United States v. Mario Avila , 770 F.3d 1100 ( 2014 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4606
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MARIO VASQUEZ AVILA, a/k/a Mario Sanchez, a/k/a Mario
Vasquez,
Defendant – Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:12-cr-00022-RLV-DSC-1)
Argued: September 19, 2014 Decided: November 4, 2014
Before KING, SHEDD, and AGEE, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion, in
which Judge King and Judge Shedd joined.
ARGUED: Michael E. Archenbronn, Winston-Salem, North Carolina,
for Appellant. William Michael Miller, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON
BRIEF: Anne M. Tompkins, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
AGEE, Circuit Judge:
Mario Vasquez Avila (“Avila”) appeals the thirty-seven
month sentence he received after pleading guilty to illegal
reentry in violation of 8 U.S.C. § 1326(a). On appeal, Avila
does not challenge his conviction, but argues the district court
committed reversible error at sentencing by concluding that his
prior conviction for first-degree burglary under California
Penal Code §§ 459 and 460(a) qualified for an eight-level
sentencing enhancement. Avila further argues that the district
court’s explanation of its chosen sentence was insufficient.
For the reasons that follow, we affirm the judgment of the
district court.
I.
Avila, a native and citizen of Mexico, has a long history
of illegally entering the United States and engaging in criminal
activity while here. First unlawfully entering the United
States in 1990, Avila was arrested for shoplifting and
voluntarily returned to Mexico. After reentering again, Avila
was arrested on multiple charges in California and ultimately
convicted of assault and sentenced to one year in prison in
1993. At the conclusion of his sentence, he was removed to
Mexico.
2
Reentering the United States almost immediately, Avila was
arrested in 1994 in San Diego, California, and charged with
three counts of first-degree robbery, one count of first-degree
burglary, one count of assault with a deadly weapon, and one
count of assault with a firearm. Upon a guilty plea to first-
degree burglary, Avila was sentenced to twelve years in prison.
Immigration officials again removed Avila to Mexico upon his
release.
Avila again illegally returned to the United States and was
twice arrested and convicted in North Carolina for driving while
impaired, ultimately receiving prison sentences of thirty days
and six months. Avila spent additional time in jail after a
conviction for malicious conduct by a prisoner. For reasons not
explained in the record, immigration officials were apparently
unaware of Avila’s presence in the North Carolina penal system.
Following his release from confinement in North Carolina,
Avila assaulted a woman and a police officer, and made several
threats against the officer’s family. Avila was subsequently
charged with two counts of simple assault and one count of
communicating a threat in North Carolina state court.
This time immigration authorities did learn of Avila’s
pending charges and interviewed him on March 23, 2012. Avila
lied during the interview, claiming that he was a United States
citizen. After further investigation, authorities confirmed
3
that Avila was in the United States unlawfully. A federal grand
jury subsequently indicted him for illegal reentry following an
aggravated felony conviction, in violation of 8 U.S.C. § 1326(a)
and (b)(2). On October 10, 2012, Avila pled guilty to this
charge without the benefit of a written plea agreement.
In preparation for sentencing, the United States Probation
Office prepared a presentence investigation report (“PSR”) which
calculated Avila’s total offense level at fourteen and his
criminal history category at V, resulting in a guidelines
sentencing range of thirty to thirty-seven months incarceration.
In computing Avila’s offense level, the PSR included an
enhancement under U.S.S.G. § 2L1.2(b)(1)(C), which provides for
an eight-level increase to the base offense level of any
defendant who “previously was deported, or unlawfully remained
in the United States, after . . . a conviction for an aggravated
felony.” Over Avila’s objection, the probation office
determined that his 1994 California conviction for first-degree
burglary qualified as an aggravated felony.
