United States v. Venzor-Granillo , 668 F.3d 1224 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH February 10, 2012
Elisabeth A. Shumaker
UNITED STATES COURT OF APPEALS Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 10-1541
ABRAM VENZOR-GRANILLO, also
known as Sergio Lerma-Cano,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 1:10-CR-00314-PAB-1)
John T. Carlson, Assistant Federal Public Defender (Raymond P. Moore, Federal
Public Defender, with him on the briefs), Denver, Colorado, for Defendant -
Appellant.
Paul Farley, Assistant United States Attorney (John F. Walsh, United States
Attorney, with him on the brief), Denver, Colorado, for Plaintiff - Appellee.
Before MURPHY, BALDOCK, and SILER, * Circuit Judges.
MURPHY, Circuit Judge.
*
The Honorable Eugene E. Siler, Jr., United States Circuit Judge, Sixth
Circuit, sitting by designation.
I. Introduction
Abram Venzor-Granillo appeals the district court’s application of an eight-
level sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(C). He argues the
district court erred by using the modified categorical approach to conclude his
prior Colorado conviction for first degree criminal trespass was a theft offense,
warranting the enhancement. The district court properly applied the modified
categorical approach because the Colorado statute under which Venzor-Granillo
was convicted is ambiguous: it reaches a broad range of conduct, some of which
merits the enhancement and some of which does not. The charging document 1
and plea agreement underlying Venzor-Granillo’s prior conviction reveal he
necessarily admitted all the elements of the generic offense of attempt to commit
theft. Therefore, the district court did not err in imposing the sentence
enhancement. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a), this court affirms the sentence imposed by the district court.
II. Background
Venzor-Granillo pleaded guilty to illegally reentering the United States
following a prior removal, in violation of 8 U.S.C. § 1326(a) and (b)(2). The
Presentence Investigation Report (“PSR”) treated Venzor-Granillo’s prior
conviction for first degree criminal trespass under Colo. Rev. Stat. § 18-4-502 as
1
The charging document underlying Venzor-Granillo’s prior offense is
titled “complaint and information.” This opinion will refer to this document as
the charging document.
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an aggravated felony and therefore recommended an eight-level sentence
enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(C). 2 In so doing, however, the
PSR recognized that the question whether Venzor-Granillo’s prior conviction fell
within the definition of aggravated felony was a legal issue for the district court
to determine at sentencing.
Venzor-Granillo objected to the application of the eight-level sentence
enhancement, claiming his prior conviction did not constitute an aggravated
felony. The Colorado statute under which Venzor-Granillo was convicted states:
“A person commits the crime of first degree criminal trespass if such person
knowingly and unlawfully enters or remains in a dwelling of another or if such
person enters any motor vehicle with intent to commit a crime therein.” Colo.
Rev. Stat. § 18-4-502. Venzor-Granillo admitted he was convicted under the
latter part of the statute, which criminalizes entering a motor vehicle with intent
to commit a crime therein (the “trespass to a motor vehicle” part of the statute).
He asserted, however, that a conviction under this part of the statute does not
necessarily constitute an aggravated felony. Moreover, he argued, the district
court was prohibited from applying the modified categorical approach and
reviewing the charging document and plea agreement underlying his prior
2
Venzor-Granillo was sentenced pursuant to the 2009 version of the
Sentencing Guidelines. Unless otherwise noted, all further references to the
Guidelines are to the 2009 version.
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conviction to determine whether he was actually convicted of an aggravated
felony.
The district court rejected Venzor-Granillo’s argument. It determined the
modified categorical approach should be applied and reviewed the charging
document and plea agreement underlying Venzor-Granillo’s prior conviction.
