United States v. Flores-Granados

783 F.3d 487

UNITED STATES of America, Plaintiff–Appellee

v.Marlon FLORES–GRANADOS, Defendant–Appellant.

No. 14–4249.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 27, 2015.

Decided: April 15, 2015.

ARGUED:Caroline Swift Platt, Office of the Federal Public Defender, Alexandria, Virginia, for Appellant. Elizabeth Marie Yusi, Office of the United States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF:Michael S. Nachmanoff, Federal Public Defender, Keith L. Kimball, Assistant Federal Public Defender, Office of the Federal Public Defender, Alexandria, Virginia, for Appellant. Dana J. Boente, United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.

Before WILKINSON, KING, and DUNCAN, Circuit Judges.

Opinion

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge KING and Judge DUNCAN joined.

WILKINSON, Circuit Judge:

In 2013, Marlon Flores–Granados pled guilty to a single-count indictment for illegal reentry into the United States following deportation and a conviction for an aggravated felony. See 8 U.S.C. § 1326(a), (b)(2). He now challenges his sentence, specifically the 16–level enhancement that was applied pursuant to the United States Sentencing Guidelines § 2L1.2(b)(1)(A)(ii) for prior conviction of a “crime of violence.” We hold that under North Carolina law a conviction for second-degree kidnapping does constitute a crime of violence, and thus affirm Flores–Granados' sentence.

I.

Marlon Flores–Granados is a native and citizen of Honduras. On August 13, 2006 he was arrested and charged with second-degree kidnapping, assault with a deadly weapon with intent to kill or inflict serious bodily injury, and other state charges. He was convicted in February, 2007 of two counts of second-degree kidnapping in violation of North Carolina General Statute § 14–39 and sentenced to 25–39 months of confinement and probation. In March of 2007, he was removed from the United States to Honduras by the Department of Homeland Security's Immigration and Customs Enforcement.

Flores–Granados reentered the United States illegally at some point prior to August 5, 2013, when he was arrested for possession of a controlled substance and assault and battery in Virginia Beach, VA. He was charged in the Eastern District of Virginia with Reentry of a Deported Alien in violation of 8 U.S.C. § 1326(a) and (b)(2) to which he pled guilty.

Flores–Granados' presentence investigation report initially recommended an 8–level enhancement for a previous conviction for an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C). Following an objection by the government, the probation office agreed that Flores–Granados' prior conviction for second-degree kidnapping in North Carolina qualified as a prior conviction for a ‘crime of violence’ under U.S.S.G. § 2L1.2(b)(1)(A)(ii) and thus a 16–level enhancement should be applied instead. With the additional enhancement, Flores–Granados had an Offense Level Total of 21 and a Criminal History Category of IV generating a recommended Guidelines Range of 57–71 months.

At the sentencing hearing, the district court adopted the presentence investigation report, noting that the defendant objected to the 16–level enhancement, and wanted only the 8–level enhancement instead. After argument from both parties, the district judge agreed with the government that the 16–level enhancement was proper, finding that defendant's conviction under § 14–39 for second-degree kidnapping was in fact a crime of violence under the Guidelines. The court stated that:

[T]he Court should not simply accept the 16–point enhancement based upon the title of the prior conviction. However, in this case the record reflects that he threatened the victim with having a gun, broke into her apartment in the middle of the night while she was asleep, told her he had a gun, and then stabbed her with a screwdriver, and I think that qualifies as the type of violent conduct which justifies the 16–point enhancement.

The Court is not relying simply on the fact that he was convicted of second-degree kidnapping, but those facts suggest the violence of his conduct in the course of the kidnapping. He also has a number of other convictions for violent conduct, mostly against the same person. But, again, he became involved in violent conduct very recently.

J.A. 68–69. After considering the Guidelines calculations and the sentencing factors laid out in 18 U.S.C. § 3553(a), the district court sentenced Flores–Granados to 57 months imprisonment. This appeal followed.

II.

A.