At sentencing, Avila argued that his California burglary
conviction should not qualify as an aggravated felony for the
eight-level increase because it is not a crime of violence. The
district court overruled Avila’s objection and adopted the
recommended guidelines range in the PSR. Avila also requested a
downward variance based on his work history and treatment for
4
alcohol abuse while awaiting sentencing. The Government sought
a sentence at the high end of the guidelines given Avila’s
repeated history of illegally entering the United States and
committing violent crimes.
Applying “an individualized approach,” the district court
recounted Avila’s personal characteristics and criminal history
and explained that “taken together,” they caused “a concern for
. . . the safety of the public.” (J.A. 25.) The district court
then imposed a within-guidelines sentence of thirty-seven
months’ imprisonment.
Avila timely appealed, and this Court has jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
II.
In reviewing a sentence imposed by a district court, we
apply an abuse of discretion standard. See Gall v. United
States, 552 U.S. 38, 51 (2007). Generally, this requires a two-
step analysis. United States v. Pauley, 511 F.3d 468, 473 (4th
Cir. 2007). First, we review the sentence for “significant
procedural error,” “such as failing to calculate (or improperly
calculating) the Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors, selecting
a sentence based on clearly erroneous facts, or failing to
5
adequately explain the chosen sentence[.]” Gall, 552 U.S. at
51.
If there are no procedural errors, we proceed to consider
the substantive reasonableness of a sentence, “taking into
account the ‘totality of the circumstances including the extent
of any variance from the Guidelines range.’” Pauley, 511 F.3d
at 473 (quoting Gall, 552 U.S. at 51). “[A]n appellate court is
allowed to presume that a district court’s chosen sentence is
substantively reasonable if it is within a correctly calculated
Guidelines range.” United States v. Mendoza-Mendoza, 597 F.3d
212, 216 (4th Cir. 2010) (citation omitted).
Avila raises two issues on appeal, both challenging the
procedural reasonableness of his sentence. First, he argues
that the district court erred in classifying his first-degree
California burglary conviction as an aggravated felony
justifying an eight-level enhancement under U.S.S.G. §
2L1.2(b)(1)(C). Citing Descamps v. United States, 133 S. Ct.
2276 (2013), Avila asserts that his burglary conviction does not
meet the definition of an aggravated felony because the
California statute “lacks the element of an unlawful or
unprivileged entry” and “defines burglary so broadly as to
including shoplifting[.]” (Appellant’s Br. 10.) Separately,
Avila alleges the district court failed to conduct a
sufficiently individualized assessment or address his “non-
6
frivolous argument for a below-guidelines sentence.”
(Appellant’s Br. 13.) We address each argument in turn.
A.
Section 2L1.2 of the Sentencing Guidelines provides for an
eight-level increase to the base offense level of any defendant
convicted of illegal reentry who “previously was deported, or
unlawfully remained in the United States, after . . . a
conviction for an aggravated felony.” U.S.S.G. §
2L1.2(b)(1)(C). Application Note 3 to § 2L1.2 provides that the
term “‘aggravated felony’ has the meaning given that term in 8
U.S.C. 1101(a)(43).” Id. § 2L1.2 cmt. 3(A). That statute
defines “aggravated felony” by listing a series of qualifying
offenses, including, in relevant part, “a crime of violence (as
defined in section 16 of Title 18)[.]” See 8 U.S.C. §
1101(a)(43)(F). “Crime of violence” is defined as:
(a) an offense that has as an element the
use, attempted use, or threatened use of
physical force against the person or
property of another, or
(b) any other offense that is a felony and
that, by its nature, involves a substantial
risk that physical force against the person
or property of another may be used in the
course of committing the offense.
18 U.S.C. § 16.
7
Following this definitional trail, the district court
determined that Avila’s conviction for first-degree burglary
under California law qualified as a “crime of violence” and
therefore an “aggravated felony” for purposes of the eight-level
sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(C). Avila
asserts this conclusion was error, so we now consider whether
Avila’s California burglary conviction is indeed an aggravated
felony under the enhancement. 1 See United States v. Perez-Perez,
737 F.3d 950, 952 (4th Cir. 2013) (noting that whether a prior
conviction qualifies as a predicate offense for purposes of a
guidelines enhancement is a question of law that we review de
novo).