These documents showed Venzor-Granillo was charged with, and pleaded guilty
to, trespass to a motor vehicle with intent to commit the crime of theft. The
district court therefore concluded Venzor-Granillo’s prior conviction constituted a
theft offense, falling within the definition of aggravated felony and warranting the
eight-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C). See U.S.S.G. § 2L1.2
cmt. n.3(A); 8 U.S.C. § 1101(a)(43)(G), (U). The district court sentenced
Venzor-Granillo to thirty-six months in prison.
III. Analysis
This court reviews de novo the district court’s conclusion that Venzor-
Granillo’s prior conviction is an aggravated felony under the Sentencing
Guidelines. United States v. Venegas-Ornelas, 348 F.3d 1273, 1274 (10th Cir.
2003). In interpreting the Guidelines, this court looks “at the language in the
guideline itself, as well as at the interpretative and explanatory commentary to the
guideline provided by the Sentencing Commission.” United States v. McConnell,
605 F.3d 822, 824 (10th Cir. 2010) (quotation omitted). “Commentary to the
Guidelines is authoritative unless it violates the Constitution or a federal statute,
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or is inconsistent with, or a plainly erroneous reading of, that guideline.” Id.
(quotations omitted).
A. The Categorical Approach
U.S.S.G. § 2L1.2(b)(1)(C) requires an eight-level increase in the base
offense level of a defendant who unlawfully reenters the United States after a
previous removal following a conviction for an aggravated felony. Aggravated
felony includes “a theft offense . . . for which the term of imprisonment [is] at
least one year” and an attempt to commit a theft offense. 8 U.S.C.
§ 1101(a)(43)(G), (U); see also U.S.S.G. § 2L1.2 cmt. n.3(A). This enhancement
provision refers to the generic offenses of theft and attempted theft, i.e., it refers
to those offenses as they are generally committed. Nijhawan v. Holder, 129 S. Ct.
2294, 2298-99 (2009). Thus, in determining whether a prior conviction warrants
an enhancement as a theft offense or attempted theft offense, the court must use
the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 600-
02 (1990), and Shepard v. United States, 544 U.S. 13, 25-26 (2005). Id.; see also
United States v. Martinez-Hernandez, 422 F.3d 1084, 1086 (10th Cir. 2005)
(stating the categorical approach applies “when the language of the enhancement
confines the court’s inquiry to the terms of the statute of conviction” (quotation
and alteration omitted)). Indeed, several other circuits apply the categorical
approach to determine whether a defendant’s prior conviction warrants an
enhancement as a theft offense or attempted theft offense under § 2L1.2(b)(1)(C)
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and 8 U.S.C. § 1101(a)(43)(G) and (U). See Ngaeth v. Mukasey, 545 F.3d 796,
800-01 (9th Cir. 2008); United States v. Martinez-Garcia, 268 F.3d 460, 464-66
(7th Cir. 2001); Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir. 2000); see also
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185-86 (2007) (“In determining
whether a conviction . . . falls within the scope of a listed offense (e.g., ‘theft
offense’), the lower courts uniformly have applied” the categorical approach.).
Under the categorical approach, a sentencing court determines whether a
prior conviction requires application of a sentence enhancement by “looking not
to the particular facts of the prior conviction but to the terms of the underlying
statute.” Martinez-Hernandez, 422 F.3d at 1086; see also Taylor, 495 U.S. at 600
(stating that under the categorical approach a court may look “only to the
statutory definitions of the prior offenses, and not to the particular facts
underlying those convictions”). In the case of a generic offense enhancement
provision, the categorical approach “requires a comparison of the elements of the
relevant state statute with the basic elements of [the generic offense].”3 United
States v. Barney, 955 F.2d 635, 638 (10th Cir. 1992). “If the relevant statute is in
substantial accord with the [generic offense], the conviction may be used for
enhancement purposes.” Id.; see also Taylor, 495 U.S. at 602.
3
The elements of a generic offense are determined based on the offense’s
“generic, contemporary meaning” or “the generic sense in which the term is now
used in the criminal codes of most States.” Taylor v. United States, 495 U.S. 575,
598 (1990).
