Case: 12-12344 Date Filed: 03/26/2013 Page: 1 of 8
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12344
________________________
D.C. Docket No. 3:12-cr-00010-HLA-TEM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JONAS CORONADO-CURA,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(March 26, 2013)
Before CARNES, HULL, and FAY, Circuit Judges.
CARNES, Circuit Judge:
This is the latest in a seemingly endless stream of cases raising “aggravated
felony” and “violent felony” issues. The particular issue presented is whether the
Case: 12-12344 Date Filed: 03/26/2013 Page: 2 of 8
crime of simple vehicle flight as defined in Fla. Stat. § 316.1935(2) is an
“aggravated felony” under § 2L1.2(b)(1)(C) of the sentencing guidelines. Earlier
this year we held that the crime is a “violent felony” under the Armed Career
Criminal Act (ACCA). United States v. Petite, 703 F.3d 1290, 1291 (11th Cir.
2013). But is it also an “aggravated felony” under § 2L1.2(b)(1)(C) of the
sentencing guidelines? Yes, it is.
I.
Jonas Coronado-Cura pleaded guilty to illegally reentering the United States
after having been removed to Mexico, in violation of 8 U.S.C. § 1326. The
presentence investigation report assigned a base offense level of 8. See United
States Sentencing Guidelines § 2L1.2(a) (Nov. 2011). The PSR also indicated that
Coronado-Cura had a felony conviction in Florida for fleeing or attempting to
elude a police officer (also called simple vehicle flight), in violation of Fla. Stat. §
316.1935(2). The sentencing guidelines provide for enhancements when a
defendant convicted of unlawfully entering or remaining in the United States has a
prior felony conviction. See U.S.S.G. § 2L1.2(b). The amount of the enhancement
depends on the type of felony. Id. The PSR concluded that because of his Florida
conviction, Coronado-Cura should receive a 4-level enhancement under U.S.S.G. §
2L1.2(b)(1)(D), which applies to felony offenses not covered by §
2L1.2(b)(1)(A)–(C). The PSR also gave Coronado-Cura a 2-level reduction for
2
Case: 12-12344 Date Filed: 03/26/2013 Page: 3 of 8
acceptance of responsibility, resulting in a total offense level of 10. That offense
level combined with Coronado-Cura’s criminal history category of IV resulted in a
guidelines range of 15 to 21 months imprisonment.
The government objected to the PSR, arguing that Coronado-Cura should
have received an 8-level enhancement under § 2L1.2(b) because his Florida
conviction for simple vehicle flight qualifies as an “aggravated felony” under §
2L1.2(b)(1)(C). At sentencing, the district court sustained the government’s
objection, finding that as defined in Fla. Stat. § 316.1935(2) the crime of simple
vehicle flight necessarily involves a “substantial risk of violent force” and
therefore is an aggravated felony. The court adopted the PSR to the extent that it
assigned a base offense level of 8. To that base the court added 8 levels for the
prior conviction. It subtracted 4 levels for participation in the fast track program
and another 3 levels for acceptance of responsibility. The result (8 + 8 – 4 – 3) was
an offense level of 9, which combined with his criminal history category of IV to
give Coronado-Cura a guidelines range of 12 to 18 months imprisonment. The
court sentenced him to 18 months imprisonment. This is his appeal.
II.
Coronado-Cura’s sole contention is that he should not have gotten an 8-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(C) because his Florida conviction for
3
Case: 12-12344 Date Filed: 03/26/2013 Page: 4 of 8
simple vehicle flight is not an aggravated felony. The crime of simple vehicle
flight is defined in Fla. Stat. § 316.1935(2), which provides:
Any person who willfully flees or attempts to elude a law enforcement
officer in an authorized law enforcement patrol vehicle, with agency
insignia and other jurisdictional markings prominently displayed on
the vehicle, with siren and lights activated commits a felony of the
third degree, punishable as provided in s. 775.082, 775.083, or s.
775.084.
Fla. Stat. § 316.1935(2). The elements of the crime are: “(1) an officer in a law
enforcement patrol vehicle, with its jurisdictional markings prominently displayed
and its siren and lights activated, orders the motorist to stop; and (2) the motorist
willfully flees or attempts to elude the officer.” Petite, 703 F.3d at 1292.
For § 2L1.2(b)(1)(C) enhancement purposes, “aggravated felony” has the
meaning given to the term in section 101(a)(43) of the Immigration and Nationality
Act, 8 U.S.C. § 1101(a)(43). U.S.S.G. § 2L1.2 cmt. n.3(A). Section 101(a)(43), in
turn, includes in its definition of aggravated felony “crime of violence,” as defined
in 18 U.S.C. § 16. 8 U.S.C. § 1101(a)(43)(F). And “crime of violence” in § 16 is
defined to include any felony “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(b). By that circuitous route a §
2L1.2(b)(1)(C) “aggravated felony” is one that, by its nature, involves a substantial
risk that physical force will be used against the person or property of another
during the crime.
