UNITED STATES of America, Plaintiff-Appellee, v. Jesus TORRES-MIGUEL, a/k/a Diego Miguel-Torres, Defendant-Appellant.
No. 11-4891
United States Court of Appeals, Fourth Circuit
Decided: Dec. 13, 2012
Argued: Oct. 24, 2012
III
Based on the foregoing, we affirm Hargrove‘s sentence.
AFFIRMED
Before MOTZ, KING, and DIAZ, Circuit Judges.
Vacated and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judge KING and Judge DIAZ joined.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Jesus Torres-Miguel pled guilty to one count of illegal reentry by an aggravated felon, in violation of
I.
In its presentence investigation report (“PSR“), the probation officer recommended a sixteen-level increase to Torres-Miguel‘s base offense level on the basis of his prior conviction under
Over Torres-Miguel‘s objection, the district court determined that the California threat conviction categorically constituted a crime of violence justifying a sentencing enhancement under the United States Sentencing Guidelines (“Guidelines“). See
II.
A.
The single question on appeal is: did the district court properly count Torres-Miguel‘s prior conviction for a violation of
In a “narrow range of cases,” however, we may apply a modified categorical approach. Taylor, 495 U.S. at 602. The modified categorical approach permits a court to consider whether the specific conduct underlying a defendant‘s prior state conviction constitutes a crime of violence by examining “the terms of the charging document, a plea agreement, [a] transcript of colloquy between judge and defendant, or some comparable judicial record” revealing the “factual basis for the plea.” Shepard v. United States, 544 U.S. 13, 26 (2005).
We can apply the modified categorical approach only if the prior state conviction rests on a statute that “contains divisible categories of proscribed conduct, at least one of which constitutes—by its elements—a violent felony.” United States v. Gomez, 690 F.3d 194, 199 (4th Cir.2012). The predicate state statute at issue here,
Thus, we proceed to consider whether Torres-Miguel‘s prior conviction under § 422(a) categorically constitutes a crime of violence.
B.
Section 422(a), the California statute under which Torres-Miguel was previously convicted, provides:
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement ... is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family‘s safety, shall be punished by imprisonment....
[A]ny of the following offenses ...: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses ..., statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense ... that has as an element the use, attempted use, or threatened use of physical force against the person of another.
We have not previously considered whether
III.
The Ninth Circuit expressly “rest[ed]” its holding on the “plain text” or “plain language” of § 422(a). Villavicencio-Burruel, 608 F.3d at 562. The court reasoned that because the elements of § 422(a) “necessarily include a threatened use of physical force capable of causing physical pain or injury to another person,” the statute necessarily constituted a crime of violence for purposes of the Guidelines enhancement. Id. (internal quotation marks omitted).
That rationale relies on a fundamental misreading of § 422(a). The plain language of the statute requires only that the offender “threatens to commit a crime which will result in death or great bodily injury to another.”
Of course, a crime may result in death or serious injury without involving use of physical force. For example, as the Fifth Circuit has noted, a defendant can violate statutes like § 422(a) by threatening to poison another, which involves no use or threatened use of force. See Cruz-Rodriguez, 625 F.3d at 276 (adopting the reasoning of United States v. De La Rosa-Hernandez, 264 Fed.Appx. 446, 449 (5th Cir. 2008)); see also United States v. Ortiz-Gomez, 562 F.3d 683, 687 (5th Cir.2009) (holding Pennsylvania terroristic threat conviction not a predicate crime of violence under the Guidelines because the statute “does not have as an element the use, attempted use, or threatened use of force“).
For the same reasons, the Tenth Circuit has held that Colorado third degree assault does not categorically constitute a crime of violence. See United States v. Perez-Vargas, 414 F.3d 1282, 1287 (10th Cir.2005). The court explained that, although the Colorado statute required bodily injury, imposing that injury does not “necessarily include the use or threatened use of ‘physical force’ as required by the Guidelines,” and so the Colorado crime was not “categorically a crime of violence under U.S.S.G. § 2L1.2.” Id.
Not to recognize the distinction between a use of force and a result of injury is not to recognize the “logical fallacy ... that simply because all conduct involving a risk of the use of physical force also involves a risk of injury then the converse must also be true.” Dalton, 257 F.3d at 207. Accordingly, we must conclude that, contrary to the Ninth Circuit‘s holding, the plain language of § 422(a) does not contain an element requiring the use or threatened use of physical force. Thus, it seems clear that § 422(a) is not categorically a crime of violence as defined in Guidelines § 2L1.2.
IV.
Although, as noted above, the Ninth Circuit expressly “rest[ed]” its holding on its view of the “plain language” of § 422(a), a view we find erroneous, it also quoted a portion of the Supreme Court‘s opinion in Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 16 L.Ed.2d 683 (2007), suggesting it believed that case lent support to its holding. Before us, the Government heavily relies on this alternative rationale. But the argument fails because it wrenches the Supreme Court‘s language in Duenas-Alvarez from its context.
To find a state statute creates a crime outside the generic definition of a listed crime ... requires a realistic probability ... that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic possibility, an offender ... must at least point to his own case or other cases in which the State courts in fact did apply the statute in the special (nongeneric) manner for which he argues.
Duenas-Alvarez, 549 U.S. at 193 (emphasis added). The Ninth Circuit appeared to believe that this language created a rule applicable even when the prior state offense is not a “listed crime” (i.e., a crime enumerated in a list of predicate state offenses in a federal statute or Sentencing Guideline) with a “generic definition.” See Villavicencio-Burruel, 608 F.3d at 561. But the quoted language, by its own terms, applies only to determinations of whether “a state statute creates a crime outside the generic definition of a listed crime,” not to every possible state predicate. Duenas-Alvarez, 549 U.S. at 193 (emphasis added).
Duenas-Alvarez involved just such a listed crime—theft. See Id. at 185. “Theft” has a generic definition. See Id. at 189-90. Thus the Supreme Court cautioned that a defendant could avoid treatment of his prior state offense as a predicate crime for federal purposes only by demonstrating that the state offense did not fit within the generic definition of theft. See Id. at 193-94. Similarly, when we have applied this teaching from Duenas-Alvarez, the state predicate crime was another listed crime—“sexual abuse of a minor“—that has a generic definition. See Diaz-Ibarra, 522 F.3d at 349. The defendant in that case maintained that his prior convictions were not crimes of violence because they fell outside the generic definition of sexual abuse of a minor. See Id. at 347. There, requiring the defendant to show that the state statute realistically covered conduct falling outside the generic definition of the listed crime was both mandated by Duenas-Alvarez and entirely logical.
But § 422(a) is not a “listed crime” with a “generic definition.” Neither the Government nor the Ninth Circuit suggests that it is. Section 422(a) qualifies as a crime of violence only if it fits in the residual category of violent crimes, i.e., “any other offense ... that has as an element the use, attempted use, or threatened use of physical force.”
V.
In sum, we reject both rationales suggested by the Ninth Circuit and adopted by the Government as to why § 422(a) categorically constitutes a crime of violence. We are left with a case in which “the full range of conduct covered by the [predicate] state statute” does not fall within the Guidelines definition of crime of violence. See Villavicencio-Burruel, 608 F.3d at 561 (internal quotation marks omitted). As the Ninth Circuit itself has recognized, in such a situation, a court must find—as the Fifth Circuit did—that a conviction under the predicate state statute is not, categorically, a crime of violence. See Id.
Therefore, Torres-Miguel‘s sixteen-level sentencing enhancement cannot stand. For these reasons, we must vacate his sentence and remand for resentencing.
VACATED AND REMANDED