We employ a categorical approach to assess whether Avila’s
California burglary conviction is an aggravated felony, focusing
on the elements of the statute of conviction rather than the
conduct underlying the offense. See Descamps, 133 S. Ct. at
2282-83 (holding that courts must apply the categorical approach
to statutes like California burglary “that contain a single,
1
The Government did not raise any argument here or in the
district court that Avila’s plea to the indictment, listing both
an 8 U.S.C. § 1326(a) and (b)(2) component, decides the
sentencing enhancement issue. Accordingly, we do not address
such an argument. See Mayfield v. Nat’l Ass’n for Stock Car
Auto Racing, Inc., 674 F.3d 369, 377 (4th Cir. 2012) (“A party's
failure to raise or discuss an issue in his brief is to be
deemed an abandonment of that issue.” (citation and internal
quotation marks omitted)).
8
‘indivisible’ set of elements”); United States v. Aparicio-
Soria, 740 F.3d 152, 154 (4th Cir. 2014) (en banc) (“As required
by the categorical approach, our analysis is restricted to ‘the
fact of conviction and the statutory definition of the prior
offense.’” (citation omitted)). 2
Although the “aggravated felony” sentencing enhancement at
issue here includes “burglary” as a qualifying offense, see 8
U.S.C. § 1101(43)(G), the parties agree that subsection does not
encompass Avila’s California burglary conviction because the
California burglary statute is broader than the “generic”
burglary offense as defined by the Supreme Court. See Taylor v.
United States, 495 U.S. 575, 598 (1990) (“[T]he generic,
contemporary meaning of burglary contains at least the following
elements: an unlawful or unprivileged entry into, or remaining
in, a building or other structure, with intent to commit a
crime.”); Descamps, 133 S. Ct. at 2293 (“Because generic
unlawful entry is not an element, or an alternative element, of
[California burglary], a conviction under that statute is never
for generic burglary.”). Accordingly, we must determine whether
Avila’s conviction for California first-degree burglary instead
qualifies under the more generalized “crime of violence”
2
The parties concur that the categorical approach applies
here and there is no basis to utilize the modified categorical
approach. We agree.
9
definition in 18 U.S.C. § 16. To the extent the statutory
definition of California burglary has been interpreted by the
California Supreme Court, “that interpretation constrains our
analysis[.]” Aparicio-Soria, 740 F.3d at 154.
Avila’s uncontested prior conviction for first-degree
burglary under California law required proof of three elements:
(1) entry into a dwelling; (2) that was inhabited at the time of
the entry; (3) with the intent to commit a theft or any felony.
See People v. Anderson, 211 P.3d 584, 589 (Cal. 2009). For
purposes of this crime, a structure “need not be occupied at the
time; it is inhabited if someone lives there, even though the
person is temporarily absent.” People v. Little, 142 Cal. Rptr.
3d 466, 471 (Cal. Ct. App. 2012) (citation and emphasis
omitted).
We conclude that California first-degree burglary qualifies
as a crime of violence under the residual clause in 18 U.S.C. §
16(b). To reach this determination we need look no further than
the Supreme Court’s decision in Leocal v. Ashcroft, where the
Court explained:
[Section] 16 relates not to the general
conduct or to the possibility that harm will
result from a person’s conduct, but to the
risk that the use of physical force against
another might be required in committing a
crime. The classic example is burglary. A
burglary would be covered under § 16(b) not
because the offense can be committed in a
generally reckless way or because someone
10
may be injured, but because burglary, by its
nature, involves a substantial risk that the
burglar will use force against a victim in
completing the crime.
543 U.S. 1, 10 (2004) (footnote and emphasis omitted).
The Supreme Court of California has similarly recognized
that first-degree burglary creates a substantial risk that use
of physical force may result:
Burglary laws are based primarily upon a
recognition of the dangers to personal
safety created by the usual burglary
situation—the danger that the intruder will
harm the occupants in attempting to
perpetrate the intended crime or to escape
and the danger that the occupants will in
anger or panic react violently to the
invasion, thereby inviting more violence.
