qualified as an aggravated felony.

At sentencing, Avila argued that his California burglary

conviction should not qualify as an aggravated felony for the

eight-level increase because it is not a crime of violence. The

district court overruled Avila’s objection and adopted the

recommended guidelines range in the PSR. Avila also requested a

downward variance based on his work history and treatment for

4
alcohol abuse while awaiting sentencing. The Government sought

a sentence at the high end of the guidelines given Avila’s

repeated history of illegally entering the United States and

committing violent crimes.

Applying “an individualized approach,” the district court

recounted Avila’s personal characteristics and criminal history

and explained that “taken together,” they caused “a concern for

. . . the safety of the public.” (J.A. 25.) The district court

then imposed a within-guidelines sentence of thirty-seven

months’ imprisonment.

Avila timely appealed, and this Court has jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

II.

In reviewing a sentence imposed by a district court, we

apply an abuse of discretion standard. See Gall v. United

States, 552 U.S. 38, 51 (2007). Generally, this requires a two-

step analysis. United States v. Pauley, 511 F.3d 468, 473 (4th

Cir. 2007). First, we review the sentence for “significant

procedural error,” “such as failing to calculate (or improperly

calculating) the Guidelines range, treating the Guidelines as

mandatory, failing to consider the § 3553(a) factors, selecting

a sentence based on clearly erroneous facts, or failing to

5
adequately explain the chosen sentence[.]” Gall, 552 U.S. at

51.

If there are no procedural errors, we proceed to consider

the substantive reasonableness of a sentence, “taking into

account the ‘totality of the circumstances including the extent

of any variance from the Guidelines range.’” Pauley, 511 F.3d

at 473 (quoting Gall, 552 U.S. at 51). “[A]n appellate court is

allowed to presume that a district court’s chosen sentence is

substantively reasonable if it is within a correctly calculated

Guidelines range.” United States v. Mendoza-Mendoza, 597 F.3d

212, 216 (4th Cir. 2010) (citation omitted).

Avila raises two issues on appeal, both challenging the

procedural reasonableness of his sentence. First, he argues

that the district court erred in classifying his first-degree

California burglary conviction as an aggravated felony

justifying an eight-level enhancement under U.S.S.G. §

2L1.2(b)(1)(C). Citing Descamps v. United States, 133 S. Ct.

2276 (2013), Avila asserts that his burglary conviction does not

meet the definition of an aggravated felony because the

California statute “lacks the element of an unlawful or

unprivileged entry” and “defines burglary so broadly as to

including shoplifting[.]” (Appellant’s Br. 10.) Separately,

Avila alleges the district court failed to conduct a

sufficiently individualized assessment or address his “non-

6
frivolous argument for a below-guidelines sentence.”

(Appellant’s Br. 13.) We address each argument in turn.

A.

Section 2L1.2 of the Sentencing Guidelines provides for an

eight-level increase to the base offense level of any defendant

convicted of illegal reentry who “previously was deported, or

unlawfully remained in the United States, after . . . a

conviction for an aggravated felony.” U.S.S.G. §

2L1.2(b)(1)(C). Application Note 3 to § 2L1.2 provides that the

term “‘aggravated felony’ has the meaning given that term in 8

U.S.C. 1101(a)(43).” Id. § 2L1.2 cmt. 3(A). That statute

defines “aggravated felony” by listing a series of qualifying

offenses, including, in relevant part, “a crime of violence (as

defined in section 16 of Title 18)[.]” See 8 U.S.C. §

1101(a)(43)(F). “Crime of violence” is defined as:

(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.

18 U.S.C. § 16.

7
 Following this definitional trail, the district court

determined that Avila’s conviction for first-degree burglary

under California law qualified as a “crime of violence” and

therefore an “aggravated felony” for purposes of the eight-level

sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(C). Avila

asserts this conclusion was error, so we now consider whether

Avila’s California burglary conviction is indeed an aggravated

felony under the enhancement. 1 See United States v. Perez-Perez,

737 F.3d 950, 952 (4th Cir. 2013) (noting that whether a prior

conviction qualifies as a predicate offense for purposes of a

guidelines enhancement is a question of law that we review de

novo).

We employ a categorical approach to assess whether Avila’s

California burglary conviction is an aggravated felony, focusing

on the elements of the statute of conviction rather than the

conduct underlying the offense. See Descamps, 133 S. Ct. at

2282-83 (holding that courts must apply the categorical approach

to statutes like California burglary “that contain a single,

1
The Government did not raise any argument here or in the
district court that Avila’s plea to the indictment, listing both
an 8 U.S.C. § 1326(a) and (b)(2) component, decides the
sentencing enhancement issue. Accordingly, we do not address
such an argument. See Mayfield v. Nat’l Ass’n for Stock Car
Auto Racing, Inc., 674 F.3d 369, 377 (4th Cir. 2012) (“A party's
failure to raise or discuss an issue in his brief is to be
deemed an abandonment of that issue.” (citation and internal
quotation marks omitted)).

