United States v. Menéndez-Montalvo

88 F.4th 326

UNITED STATES of America, Appellee, v. Ángel MENÉNDEZ-MONTALVO, Defendant, Appellant.

No. 22-1687

United States Court of Appeals, First Circuit

December 12, 2023

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO [Hon. Aida M. Delgado-Colón, U.S. District Judge] Samuel P. Carrión, with whom Héctor L. Ramos-Vega and Franco L. Pérez-Redondo were on brief, for appellant.

Thomas F. Klumper, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

Before Kayatta, Lipez, and Thompson, Circuit Judges.

KAYATTA, Circuit Judge.

While serving a term of supervised release arising from his conviction for a federal firearm offense, Ángel Menéndez-Montalvo ("Menéndez") breached the conditions of that release by violating Article 3.1 of Puerto Rico's Domestic Violence Law. The calculation of the guidelines sentencing range for Menéndez's supervised release violation turned in relevant part on whether a violation of Article 3.1 is a "crime of violence" as that term is used in section 7B1.1(a)(1) of the United States Sentencing Guidelines. For the following reasons, we find that it is not. We therefore vacate Menéndez's sentence because the district court held to the contrary in calculating a guidelines sentencing range that was higher than it should have been.

I.

On February 8, 2019, Menéndez pled guilty to illegal possession of a firearm by a person with a prior felony conviction, in violation of 18 U.S.C. § 922(g)(1). He received a sentence of 12 months and one day, of which he served only four months before beginning his three-year supervised release term on June 14, 2019. The conditions of his supervised release prohibited Menéndez from "committing another federal, state, or local crime." Menéndez breached those conditions by, among other things, violating Article 3.1 of Puerto Rico Domestic Violence Law 54. Article 3.1 reads as follows:

Any person who employs physical force or psychological abuse, intimidation, or persecution against his/her spouse, former spouse, or the person with whom he/she cohabits or has cohabited, or the person with whom he/she shares a child in common . . . in order to cause physical harm to the person, the property held in esteem by him/her . . . or to another person, or to cause serious emotional harm, shall be guilty of a fourth-degree felony . . . .

P.R. Laws Ann. tit. 8, § 631.

The issue thus posed and contested by the parties was whether Menéndez's violation of Article 3.1 was a Grade A or Grade B violation under Guidelines section 7B1.1(a)(i). The answer matters because while Menéndez's Grade A violation resulted in a Guidelines sentencing range of 15 to 22 months, he contends a Grade B violation would have carried a lower recommended range of 6 to 12 months.

Section 7B1.1(a)(1) provides in relevant part that "conduct constituting" an "offense . . . that . . . is a crime of violence" is a Grade A violation. As the commentary to section 7B1.1 explains, a "crime of violence" is defined in section 4B1.2, which states:

The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . has as an element the use, attempted use, or threatened use of physical force against the person of another.

Menéndez offered two arguments for why a judge or jury could properly convict a person of violating Article 3.1 without having to find all the elements that define a crime of violence. First, he argued that Article 3.1 indivisibly includes both physical and psychological modalities, hence the offense could not be said to require physical force in all circumstances. Second, he argued that even if Article 3.1 is divisible into its physical and psychological versions as different offenses, the physical alternative does not require the type of violent physical force that is required to be a crime of violence.

In rejecting these arguments, the district court found first that Article 3.1 sets forth several divisible offenses, one of which required the use of "physical force." The court then detoured. Rather than asking whether the physical force element of that version of the Article 3.1 offense required the use of violent force sufficient to qualify as a crime of violence under U.S.S.G. § 4B1.2, the court found that Menéndez's actual conduct in fact involved the use of violent force. In the court's words, "I'm looking at the actual conduct that has been described here by the victim, which includes . . . punchings and beatings." Based on its finding of divisibility and its review of the defendant's conduct giving rise to the conviction, the district court concluded that Menéndez had committed a Grade A violation and sentenced him to a term of 18 months imprisonment.

