Usav Lopez-Torres ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-10392
Plaintiff-Appellee,
v.  D.C. No.
CR-04-00343-ECR
LIBRADO LOPEZ-TORRES,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, District Judge, Presiding
Argued and Submitted
April 6, 2006—San Francisco, California
Filed April 25, 2006
Before: Alfred T. Goodwin, Betty B. Fletcher, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Goodwin
4635
UNITED STATES v. LOPEZ-TORRES 4637
COUNSEL
Arthur L. Allen, Assistant Federal Public Defender, Las
Vegas, Nevada, for the defendant-appellant.
Robert A. Bork, Assistant U.S. Attorney, Las Vegas, Nevada,
for the plaintiff-appellee.
OPINION
GOODWIN, Circuit Judge:
This appeal involves the unlawful reentry of a deported
alien whose sentence was enhanced due to a prior conviction
for shooting at an occupied motor vehicle in violation of Cali-
fornia Penal Code section 246. We hold that a conviction
under California Penal Code 246 is categorically a crime of
violence under Sentencing Guideline § 2L1.2, and affirm the
enhancement.
I.
On December 13, 2004, Librado Lopez-Torres pled guilty
to one count of unlawful reentry of a deported alien in viola-
tion of 8 U.S.C. § 1326. Lopez-Torres filed supplemental
4638 UNITED STATES v. LOPEZ-TORRES
objections to the presentence report’s (PSR) calculation of his
offense level which increased the base level by sixteen for a
prior crime of violence conviction. The government’s
response defended the PSR’s calculations. Lopez-Torres
argued that the district court should apply a categorical
approach and then modified categorical approach to analyze
his prior conviction under California Penal Code section 246.
At the sentencing hearing, the district court engaged in a mod-
ified categorical analysis to find that Lopez-Torres’ section
246 conviction was a crime of violence resulting in a sixteen-
level enhancement. This appeal followed.
II.
We review a district court’s legal interpretation of the Sen-
tencing Guidelines de novo. United States v. Kelly, 422 F.3d
889, 891-92 (9th Cir. 2005).
III.
Lopez-Torres argues that a conviction under California
Penal Code section 246 is not categorically a crime of vio-
lence for purposes of Sentencing Guidelines § 2L1.2(b)(1)
(A)(ii). California Penal Code section 246 states:
Any person who shall maliciously and willfully dis-
charge a firearm at an inhabited dwelling house,
occupied building, occupied motor vehicle, occupied
aircraft, inhabited housecar, as defined in Section
362 of the Vehicle Code, or inhabited camper, as
defined in Section 243 of the Vehicle Code, is guilty
of a felony, and upon conviction shall be punished
by imprisonment in the state prison for three, five, or
seven years, or by imprisonment in the county jail
for a term of not less than six months and not
exceeding one year.
UNITED STATES v. LOPEZ-TORRES 4639
As used in this section, “inhabited” means currently
being used for dwelling purposes, whether occupied
or not.
The district court did not hold that a conviction under section
246 is categorically a crime of violence under § 2L1.2(b)(1)
(A)(ii). Instead, it considered the abstract of judgment and the
criminal complaint in addition to the PSR, and determined
that Lopez-Torres was convicted of shooting into an occupied
vehicle, which it held to be a crime of violence.
[1] To determine whether a prior conviction qualifies to
enhance a defendant’s sentence under the Guidelines, this
court applies the Taylor categorical approach and then the
modified categorical approach. United States v. Vidal, 426
F.3d 1011 (9th Cir. 2005) (holding that Blakely v. Washing-
ton, 542 U.S. 296 (2004), and United States v. Booker, 543
U.S. 220 (2005), did not affect these approaches).
