United States v. Jesus Torres-Miguel , 701 F.3d 165 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 11-4891
JESUS TORRES-MIGUEL, a/k/a Diego
Miguel-Torres,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Margaret B. Seymour, District Judge.
(0:10-cr-01214-MBS-1)
Argued: October 24, 2012
Decided: December 13, 2012
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.
2 UNITED STATES v. TORRES-MIGUEL
COUNSEL
ARGUED: John Herman Hare, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Columbia, South Carolina, for Appel-
lant. Susan Zalkin Hitt, OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee. ON
BRIEF: Kimberly Albro, Research and Writing Specialist,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Colum-
bia, South Carolina, for Appellant. William N. Nettles, United
States Attorney, Columbia, South Carolina, for Appellee.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Jesus Torres-Miguel pled guilty to one count of illegal
reentry by an aggravated felon, in violation of 8 U.S.C.
§§ 1326(a) and 1326(b)(2) (2006). When sentencing him, the
district court found that his previous state conviction for a
criminal threat categorically constituted a prior "crime of vio-
lence," justifying a substantial enhancement of his sentence.
The court then sentenced Torres-Miguel, with this enhance-
ment, to fifty-one months’ imprisonment. For the reasons that
follow, we must vacate the judgment of the district court and
remand for resentencing.
I.
In its presentence investigation report ("PSR"), the proba-
tion officer recommended a sixteen-level increase to Torres-
Miguel’s base offense level on the basis of his prior convic-
tion under California Penal Code § 422(a). That statute pro-
hibits, as a felony, willfully threatening to commit a crime
that would result in death or great bodily injury. Cal. Penal
Code § 422(a). (The record in this case contains no facts as
to this underlying conviction.)
UNITED STATES v. TORRES-MIGUEL 3
Over Torres-Miguel’s objection, the district court deter-
mined that the California threat conviction categorically con-
stituted a crime of violence justifying a sentencing
enhancement under the United States Sentencing Guidelines
("Guidelines"). See U.S. Sentencing Guidelines Manual
§ 2L1.2(b)(1)(A)(ii) (2011). The sentencing enhancement
increased Torres-Miguel’s Guidelines sentencing range from
a period of fifteen to twenty-one months to a period of fifty-
seven to seventy-one months. The PSR mistakenly calculated
the Guidelines range, after the enhancement, as fifty-one to
seventy-one months, rather than fifty-seven to seventy-one
months. The court then sentenced Torres-Miguel to the low-
end of the enhanced Guidelines range as calculated in the
PSR: fifty-one months’ imprisonment. Torres-Miguel timely
noted this appeal.
"In assessing whether a sentencing court has properly
applied the Guidelines, we review factual findings for clear
error and legal conclusions de novo." United States v. Llamas,
599 F.3d 381, 387 (4th Cir. 2010). This appeal involves a
purely legal question of interpretation of the Guidelines,
which we therefore subject to de novo review.
II.
A.
The single question on appeal is: did the district court prop-
erly count Torres-Miguel’s prior conviction for a violation of
California Penal Code § 422(a) as a crime of violence, justify-
ing a sentencing enhancement under the Guidelines? To deter-
mine whether a prior state conviction constitutes a predicate
crime of violence justifying an enhanced federal sentence, we
generally follow the categorical approach. United States v.
Seay, 553 F.3d 732, 737 (4th Cir. 2009); see also Taylor v.
United States, 495 U.S. 575, 600-02 (1990). This approach
"look[s] only to the statutory definition of the state crime and
the fact of conviction to determine whether the conduct crimi-
4 UNITED STATES v. TORRES-MIGUEL
nalized by the statute, including the most innocent conduct,
qualifies as a ‘crime of violence.’" United States v. Diaz-
Ibarra, 522 F.3d 343, 348 (4th Cir. 2008).
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, California Penal Code § 422(a),
includes no such "divisible categories." Therefore, as the par-
ties agree, we cannot apply the modified categorical approach
in this case. (We note that even if § 422(a) contained "divisi-
ble categories of proscribed conduct," Gomez, 690 F.3d at
199, we could not apply the modified categorical approach
here because the record contains no charging document, plea
agreement, or other document approved in Shepard, 544 U.S.
at 26.)
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:
UNITED STATES v. TORRES-MIGUEL 5
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, immedi-
ate, and specific as to convey to the person threat-
ened, 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
....
Cal. Penal Code § 422(a) (emphasis added).
The applicable Sentencing Guideline defines a crime of
violence as:
[A]ny of the following offenses . . . : murder, man-
slaughter, kidnapping, aggravated assault, forcible
sex offenses . . . , statutory rape, sexual abuse of a
minor, robbery, arson, extortion, extortionate exten-
sion 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.
U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (emphasis added).
We have not previously considered whether California
Penal Code § 422(a) categorically constitutes a crime of vio-
lence under this definition. Our sister circuits have divided on
the question. Compare United States v. Cruz-Rodriguez, 625
F.3d 274, 277 (5th Cir. 2010) (holding a conviction under
§ 422(a) not categorically a crime of violence), with United
States v. Villavicencio-Burruel, 608 F.3d 556, 563 (9th Cir.
6 UNITED STATES v. TORRES-MIGUEL
2010) (holding a conviction under § 422(a) categorically a
crime of violence).1 We now turn to that question, particularly
focusing on the rationale offered by the Ninth Circuit in
reaching its conclusion that § 422(a) categorically constitutes
a crime of violence, a rationale on which the Government
heavily relies before us.
