FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 04-10184
Plaintiff-Appellee, D.C. No.
v. CR-03-00192-
JOSE EMILIO CORTEZ-ARIAS, HDM/VPC
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Argued and Submitted
December 9, 2004—San Francisco, California
Filed April 18, 2005
Before: Dorothy W. Nelson, Andrew J. Kleinfeld, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Gould
4349
UNITED STATES v. CORTEZ-ARIAS 4351
COUNSEL
Robert B. Walker, Carson City, Nevada, for the appellant.
Daniel G. Bogden, United States Attorney, and Robert Don
Gifford, Assistant United States Attorney, Reno, Nevada, for
the appellee.
OPINION
GOULD, Circuit Judge:
Jose Emilio Cortez-Arias appeals from the 46-month prison
sentence that the district court imposed for illegal re-entry
into the United States after being deported, in violation of 8
U.S.C. § 1326(a). The district court imposed a sixteen level
increase in offense level pursuant to United States Sentencing
Commission, Guidelines Manual (USSG), § 2L1.2(b)(1)(A),
because it found that under our precedent in United States v.
Weinert, 1 F.3d 889 (9th Cir. 1993) (per curiam), Cortez-
4352 UNITED STATES v. CORTEZ-ARIAS
Arias’s prior conviction for shooting at an inhabited dwelling,
in violation of California Penal Code section 246, was a con-
viction for a “crime of violence.”
Cortez-Arias contends that Weinert is not controlling
because it involved an interpretation of a section of the Sen-
tencing Guidelines containing a broader definition of “crime
of violence.” Cortez-Arias further contends that his prior con-
viction was not for a “crime of violence” under § 2L1.2’s cat-
egorical approach because California Penal Code section 246
prohibits shooting at a dwelling, whether occupied or not, and
the commentary to § 2L1.2 defines a “crime of violence” with
respect to “physical force against the person of another.”
USSG § 2L1.2 comment. (n.1(B)(iii)) (emphasis added).
We have jurisdiction pursuant to 28 U.S.C. § 1291, and
although we disagree with the reasoning of the district court,
we agree with its conclusion that shooting at an inhabited
dwelling, in violation of California Penal Code section 246,
is a “crime of violence” under § 2L1.2, and so we affirm.
I
Cortez-Arias was arrested on October 14, 2003, for illegal
reentry into the United States by a deported alien, in violation
of 8 U.S.C. § 1326(a). On October 22, 2003, a federal grand
jury indicted Cortez-Arias for this offense. Cortez-Arias
pleaded guilty as charged on December 11, 2003.
The United States Probation Office’s pre-sentence report
recommended that, under USSG § 2L1.2(b)(1)(A)(ii),1 the
district court impose a sixteen level increase of the base
offense level for illegal reentry2 because Cortez-Arias previ-
1
USSG § 2L1.2(b)(1)(A)(ii) applies if “the defendant previously was
deported, or unlawfully remained in the United States, after a conviction
for a felony that is . . . a crime of violence.”
2
The base offense level for unlawfully entering or remaining in the
United States is eight. USSG § 2L1.2(a).
UNITED STATES v. CORTEZ-ARIAS 4353
ously was deported after being convicted for shooting at an
inhabited dwelling, in violation of section 246 of the Califor-
nia Penal Code.3 Cortez-Arias objected to the recommenda-
tion, arguing that a violation of California Penal Code section
246 was not a “crime of violence” under USSG § 2L1.2
because the California law does not require the presence of a
person occupying the dwelling in order for the accused to be
convicted, and so does not have as an element the use,
attempted use, or threatened use of physical force against
another person.
The district court, quoting our decision in Weinert, over-
ruled Cortez-Arias’s objection because it is “the risk inherent
in the act of shooting at an inhabited building, as opposed to
the presence of a victim that makes this particular offense a
crime of violence.” The district court applied a categorical
approach, looking “to the statutory definition of the crime, not
to the specific conduct that occasions a prior conviction,” and
concluded that, consistent with Weinert, California Penal
Code section 246 “has as an element the use, attempted use,
or threatened use of physical force against a person of anoth-
er.” Cortez-Arias timely appealed.