8
‘indivisible’ set of elements”); United States v. Aparicio-

Soria, 740 F.3d 152, 154 (4th Cir. 2014) (en banc) (“As required

by the categorical approach, our analysis is restricted to ‘the

fact of conviction and the statutory definition of the prior

offense.’” (citation omitted)). 2

Although the “aggravated felony” sentencing enhancement at

issue here includes “burglary” as a qualifying offense, see 8

U.S.C. § 1101(43)(G), the parties agree that subsection does not

encompass Avila’s California burglary conviction because the

California burglary statute is broader than the “generic”

burglary offense as defined by the Supreme Court. See Taylor v.

United States, 495 U.S. 575, 598 (1990) (“[T]he generic,

contemporary meaning of burglary contains at least the following

elements: an unlawful or unprivileged entry into, or remaining

in, a building or other structure, with intent to commit a

crime.”); Descamps, 133 S. Ct. at 2293 (“Because generic

unlawful entry is not an element, or an alternative element, of

[California burglary], a conviction under that statute is never

for generic burglary.”). Accordingly, we must determine whether

Avila’s conviction for California first-degree burglary instead

qualifies under the more generalized “crime of violence”

2
The parties concur that the categorical approach applies
here and there is no basis to utilize the modified categorical
approach. We agree.

9
definition in 18 U.S.C. § 16. To the extent the statutory

definition of California burglary has been interpreted by the

California Supreme Court, “that interpretation constrains our

analysis[.]” Aparicio-Soria, 740 F.3d at 154.

Avila’s uncontested prior conviction for first-degree

burglary under California law required proof of three elements:

(1) entry into a dwelling; (2) that was inhabited at the time of

the entry; (3) with the intent to commit a theft or any felony.

See People v. Anderson, 211 P.3d 584, 589 (Cal. 2009). For

purposes of this crime, a structure “need not be occupied at the

time; it is inhabited if someone lives there, even though the

person is temporarily absent.” People v. Little, 142 Cal. Rptr.

3d 466, 471 (Cal. Ct. App. 2012) (citation and emphasis

omitted).

We conclude that California first-degree burglary qualifies

as a crime of violence under the residual clause in 18 U.S.C. §

16(b). To reach this determination we need look no further than

the Supreme Court’s decision in Leocal v. Ashcroft, where the

Court explained:

[Section] 16 relates not to the general
conduct or to the possibility that harm will
result from a person’s conduct, but to the
risk that the use of physical force against
another might be required in committing a
crime. The classic example is burglary. A
burglary would be covered under § 16(b) not
because the offense can be committed in a
generally reckless way or because someone

10
 may be injured, but because burglary, by its
nature, involves a substantial risk that the
burglar will use force against a victim in
completing the crime.

543 U.S. 1, 10 (2004) (footnote and emphasis omitted).

The Supreme Court of California has similarly recognized

that first-degree burglary creates a substantial risk that use

of physical force may result:

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, not
to deter the trespass and the intended
crime, which are prohibited by other laws,
so much as to forestall the germination of a
situation dangerous to personal safety.

People v. Montoya, 874 P.2d 903, 911-12 (Cal. 1994) (internal

quotation marks omitted); see also United States v. Becker, 919

F.2d 568, 571 (9th Cir. 1990) (“The California courts have held

that first degree burglary is burglary of a residence—a distinct

and more serious offense than other burglaries.”), superseded in

part by statute as stated in, United States v. Ramos-Medina, 706

F.3d 932, 936-39 (9th Cir. 2012).

Given the inherent risks associated with burglary of a

dwelling, courts have come to the conclusion (unanimous, so far

as we can tell) that first-degree burglary under California law

11
is indeed a crime of violence under 18 U.S.C. § 16(b). See,

e.g., Lopez-Cardona v. Holder, 662 F.3d 1110, 1112 (9th Cir.

2011); United States v. Echeverria-Gomez, 627 F.3d 971, 976 (5th

Cir. 2010). We agree.

Avila argues that the Supreme Court’s decision in Descamps

dictates a contrary conclusion. We disagree. As relevant to

the case at bar, Descamps held only that a conviction for

burglary under California law does not categorically constitute

a conviction for generic burglary, and thus cannot qualify as a

predicate offense under the Armed Career Criminal Act (“ACCA”)

provision that references the generic crime. 133 S. Ct. at

2293. That is not the issue in this case. Here, using a

completely different statutory scheme, we are asked to determine

whether a conviction for first-degree burglary under California

law constitutes a crime of violence for purposes of 18 U.S.C. §

16(b), which does not fall under the ACCA.

Unlike the ACCA provision analyzed in Descamps, 18 U.S.C. §

16(b) does not contain a roster of enumerated offenses or list

generic burglary as a qualifying crime. Instead, § 16(b) speaks

in descriptive terms of felonies that carry a substantial risk

that force will be used. Consequently, the crime of violence

definition in § 16(b) is not restricted to generic burglary, and

Descamps is inapplicable to our analysis. See Becker, 919 F.2d

at 572 (recognizing the California crime of burglary might not

12
be a “violent felony” under the ACCA, which defines the term by

reference to the generic crime, but it is a “crime of violence”

under the risk-focused text of 18 U.S.C. § 16). Indeed, in

Descamps itself the Supreme Court explicitly limited its holding

to that specific provision in the ACCA referencing generic

burglary. 133 S. Ct. at 2293 n.6 (declining to address whether

California burglary qualifies as a predicate offense under the

ACCA’s residual clause); see also United States v. Rodriguez-

Frias, 571 F. App’x 536, 537 (9th Cir. 2014) (unpublished)

(noting that Descamps has no bearing on “the definition of

violence in the residual clause contained in § 16(b)”).