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B. The Modified Categorical Approach
In certain circumstances, application of the categorical approach requires
courts to look beyond the terms of the statute of conviction. “When the
underlying statute reaches a broad range of conduct, some of which merits an
enhancement and some of which does not, courts resolve the ambiguity by
consulting reliable judicial records, such as the charging document, plea
agreement, or plea colloquy” to determine whether the defendant’s prior
conviction warrants an enhancement. Martinez-Hernandez, 422 F.3d at 1086; see
also Shepard, 544 U.S. at 26; Taylor, 495 U.S. at 599-602. This process of
applying the categorical approach, and if necessary, going beyond the terms of the
underlying statute to determine whether the particular defendant’s conviction
warrants an enhancement, is commonly referred to as the modified categorical
approach. United States v. Torres-Romero, 537 F.3d 1155, 1158 (10th Cir. 2008).
Relying on this court’s decisions in United States v. Zuniga-Soto, 527 F.3d
1110, 1113 (10th Cir. 2008), and United States v. Herrera, 286 F. App’x 546, 555
(10th Cir. 2008), Venzor-Granillo argues the sole purpose of the modified
categorical approach is to determine which part of a divisible statute was charged
against a defendant and, therefore, which part of the statute to examine on its
face. Venzor-Granillo admits that because the Colorado statute he was convicted
under criminalizes both trespass to a dwelling and trespass to a motor vehicle, the
modified categorical approach can be used to determine which of these parts of
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the statute he violated. Thus, he concedes the district court appropriately applied
the modified categorical approach to determine he was convicted under the
trespass to a motor vehicle part of the statute. He argues, however, the modified
categorical approach cannot be further applied to that part, i.e., to determine what
crime he intended to commit when he entered the motor vehicle. Therefore, his
argument continues, once the district court used the modified categorical
approach to determine he was convicted under the trespass to a motor vehicle part
of the statute, it was required to abstain from further review of the judicial
records underlying his prior conviction, disregard any additional facts those
records revealed, and return to the pure categorical approach. Thus, Venzor-
Granillo asserts the district court should have compared the elements of the
trespass to a motor vehicle part of the statute with the generic definition of theft
or attempted theft to determine whether that part of the statute is categorically a
theft offense. Had the district court done so, he concludes, it would have
discovered that neither theft nor attempted theft is an element of entering a
“motor vehicle with intent to commit a crime therein.” Ultimately, Venzor-
Granillo’s position is that because the trespass to a motor vehicle part of the
Colorado statute is not categorically a theft offense, his Colorado conviction is
not an aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(1)(C)’s sentence
enhancement. We reject this myopic view of the modified categorical approach.
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Venzor-Granillo’s reliance on Zuniga-Soto, and Herrera, is misplaced. In
those decisions this court sought to determine whether a defendant’s prior
conviction warranted a sentence enhancement as a crime of violence under
U.S.S.G. § 2L1.2 because it constituted an “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.” Zuniga-Soto, 527 F.3d at 1115 (quotation
omitted); Herrera, 286 F. App’x at 550 (quotation and alteration omitted). In
Zuniga-Soto, we determined that § 2L1.2’s “as an element” language demands a
narrow application of the modified categorical approach:
Whereas generic offense enhancement provisions, such as the one at
issue in Shepard and Taylor, require that, in some instances, courts
look beyond the statutory definition of an offense to determine
whether a crime committed under [a] broader state statute fits within
the narrower federal definition of the generic offense, [§ 2L1.2’s “as
an element” language] demands that sentencing courts look at (and
not beyond) the statute of conviction in order to identify the elements
of the offense.