The laws are primarily designed, then, not
to deter the trespass and the intended
crime, which are prohibited by other laws,
so much as to forestall the germination of a
situation dangerous to personal safety.
People v. Montoya, 874 P.2d 903, 911-12 (Cal. 1994) (internal
quotation marks omitted); see also United States v. Becker, 919
F.2d 568, 571 (9th Cir. 1990) (“The California courts have held
that first degree burglary is burglary of a residence—a distinct
and more serious offense than other burglaries.”), superseded in
part by statute as stated in, United States v. Ramos-Medina, 706
F.3d 932, 936-39 (9th Cir. 2012).
Given the inherent risks associated with burglary of a
dwelling, courts have come to the conclusion (unanimous, so far
as we can tell) that first-degree burglary under California law
11
is indeed a crime of violence under 18 U.S.C. § 16(b). See,
e.g., Lopez-Cardona v. Holder, 662 F.3d 1110, 1112 (9th Cir.
2011); United States v. Echeverria-Gomez, 627 F.3d 971, 976 (5th
Cir. 2010). We agree.
Avila argues that the Supreme Court’s decision in Descamps
dictates a contrary conclusion. We disagree. As relevant to
the case at bar, Descamps held only that a conviction for
burglary under California law does not categorically constitute
a conviction for generic burglary, and thus cannot qualify as a
predicate offense under the Armed Career Criminal Act (“ACCA”)
provision that references the generic crime. 133 S. Ct. at
2293. That is not the issue in this case. Here, using a
completely different statutory scheme, we are asked to determine
whether a conviction for first-degree burglary under California
law constitutes a crime of violence for purposes of 18 U.S.C. §
16(b), which does not fall under the ACCA.
Unlike the ACCA provision analyzed in Descamps, 18 U.S.C. §
16(b) does not contain a roster of enumerated offenses or list
generic burglary as a qualifying crime. Instead, § 16(b) speaks
in descriptive terms of felonies that carry a substantial risk
that force will be used. Consequently, the crime of violence
definition in § 16(b) is not restricted to generic burglary, and
Descamps is inapplicable to our analysis. See Becker, 919 F.2d
at 572 (recognizing the California crime of burglary might not
12
be a “violent felony” under the ACCA, which defines the term by
reference to the generic crime, but it is a “crime of violence”
under the risk-focused text of 18 U.S.C. § 16). Indeed, in
Descamps itself the Supreme Court explicitly limited its holding
to that specific provision in the ACCA referencing generic
burglary. 133 S. Ct. at 2293 n.6 (declining to address whether
California burglary qualifies as a predicate offense under the
ACCA’s residual clause); see also United States v. Rodriguez-
Frias, 571 F. App’x 536, 537 (9th Cir. 2014) (unpublished)
(noting that Descamps has no bearing on “the definition of
violence in the residual clause contained in § 16(b)”).
Avila further asserts that California burglary does not
satisfy the crime of violence definition because the statute
“lacks the element of an unlawful or unprivileged entry.”
(Appellant’s Br. 10.) This argument is without merit because
the absence of this element does not dissipate the risks
associated with burglary of an inhabited dwelling. California
courts have repeatedly emphasized the potentially violent nature
of first-degree burglary notwithstanding the absence of forced
entry. See People v. Davis, 958 P.2d 1083, 1088-89 (Cal. 1998).
Likewise, as noted by the Supreme Court, the “main risk of
burglary arises not from the simple physical act of wrongfully
entering onto another’s property, but rather from the
possibility of a face-to-face confrontation between the burglar
13
and a third party[.]” James v. United States, 550 U.S. 192, 203
(2007). Succinctly stated, burglary of a dwelling presents a
substantial risk of force with or without an unlawful entry.