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." Cal. Penal Code
§ 422(a) (emphasis added). Contrary to the suggestion of the
Ninth Circuit, no element of § 422(a) "necessarily include[s]
a threatened use of physical force" to accomplish that "result."
This misreading of § 422(a) is critical, for the Guidelines pro-
vide that, to constitute a crime of violence, a prior offense
must have "as an element the use or . . . threatened use of
physical force." See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii)
(emphasis added). An offense that results in physical injury,
but does not involve the use or threatened use of force, simply
1
The Government suggests that the Eighth Circuit has also held that
conviction under § 422(a) categorically constitutes a crime of violence.
But actually the Eighth Circuit only stated, when denying a defendant’s
ineffective assistance of counsel claim on habeas review, that "[a]t the
time of [the defendant’s] sentencing, violation of [§ 422(a)] constituted a
violent felony" under Ninth Circuit law. Toledo v. United States, 581 F.3d
678, 680 (8th Cir. 2009).
UNITED STATES v. TORRES-MIGUEL 7
does not meet the Guidelines definition of a crime of vio-
lence.
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. App’x 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").
Other courts have similarly recognized that, to constitute a
predicate crime of violence justifying a sentencing enhance-
ment under the Guidelines, a state offense must constitute a
use or threatened use of violent force, not simply result in
physical injury or death. Thus, the Second Circuit has held
that Connecticut third degree assault does not constitute a
crime of violence justifying a sentencing enhancement
because "there is a difference between the causation of an
injury," which is all that the Connecticut statute (like
§ 422(a)) required, "and an injury’s causation by the use of
physical force." Chrzanoski v. Ashcroft, 327 F.3d 188, 194
(2d Cir. 2003) (internal quotation marks omitted); see also
Dalton v. Ashcroft, 257 F.3d 200, 207 (2d Cir. 2001) ("There
are many crimes that involve a substantial risk of injury but
do not involve the use of force. Crimes of gross negligence or
reckless endangerment, such as leaving an infant alone near
a pool, involve a risk of injury without the use of force.").
For the same reasons, the Tenth Circuit has held that Colo-
rado 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,
8 UNITED STATES v. TORRES-MIGUEL
although the Colorado statute required bodily injury, impos-
ing that injury does not "necessarily include the use or threat-
ened 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.2
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 vio-
lence 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 (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
2
The drafters of the Guidelines certainly understood the difference
between use or threatened use of physical force, on the one hand, and cau-
sation of injury, on the other, because on multiple occasions they have
revised the Guidelines to reflect this difference. Before 1989, the Guide-
lines definition of crime of violence under the career offender provision
referred to 18 U.S.C. § 16, requiring use of force. See Chrzanoski, 327
F.3d at 195 n.11. In 1989, the drafters broadened the crime of violence
definition to require resultant injury, but not necessarily use of force. See
id. More recently, the drafters changed the Guidelines definition back to
one requiring use of force. Thus the Sentencing Commission has repeat-
edly recognized the important distinction between use of force and injury
caused by force. See U.S.S.G. § 4B1.2(a)(1).
UNITED STATES v. TORRES-MIGUEL 9
because it wrenches the Supreme Court’s language in
Duenas-Alvarez from its context.
In the paragraph on which the Ninth Circuit relied, the
Supreme Court stated that:
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 defi-
nition 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
10 UNITED STATES v. TORRES-MIGUEL
in that case maintained that his prior convictions were not
crimes of violence because they fell outside the generic defi-
nition of sexual abuse of a minor. See id. at 347. There,
requiring the defendant to show that the state statute realisti-
cally 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 defini-
tion." 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." U.S.S.G. § 2L1.2
cmt. n.1(B)(iii). To require a defendant to demonstrate that his
prior state offense does not fall within this residual category
by proving that it is not a "generic" "other offense" is to
require the impossible, for there is no generic "other offense,"
or even a generic "threat" crime.3
Accordingly, we must conclude that the Supreme Court’s
statement in Duenas-Alvarez involving "listed crimes," on
3
We note that even if there were a generic "threat" crime, it is hardly
clear that this generic threat crime would constitute a crime of violence.
Indeed, states have frequently explicitly outlawed threat crimes that
involve no threat of physical force. See, e.g., Del. Code Ann. tit. 11, § 621(criminalizing false statements "likely to cause evacuation" or other "seri-
ous inconvenience" and acts committed "with intent of causing an individ-
ual to believe that the individual has been exposed to a substance that will
cause the individual death or serious injury"); Ga. Code Ann. § 16-11-
37(a) (criminalizing threats to release hazardous substances or burn or
damage property); Kan. Stat. Ann. § 21-3419(a) (repealed 2011) (crimi-
nalizing threats to contaminate food, drugs, or a public water supply, or
expose animals to disease); Mo. Ann. Stat. § 574.115(1) (criminalizing
"communicat[ing] a knowingly false report of an incident or condition
involving danger to life, or knowingly caus[ing] a false belief or fear that
an incident has occurred or that a condition exists involving danger to
life"); 18 Pa. Cons. Stat. Ann. § 2706(a) (criminalizing threats to cause
evacuation or otherwise cause serious public inconvenience).
UNITED STATES v. TORRES-MIGUEL 11
which the Ninth Circuit appeared to rely, simply does not
apply to § 422(a), which is not a listed crime with a generic
definition.
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 vio-
lence. 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