United States v. Venzor-Granillo
2012 U.S. App. LEXIS 2656
10th Cir.2012Background
- Venzor-Granillo pleaded guilty to illegal reentry after removal under 8 U.S.C. § 1326(a),(b)(2).
- The PSR treated the Colorado 18-4-502 first-degree criminal trespass conviction as an aggravated felony, suggesting an eight-level enhancement under § 2L1.2(b)(1)(C).
- The Colorado statute criminalizes trespass to a dwelling or to a motor vehicle with intent to commit a crime; Venzor-Granillo admitted the latter portion.
- District court applied the modified categorical approach, reviewing the charging document and plea to determine the specific offense, and concluded it was trespass to a motor vehicle with intent to commit theft.
- The charging document and plea showed he was charged with and pleaded guilty to trespass to a motor vehicle with intent to commit theft, supporting a finding of an attempted theft.
- Court affirms the district court’s eight-level enhancement under § 2L1.2(b)(1)(C) after applying the modified categorical approach.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court properly applied the modified categorical approach | Venzor-Granillo argues the approach is improper for determining the offense. | The government argues the approach is appropriate because the statute is ambiguous. | Yes; the court upholds applying the modified categorical approach. |
| Whether the Colorado trespass statute is ambiguous enough to warrant modification | The statute is not ambiguous; only the face shows trespass to vehicle. | Because the statute is broad, the modified approach should be used to identify the charged offense. | Yes; the statute is ambiguous and supports modification. |
| Whether the records show admission to elements of the generic offense for enhancement | Charging document/plea show admission to theft-related elements. | Records do not show admission to the generic offense elements. | Yes; the records show admission to the elements of attempt to commit theft. |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (1990) (categorical approach guidance for generic offenses)
- Shepard v. United States, 544 U.S. 13 (2005) (allows limited review of Shepard materials under modified approach)
- Martinez-Hernandez, 422 F.3d 1084 (10th Cir. 2005) (elements-based comparison for generic offenses under categorical approach)
- Zuniga-Soto, 527 F.3d 1110 (10th Cir. 2008) (limits when reviewing which part of statute was charged under modified approach)
- Vargas v. DHS, 451 F.3d 1105 (10th Cir. 2006) (statute with broad reach may be analyzed via modified approach to identify predicate offense)
- Nijhawan v. Holder, 129 S. Ct. 2294 (2009) (Supreme Court on definition of aggravated felony)
- Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc; modified approach for ambiguous statutes)
- Martinez-Garcia, 268 F.3d 460 (7th Cir. 2001) (discussion of modified categorical approach for theft-related offenses)
- Lopez-Elias v. Reno, 209 F.3d 788 (5th Cir. 2000) (similar use of modified approach for generic offenses)
- Vasquez-Flores, 265 F.3d 1122 (10th Cir. 2001) (definition of generic offense elements)