United States v. Joel Berumen-Ceniceros ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 3, 2007
No. 07-11717 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00478-CR-JTC-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOEL BERUMEN-CENICEROS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 3, 2007)
Before TJOFLAT, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Joel Berumen-Ceniceros appeals the 24-month sentence imposed after he
pled guilty to illegal reentry into the United States after having been deported, in
violation of 8 U.S.C. § 1326(a) and (b)(2). On appeal, Berumen argues that the
district court erred at sentencing by finding that his prior Georgia conviction for
entering an automobile with intent to commit a theft or other felony, a violation of
O.C.G.A. § 16-8-18, was an aggravated felony under U.S.S.G. § 2L1.2(b)(1)(C).
We affirm.
We review “the district court’s interpretation of the Guidelines de novo and
its factual findings for clear error.” United States v. Pope, 461 F.3d 1331, 1333
(11th Cir. 2006). The meaning of an “aggravated felony,” within the meaning of §
2L1.2(b)(1)(C), is a question subject to de novo review. See United States v.
Ayala-Gomez, 255 F.3d 1314, 1316 (11th Cir. 2001).
Section 2L1.2(a) of the Sentencing Guidelines provides for a base offense
level of eight if a defendant is an alien convicted of unlawfully reentering the
United States. See U.S.S.G. § 2L1.2(a). Section 2L1.2(b)(1)(C) states: “If the
defendant was previously deported, or unlawfully remained in the United States,
after . . . a conviction for an aggravated felony, increase by 8 levels.” U.S.S.G.
§ 2L1.2(b)(1)(C). The application notes define “aggravated felony” as having the
same meaning as given to that term in 8 U.S.C. § 1101(a)(43). See U.S.S.G.
§ 2L1.2, comment. (n.3(A)).
The Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101, in turn,
includes in the definition of aggravated felony “a theft offense (including receipt of
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stolen property) or burglary offense for which the term of imprisonment [is] at
least one year” and also includes an attempt or conspiracy to commit such an
offense. 8 U.S.C. § 1101(a)(43)(G), (U) (emphasis added). Because Congress did
not define the term “theft offense,” courts define the term in “the generic sense in
which the term is now used in the criminal codes of most States.” See Taylor v.
United States, 495 U.S. 575, 598 (1990) (interpreting the term “burglary” in 18
U.S.C. § 924(e)); see also Jaggernauth v. U.S. Att’y Gen., 432 F.3d 1346, 1353
(11th Cir. 2005) (in the context of reviewing a decision by the Bureau of
Immigration Appeals, noting that a theft offense was a “taking of property” with
“intent to deprive the owner of the rights and benefits of ownership, even if such
deprivation is less than total or permanent.”(quotations omitted)). We have
recognized that the “basic elements of an attempt are (1) an intent to engage in
criminal conduct and (2) conduct constituting a substantial step towards the
commission of the substantive offense which strongly corroborates the defendant’s
criminal intent.” United States v. Collins, 779 F.2d 1520, 1533 (11th Cir. 1986).
The Supreme Court has held that, in determining whether a prior state
offense qualifies as a predicate offense in a criminal enhancement statute, courts
generally must “look only to the fact of conviction and the statutory definition of
the prior offense.” Taylor, 495 U.S. at 602 (footnote omitted). If the statutory
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definition of the prior offense includes additional conduct that does not meet the
elements of the generic offense in the enhancement statute, then sentencing courts
can look at the charging documents and jury instructions to the show that the
defendant was actually convicted of the generic offense. Taylor, 495 U.S. at 602.
The Court extended its holding in Taylor to convictions following guilty pleas.
Shepard v. United States, 544 U.S. 13, 19 (2005).
The Georgia statute under which Berumen was convicted provides the
following:
If any person shall enter any automobile or other motor vehicle with
the intent to commit a theft or a felony, he shall be guilty of a felony
and, upon conviction thereof, shall be punished by imprisonment for
not less than one nor more than five years, or, in the discretion of the
trial judge, as for a misdemeanor.
O.C.G.A. § 16-8-18. For federal sentencing purposes, the term of imprisonment
imposed “is deemed to include the period of incarceration or confinement ordered
by a court of law regardless of any suspension of the imposition or execution of
that imprisonment or sentence in whole or in part.” 8 U.S.C. § 1101(48)(B). In
Ayala-Gomez, in which we reviewed an enhancement for an “aggravated felony”
under U.S.S.G. § 2L1.2(b)(1), we held that the meaning of “suspension” in 8
U.S.C. § 1101(48)(B) was the meaning under federal law, and that the term of
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imprisonment was the term “formally imposed, rather than the period the court
actually ordered the defendant to serve.” Ayala-Gomez, 255 F.3d at 1319.
Here, the Georgia statute and charging document establish that Berumen was
convicted of entering an automobile with the intent to commit a theft. By entering
the automobile, Berumen performed a substantial step toward a theft. Therefore,
Berumen’s prior offense was an attempted theft offense, within the meaning of 8
U.S.C. § 1101(a)(43)(G) and (U). See Taylor, 495 U.S. at 598, 602; Collins, 779
F.2d at 1533. Moreover, the Georgia court formally imposed a sentence of one
year. See Ayala-Gomez, 255 F.3d at 1319. Put simply, the district court did not
err in determining that Berumen’s prior offense was an aggravated felony for
purposes of U.S.S.G. § 2L1.2(b)(1)(C). See U.S.S.G. § 2L1.2, comment. (n.3(A)).
AFFIRMED.
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