United States v. Ortiz-Gonzalez

32 F.Supp.3d 785

UNITED STATES of America, Plaintiff.

v.Samuel ORTIZ–GONZALEZ, Defendant.

Cr. No. B–13–285.

United States District Court, S.D. Texas, Brownsville Division.

Signed Sept. 6, 2013.

Holly Ann D'Andrea, U.S. Attorney's Office, Brownsville, TX, for Plaintiff United States of America.

Jeffrey L. Wilde, Federal Public Defender, Brownsville, TX, Margaret Christina Ling, Office of Federal Public Defender, Houston, TX, for Defendant Samuel Ortiz–Gonzalez.

MEMORANDUM OPINION AND ORDER

ANDREW S. HANEN, District Judge.

The Court is faced with Defendant's objection to the Pre-sentence Investigation Report (“PSR”) prepared by the United States Probation Office. The PSR, as filed with the Court, included a sixteen-point sentencing enhancement to the level eight base offense pursuant to United States Sentencing Guideline § 2L1.2(b)(1)(A)(ii). The basis of the enhancement is Defendant's prior conviction of robbery under Virginia law, which the PSR designated as a crime of violence. For the reasons below, Defendant's objection to the sixteen-point enhancement is DENIED.

I. BACKGROUND

Defendant Samuel Ortiz–Gonzalez pleaded guilty to the charge of illegal reentry after deportation, having been previously convicted of an aggravated felony in violation of 8 U.S.C. §§ 1326(a) and 1326(b). His PSR contained a sixteen-point enhancement due to his prior robbery conviction in the Circuit Court of Alexandria, Virginia on October 5, 2000. Defendant objects to this sixteen-point enhancement on the grounds that Virginia robbery is distinct from the Sentencing Guidelines' enumerated robbery offense.

II. DISCUSSION

A. Legal Background

Under the Sentencing Guidelines, § 1326(a) illegal reentry convictions are subject to an enhancement if the individual committed a prior crime of violence. U.S.S.G. § 2L1.2(b)(1)(A)(ii). The Sentencing Guidelines' comments delineate two ‘crimes of violence’ categories: enumerated offenses and those within a ‘catch-all’ provision. § 2L1.2 cmt. n. 1(B)(iii). The enumerated offenses include “robbery” while the ‘catch-all’ provision includes “any other offense ... that has as an element the use, attempted use, or threatened use of physical force against the person of another.” Id.

To determine whether a prior state conviction falls within an enumerated offense, there are three analytical steps: (1) determining the prior state conviction (2) defining the enumerated offense and (3) comparing the state law with the enumerated offense.

First, when examining the prior conviction, “the analysis is grounded in the elements of the statute of conviction rather than a defendant's specific conduct.”United States v. Rodriguez, 711 F.3d 541, 549 (5th Cir.2013) (en banc); United States v. Calderon–Pena, 383 F.3d 254, 257 (5th Cir.2004) (en banc).

Second, as the United States Supreme Court has explained, the Sentencing Guidelines' enumerated offenses were produced by Congress' use of “uniform, categorical definitions....” Taylor v. United States, 495 U.S. 575, 590, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). However, the Sentencing Guidelines do not provide these uniform, categorical definitions for the enumerated crimes of violence. See United States v. Martinez–Flores, 720 F.3d 293, 295–96 (5th Cir.2013) (“The guidelines, however, do not define the enumerated crimes of violence....”). Therefore, courts must determine the enumerated offenses' definitions before resolving whether the sentence enhancement applies. To address this task, the Fifth Circuit has applied a “ ‘common sense approach,’ defining each crime by its ‘generic, contemporary meaning.’ ” United States v. Martinez–Flores, 720 F.3d 293, 295–96 (5th Cir.2013) (citing United States v. Sanchez–Ruedas, 452 F.3d 409, 412 (5th Cir.2006) ).

Most recently, the Fifth Circuit has also distinguished between the tests for common law and non-common law offenses when deriving the enumerated offenses' generic, contemporary meaning. United States v. Rodriguez, 711 F.3d 541, 552 (5th Cir.2013) (en banc).¹ Robbery has been recognized by the Fifth Circuit as a common law offense. United States v. Rodriguez, 711 F.3d 541, 552 n. 16 (5th Cir.2013) (en banc) (citing LaFave, Criminal Law, § 2.1(e) (5th ed.2010) (stating that robbery is a common law felony)). For common law offenses, the Fifth Circuit derives the ‘generic, contemporary meaning’ by examining sources including the Model Penal Code, criminal law treatises, legal dictionaries, and other state laws. See, e.g., United States v. Martinez–Flores, 720 F.3d 293, 296 (5th Cir.2013) (holding that New Jersey third-degree aggravated assault was not a crime of violence by examining the Model Penal Code and comparing it with the state offense); United States v. Esparza–Perez, 681 F.3d 228, 229–30 (5th Cir.2012) (looking to the Model Penal Code, LaFave's Subst. Crim. L., , modern state codes, and dictionary definitions to derive the generic, contemporary meaning of “aggravated assault” in the § 2L1.2 enhancement); United States v. Gonzalez–Ramirez, 477 F.3d 310, 317–18 (5th Cir.2007) (looking to the Model Penal Code, modern state codes, and LaFave's Subst. Crim. L. . to derive the generic, contemporary meaning of “kidnapping” in the § 2L1.2 enhancement).