See United States v. Maldonado, 696 F.3d 1095, 1103 (10th Cir.
2012) (“[A] risk of violence arises, even absent an unlawful
entry, when a victim or third-party discovers the burglar’s
criminal intent. The burglar may initiate violence to carry out
his crime, or a victim or third party may use force to resist or
prevent it.” (emphasis added)); United States v. Park, 649 F.3d
1175, 1178-79 (9th Cir. 2011) (noting that in determining
whether first-degree burglary under California law involves
conduct that presents a serious potential risk of physical
injury to another, “[i]t makes no difference . . . that
California first-degree burglary does not require an unlawful
entry”).
Finally, we reject Avila’s contention that first-degree
burglary under California law does not qualify as a crime of
violence because it encompasses crimes “includ[ing] shoplifting
and theft of goods from a locked but unoccupied automobile.”
(Appellant’s Br. 10.) First, this argument mistakenly assumes
that the above examples fall under California’s statutory scheme
for first-degree burglary. As noted, first-degree burglary
requires entry into an inhabited dwelling. Neither of the
above illustrations satisfy this requirement. In any event,
14
every set of conceivable facts covered by first-degree burglary
does not have to present a serious risk of injury for it to
qualify as a crime of violence. It is sufficient if “the
conduct encompassed by the elements of the offense, in the
ordinary case, presents a serious potential risk of injury to
another.” James, 550 U.S. at 208. As long as an offense is of
a type that, by its nature, presents a substantial risk that
physical force against the person or property of another may be
used, it satisfies the requirements of 18 U.S.C. § 16(b). See
id. First-degree burglary under California law fulfills that
requirement.
First-degree burglary, as defined in California Penal Code
§§ 459 and 460(a), is a crime of violence within the meaning of
18 U.S.C. § 16(b) and therefore qualifies as an aggravated
felony. Accordingly, the district court correctly applied the
eight-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C) when it
calculated Avila’s sentence.
B.
We now turn to Avila’s argument that the district court’s
sentencing colloquy was procedurally inadequate. Contrary to
Avila’s assertion otherwise, the district court’s explanation of
its sentence was more than sufficient to preclude a finding of
error. A sentencing court must “‘state in open court’ the
15
particular reasons that support its chosen sentence.” United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009). The
court’s explanation, however, need not be exhaustive; it merely
must be “sufficient ‘to satisfy the appellate court that [the
district court] has considered the parties’ arguments and has a
reasoned basis for exercising [its] own legal decisionmaking
authority.’” United States v. Boulware, 604 F.3d 832, 837 (4th
Cir. 2010) (alterations in original) (quoting Rita v. United
States, 551 U.S. 338, 356 (2007)). Here, the district court
explained that it had considered Avila’s “history and
characteristics,” and “taken together, these indicate a concern
. . . on the part of the Court for the safety of the public.
And that is the driving reason for the sentence.” (J.A. 25.)
Although the district court’s explanation focused on two of the
sentencing factors, its discussion of Avila’s history and
characteristics and the need to protect the public from further
crimes was individualized as to Avila and based on the facts
presented. See United States v. Johnson, 445 F.3d 339, 345 (4th
Cir. 2006) (“Requiring district courts to address each factor on
the record would thus be an exercise in unproductive repetition
that would invite flyspecking on appeal.”).
We similarly reject Avila’s argument that the district
court erred by failing to address his “non-frivolous argument
for a below-guidelines sentence.” (Appellant’s Br. 13.) Avila
16
fails altogether to explain in his brief what non-frivolous
arguments the district court neglected to consider. Looking at
the sentencing transcript, however, it is apparent that his
request for a downward variance was based almost exclusively on
his personal history and characteristics; topics which the
district court made clear that it had considered. We thus find
no abuse of discretion by the district court. 3
III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
3
Avila raises no separate argument as to the substantive
reasonableness of his sentence and we find no abuse of
discretion in his within-guidelines sentence.
17