United States v. Villalobos-Varela , 440 F. App'x 665 ( 2011 )


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  •                                                                        FILED
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS October 28, 2011
    Elisabeth A. Shumaker
    TENTH CIRCUIT                    Clerk of Court
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                     No. 11-2011
    (D.C. No. 2:10-CR-2363-BB-1)
    LAZARO ABRAHAM                                         (D. N. Mex.)
    VILLALOBOS-VARELA,
    Defendant-Appellant.
    ORDER AND JUDGMENT *
    Before BRISCOE, Chief Circuit Judge, TYMKOVICH, Circuit Judge, and
    FREUDENTHAL, District Judge **.
    Defendant Lazaro Villalobos-Varela appeals the district court’s sentence of
    thirty months imprisonment for re-entry of a removed alien in violation of 
    8 U.S.C. § 1326
    (a) and (b). According to Villalobos-Varela, the district court
    incorrectly concluded that his Colorado felony menacing conviction was a crime
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
    however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
    Cir. R. 32.1.
    **
    The Honorable Nancy D. Freudenthal, Chief United States District Judge
    for the District of Wyoming, sitting by designation.
    of violence and subjected him to a 16-Level Enhancement under the United States
    Sentencing Guideline Manual (USSG) § 2L1.2. 1 We have jurisdiction pursuant to
    
    28 U.S.C. § 1291
     and AFFIRM.
    I
    Factual Background
    Villalobos-Varela, a Mexican citizen, was brought to the United States
    when he was three years old and lived continuously in the United States from then
    until he was deported in May 2010. ROA. Vol. 2 at 24. The Colorado felony
    menacing conviction at issue stems from events in 2006. At that time, Villalobos-
    Varela was living in Longmont, Colorado, with his then girlfriend, now wife,
    Mayra Canales. 
    Id.
     Vol. 2 at 17. On or about March 11, 2006, Villalobos-Varela
    got into a physical altercation with Ms. Canales. 
    Id.
     Vol. 2 at 21. In the course of
    the altercation, Villalobos-Varela threw her to the ground and choked her. 
    Id.
    Officers arrived at the scene and arrested Villalobos-Varela. 
    Id.
     On August 18,
    2006, Villalobos-Varela pled guilty in the District Court of Boulder County to
    felony menacing with a deadly weapon in violation of 
    Colo. Rev. Stat. § 18-3
    -
    206. 
    Id.
     Vol. 2 at 20-21. Villalobos-Varela received six months jail and two years
    probation. 
    Id.
     Vol. 2 at 20. While there is little information in the record
    1
    All USSG citations refer to the 2009 U.S. Sentencing Commission
    Guidelines Manual.
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    regarding the events of the intervening months, Villalobos-Varela was deported to
    Mexico on May 18, 2010. 
    Id.
     Vol. 2 at 23.
    Approximately a month later, on June 24, 2010, an Agent of the Santa
    Teresa, New Mexico Border Patrol encountered Villalobos-Varela in Santa
    Teresa. 
    Id.
     Vol. 1 at 4. The Agent questioned Villalobos-Varela as to his
    citizenship and Villalobos-Varela stated that he was a citizen and national of
    Mexico, present in the United States without Immigration Documents that would
    allow him to be or remain in the United States legally. 
    Id.
     Villalobos-Varela was
    arrested and charged with violation of 
    8 U.S.C. §§ 1326
    (a) and (b). 
    Id.
     Vol. 1 at
    7.
    Sentencing
    On August 17, 2010, Villalobos-Varela pled guilty to re-entering the United
    States after having been deported in violation of 
    8 U.S.C. § 1326
    (a) and (b),
    without the benefit of a plea agreement. 
    Id.
     Vol. 2 at 16. The district court set a
    date for sentencing, and the probation officer prepared a presentence report. The
    probation officer determined that Villalobos-Varela’s base offense level was 8. 
    Id.
    Vol. 2 at 16. Applying USSG § 2L1.2(b), the probation officer concluded that the
    2006 menacing conviction qualified as a crime of violence, requiring a 16-level
    increase to Villalobos-Varela’s base offense level for an adjusted offense level of
    24. Id. Villalobos-Varela received a 3 level reduction for acceptance of
    responsibility for a total offense level of 21. Id. Vol. 2 at 20. Villalobos-Varela’s
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    criminal history was calculated at a category III, for an advisory sentence of 46 to
    57 months, with 2 to 3 years of supervised release. Id. Vol. 2 at 26.
