UNITED STATES of America, Plaintiff-Appellee v. Brandon Gabriel MONTIEL-CORTES, also known as Brandon Gabriel Garcia-Co, also known as Brandon Gabriel Garcia-Cortez, Defendant-Appellant
No. 16-50074
United States Court of Appeals, Fifth Circuit
FILED January 30, 2017 REVISED February 1, 2017
221
Even if we accept the district court‘s conclusion that BOP‘s initial failure to provide interpreters is not significant enough, on its own, to establish a constitutional violation, Heyer‘s claim is not concerned with seeking damages for past constitutional wrongs. Instead, Heyer seeks a court ruling that, because the length of his confinement is dependent in large part on BOP‘s assessment of his mental health, BOP is constitutionally obliged to provide interpreters for all aspects of the mental-health treatment it offers to Adam Walsh detainees, and he also seeks an injunction ordering BOP to provide the necessary interpreters. BOP‘s post-litigation decision to provide interpreters for some aspects of Heyer‘s treatment clearly provides no basis for rejecting Heyer‘s claim on the merits. Accordingly, we conclude that the district court erred by granting summary judgment in favor of BOP on Count II.
VI.
To summarize, we conclude that Heyer has presented sufficient evidence to preclude summary judgment in favor of BOP on Heyer‘s medical-treatment claims (Counts IV and VI), safe-environment claim (Count VII), and videophone- and TTY-related First Amendment claims (Count VIII). We therefore vacate the district court‘s order granting summary judgment in favor of BOP as to those claims, and we remand those claims for trial.
As to Counts II, IX, and X, we conclude that the district court erred by giving dispositive effect to BOP‘s post-litigation assurances that it would provide the ASL interpreters Heyer requested. We therefore vacate the district court‘s order granting summary judgment in favor of BOP on Count II and dismissing Counts IX and X as moot. On remand, the district court may re-evaluate the merits of these claims in light of the evidence presented by the parties, but the court may not give dispositive effect to BOP‘s assurances that qualified interpreters will be provided.
Finally, because Heyer does not challenge it on appeal, we affirm the district court‘s dismissal of Count III.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
PER CURIAM:
Brandon Gabriel Montiel-Cortes pleaded guilty to illegal reentry following deportation. At sentencing, the district court concluded that his 2013 Nevada conviction for robbery constituted a “crime of violence” within the meaning of United States Sentencing Guidelines
Joseph H. Gay, Jr., Elizabeth Berenguer, Assistant U.S. Attorneys, U.S. Attorney‘s Office, San Antonio, TX, for Plaintiff-Appellee.
Kristin L. Davidson, Assistant Federal Public Defender, Maureen Scott Franco, Federal Public Defender, Federal Public Defender‘s Office, San Antonio, TX, for Defendant-Appellant.
I.
After Montiel-Cortes pleaded guilty without a plea agreement to illegal reentry following deportation, his presentence investigation report (“PSR“) determined that his total offense level was 21, which included, inter alia, a 16-level increase for his 2013 Nevada conviction for robbery, in violation of
The PSR concluded that Montiel-Cortes‘s Nevada robbery conviction qualified as a “crime of violence” under
Montiel-Cortes objected to the 16-level enhancement, arguing that the Nevada robbery offense was not a crime of violence because it encompassed conduct broader than the generic, contemporary definition of robbery. He argued that the Nevada offense, in contrast to generic robbery, did not require immediacy or a specific use of force. He also argued that the Supreme Court‘s grant of a writ certiorari in Mathis v. United States, — U.S. —, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), discussed below, might have some impact on his case.
The district court overruled Montiel-Cortes‘s objection, holding that his Nevada robbery conviction was necessarily a crime of violence—specifically, the generic crime of robbery—under the modified categorical approach, also discussed below. The court sentenced him to 57 months in prison and three years of nonreporting supervised release. He timely appealed.
II.
This appeal turns on whether the district court correctly interpreted the sentencing guidelines when it determined, under the modified categorical approach, that Montiel-Cortes‘s 2013 Nevada robbery conviction necessarily constituted the generic crime of robbery. We review the district court‘s interpretation of the sentencing guidelines de novo.4
At the outset, we agree with the parties that, under Mathis, the district court erred by applying the modified categorical framework and instead should have applied the categorical approach. We recently summarized these two approaches in United States v. Howell, 838 F.3d 489, 494 (5th Cir. 2016) as follows:
In determining if a prior conviction is for an offense enumerated or defined in a Guidelines provision, we generally apply the categorical approach and look to the elements of the offense enumerated or defined by the Guideline section and compare those elements to the elements of the prior offense for which the defendant was convicted. We do not consider the actual conduct of the defendant in committing the offense. If the offense is an enumerated offense, such as burgla-
ry, we first determine the elements contained in the generic, contemporary meaning of that offense. In one of several decisions on the subject, the Supreme Court explained the application of the categorical approach in Descamps v. United States [— U.S. —, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013)]. The Supreme Court also explained in Descamps, as it had in prior opinions, that when a statute defines more than one crime, and not all of them constitute an enumerated generic offense, courts employ the “modified categorical approach” to “determine which crime formed the basis of the defendant‘s conviction.” Courts may consult certain records pertaining to the prior offense to ascertain if the conviction rested on the generic or defined crime or instead was an over-inclusive offense that could not support a sentence enhancement. But, if the statute of conviction is not divisible, “[t]he modified [categorical] approach ... has no role to play.”5
In Mathis, the Supreme Court provided further guidance on how to determine whether a statute is divisible:
Though Mathis dealt with the ACCA [Armed Career Criminal Act], rather than the Guidelines, the methodology of determining whether a statute is divisible and therefore whether the modified categorical approach may be employed, is the same, unless the Guidelines were to specify otherwise. The Supreme Court explained that if a statute sets forth only various means of committing the offense, it is not divisible, but if the statute sets forth more than one offense by including alternative elements of each offense, then the statute is divisible. The test to distinguish means from elements is whether a jury must agree.6
In this case, both Montiel-Cortes and the Government agree that
Instead, under Mathis, we must determine whether
Given the above, we must determine whether conduct that violates
A. The Enumerated Offense of Robbery
The parties primarily argue about whether the Nevada robbery statute proscribes conduct that falls within the generic, contemporary meaning of robbery. Under the categorical framework, we compare the elements of the Nevada statute with the generic definition to determine whether conduct proscribed by the statute is broader than the generic definition.9 Here, Montiel-Cortes argues that the Nevada statute is broader than the generic, contemporary meaning of robbery.