II
We must first decide whether the district court properly
concluded that Weinert controls the outcome of Cortez-
Arias’s sentencing challenge.4 The district court held that our
decision in Weinert, which interpreted a “crime of violence”
under a different provision of the Guidelines, was dispositive
3
California Penal Code section 246 provides, in relevant part, that
“[a]ny person who shall maliciously and willfully discharge a firearm at
an inhabited dwelling house . . . is guilty of a felony . . . . As used in this
section, ‘inhabited’ means currently being used for dwelling purposes,
whether occupied or not.”
4
We review de novo this question of law relating to the applicability of
the U.S. Sentencing Guidelines. See United States v. Hernandez-
Valdovinos, 352 F.3d 1243, 1246 (9th Cir. 2003).
4354 UNITED STATES v. CORTEZ-ARIAS
of Cortez-Arias’s challenge because the predicate offense
addressed in Weinert, a violation of section 246 of the Cali-
fornia Penal Code, is the same as the predicate offense com-
mitted by Cortez-Arias. We disagree with this reasoning.
[1] Weinert held that California Penal Code section 246 is
a “crime of violence” under USSG § 4B1.2.5 1 F.3d at 890-91.
Section 4B1.2(a) defined a crime of violence then as
any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that (1)
has as an element the use, attempted use, or threat-
ened use of physical force against the person of
another, or (2) is burglary of a dwelling, arson, or
extortion, involves the use of explosives, or other-
wise involves conduct that presents a serious risk of
physical injury to another.
(emphasis added). Weinert reasoned that, even though an
inhabited dwelling need not be occupied when it is shot at, “it
is the risk inherent in the act of shooting at an inhabited build-
ing, as opposed to the presence of a victim, that makes [Cali-
fornia Penal Code section 246] a crime of violence.” 1 F.3d
at 891. In our view, this reasoning is most normally read to
suggest that Weinert’s rule was based on § 4B1.2(a)’s final
clause, emphasized above, which supports that shooting at an
inhabited dwelling is a “crime of violence” because it “in-
volves conduct that presents a serious risk of physical injury
to another,” whether or not a victim is present.6
5
This section defines terms, including “crime of violence,” found in the
“Career Offenders” provision, § 4B1.1 of the Guidelines. A “career
offender” is one who “has at least two prior felony convictions of either
a crime of violence or a controlled substance offense.” USSG § 4B1.1(a);
see also id. comment. (n.1) (indicating that, for the purposes of § 4B1.1,
a “crime of violence” is defined in § 4B1.2).
6
Weinert’s citation to United States v. Taylor, 495 U.S. 575, 582-87
(1990) (discussing the Armed Career Criminal Act’s, 18 U.S.C.
UNITED STATES v. CORTEZ-ARIAS 4355
[2] By contrast, Cortez-Arias received a sentencing
enhancement under USSG § 2L1.2. The commentary to that
section defines a “crime of violence” somewhat differently
than does § 4B1.2(a); under the commentary to § 2L1.2 a
“crime of violence” is defined to mean any of the following:
murder, manslaughter, kidnapping, aggravated
assault, forcible sex offenses, statutory rape, sexual
abuse of a minor, robbery, arson, extortion, extor-
tionate extension of credit, burglary of a dwelling, 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.
USSG § 2L1.2 comment. (n.1(B)(iii)). Neither this guideline
nor its commentary in explicit words refer to crimes that
involve “conduct that presents a serious risk of physical injury
to another.”
[3] Accordingly, we conclude that Weinert standing alone
does not control the outcome of Cortez-Arias’s appeal. Wei-
nert’s holding that California Penal Code section 246 is a
“crime of violence” because it involves conduct that presents
a serious risk of physical injury to another does not necessar-
ily resolve the question of whether the same offense is a
“crime of violence” for purposes of USSG § 2L1.2.
