U.S. v. Armijo

651 F.3d 1226

UNITED STATES of America, Plaintiff–Appellee,

v.Edward Benito ARMIJO, Defendant–Appellant.

No. 09–1533.

United States Court of Appeals, Tenth Circuit.

July 12, 2011.

Jessica E. Yates (Neil Peck with her on the briefs), Snell & Wilmer L.L.P., Denver, CO, for Defendant–Appellant.James C. Murphy, Assistant United States Attorney (David M. Gaouette, United States Attorney, with him on the brief), Denver, CO, for Plaintiff–Appellee.Before BRISCOE, Chief Judge, HOLLOWAY, and MURPHY, Circuit Judges.MURPHY, Circuit Judge.

I. INTRODUCTION

Edward Benito Armijo pleaded guilty to a single count of being a felon illegally in possession of a firearm. 18 U.S.C. § 922(g)(1). The Presentence Investigation Report (“PSR”) concluded Armijo's base offense level was twenty-four because he had two prior felony convictions for crimes of violence. U.S.S.G. § 2K2.1(a)(2) (2008) ¹ (setting base offense level of twenty-four for unlawful possession of a firearm by a defendant with two previous felony convictions for crimes of violence); id. § 4B1.2(a) (defining crime of violence). In support of the application of § 2K2.1(a)(2), the PSR identified Armijo's 1998 felony menacing conviction, Colo.Rev.Stat. § 18–3–206, and his 2002 manslaughter conviction, Colo.Rev.Stat. § 18–3–104(a). Armijo objected to the application of § 2K2.1(a)(2), asserting neither his felony menacing conviction nor his manslaughter conviction constituted a crime of violence. The district court rejected Armijo's objections, concluding both predicate felonies were crimes of violence for purposes of § 2K2.1(a)(2).

Armijo asserts the district court erred in treating his Colorado convictions as crimes of violence for purposes of § 2K2.1(a)(2). Furthermore, for the first time on appeal, he argues the district court erred in considering his felony menacing conviction for the additional reason that the conviction is stale. See U.S.S.G. § 2K2.1 cmt. n. 10 (providing that for purposes of § 2K2.1(a)(2) “use only those felony convictions that receive criminal history points under § 4A1.1(a), (b), or (c)”); id. § 4A1.2(e) (providing that prior convictions not exceeding “one year and one month” that were not “imposed within ten years of the defendant's commencement of the instant offense” are not counted for purposes of § 4A1.1); id. § 4A1.1 cmt. n. 3 (same). Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), this court concludes Armijo's manslaughter conviction is not a crime of violence as that term is defined in the Guidelines. Armijo's felony menacing conviction, on the other hand, is a crime of violence for purposes of the Guidelines. Because this matter must be remanded for resentencing, and because the facts surrounding the sentencing proceedings on the felony menacing conviction in Colorado state court are not fully developed, we decline to resolve whether Armijo's menacing conviction is stale and thus not to be considered in calculating Armijo's base offense level. Instead, that matter can be fully adjudicated on remand to the district court. Accordingly, we remand this matter to the district court to conduct further proceedings consistent with this opinion.

II. ANALYSIS

This court reviews sentences for reasonableness under a deferential abuse-of-discretion standard. United States v. Sayad, 589 F.3d 1110, 1116 (10th Cir.2009). “Reasonableness review is a two-step process comprising a procedural and a substantive component.” United States v. Verdin–Garcia, 516 F.3d 884, 895 (10th Cir.2008). For its sentencing decision to be procedurally reasonable, a district court must, inter alia, correctly compute the applicable Guidelines range. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). “Review for substantive reasonableness focuses on whether the length of the sentence is reasonable given all the circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).” United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir.2009) (quotation omitted). Each of the issues Armijo raises on appeal implicates only the procedural reasonableness of his sentence. Accordingly, this court focuses exclusively on the question whether the district court erred in calculating Armijo's advisory Guidelines range