Zuniga-Soto, 527 F.3d at 1120 (emphasis in original). Consistent with this focus
on the statutory definition of the prior offense, a sentencing court may consult the
judicial records approved in Taylor and Shepard, but only “to determine which
part of the statute was charged against the defendant and, thus, which portion of
the statute to examine on its face.” Id. at 1121 (quotations omitted). This
statement in Zuniga-Soto makes clear that if the enhancement at issue implicates a
generic offense, a sentencing court may look beyond the face of the statute of
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conviction to determine whether the elements of the offense the defendant was
previously convicted of warrant the enhancement. 4 Indeed, Zuniga-Soto
specifically acknowledged that the purpose of the modified categorical approach
with respect to generic offense enhancement provisions like the one applied to
Venzor-Granillo, is to enable the sentencing court to identify those facts that
necessarily supported a prior conviction. See id. at 1119. Once it has done so,
the court can ascertain whether the jury necessarily had to find, or the defendant
necessarily admitted, “facts that would also satisfy the definition” of a generic
offense enhancement provision. Id.
Not only does Zuniga-Soto undermine Venzor-Granillo’s argument, his
position is also foreclosed by this court’s decision in Vargas v. Department of
Homeland Security, 451 F.3d 1105, 1108-09 (10th Cir. 2006). In Vargas we
concluded the defendant’s prior Colorado state conviction for contributing to the
delinquency of a minor constituted “sexual abuse of a minor,” falling within the
definition of “aggravated felony” under 8 U.S.C. § 1101(a)(43)(A). Id. at 1106.
The Colorado statute under which the defendant pleaded guilty provided: “Any
person who induces, aids, or encourages a child to violate any federal or state
4
This conclusion is not inconsistent with the Supreme Court’s recent
decisions in Johnson v. United States, 130 S. Ct. 1265, 1269, 1273 (2010), and
Nijhawan v. Holder, 129 S. Ct. 2294, 2298-303 (2009). See United States v.
Ventura-Perez, No. 10-1529, 2012 WL 130716, at *3-6 (10th Cir. Jan. 18, 2012);
United States v. Aguila-Montes de Oca, 655 F.3d 915, 928-31 (9th Cir. 2011) (en
banc).
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law, municipal or county ordinance, or court order commits contributing to the
delinquency of a minor.” Id. at 1108-09 (quotation omitted). We noted the
statute “encompasses a multitude of crimes, one for each predicate offense that
the child might be urged to commit.” Id. at 1109. Because the statute “reaches a
broad range of conduct, some of which would constitute an aggravated felony and
some of which would not,” we applied the modified categorical approach to
“determine whether a particular conviction under the contributing-to-the-
delinquency-of-a-minor statute was for sexual abuse of a minor.” Id. (quotation
omitted). In other words, because the statute contained the broad language
“federal or state law, municipal or county ordinance, or court order,” this court
concluded the modified categorical approach should be applied to determine
which law the defendant induced the minor to violate and whether that crime
warranted the sentence enhancement. Id.
Moreover, we pointed out, “the specific predicate offense must be charged
and proved as an element of the offense of contributing to the delinquency of a
minor.” Id. Thus, to convict a defendant of contributing to the delinquency of a
minor, a jury necessarily has to find, or a defendant has to admit, “a specified
predicate offense that the defendant induced, aided, or encouraged the child to
violate.” Id. Accordingly, we upheld the Board of Immigration Appeals’s
conclusion that the defendant was convicted of an offense that constituted sexual
abuse of a minor because the charging document revealed he pleaded guilty to
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contributing to the delinquency of a minor by encouraging a child to engage in
nonconsensual sexual contact. Id. We did not, as Venzor-Granillo argues we
must, apply the modified categorical approach to determine which part of the
Colorado statute the defendant violated and then examine that part of the statute
on its face to determine whether it was categorically sexual abuse of a minor.
Indeed, a comparison of the elements present on the face of the relevant part of
the applicable statute with the elements of the generic offense of sexual abuse of
a minor, shows the statute does not, categorically, constitute sexual abuse of a
minor. Id.