§ 924(e)(2)(B)(ii), amendment to include burglary and other crimes that
involve “conduct that presents a serious risk of physical injury to another”
as predicates for sentencing enhancements), and United States v. Huff-
hines, 967 F.2d 314, 320-21 (9th Cir. 1992) (holding that possession of a
firearm silencer does not have as an element the use, attempted use, or
threatened use of physical force against a person of another, but that such
an offense “involves conduct that presents a serious risk of physical injury
to another,” and so is a “crime of violence” under § 4B1.2(a)(2)), rein-
forces the view that the Weinert rule rested significantly on § 4B1.2(a)’s
catchall provision. See 1 F.3d at 891.
4356 UNITED STATES v. CORTEZ-ARIAS
III
[4] Having determined that Weinert does not require us to
affirm, we must squarely face and determine whether Califor-
nia Penal Code section 246 is a “crime of violence” allowing
a sixteen level sentencing enhancement under USSG
§ 2L1.2(b)(1)(A).7 We apply a categorical approach to deter-
mine whether a prior state law conviction is a predicate for a
sentencing enhancement under the Guidelines. United States
v. Asberry, 394 F.3d 712, 715 (9th Cir. 2005); see also Taylor
v. United States, 495 U.S. 575, 600-02 (1990). Thus, under
§ 2L1.2(b)(1)(A)(ii) we look to the prior offense, and not the
underlying conduct, to determine whether that offense is a
“crime of violence” allowing a sixteen level increase to the
base offense level for unlawfully entering or remaining in the
United States.8
Our review of California law and the Sentencing Guide-
lines satisfies us that the district court correctly enhanced
Cortez-Arias’s sentence. We hold that California Penal Code
section 246 is a “crime of violence” under the commentary to
USSG § 2L1.2 because shooting at an inhabited dwelling nec-
essarily involves the “threatened use of physical force against
the person of another.”
[5] The text of § 2L1.2 allows a sixteen level increase in
offense level for a defendant who unlawfully enters the
7
We review de novo whether a prior conviction is a “crime of violence”
under § 2L1.2 of the Sentencing Guidelines. United States v. Rodriguez-
Rodriguez, 393 F.3d 849, 856 (9th Cir. 2005). Under our circuit’s law we
may of course “affirm on any ground supported by the record even if it
differs from the rationale of the district court.” Nat’l Wildlife Fed’n v.
United States Army Corps of Eng’rs, 384 F.3d 1163, 1170 (9th Cir. 2004).
8
Because the sentencing enhancement we address is based only on the
fact of a prior conviction, our decision is unaffected by the Supreme
Court’s recent holding in United States v. Booker, 25 S. Ct. 738 (2005).See
United States v. Moreno-Hernandez, 397 F.3d 1248, 1255 n.8 (9th Cir.
2005).
UNITED STATES v. CORTEZ-ARIAS 4357
United States and who was previously deported after “a con-
viction for a felony that is . . . a crime of violence.” We have
held “that the force necessary to constitute a crime of violence
[ ] must actually be violent in nature.” United States v. Ceron-
Sanchez, 222 F.3d 1169, 1172 (9th Cir. 2000) (quoting Ye v.
INS, 214 F.3d 1128, 1133 (9th Cir. 2000)) (alteration in origi-
nal) (internal quotation marks omitted). The commentary to
the Guidelines includes within its definition of a “crime of
violence” state-law offenses that have “as an element the . . .
threatened use of physical force against the person of anoth-
er.” USSG § 2L1.2 comment. (n.1(B)(iii)).