    Villalobos-Varela’s counsel filed formal objections to the PSR claiming,
    among other things, that the 2006 Colorado menacing conviction should not be
    considered a crime of violence under the Guidelines because a person can be
    convicted of felony menacing in Colorado without the use of physical force and
    without the victim feeling or being in danger. Id. Vol. 1 at 8-20. Villalobos-
    Varela argued that under the categorical approach, menacing is not a crime of
    violence under USSG. § 2L1.2(b)(1)(A)(ii).
    At sentencing, the district court rejected Villalobos-Varela’s arguments that
    Colorado felony menacing is not a crime of violence. In determining the
    appropriate sentence, the district court applied the factors set forth in 
    18 U.S.C. § 3553
     and ruled that the appropriate sentence was 30 months, with 2 years of
    supervised release. 
    Id.
     Vol. 3 at 18.
    II
    Standard of Review
    “Whether a prior offense constitutes a ‘crime of violence’ under § 2L1.2
    presents a question of statutory interpretation, and we review the district court's
    conclusion de novo.” United States v. Zuniga-Soto, 
    527 F.3d 1110
    , 1116-1117
    (10th Cir. 2008)(citation omitted). “In interpreting the Guidelines, we look at the
    language in the guideline itself, as well as at the interpretative and explanatory
    -4-
    commentary to the guideline provided by the Sentencing Commission.” United
    States v. McConnell, 
    605 F.3d 822
    , 824 (10th Cir. 2010)(citations and internal
    quotation marks omitted). “Commentary to the Guidelines is authoritative unless
    it violates the Constitution or a federal statute, or is inconsistent with, or a plainly
    erroneous reading of, that guideline.” 
    Id.
     (citations and internal quotation marks
    omitted).
    Analysis
    Section 2L1.2 of the Guidelines applies to defendants who have been
    convicted of unlawfully entering or remaining in the United States. The
    Guidelines establish a base offense level of eight, but § 2L1.2(b)(1)(A) requires a
    district court to impose a sixteen-level enhancement if the defendant has been
    previously convicted of “a crime of violence.” Application Note 1(B)(iii) defines
    “crime of violence” as:
    [A]ny of the following: 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 offense under federal, state, or local
    law that has as an element the use, attempted use, or threatened use
    of physical force against the person of another.
    To determine whether Villalobos-Varela’s Colorado felony menacing
    conviction qualifies as a crime of violence, we apply the categorical approach set
    forth in Taylor v. United States, 
    495 U.S. 575
    , 602 (1990). “As the Supreme
    Court recently explained, under the categorical approach ‘we consider the offense
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    generically, that is to say, we examine it in terms of how the law defines the
    offense and not in terms of how an individual offender might have committed it
    on a particular occasion.’” United States v. Rooks, 
    556 F.3d 1145
    , 1147 (10th Cir.
    2009)(quoting, Begay v. United States, 
    553 U.S. 137
    , 141 (2008)). “The
    categorical approach looks only to the statutory definition of the offense and the
    fact of conviction.” Rooks, 
    556 F.3d at 1147
    . 2
    Villalobos-Varela was convicted for a felony under Colorado’s menacing
    statute which provides:
    (1) A person commits the crime of menacing if, by any threat or
    physical action, he or she knowingly places or attempts to place
    another person in fear of imminent serious bodily injury. Menacing is
    a class 3 misdemeanor, but, it is a class 5 felony if committed:
    (a) By the use of a deadly weapon or any article used or
    fashioned in a manner to cause a person to
    reasonably believe that the article is a deadly
    weapon; or
    (b) By the person representing verbally or otherwise that
    he or she is armed with a deadly weapon.
    
    Colo. Rev. Stat. § 18-3-206
    .
    2
    In some circumstances, criminal statutes contain separate subsections,
    each of which can be charged separately and violation of one section would
    qualify as a crime of violence, but violation of another would not. In these cases,
    a court may consider a limited set of documents to determine under which
    subsection the defendant was convicted. This approach is known as a modified
    categorical approach. However, we believe, and both parties agree, that the
    modified categorical approach is not applicable in this case.
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    This court previously concluded Colorado felony menacing is categorically
    a violent felony for purposes of the Armed Career Criminal Act (“ACCA”).