While the Fifth Circuit has not ruled that Virginia's robbery crime constitutes an enumerated offense,² it has used the ‘circumstances involving immediate danger’ test when examining Texas' and California's robbery crimes under the § 2L1.2 enumerated robbery offense. See United States v. Castillo–Zuniga, 270 Fed.Appx. 342, 344 (5th Cir.2008) (asking whether the crime involves “[immediate] danger to the person.”) (citing United States v. Santiesteban–Hernandez, 469 F.3d 376 (5th Cir.2006)abrogated by United States v. Rodriguez, 711 F.3d 541 (5th Cir.2013) ) (alteration in original).³ The Fifth Circuit reasoned that “It is this immediate danger element that makes robbery deserving of greater punishment than that provided for larceny and extortion. Such danger is inherently present when property is taken by force or putting in fear.” United States v. Castillo–Zuniga, 270 Fed.Appx. 342, 343 (5th Cir.2008) (citing Santiesteban–Hernandez, 469 F.3d at 380 ) (internal quotation marks and alterations omitted).

Finally, to determine whether a state offense falls within the Guidelines' enumerated offenses, the Fifth Circuit compares the differences between the state offense and the enumerated offense: a “slight imprecision” between the offenses does not remove the state offense from the sentencing enhancement. United States v. Rojas–Gutierrez, 510 F.3d 545, 549 (5th Cir.2007) (“Even if the fit between the enumerated offense ... and the ordinary, contemporary, and common meaning ... may not be precise in each and every way, slight imprecision would not preclude our finding a sufficient equivalence.”).

B. Analysis

Defendant objects that Virginia robbery is not a § 2L1.2 enumerated offense because “Virginia Courts have defined robbery more broadly than the enumerated definition.” (Doc. No. 15). Virginia defines ‘robbery’ by common law to mean “the taking, with intent to steal, of the personal property of another, from his person or in his presence, against his will, by violence or intimidation.” Com. v. Anderson, 278 Va. 419, 424, 683 S.E.2d 536 (Va.2009) (citing Durham v. Commonwealth, 214 Va. 166, 168, 198 S.E.2d 603 (Va.1973) ) (internal quotation marks omitted).

Defendant contrasts the Virginia robbery offense with the Model Penal Code § 222.1, which states: “A person is guilty of robbery if, in the course of committing a theft, he: (a) inflicts serious bodily injury upon another; or (b) threatens another with or purposely puts him in fear of immediate serious bodily injury....” Model Penal Code § 222.1 (West 2013).

By focusing on Virginia's latter intimidation prong, Defendant argues that Virginia robbery is defined more broadly because “threats of violence are not an indispensable ingredient of intimidation.” (Doc. No. 15) (citing Harris v. Com., 3 Va.App. 519, 351 S.E.2d 356 (Va.1986) ). Defendant adds in a supplemental objection that Virginia's robbery crime is also broader because “it does not require ‘immediate’ [injury] or that the bodily injury be ‘serious.’ ” (Doc. No. 24). Lastly, Defendant argues that “there is no requirement in Virginia that the ‘fear’ induced by the defendant's intimidating words or conduct be judged by an objective standard of reasonableness.” (Doc. No. 15) (citing Harris v. Com., 3 Va.App. 519, 351 S.E.2d 356 (Va.1986) ). This Court finds Defendant's arguments to be unpersuasive.

1. ‘Immediate Dangerous Circumstances' Test

First, Defendant's argument that Virginia's intimidation requirement is broader than the enumerated offense does not account for the Fifth Circuit's immediate dangerous circumstances test. As the Fifth Circuit has stated, “the issue is not merely whether [the state robbery offense] § 29.02 has as an element the use or threat of force, but whether the use or threat of force is part of the generic, contemporary meaning of ‘robbery.’ ” Santiesteban–Hernandez, 469 F.3d at 379 (holding that Texas' robbery offense falls within the § 2L1.2 enumerated offense). The generic, contemporary meaning of robbery centers around immediate dangerous circumstances to the victim. Id. at 380.

Virginia's intimidation prong meets both the ‘dangerous' and ‘immediate’ aspects of the test. While threats of violence or bodily harm are not indispensable to Virginia robbery, Virginia law still requires the fear of bodily harm. Harris v. Com., 3 Va.App. 519, 521, 351 S.E.2d 356 (1986) (stating that victims must “actually be put in fear of bodily harm by the willful conduct or words of the accused.”); see also Pressley v. Com., 54 Va.App. 380, 387, 679 S.E.2d 551 (Va.Ct.App.2009) (upholding the robbery conviction because the jury “was entitled to infer ... that the appellant's conduct and words ... plac[ed] the victim in fear of bodily harm....”); Bivins v. Com., 19 Va.App. 750, 753, ...