Before Cortez-Arias reentered this country illegally, he had
been convicted of a felony for shooting at an inhabited dwell-
ing, in violation of California Penal Code section 246. Cali-
fornia law provides in relevant part that “[a]ny person who
shall maliciously and willfully discharge a firearm at an
inhabited dwelling house . . . is guilty of a felony . . . . As
used in this section, ‘inhabited’ means currently being used
for dwelling purposes, whether occupied or not.” Cal. Penal
Code § 246. California case law defines an “inhabited dwell-
ing house” as “lived in.” People v. White, 4 Cal. App. 4th
1299, 1303 (1992).
By its terms and as authoritatively construed, the California
statute requires proof of three elements: (1) a malicious and
willful state of mind, (2) the discharge of a firearm, (3) at an
inhabited dwelling house, meaning a house in which a person
currently and permanently lives. See id. at 1301 n.5, 1302-03.
California state court interpretations of section 246 shed light
on the statute’s requirements.
[6] The California state courts have interpreted section 246
to proscribe an “act of violence committed against the person”
because the statute requires that the defendant “maliciously
and willfully discharge a firearm at an . . . occupied building,”
and the statute criminalizes acts “committed either ‘with the
intent to harm . . . or by means likely to cause harm’ to one
4358 UNITED STATES v. CORTEZ-ARIAS
or more persons.” People v. Hall, 83 Cal. App. 4th 1084,
1089-90 (2000). To hold that shooting at an inhabited dwell-
ing is a crime of moral turpitude under California law, the
state appellate court held that “the least adjudicated elements
of Penal Code section 246 . . . always present a potential for
violence.” White, 4 Cal. App. 4th at 1305. Moreover, in hold-
ing that section 246 is a predicate felony offense for purposes
of the State’s felony-murder rule, the Supreme Court of Cali-
fornia held that section 246 “involves a high probability that
death will result and therefore is an inherently dangerous felo-
ny.” People v. Hansen, 885 P.2d 1022, 1026-27 (Cal. 1994).
Cortez-Arias concedes that shooting at an inhabited dwell-
ing involves the use of “physical force,” but contends that
since the California law considers a dwelling inhabited
“whether occupied or not,” the state law does not have as an
element the use of physical force “against the person of anoth-
er.” We reject appellant’s contention because California law
recognizes that the required elements of violation of section
246 “always present a potential for violence,” White, 4 Cal.
App. 4th at 1305, and it follows that there is always a “threat-
ened use of physical force against the person of another.”9
In the plain sense, “threatened” means “held out or pre-
sented as impending.” See Oxford English Dictionary, avail-
able at www.oed.com. In the legal sense, a “threat” is a “com-
municated intent to inflict harm or loss” or an “indication of
an approaching menace.” See Black’s Law Dictionary 1519
(8th ed. 2004). In the context of the Guidelines commen-
tary,“threatened use of physical force against the person of
another” must logically include acts that communicate to
9
Our conclusion that shooting at an inhabited dwelling is a crime of vio-
lence under USSG § 2L1.2 because it always threatens the use of force
against another person, regardless of whether that person is in the dwelling
when the gun is fired, is reinforced by that Guideline’s listed offense of
“burglary of a dwelling,” which similarly does not require that a victim be
present during commission of the offense to threaten force against that
victim.
UNITED STATES v. CORTEZ-ARIAS 4359
another person an intent to use physical force against that per-
son and acts suggesting that physical force against that person
may be impending.
[7] A person whose home is shot up by an instrument of
deadly force, even though that person may have been absent
at the time of the shooting, will surely feel threatened by the
physical force that has intruded on his or her home. We hold
that maliciously and willfully shooting a gun at a person’s
current permanent residence necessarily threatens the use of
physical force against the resident, regardless of whether the
resident is home at the time the shot is fired.
IV
[8] We conclude that shooting at an inhabited dwelling, in
violation of California Penal Code section 246, is a “crime of
violence” under USSG § 2L1.2. Because Cortez-Arias unlaw-
fully entered the United States after previously being con-
victed of a “crime of violence,” the district court did not err
in enhancing his sentence.
AFFIRMED.