United States v. Najera–Mendoza

683 F.3d 627

UNITED STATES of America, Plaintiff–Appellee,

v.Iveth NAJERA–MENDOZA, also known as Iveth Najera, Defendant–Appellant.

No. 11–50187.

United States Court of Appeals, Fifth Circuit.

June 8, 2012.

Joseph H. Gay, Jr., Ellen A. Lockwood, Asst. U.S. Attys., San Antonio, TX, for Plaintiff–Appellee.

John David Gates (Court–Appointed), El Paso, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before GARZA, DENNIS and HIGGINSON, Circuit Judges.

DENNIS, Circuit Judge:

Iveth Najera–Mendoza pleaded guilty to one count of attempted illegal reentry into the United States after having been deported, in violation of 8 U.S.C. § 1326, and one count of false personation, in violation of 18 U.S.C. § 1546(a), and was sentenced to concurrent terms of 46 months of incarceration. She now appeals her sentence, contending that the district court erred in applying a sixteen-level sentencing enhancement based on its conclusion that her prior Oklahoma kidnapping conviction was a “crime of violence” under § 2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines.¹ We conclude that the district court erred because the Oklahoma offense does not constitute any of the enumerated offenses that are crimes of violence; nor does it have an element of “physical force,” as that term was defined in Johnson v. United States, ––– U.S. ––––, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), to mean “force capable of causing physical pain or injury to another person,” id. at 1271. Thus, we VACATE Najera–Mendoza's sentence and REMAND to the district court for resentencing.

I.

A.

“We review the district court's characterization of a prior offense as a crime of violence de novo.” United States v. Flores–Gallo, 625 F.3d 819, 821 (5th Cir.2010) (per curiam) (citing United States v. Sanchez–Ruedas, 452 F.3d 409, 412 (5th Cir.2006)). We give controlling weight to the Sentencing Guidelines commentary unless it is plainly erroneous or inconsistent with the Guidelines. Id. (citing United States v. Velasco, 465 F.3d 633, 637 (5th Cir.2006)).

Section 2L1.2 of the Sentencing Guidelines prescribes a sixteen-level increase to the defendant's base offense level if the defendant was previously deported after a conviction for a “crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii); see United States v. Miranda–Ortegon, 670 F.3d 661, 662 (5th Cir.2012). “The Guidelines commentary defines a crime of violence as (1) any of a list of enumerated offenses, which include ‘kidnapping,’ or (2) ‘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.’ ” United States v. Cervantes–Blanco, 504 F.3d 576, 578 (5th Cir.2007) (quoting U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii)). Thus, for Najera–Mendoza's Oklahoma kidnapping offense to be a “crime of violence” under § 2L1.2, “it must be an offense which either belongs to the list of enumerated offenses, or has as an element the use, attempted use, or threatened use” of physical force. Flores–Gallo, 625 F.3d at 821.

In analyzing whether a prior offense qualifies as a crime of violence, this court applies a “categorical inquiry” that “ ‘looks to the elements of the crime, not to the defendant's actual conduct in committing it.’ ” Miranda–Ortegon, 670 F.3d at 663 (emphasis in original) (quoting United States v. Calderon–Pena, 383 F.3d 254, 257 (5th Cir.2004) (en banc)). “[I]f the statute of conviction contains a series of disjunctive elements, this court may look beyond the statute to certain records made or used in adjudicating guilt to determine which subpart of the statute formed the basis of the conviction.” United States v. Moreno–Florean, 542 F.3d 445, 449 (5th Cir.2008); see also Miranda–Ortegon, 670 F.3d at 663 (“We may take a modified categorical approach, permitting consultation of the allegations in the charging instrument, if the statute of conviction has disjunctive elements. But we may look beyond the elements and the fact of conviction only for the limited purpose of ascertaining which of the disjunctive elements the charged conduct implicated.” (footnote omitted)). The records we will consider “are generally limited to the charging document, written plea agreement, transcript of the plea colloquy, and any explicit factual findings by the trial judge to which the defendant assented.” Moreno–Florean, 542 F.3d at 449 (internal quotation marks omitted).

The parties in this case agree that Najera–Mendoza was convicted of violating title 21, section 741 of the Oklahoma Statutes. That section provides:

Any person who, without lawful authority, forcibly seizes and confines another, or inveigles or kidnaps another, with intent, either:

First. To cause such other person to be confined or imprisoned in this state against the will of the other person; or

Second. To cause such other person to be sent out of this state against the will of the other person; or

Third. To cause such person to be sold as a slave, or in any way held to service against the will of such person ....