Two recent circuit court decisions are in accord with the approach this
court took in Vargas. United States v. Aguila-Montes de Oca, 655 F.3d 915, 927-
28 (9th Cir. 2011) (en banc); United States v. Fife, 624 F.3d 441, 446 (7th Cir.
2010). In Fife, the Seventh Circuit held a defendant’s prior Illinois conviction for
armed violence constituted a violent offense for purposes of the Armed Career
Criminal Act. 624 F.3d at 449. The statute of conviction at issue was violated if,
“while armed with a dangerous weapon, a person ‘commits any felony defined by
Illinois Law.’” Id. at 444 (emphasis added). The Seventh Circuit concluded this
statute should be examined under the modified categorical approach:
Fife’s assertion that we are limited to the language of the statute
without consideration of the felony involved is inconsistent with our
cases concerning the modified categorical approach. By defining the
crime of armed violence as the commission of a felony while armed
with a dangerous weapon, the statute necessarily establishes multiple
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modes of commission of the crime, dependent upon the underlying
felony. There is no need that each potential felony be explicitly
listed and separately enumerated as a subsection, because the
practical effect is the same. In either scenario, [the modified
categorical approach applies,] not because each subcategory is
separately listed, but because [the statute] by its terms . . . creates
several crimes or a single crime with several modes of commission.
Id. at 446.
Similarly, in Aguila-Montes de Oca, the Ninth Circuit, sitting en banc, held
the modified categorical approach should be applied to any statute of conviction
that is categorically broader than the generic offense. 655 F.3d at 940. In so
holding, the court determined that statutes which “simply substitute a shorthand
phrase for a list of acts or objects covered by that phrase [are] . . . not
meaningfully different” from statutes which list every kind of act or object
covered under the statute. Id. at 927. The only conceptual difference is that the
latter statutes create an explicitly finite list of possible means of commission,
while the former create an implied list of every means of commission that
otherwise fits the definition of the crime. Id. Thus, the Ninth Circuit held that a
statute that uses the word “‘weapon’ as an element is not analytically different
from [a statute] creating a list of all conceivable weapons.” Id. Because someone
convicted of assault with a “weapon” may have used a gun, the sentencing court
may look to trusted court documents “to determine if the trier of fact was actually
required to find that the defendant used a gun.” Id.; see also id. at 937 (“[T]he
modified categorical approach asks what facts the conviction ‘necessarily rested’
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on in light of the theory of the case as revealed in the relevant Shepard
documents, and whether these facts satisfy the elements of the generic offense.”).
In sum, the modified categorical approach applies whenever a statute of
conviction is ambiguous because it “reaches a broad range of conduct, some of
which merits an enhancement and some of which does not.” Martinez-Hernandez,
422 F.3d at 1086; see also Shepard, 544 U.S. at 20-21; Taylor, 495 U.S. at 599-
602. The purpose, at least with respect to generic offense enhancement
provisions, is to enable the sentencing court to determine whether the jury
necessarily had to find, or the defendant necessarily admitted, all the elements of
the generic offense before it imposes a sentence enhancement based on a prior
conviction. Shepard, 544 U.S. at 26; Taylor, 495 U.S. at 602.
C. Applying the Modified Categorical Approach to This Case
The trespass to a motor vehicle part of the Colorado statute under which
Venzor-Granillo was convicted criminalizes entering “any motor vehicle with
intent to commit a crime therein.” Colo. Rev. Stat. § 18-4-502 (emphasis added).
The word “crime” includes one of any number of offenses, including theft
offenses or attempted theft offenses. Thus, the statute is ambiguous because it
“reaches a broad range of conduct, some of which merits an enhancement and
some of which does not.” Martinez-Hernandez, 422 F.3d at 1086; see also
Shepard, 544 U.S. at 20-21; Taylor, 495 U.S. at 599-602; Vargas, 451 F.3d at
1108-09.