Avila further asserts that California burglary does not

satisfy the crime of violence definition because the statute

“lacks the element of an unlawful or unprivileged entry.”

(Appellant’s Br. 10.) This argument is without merit because

the absence of this element does not dissipate the risks

associated with burglary of an inhabited dwelling. California

courts have repeatedly emphasized the potentially violent nature

of first-degree burglary notwithstanding the absence of forced

entry. See People v. Davis, 958 P.2d 1083, 1088-89 (Cal. 1998).

Likewise, as noted by the Supreme Court, the “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 burglar

13
and a third party[.]” James v. United States, 550 U.S. 192, 203

(2007). Succinctly stated, burglary of a dwelling presents a

substantial risk of force with or without an unlawful entry.

See United States v. Maldonado, 696 F.3d 1095, 1103 (10th Cir.

2012) (“[A] risk of violence arises, even absent an unlawful

entry, when a victim or third-party discovers the burglar’s

criminal intent. The burglar may initiate violence to carry out

his crime, or a victim or third party may use force to resist or

prevent it.” (emphasis added)); United States v. Park, 649 F.3d

1175, 1178-79 (9th Cir. 2011) (noting that in determining

whether first-degree burglary under California law involves

conduct that presents a serious potential risk of physical

injury to another, “[i]t makes no difference . . . that

California first-degree burglary does not require an unlawful

entry”).

Finally, we reject Avila’s contention that first-degree

burglary under California law does not qualify as a crime of

violence because it encompasses crimes “includ[ing] shoplifting

and theft of goods from a locked but unoccupied automobile.”

(Appellant’s Br. 10.) First, this argument mistakenly assumes

that the above examples fall under California’s statutory scheme

for first-degree burglary. As noted, first-degree burglary

requires entry into an inhabited dwelling. Neither of the

above illustrations satisfy this requirement. In any event,

14
every set of conceivable facts covered by first-degree burglary

does not have to present a serious risk of injury for it to

qualify as a crime of violence. It is sufficient if “the

conduct encompassed by the elements of the offense, in the

ordinary case, presents a serious potential risk of injury to

another.” James, 550 U.S. at 208. As long as an offense is of

a type that, by its nature, presents a substantial risk that

physical force against the person or property of another may be

used, it satisfies the requirements of 18 U.S.C. § 16(b). See

id. First-degree burglary under California law fulfills that

requirement.

First-degree burglary, as defined in California Penal Code

§§ 459 and 460(a), is a crime of violence within the meaning of

18 U.S.C. § 16(b) and therefore qualifies as an aggravated

felony. Accordingly, the district court correctly applied the

eight-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C) when it

calculated Avila’s sentence.

B.

We now turn to Avila’s argument that the district court’s

sentencing colloquy was procedurally inadequate. Contrary to

Avila’s assertion otherwise, the district court’s explanation of

its sentence was more than sufficient to preclude a finding of

error. A sentencing court must “‘state in open court’ the

15
particular reasons that support its chosen sentence.” United

States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). The

court’s explanation, however, need not be exhaustive; it merely

must be “sufficient ‘to satisfy the appellate court that [the

district court] has considered the parties’ arguments and has a

reasoned basis for exercising [its] own legal decisionmaking

authority.’” United States v. Boulware, 604 F.3d 832, 837 (4th

Cir. 2010) (alterations in original) (quoting Rita v. United

States, 551 U.S. 338, 356 (2007)). Here, the district court

explained that it had considered Avila’s “history and

characteristics,” and “taken together, these indicate a concern

. . . on the part of the Court for the safety of the public.

And that is the driving reason for the sentence.” (J.A. 25.)

Although the district court’s explanation focused on two of the

sentencing factors, its discussion of Avila’s history and

characteristics and the need to protect the public from further

crimes was individualized as to Avila and based on the facts

presented. See United States v. Johnson, 445 F.3d 339, 345 (4th

Cir. 2006) (“Requiring district courts to address each factor on

the record would thus be an exercise in unproductive repetition

that would invite flyspecking on appeal.”).

We similarly reject Avila’s argument that the district

court erred by failing to address his “non-frivolous argument

for a below-guidelines sentence.” (Appellant’s Br. 13.) Avila

16
fails altogether to explain in his brief what non-frivolous

arguments the district court neglected to consider. Looking at

the sentencing transcript, however, it is apparent that his

request for a downward variance was based almost exclusively on

his personal history and characteristics; topics which the

district court made clear that it had considered. We thus find

no abuse of discretion by the district court. 3

III.

For the foregoing reasons, the judgment of the district

court is

AFFIRMED.

3
Avila raises no separate argument as to the substantive
reasonableness of his sentence and we find no abuse of
discretion in his within-guidelines sentence.

17