4
Case: 12-12344 Date Filed: 03/26/2013 Page: 5 of 8
We held in Petite that a conviction for simple vehicle flight under Fla. Stat. §
316.1935(2) falls within the definition of “violent felony” under the ACCA. That
definition includes, among other things, any felony that “is burglary, arson, or
extortion, involves use of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii)
(emphasis added). We recognized in Petite that the Supreme Court’s decision in
Sykes v. United States, — U.S. —, 131 S.Ct. 2267 (2011), had abrogated our
earlier decision in United States v. Harrison, 558 F.3d 1280 (11th Cir. 2009),
which had held that simple vehicle flight was not a violent felony under the
ACCA. See Petite, 703 F.3d at 1297–99. We reasoned that “[t]he Supreme Court
[in Sykes] could not have been clearer in concluding that vehicle flight from a law
enforcement officer is an extraordinarily risky enterprise” because it ordinarily
results in a “dangerous confrontation between the offender and the law
enforcement officer.” Id. at 1296–97. We said of the Sykes decision:
A common theme pervading the Supreme Court’s risk analysis was
that, in assessing the degree of risk presented by the crime of vehicle
flight, we are obliged to look beyond the driving conduct of the
offender alone. The calculus also must take into account the obvious
fact that vehicle flight from a law enforcement vehicle — in direct
defiance of an officer’s orders — necessarily provokes a
confrontational response from the officer. The confrontational act of
simple vehicle flight in violation of Florida law arises in a context
where both the offender and the officer are in vehicles that can cause
serious potential risk of injury to another.
5
Case: 12-12344 Date Filed: 03/26/2013 Page: 6 of 8
Id. at 1296 (citations and quotation marks omitted). Applying the Sykes risk
analysis, we concluded that simple vehicle flight under Fla. Stat. § 316.1935(2) is a
violent felony for ACCA purposes. Id. at 1300.
To determine whether Petite’s extension of Sykes should be extended to this
case, we compare the definition of violent felony under the ACCA with the
definition of aggravated felony under the sentencing guidelines. The more
comparable the definitions, the more compelling the conclusion that simple vehicle
flight should be held to be an aggravated felony for § 2L1.2(b)(1)(C) purposes, just
as it was held to be a violent felony for ACCA purposes.
The definitions of aggravated felony and of violent felony both focus on the
risk that is created by the criminal conduct. As to the degree of risk, the guidelines
require conduct that “involves a substantial risk,” while the ACCA requires
conduct that “presents a serious potential risk.” There is no material difference in
those risk levels. In describing what is protected from the risk, however, the two
definitions do differ. The guidelines enhance punishment to protect “the person or
property of another” from physical force, while the ACCA enhances punishment to
protect against “physical injury to another” but not to property. The guidelines
definition is broader. It covers what the ACCA definition does and then some, the
additional “some” being injury to property as well as person. The difference is
significant with a vehicle flight crime because the confrontational nature of the
6
Case: 12-12344 Date Filed: 03/26/2013 Page: 7 of 8
crime risks injury to property as well as to persons. See Sykes, 131 S.Ct. at 2274
(“Between the confrontations that initiate and terminate the incident, the
intervening pursuit creates high risks of crashes.”). Many car crashes injure cars
and other property but not people.
The guidelines definition is broader in another way. The ACCA definition
includes enumerated crimes — burglary, arson, extortion, and crimes involving the
use of explosives — while the guidelines do not. “Under the ejusdem generis
canon of construction, where general words follow a specific enumeration of
persons or things, the general words should be limited to persons or things similar
to those specifically enumerated.” Allen v. Thomas, 161 F.3d 667, 671 (11th Cir.
1998) (quotation marks omitted). It follows that a violent felony under the
ACCA’s residual clause must present a risk that is comparable to the risk posed by
the enumerated crimes. See Petite, 703 F.3d at 1294. The guidelines definition is
not limited in that way because it does not contain any enumerated crimes.
Coronado-Cura counters that the § 2L1.2(b)(1)(C) definition is narrower
because it requires that the risk of physical force occur “in the course of
committing the offense” while the ACCA definition does not. He argues that we
should look only at the conduct of the offender, and not at the risk created by the
response of law enforcement to that conduct. That’s wrong. While the guidelines
definition does require that there be a substantial risk that physical force will be
7
Case: 12-12344 Date Filed: 03/26/2013 Page: 8 of 8
used “in the course of committing the offense,” nothing in that definition says that
the physical force must come from the offender. The risk the guidelines seek to
avoid is the risk that force will be used against the person or property of another,
and force is force regardless of whether it comes directly from the fleeing offender
or the pursuing officers.
For the reasons we have discussed, the definition of violent felony for
ACCA purposes is narrower than, and fits within, the definition of aggravated
felony for § 2L1.2(b)(1)(C) purposes. From that recognition comes the major
premise of the syllogism that decides this case: Any crime that is an ACCA
violent felony is also a § 2L1.2(b)(1)(C) aggravated felony; the Florida crime of
simple vehicle flight is an ACCA violent felony; therefore, that crime is also a §
2L1.2(b)(1)(C) aggravated felony.
AFFIRMED.
8