On appeal, Menéndez challenges both steps in the district court's reasoning. He first contends that the district court erred in finding that Article 3.1 is a divisible statute, with both physical and non-physical versions. He then argues that even if Article 3.1 is divisible, its physical version criminalizes the use of even de minimis force, which under controlling precedent is not "violent" force.

II.

"The question of whether an offense qualifies as a crime of violence is a quintessentially legal one, and our review is de novo." United States v. Martinez, 762 F.3d 127, 133 (1st Cir. 2014). We first give a brief overview of the legal framework at issue, and then examine the specifics of Menéndez's arguments on appeal.

The United States Sentencing Guidelines provide for three grades of supervised release violations, each of which carry different sentencing range recommendations. See U.S.S.G. § 7B1.1; United States v. Colón-Maldonado, 953 F.3d 1, 3 (1st Cir. 2020). A "Grade B" violation is defined as "conduct constituting any other federal, state, or local offense punishable by a term of imprisonment exceeding one year." U.S.S.G. § 7B1.1(a)(2). The higher "Grade A" violation, on the other hand, is triggered by "conduct constituting . . . a federal, state, or local offense punishable by a term of imprisonment exceeding one year that (i) is a crime of violence, [or] (ii) is a controlled substance offense." U.S.S.G. § 7B1.1(a)(1). As it pertains to this case, the key distinction between a Grade A violation and a Grade B violation is whether the underlying conviction constitutes a "crime of violence," which the Sentencing Guidelines define as "any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that -- has as an element the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. § 4B1.2(a)(1).

To determine what constitutes such a "crime of violence," courts apply what has come to be known as the categorical approach. See United States v. García-Cartagena, 953 F.3d 14, 21 (1st Cir. 2020). Under this approach, "the question turns not on whether the defendant in fact 'used, attempted to use, or threatened to use violent force in committing the crime as a matter of historical fact, but on whether the use, attempted use, or threatened use of violent force is required to satisfy one of the crime's elements.' " United States v. Williams, 80 F.4th 85, 89-90 (1st Cir. 2023) (quoting United States v. Starks, 861 F.3d 306, 315 (1st Cir. 2017)). And so a court must determine "whether the least serious conduct for which there is a 'realistic probability' of a charge and conviction necessarily involves the use of violent force." Id. at 90. If it does not, then the statute is overbroad, which means that a court cannot automatically treat a violation of the statute as a "crime of violence" as necessary to support a finding of a Grade A violation. Starks, 861 F.3d at 315.

An overbroad statute, however, may still sustain a predicate offense if it is divisible. A statute is divisible where it "list[s] elements in the alternative, and thereby define[s] multiple crimes." Mathis v. United States, 579 U.S. 500, 505, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). For example a state law that prohibits " 'the lawful entry or the unlawful entry' of a premises with intent to steal . . . creates two different offenses" -- one involving the element of lawful entry and one involving the element of unlawful entry. Id. If a statute is divisible, and "some of the alternative elements require the use, attempted use, or threatened use of physical force while others do not," courts thereby apply a "modified" categorical approach. King v. United States, 965 F.3d 60, 66 (1st Cir. 2020). Pursuant to this approach, a court looks to a "specific subset of materials, including the indictment and jury instructions, to determine which of the enumerated alternatives within the statue constituted the actual crime of conviction." Id. And if the actual crime of conviction "involves the use, attempted use, or threatened use of physical force against the person or property of another, then the offense qualifies as a crime of violence." Id.

A.

Having established the legal background against which our analysis proceeds, we now turn to the merits of Menéndez's argument on appeal. Recall that in the proceedings below the district court read Article 3.1 as presenting at least two alternative offenses, one of which is limited to the use of physical force. We find this reading cogent and persuasive, particularly given the statute's use of the disjunctive "or." Further support for this conclusion is found in Puerto Rico's model jury instructions, which treat the physical and non-physical modalities of Article 3.1 as alternative offenses between which a prosecutor may pick and choose. See Proposed Jury Instructions Book, 390-93 § 14.2 (2008) (certified translation).

That being said, we need not and do not decide whether Article 3.1 divisibly includes as one of several offenses an...