    United States v. Herron, 
    432 F.3d 1127
    , 1138 (10th Cir. 2005). 3 More recently,
    this court, relying on its holding in Herron, determined that Colorado felony
    menacing is categorically a crime of violence under USSG § 4B1.2(a). United
    States v. Armijo, 
    651 F.3d 1226
    , 1233 (10th Cir. 2011). In Armijo, the Court
    noted that the term “crime of violence” under § 2L1.2 is identical, in pertinent
    part, to the definition of crime of violence set out in § 4B1.2(a)(1). Id. at 1233, n.
    4.
    While Armijo was decided after the briefing in this case was complete,
    Villalobos-Varela argues that Armijo does not control the outcome of this appeal.
    Villalobos-Varela argues that Armijo failed to address his issues that Colorado’s
    felony menacing does not necessarily entail “physical force” and that Colorado
    felony menacing does not constitute a crime of violence because it can be
    committed by a “threat” that need not be communicated to the victim.
    The phrase “physical force” under the ACCA “means violent force - that is,
    force capable of causing physical pain or injury to another person.” Johnson v.
    3
    “Given the similarity in language between the ACCA and USSG, we have
    occasionally looked to precedent under one provision for guidance under another
    in determining whether a conviction qualifies as a violent felony.” United States.
    v. Ramon Silva, 
    608 F.3d 663
    , 671 (10th Cir. 2010)(citation and quotation marks
    omitted).
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    United States, ---U.S.---, 130 St. Ct. 1265, 1271, 
    176 L.Ed.2d 1
     (2010) (emphasis
    in original). We conclude that Colorado felony menacing satisfies this
    requirement. In Armijo, this court specifically found that Colorado felony
    menacing requires as an element the use or threatened use of physical force, even
    if the deadly weapon is a poison or pathogen. Id. at 1233. In Armijo, this court
    joined the Ninth and Eighth Circuits in rejecting arguments to the contrary. Id. at
    1232 (citing United States v. Melchor-Meceno, 
    620 F.3d 1180
    , 1185-86 (9th Cir.
    2010)(“One cannot knowingly place another in fear of being poisoned [under
    Colorado law] without threatening to force the poison on the victim); United
    States v. Forrest, 
    611 F.3d 908
    , 910-911 (8th Cir. 2010)(“A threat that creates a
    fear ‘of imminent serious bodily injury’ is a threat of physical force.”)).
    Therefore, Villalobos-Varela’s argument that Colorado felony menacing does not
    require physical force, was discussed and rejected in Armijo. This court has
    determined that Colorado felony menacing does entail the use or threatened use of
    physical force.
    Villalobos-Varela also argues that Colorado felony menacing does not
    require the victim to be aware of the threat or in fear of injury. See People v.
    Saltray, 
    969 P.2d 729
    , 732 (Colo. App. 1998)(threat against victim was
    communicated to third party, not the victim, the court found the proper focus of
    whether defendant has committed crime of menacing is intent and conduct of
    defendant, not the victim). Villalobos-Varela argues that the definition of threat
    -8-
    requires some communication of the threat to the victim. Thus, if a victim is
    unaware of any danger, there has been no communication and without
    communication, there can be no threat.
    We are not persuaded by Villalobos-Varela’s argument that the victim must
    actually perceive the threat to qualify as a crime of violence under § 2L1.2. This
    determination is consistent with the interpretation of the term “threat” in other
    areas of federal law. See United States v. Martin, 
    163 F.3d 1212
    , 1216 (10th Cir.
    1998)(finding that threats under 
    18 U.S.C. § 115
     are not required to be made
    directly to the proposed victim); United States v. Crews, 
    781 F.2d 826
    , 829, 832
    (10th Cir. 1986)(holding threats made against President to psychiatric nurse
    violated 
    18 U.S.C. § 871
    ).
    None of Villalobos-Varela’s arguments casts any doubt on this court’s
    reasoning in Herron and Armijo that led to the conclusions that Colorado felony
    menacing is a violent felony for purposes of the ACCA and a violent crime under
    § 4B1.2(a). Because the relevant language of § 4B1.2(a)(1) is identical to the
    relevant language in the term “crime of violence” for § 2L1.2(b)(1), we conclude
    that Armijo and Herron compel the determination that Colorado felony menacing
    is a crime of violence for purposes of § 2L1.2(b). Accordingly, the district court
    correctly determined that Villalobos-Varela’s 2006 Colorado felony menacing
    conviction was categorically a crime of violence and correctly applied the 16-
    level enhancement to his offense level.
    -9-
    III
    The judgment of the district court is AFFIRMED.
    Entered for the Court
    Nancy D. Freudenthal
    Chief District Court Judge
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