21 Okla. Stat. § 741. Since the statute has disjunctive elements, we may look to the charging document “only for the limited purpose of ascertaining which of the disjunctive elements the charged conduct implicated.” Miranda–Ortegon, 670 F.3d at 663. Najera–Mendoza acknowledges that she pleaded guilty to an amended information which charged her with “forcibly seizing [the victim] ... and confining [him] in a residence ... without lawful authority and with the intent to cause [him] to be confined/imprisoned against his will.” In Oklahoma, “[a] plea of guilty admits the facts pleaded in the Information.” Collins v. Oklahoma, 521 P.2d 826, 828 (Okla.Crim.App.1974). Thus, the elements of Najera–Mendoza's prior Oklahoma kidnapping offense are: “[W]ithout lawful authority, forcibly seizes and confines another ... with intent ... [t]o cause such other person to be confined or imprisoned against the will of the other person.” 21 Okla. Stat. § 741.

We now turn to consider whether this offense meets the definition of “crime of violence” under § 2L1.2 of the Guidelines by constituting the enumerated offense of “kidnapping,” or by having as an element the use, attempted use, or threatened use of “physical force.”

B.

We first agree with Najera–Mendoza that her Oklahoma kidnapping offense does not constitute the enumerated offense of “kidnapping.” In determining whether a prior state offense is one of the enumerated offenses, “[s]tate-law labels do not control this inquiry because the [crime of violence] enhancement incorporates crimes with certain elements, not crimes that happen to be labeled ‘kidnapping’ ... under state law.” Moreno–Florean, 542 F.3d at 449 (second alteration in original) (internal quotation marks omitted). Instead, we look to whether the elements of the offense of conviction satisfy the “generic, contemporary meaning of kidnapping.” Id. (internal quotation marks omitted).

In Moreno–Florean, this court held that the California offense of kidnapping—which is substantially similar to the Oklahoma kidnapping offense at issue here—did not meet the generic, contemporary definition of kidnapping. Id. at 456.² The panel held that the California offense was not the enumerated offense of “kidnapping” because, even though the California offense required force or the threat of force, it could be violated without proof of two elements that are part of the generic, contemporary definition of kidnapping: (1) substantial interference with the victim's liberty, and (2) circumstances exposing the victim to substantial risk of bodily injury or confinement as a condition of involuntary servitude. Id. at 452–56. Similarly, the Oklahoma kidnapping offense at issue here could be violated without proof of these two elements; and thus, it does not meet the generic, contemporary definition of kidnapping. See id. at 456. Accordingly, we conclude that Najera–Mendoza's Oklahoma kidnapping offense is not the enumerated offense of kidnapping under U.S.S.G. § 2L1.2.

C.

We also agree with Najera–Mendoza that her Oklahoma kidnapping offense did not have as an element the use, attempted use, or threatened use of “physical force.” In Johnson v. United States, ––– U.S. ––––, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), the Supreme Court held that “the phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person.” 130 S.Ct. at 1271 (emphasis in original). Because the Florida battery offense at issue in Johnson included an element of force that could be “satisfied by any intentional physical contact, no matter how slight,” the Court held that it lacked an element of “physical force.” Id. at 1269–71 (emphasis and internal quotation marks omitted). ³

Recently, in United States v. Miranda–Ortegon, 670 F.3d 661 (5th Cir.2012), another panel of this court applied the Johnson definition of “physical force” to hold that an Oklahoma assault and battery offense was not a crime of violence because it lacked the necessary element of physical force. Id. at 663 (quoting Flores–Gallo, 625 F.3d at 823, in turn quoting Johnson, 130 S.Ct. at 1271). The court explained that even though the Oklahoma assault and battery statute has an element of “force or violence,” that element could be satisfied by “only the slightest touching.” Id. (internal quotation marks omitted). Thus, the offense was not a crime of violence merely because it included as an element the word “force.” Instead, the determinative issue was whether the amount of force necessary to satisfy that element of the crime could only be satisfied by “force capable of causing physical pain or injury to another person.” Id.

Following Johnson and Miranda–Ortegon in the instant case leads us to conclude that Najera–Mendoza's Oklahoma kidnapping conviction lacks the requisite element of physical force. The pertinent “force” element of...