The Fifth Circuit has recognized that the generic, contemporary definition of robbery encompassed by the guidelines corresponds to the definition found in a majority of states’ criminal codes and draws on the Model Penal Code, treatises, and other trusted authorities.10 We have held that “robbery may be thought of as aggravated larceny, containing at least the elements of misappropriation of property under circumstances involving [immediate] danger to the person.”11 The immediate danger element “makes robbery deserving of greater punishment than that provided for larceny and extortion.”12
Montiel-Cortes was convicted under
1. Robbery is the unlawful taking of personal property from the person of another, or in the person‘s presence, against his or her will, by means of force or violence or fear of injury, immediate or future, to his or her person or property, or the person or property of a member of his or her family, or of anyone in his or her company at the time of the robbery. A taking is by means of force or fear if force or fear is used to:
(a) Obtain or retain possession of the property;
(b) Prevent or overcome resistance to the taking; or
(c) Facilitate escape.
The degree of force used is immaterial if it is used to compel acquiescence to the taking of or escaping with the property. A taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear.
2. A person who commits robbery is guilty of a category B felony and shall be punished by imprisonment in the state prison for a minimum term of not less than 2 years and a maximum term of not more than 15 years.13
Montiel-Cortes argues that the Nevada statute described the offense more broadly than the generic definition. Under the Nevada statute, he argues, the phrase “force or violence or fear of injury, immediate or future” does not necessarily require immediate danger because a threat involving the future by definition cannot be “immediate.” The government argues that the immediacy element is inherently satisfied because the force or putting in fear must occur contemporaneously with the taking.
Neither the Supreme Court nor this court has considered whether, under the categorical approach, Nevada robbery constitutes the enumerated offense of robbery for purposes of the 16-level enhancement. Nevertheless, our decisions addressing other state robbery statutes shows that this court has rejected arguments similar to the Government‘s and generally requires that danger to the victim be “immediate” to constitute a generic robbery.
For example, in United States v. Alvarado-Rodriguez, 269 Fed.Appx. 427 (5th Cir. 2008), this court held that a California robbery statute,
The defendant argued that
In sum, although generic robbery may be broad enough to encompass a fear concerning injury to property in addition to personal injury, the danger must still be “immediate.” Because the Nevada statute covered not just immediate danger but also future danger, we conclude that it was broader than the generic, contemporary definition of robbery. In fact, as Montiel-Cortes points out, California courts distinguish Nevada robbery because it permits fear of a future injury.21
B. The Enumerated Offense of Extortion
That does not end our inquiry, however. The categorical framework requires us to determine whether the least culpable conduct would qualify as a “crime of violence” under the guidelines, not just a single one of the enumerated offenses. We must determine whether the least culpable conduct (involving future danger), which does not qualify as the enumerated “crime of violence” of robbery, nevertheless still qualifies as another “crime of violence.” We conclude that such conduct qualifies as generic extortion.
The generic, contemporary definition of extortion is “obtaining something of value from another with his consent induced by the wrongful use of force, fear, or threats.”22 Montiel-Cortes argues that the Nevada statute required that the taking be against the victim‘s will, whereas the generic definition of extortion requires the victim‘s consent. We disagree. The Nevada statute provided:
1. Robbery is the unlawful taking of personal property from the person of another, or in the person‘s presence, against his or her will, by means of force or violence or fear of injury, immediate or future, to his or her person or property, or the person or property of a member of his or her family, or of anyone in his or her company at the time of the robbery. A taking is by means of force or fear if force or fear is used to:
(a) Obtain or retain possession of the property;
(b) Prevent or overcome resistance to the taking; or
(c) Facilitate escape.
The degree of force used is immaterial if it is used to compel acquiescence to the taking of or escaping with the property. A taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear.23
Although the statute uses the phrase “against his or her will,” implying a lack of consent, it also emphasizes that the force be “used to compel acquiescence to the taking of or escaping with the property.” In other words, there is consent only in the narrowest sense, but that consent is only given because of a threat. In a more general sense, the consent is against the victim‘s will. Indeed, the Ninth Circuit has noted that “the ‘with consent’ element of generic extortion is not inconsistent with the ‘against the will’ element of a
It is sometimes said that robbery differs from statutory extortion in those states which require property acquisition in that in the former the taking of property must be “against the will” of the victim, while in the latter the taking must be “with the consent” of the victim, induced by the other‘s unlawful threat; but, in spite of the different expressions, there is no difference here, for both crimes equally require that the defendant‘s threats induce the victim to give up his property, something which he would not otherwise have done.25
We agree and therefore conclude there is no meaningful distinction between the Nevada statute‘s formulation and the generic, contemporary definition of extortion, at least with respect to a Nevada robbery involving a future danger.
In sum, we conclude that a conviction under the Nevada robbery statute,
Although we find the district court erred in how it arrived at the sentence, we conclude the sentence was correct and should be affirmed.
AFFIRMED.