[2] We recently applied the Taylor categorical approach
and held that violation of “California Penal Code section 246
is a ‘crime of violence’ under the commentary to USSG
§ 2L1.2 because shooting at an uninhabited dwelling neces-
sarily involves ‘threatened use of physical force against the
person of another.’ ” United States v. Cortez-Arias, 403 F.3d
1111, 1115 (9th Cir. 2005), amended by 415 F.3d 977,
amended by 425 F.3d 547. Lopez-Torres does not address this
case in his brief to this court. At the sentencing hearing, his
attorney argued that because Cortez-Arias involved an inhab-
ited dwelling and Lopez-Torres’ conviction involved an occu-
pied motor vehicle, the case should not control. This
distinction is unpersuasive.
[3] A “crime of violence” for purposes of § 2L1.2 includes
“any 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.” U.S.S.G. § 2L1.2 cmt. n.
1(B)(iii) (2003). Cortez-Arias addressed whether a shooting at
4640 UNITED STATES v. LOPEZ-TORRES
an inhabited but unoccupied dwelling satisfied this definition.
The court reasoned that “California law recognizes that the
required elements of violation of section 246 ‘always present
a potential for violence,’ and it follows that there is always a
‘threatened use of physical force against the person of anoth-
er.’ ” Cortez-Arias, 403 F.3d at 1115-16 (quoting People v.
White, 4 Cal. App. 4th 1299, 1305 (1992)).
[4] Cortez-Arias’ reasoning applies equally to every means
of violating section 246, from shooting at an inhabited dwell-
ing house, housecar, or camper, to shooting at an occupied
building or motor vehicle. The court explained that “[a] per-
son whose home is shot up by an instrument of deadly force,
even though that person may have been absent at the time of
the shooting, will surely feel threatened by the physical force
that intruded on his or her home.” Id. at 1116. While applied
to a shooting at an inhabited dwelling house in that case, this
reasoning also applies to “homes” including housecars and
campers — the other two places which can be inhabited but
unoccupied under section 246. Because the other places enu-
merated in section 246 — motor vehicles, buildings, and air-
craft — must be occupied, shooting at these places also
involve “the use, attempted use, or threatened use of physical
force against the person of another,” and qualify as crimes of
violence under § 2L1.2.
[5] Lopez-Torres further contends that because a conviction
under section 246 could result in a sentence of one year or
less, a violation is not categorically a felony for § 2L1.2 pur-
poses. However, a felony for the purposes of § 2L1.2 is
defined as “any federal, state, or local offense punishable by
imprisonment for a term exceeding one year.” U.S.S.G.
§ 2L1.2 cmt. n. 2 (2003) (emphasis added). A violation of
California Penal Code section 246 is a felony for § 2L1.2 pur-
poses because it is punishable by imprisonment for up to
seven years.
Finally, Lopez-Torres argues that we should decline to fol-
low the Supreme Court’s holding in Almendarez-Torres v.
UNITED STATES v. LOPEZ-TORRES 4641
United States, 523 U.S. 224 (1998), that a prior conviction
need not be proved to a jury beyond a reasonable doubt to
enhance a sentence. He argues that subsequent non-majority
opinions by members of the Supreme Court have undercut
Almendarez-Torres, and that we are no longer bound by it.
We have repeatedly rejected this argument, and do so again
here. See, e.g., United States v. Esparza-Gonzalez, 422 F.3d
897, 907 (9th Cir. 2005) (“[E]nhancements based on prior
convictions need not be proven beyond a reasonable doubt
[to] a jury or admitted by the defendant to satisfy the Sixth
Amendment.”); United States v. Rodriguez-Lara, 421 F.3d
932, 949-50 (9th Cir. 2005) (reaffirming the prior conviction
exception to the Apprendi v. New Jersey, 530 U.S. 466
(2000), rule).
[6] Notwithstanding that the district court unnecessarily
conducted a modified categorical analysis, we affirm Lopez-
Torres’ sentence enhancement on the alternative ground that
a California Penal Code section 246 conviction is categori-
cally a crime of violence for purposes of U.S.S.G. § 2L1.2.
AFFIRMED.