A. Crime of Violence

Armijo contends the district court erred in concluding his Colorado state felony menacing conviction and his Colorado state manslaughter conviction are crimes of violence for purposes of § 2K2.1(a)(2). This court reviews de novo the district court's conclusion that Armijo's Colorado state felony convictions constitute crimes of violence for purposes of the Guidelines. United States v. Vigil, 334 F.3d 1215, 1218 (10th Cir.2003). In interpreting the Guidelines, this court looks “at the language in the guideline itself, as well as at the interpretative and explanatory commentary to the guideline provided by the Sentencing Commission.” United States v. McConnell, 605 F.3d 822, 824 (10th Cir.2010) (quotation omitted). “Commentary to the Guidelines is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Id. (quotations omitted).

Section 2K2.1(a)(2) establishes a base offense level of twenty-four “if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 2K2.1(a)(2).² “ ‘Crime of violence’ has the meaning given that term in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2.” Id. § 2K2.1 cmt. n. 1. Section 4B1.2, in turn, defines “crime of violence” as follows:

(a) The term “crime of violence” means 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 threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Id. § 4B1.2(a). The application notes to § 4B1.2(a) further provide that

“Crime of violence” includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as “crimes of violence” if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth ( i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another.

Id. § 4B1.2 cmt. n. 1.

“In determining whether a conviction qualifies as a crime of violence under § 4B1.2, we apply a categorical approach that looks to the words of the statute and judicial interpretations of it, rather than to the conduct of any particular defendant convicted of that crime.” McConnell, 605 F.3d at 825 (quotations omitted). “As the Supreme Court recently explained, under the categorical approach we consider the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” United States v. Rooks, 556 F.3d 1145, 1147 (10th Cir.2009) (quotation omitted). If the criminal statute setting out the predicate felony “is ambiguous, or broad enough to encompass both violent and nonviolent crimes, we employ the so-called ‘modified categorical approach’ which allows analysis of certain records of the prior proceeding, such as the charging documents, the judgment, any plea thereto, and findings by the sentencing court.” United States v. Charles, 576 F.3d 1060, 1067 (10th Cir.2009) (quotations and citation omitted). Review under the modified categorical approach “does not involve a subjective inquiry into the facts of the case, but rather its purpose is to determine which part of the statute was charged against the defendant and, thus, which portion of the statute to examine on its face.” Id. (quotation omitted).

1. Felony Menacing

According to Colorado law, “[a] person commits the crime of menacing if, by any threat or physical action, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury.” Colo.Rev.Stat. § 18–3–206. Menacing is a felony if it is accomplished by the use or threatened use of a “deadly weapon.” Id. Colorado defines the term “deadly weapon” broadly to include not only guns, knives, and bludgeons, but also “[a]ny other weapon, device, instrument, material, or substance, whether animate or inanimate.” Id. § 18–1–901(e).

As Armijo recognizes, this court previously concluded Colorado felony menacing is categorically a violent felony for purposes of the Armed Career Criminal Act (“ACCA”).³United States v. Herron, 432 F.3d 1127, 1138 (10th Cir.2005). Herron recognized that the use-of-force element of Colorado felony menacing is symmetrical with the ACCA's use-of-force requirement:

[The defendant's felony menacing] convictions were undoubtedly for violent felonies. He “knowingly place[d] or attempt[ed] to place another person in fear of imminent serious bodily injury ... by the use of a deadly weapon.” [Colo.Rev.Stat. § 18–3–206]. This conduct easily satisfies the requirement of “the threatened use of physical force against the person of another,” under the ACCA. 18 U.S.C. § 924(e)(2)(B)(i). “Knowingly placing someone in fear ... by the use of a deadly weapon” certainly constitutes threatening someone. [The defendant] argues that menacing cannot be a violent felony because under Colorado law the term deadly weapon is defined so broadly as to...