United States v. Martinez Ramirez , 344 F. App'x 962 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 22, 2009
No. 08-41192
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MIGUEL MARTINEZ RAMIREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:08-CR-432-1
Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judge.
PER CURIAM:*
Miguel Martinez Ramirez (“Martinez”) appeals the 75-month sentence
imposed following his plea of guilty to one count of unlawful reentry in violation
of 8 U.S.C. § 1326. Because we agree that the district court erred when it
concluded that Martinez’s prior Ohio offense of aggravated burglary was a crime
of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii), we vacate his sentence and
remand for further proceedings.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-41192
We review de novo the district court’s conclusion that the prior offense was
a crime of violence. See United States v. Bonilla, 524 F.3d 647, 651 (5th Cir.
2008), cert. denied, 129 S. Ct. 904 (2009). An offense may be a crime of violence
for purposes of § 2L1.2 either (1) because it constitutes one of certain
enumerated offenses, such as burglary of a dwelling, or (2) because it has as an
element the use, attempted use, or threatened use of force against the person of
another. § 2L1.2, comment. (n.1(B)(iii)). We begin our analysis with the
elements of the state statute, which proscribes trespassing “in an occupied
structure or in a separately secured or occupied portion of an occupied
structure,” when a person other than an accomplice is present, with purpose to
commit a criminal offense if, inter alia, the “offender inflicts, or attempts or
threatens to inflict physical harm on another.” O HIO R EV. C ODE A NN.
§ 2911.11(A)(1) (2001).
As the Government properly concedes, Ohio aggravated burglary does not
constitute the enumerated offense of burglary of a dwelling because the term
“occupied structure” encompasses structures other than structures used for
human habitation. See O HIO R EV. C ODE § 2909.01(C)(1)-(4); United States v.
Bernal-Aveja, 414 F.3d 625, 627-28 (6th Cir. 2005); see also United States v.
Castillo-Morales, 507 F.3d 873, 875 (5th Cir. 2007), cert. denied, 128 S. Ct. 1106(2008) (setting out definition of burglary of a dwelling). The indictment and
judgment in this case do not further illuminate the inquiry. Cf. Castillo-Morales,
507 F.3d at 875-76 (discussing use of certain adjudicative records to establish an
element of a prior offense). Accordingly, the district court erred by concluding
that Martinez’s offense constituted the enumerated offense of burglary of a
dwelling. See Bernal-Aveja, 414 F.3d at 627-28.
With respect to the residual force-based definition of “crime of violence,”
it is settled law in this circuit that the term “force” means violent or destructive
force, which requires more than the infliction of bodily injury. See United States
v. Dominguez, 479 F.3d 345, 348 (5th Cir.), cert. denied, 128 S. Ct. 61 (2007);
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No. 08-41192
United States v. Villegas-Hernandez, 468 F.3d 874, 880-82 (5th Cir. 2006). As
we have explained, there is a difference between causation of an injury and the
use of physical force. United States v. Vargas-Duran, 356 F.3d 598, 606 (5th Cir.
2004) (en banc).
The Ohio statute includes as an element the infliction, attempted
infliction, or threatened infliction, of “physical harm on another.” O HIO R EV.
C ODE A NN. § 2911.11 (2001). Physical harm is defined broadly under Ohio law
as any injury, illness, or other physiological impairment, regardless of its gravity
or duration. O HIO R EV. C ODE A NN. § 2901.01(C). Because such harm may be
inflicted without the application of violent or destructive force, we conclude that
aggravated burglary does not have as an element the use, attempted use, or
threatened use of physical force against the person of another. See Villegas-
Hernandez, 478 F.3d at 879. We once again reject the Government’s suggestion
that we employ the analysis of the force element set forth in United States v.
Shelton, 325 F.3d 553 (5th Cir. 2003). See Villegas-Hernandez, 478 F.3d at 880-
82 & n.7.
For the foregoing reasons, the sentence imposed by the district court is
VACATED and this matter is REMANDED for further proceedings consistent
with this opinion.
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