United States v. Ventura-Perez
2012 U.S. App. LEXIS 985
| 10th Cir. | 2012Background
- Ventura-Perez pleaded guilty in 2010 in the District of Colorado to illegal reentry after deportation following an aggravated-felony conviction.
- The defendant previously had a 2004 Texas burglary of a habitation conviction under Texas law (Tex. Penal Code §30.02).
- Texas habitation includes a structure adapted for overnight accommodation and structures appurtenant to or connected with the habitation.
- At sentencing, the district court applied a 16-level enhancement under USSG §2L1.2 for a crime of violence, basing it on the 2004 burglary conviction, plus a base of 8 and a -3 reduction for acceptance of responsibility; total level 21.
- Criminal-history category III yielded a guideline range of 46–57 months; the court downwardly varied to a 30-month sentence.
- On appeal, Ventura-Perez argued (1) the 16-level enhancement was improper because the underlying Texas statute may cover non-dwelling burglaries and (2) the court failed to consider fast-track sentencing disparities.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 16-level crime-of-violence enhancement was proper | Ventura-Perez alleges the Texas burglary statute is broader than burglary of a dwelling and that the record did not prove the prior conviction was for burglary of a dwelling | The government contends the offense can be analyzed via the modified categorical approach to show it covered a dwelling | Yes; the district court committed no error under the modified categorical approach. |
| Whether the district court properly addressed fast-track disparities | Ventura-Perez asserts it did not consider fast-track disparities in other districts | The government argues defendant failed to show eligibility for fast-track treatment | Yes; the court may consider but is not required to, and defendant failed to show eligibility; affirmed without relief |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (1990) (categorical approach for prior offenses)
- Shepard v. United States, 544 U.S. 13 (2005) (modified categorical approach allows review of certain external documents)
- Johnson v. United States, 130 S. Ct. 1265 (2010) (modified categorical approach can apply to statute with multiple phrases covering violent and non-violent crimes)
- Nijhawan v. Holder, 129 S. Ct. 2294 (2009) (identifies use of modified categorical approach in mixed statutes)
- Lopez-Macias, 661 F.3d 485 (10th Cir. 2011) (district courts may consider fast-track disparities if a threshold showing exists)
- Johnson v. Luque-Barahona, 272 F. App’x 521 (7th Cir. 2008) (illustrates reliance on charging documents to apply the modified approach)
- Robledo-Leyva, 307 F. App’x 859 (5th Cir. 2009) (application of modified categorical approach based on charging document)
- Hill v. Oklahoma, 53 F.3d 1151 (10th Cir. 1995) (example of using a statutory phrase within a broader statute to apply the violent-felony category)
- Torres-Romero, 537 F.3d 1155 (10th Cir. 2008) (applies framework for determining violent felonies under ACCA)