Under the U.S. Sentencing Guidelines, a defendant who “previously was deported” after a conviction for a “crime of violence” and unlawfully returned to the United States is subject to an enhancement of either 12 or 16 levels depending on whether the conviction receives criminal history points. U.S.S.G. § 2L1.2(b)(1)(A)(ii). The application notes define a crime of violence as any of a list of enumerated offenses, including “kidnapping,” or “any other offense ... that has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2 Application Notes 1(B)(iii). Flores–Granados contends on appeal that the district court erred in finding his prior conviction in North Carolina qualified as a crime of violence within the meaning of § 2L1.2 of the Guidelines. Whether a prior conviction should be considered a crime of violence is a question of law and we review the district court's determination de novo. See, e.g., United States v. Jenkins, 631 F.3d 680, 682 (4th Cir.2011).

Even though the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), focused on whether a conviction qualified as a “violent felony” under the Armed Career Criminal Act (ACCA) we “apply its analysis to the ‘crime of violence’ definition [under U.S.S.G. § 2L1.2(b)(1)(A)(ii) ] as well.” United States v. Bonilla, 687 F.3d 188, 190 n. 3 (4th Cir.2012) ; see also United States v. King, 673 F.3d 274, 279 n. 3 (4th Cir.2012). We “rely on precedents evaluating whether an offense constitutes a ‘crime of violence’ under the Guidelines interchangeably with precedents evaluating whether an offense constitutes a ‘violent felony’ under the ACCA because the two terms have been defined in a manner that is ‘substantively identical.’ ” King, 673 F.3d at 279 n. 3 (quoting United States v. Jarmon, 596 F.3d 228, 231 n. * (4th Cir.2010) ).

When considering whether a predicate state crime constitutes a “crime of violence,” we examine the elements of the offense using the categorical approach laid out in Taylor. See 495 U.S. at 598–602, 110 S.Ct. 2143 ; Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). In Taylor, the Supreme Court found that with regard to prior crimes enumerated in a sentencing enhancement statute, Congress intended to refer to “the generic, contemporary meaning” of the crime. Taylor, 495 U.S. at 598, 110 S.Ct. 2143. Such meaning, the Court explained, can be divined from “the generic sense in which the term is now used in the criminal codes of most States.” Id.

We begin with the fact that kidnapping is an enumerated offense included by the Sentencing Commission in the definition of “crime of violence.” Thus, if we find that the North Carolina statute falls within the generic definition of kidnapping, we need not look to the residual clause as to whether “use of force” is an element of the crime. See U.S.S.G. § 2L1.2(b)(1)(A)(ii) Application Notes 1(B)(iii). The label of kidnapping used by North Carolina with regard to Flores–Granados' prior conviction is only the start of the inquiry.

Under the categorical approach, the court must identify the generic contemporary meaning of the enumerated crime. See United States v. Perez–Perez, 737 F.3d 950, 952 (4th Cir.2013). We then compare that definition to the state statute under which defendant was previously convicted. Id. If the defendant was previously convicted “in a State where the generic definition has been adopted” or where the “state statute is narrower than the generic view” then “there is no problem” because in both cases “the conviction necessarily implies that the defendant has been found guilty of all the elements of [the] generic [crime].” Taylor, 495 U.S. at 599, 110 S.Ct. 2143. However, if the state statute “criminalize[s] a broader scope of conduct than the Guideline crime [then it] is not categorically a crime of violence.” Perez–Perez, 737 F.3d at 953.

B.

Under the categorical approach, “the sentencing court ... must look only to the statutory definitions of the prior offenses” and may not look “to the particular facts underlying those convictions.” Taylor, 495 U.S. at 600, 110 S.Ct. 2143 ; see also Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). A modified categorical approach may be used in cases where the state statute under which the defendant was previously convicted “sets out one or more elements of the offense in the alternative,” but not where the statute is “indivisible.” Descamps, 133 S.Ct. at 2281. Moreover, even under the modified categorical approach, the later court is “generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The judge may not consider “police reports or complaint applications.” Id.

The district court thus erred in referencing the facts of Flores–Granados' prior kidnapping conviction. See J.A. 68–69 (“[H]e ... broke into her apartment in the middle of the night while she was asleep, told her he had a gun, and then stabbed her with a screwdriver, and I think that qualifies as the type of violent conduct which justifies the 16–point enhancement.”). Although the statute's elements...