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Moreover, Colorado law requires the ulterior offense to be charged and
proved as an element of the statutory offense of first degree trespass. See People
v. Williams, 984 P.2d 56, 59, 65 (Colo. 1999); People v. Archuleta, 554 P.2d 307,
310 (Colo. 1976). Thus, to support a conviction, a Colorado jury necessarily has
to find, or a defendant has to admit, all the elements of the predicate offense to
convict. See Vargas, 451 F.3d at 1108-09. The modified categorical approach
can therefore be applied to determine what crime the defendant intended to
commit when he entered the motor vehicle and whether the elements of that crime
satisfy the elements of a generic offense set forth in an enhancement provision.
Shepard, 544 U.S. at 26; Taylor, 495 U.S. at 602.
In this case, the district court appropriately applied the modified categorical
approach. It looked, not only to the definition of the statute of conviction, but
also to the charging document and plea agreement to see what crime Venzor-
Granillo intended to commit when he entered the motor vehicle. Both the
charging document and the plea agreement reveal Venzor-Granillo was convicted
of knowingly and unlawfully entering a motor vehicle “with intent to commit
therein the crime of THEFT; in violation of section 18-4-502, C.R.S.” Moreover,
Venzor-Granillo’s plea agreement states: “‘Theft’ means to knowingly take the
property of another with intent to permanently deprive the rightful owner of the
use or benefit of that property; it means to steal another person[s] property.”
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A comparison of the elements of Venzor-Granillo’s conviction for first
degree criminal trespass with the elements of the generic definition of attempt to
commit a theft offense shows that Venzor-Granillo necessarily admitted all the
elements of the generic crime of attempt to commit theft. 5 The generic definition
of “theft offense,” as it is used in 8 U.S.C. § 1101(a)(43)(G), “is a taking of
property or an exercise of control over property without consent with the criminal
intent to deprive the owner of rights and benefits of ownership, even if such
deprivation is less than total or permanent.” United States v. Vasquez-Flores, 265
F.3d 1122, 1125 (10th Cir. 2001) (quotation omitted). And the generic definition
of “attempt” is an intent to commit a crime and the commission of an act which
constitutes a substantial step toward commission of that crime. See United States
v. Cornelio-Pena, 435 F.3d 1279, 1286 (10th Cir. 2006). Thus, the elements of
the offense Venzor-Granillo pleaded guilty to, as set forth in his plea agreement,
substantially correspond to the elements of the generic offense of attempt to
commit theft. See Ngaeth v. Mukasey, 545 F.3d 796, 800-02 (9th Cir. 2008)
(applying the modified categorical approach to conclude a conviction under a
similar statute for burglary of a vehicle qualified as a conviction for an attempted
theft offense, and therefore an aggravated felony, warranting a sentence
5
Venzor-Granillo does not assert the district court erred in interpreting the
charging document and plea agreement underlying his prior Colorado conviction,
which, he admits, “unquestionably reveal” that his conviction, factually speaking,
amounted to at least an attempted theft offense.
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enhancement); United States v. Alfaro-Gramajo, 283 F. App’x 677, 679-81 (11th
Cir. 2008) (unpublished) (same); United States v. Martinez-Garcia, 268 F.3d 460,
466 (7th Cir. 2001) (same); Lopez-Elias v. Reno, 209 F.3d 788, 792-93 (5th Cir.
2000) (same).
In sum, the part of the Colorado statute under which Venzor-Granillo was
convicted criminalizes both the generic offense of attempt to commit theft as well
as numerous other offenses, warranting application of the modified categorical
approach. A review of the charging document and plea agreement underlying
Venzor-Granillo’s prior conviction reveals he necessarily admitted all the
elements of the generic offense of attempt to commit theft. Thus, the district
court did not err in concluding Venzor-Granillo’s prior conviction constituted an
attempt to commit a theft offense, meriting the imposition of the eight-level
sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(C).
IV. Conclusion
For the foregoing reasons, we affirm Venzor-Granillo’s sentence.
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