United States v. Mark Laurico-Yeno ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA  No. 09-50093
Respondent-Appellee,
v.  D.C. No.
3:08-CR-01624-H-1
MARK LAURICO-YENO,
OPINION
Petitioner-Appellant.

Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted
November 3, 2009—Pasadena, California
Filed January 4, 2010
Before: Ronald M. Gould and Carlos T. Bea, Circuit Judges,
and Donald W. Molloy,* District Judge.
Opinion by Judge Molloy
*The Honorable Donald W. Molloy, United States District Judge for the
District of Montana, sitting by designation.
51
UNITED STATES v. LAURICO-YENO 53
COUNSEL
Karen P. Hewitt, United States Attorney, Douglas Keehn
(argued), Assistant United States Attorney, Bruce R. Castet-
ter, Assistant United States Attorney, Mark R. Rehe, Assistant
United States Attorney, United States Attorney’s Office, San
Diego, California, for plaintiff-appellee United States of
America.
Kristi A. Hughes, Federal Defenders of San Diego, Inc., San
Diego, California, for the defendant-appellant.
OPINION
MOLLOY, District Judge:
Appellant Mark Laurico-Yeno (“Laurico”) pleaded guilty
to one count of being a deported alien found in the United
States, in violation of 8 U.S.C. § 1326(a) and (b). At sentenc-
ing, he received a sixteen-point increase in his base offense
level under U.S.S.G. § 2L1.2 after the sentencing judge deter-
mined his prior conviction of Inflicting Corporal Injury on
Spouse/Cohabitant Partner in violation of California Penal
Code § 273.5 (“§ 273.5”) was a “crime of violence.” He now
appeals this sixteen-point increase arguing that § 273.5 is not
a categorical “crime of violence.” Because the use of physical
force against the person of another is an element of the stat-
54 UNITED STATES v. LAURICO-YENO
ute, we hold that California Penal Code § 273.5 is a categori-
cal crime of violence under U.S.S.G. § 2L1.2.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction to hear Laurico’s appeal pursuant to
28 U.S.C. §§ 1291 and 1294. We review de novo a sentencing
court’s “interpretation of the Guidelines, including its deter-
mination whether a prior conviction is a ‘crime of violence’
for the purposes of U.S.S.G. § 2L1.2.” United States v.
Bolanos-Hernandez, 492 F.3d 1140, 1141 (9th Cir. 2007).
BACKGROUND
On May 21, 2008, Laurico was charged with being a
deported alien found in the United States, in violation of 8
U.S.C. § 1326. He pleaded guilty as charged without the ben-
efit of a plea agreement.
The probation officer filed a presentence report, which
indicated the maximum term of imprisonment was 20 years
and recommended a sentence of 70 months. The presentence
report determined Laurico’s base offense level as 8 and con-
cluded that a sixteen-level sentencing enhancement was
appropriate pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) because
of a 2004 conviction for domestic violence in violation of
§ 273.5.
Laurico objected to the sixteen-point enhancement on the
grounds that the § 273.5 conviction was not a felony, and,
even if it was, the statute is not a categorical “crime of vio-
lence.” The sentencing judge noted our decision in United
States v. Solorio-Nunez, 287 Fed. App’x 13 (9th Cir. 2008)
(unpublished), which upheld an offense-level increase for a
§ 273.5 conviction as a crime of violence. Based on that deci-
sion, the sentencing judge concluded Laurico’s conviction
was a felony and a “crime of violence.”
UNITED STATES v. LAURICO-YENO 55
With the sixteen-level enhancement applied, the sentencing
judge calculated Laurico’s United States Sentencing Guide-
lines (“Guidelines”) range to be 46 to 57 months, but then
varied from the Guidelines range and gave him a sentence of
30 months imprisonment and 3 years of supervised release.
ANALYSIS
The issue here is whether a § 273.5 conviction for willful
infliction of a corporal injury is a categorical “crime of vio-
lence” for purposes of the illegal reentry Guideline U.S.S.G.
§ 2L1.2. Laurico argues that § 273.5 is not a categorical
“crime of violence.” Previously, we have upheld sentencing
courts applying a sixteen-point enhancement under the Guide-
lines for a § 273.5 conviction,1 but we have not done so with
a published analysis of the state statute and the term “crime
of violence” under § 2L1.2. We do so here.
[1] In determining whether § 273.5 categorically falls
within the scope of “crime of violence,” we employ the cate-
gorical approach set forth in Taylor v. United States, 495 U.S.
575 (1990). Under that approach, we do not look to the facts
of the underlying conviction, but rather to the state statute
defining the conviction. “[I]n order for a violation of the state
statute to qualify as a predicate offense, the full range of con-
duct covered by the state statute must fall within the scope of
the federal statutory provision.” United States v. Pallares-
Galan, 359 F.3d 1088, 1099-1100 (9th Cir. 2004) (internal
citation omitted). To do this, we look “at the least egregious
end of [the state statue’s] range of conduct.” United States v.
Baza-Martinez, 464 F.3d 1010, 1014 (9th Cir. 2006) (quoting
United States v. Lopez-Solis, 447 F.3d 1201, 1206 (9th Cir.
1
See, e.g., United States v. Solorio-Nunez, 287 Fed. App’x 13 (9th Cir.
2008) (unpublished) (upholding a district court’s enhancement under the
Guidelines for a § 273.5 conviction); United States v. Zepeda-Martinez,
213 Fed. App’x 530 (9th Cir. 2006) (unpublished) (finding § 273.5 to be
a “crime of violence” warranting a sixteen-level enhancement).
56 UNITED STATES v. LAURICO-YENO
2006)). Thus we begin our analysis by comparing the terms
of U.S.S.G. § 2L1.2(b)(1)(A) with the elements of § 273.5.
[2] The Guidelines provide for a sixteen-level increase to
the base offense level if the defendant was previously
deported following a felony conviction for a “crime of vio-
lence.” See U.S.S.G. § 2L1.2(b)(1)(A). A “crime of violence”
is defined as follows:
“Crime of violence” means any of the following
offenses under federal, state, or local law: murder,
manslaughter, kidnapping, aggravated assault, forc-
ible sex offenses (including where consent to the
conduct is not given or is not legally valid, such as
where consent to the conduct is involuntary, incom-
petent, or coerced), statutory rape, sexual abuse of a
minor, robbery, arson, extortion, extortionate exten-
sion of credit, burglary of a dwelling, or any other
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) (emphasis added). The lan-
guage relevant to our analysis here is “the use . . . of physical
force against the person of another.” In earlier cases, we have
qualified the phrase “crime of violence” to apply only to the
intentional use of force. See, e.g., Fernandez-Ruiz v. Gon-
zales, 466 F.3d 1121, 1132 (9th Cir. 2006). Additionally, a
state crime should be in the category of “violent, active
crimes” before it can qualify as a “crime of violence.” Leocal
v. Ashcroft, 543 U.S. 1, 11 (2004).
[3] In pertinent part, California Penal Code § 273.5(a) pro-
vides as follows:
Any person who willfully inflicts upon a person who
is his or her spouse, former spouse, cohabitant, for-
mer cohabitant, or the mother or father of his or her
UNITED STATES v. LAURICO-YENO 57
child, corporal injury resulting in a traumatic condi-
tion, is guilty of a felony . . . .
The plain terms of the statute require a person willfully to
inflict upon another person a traumatic condition, where will-
fully is a synonym for intentionally. Cal. Penal Code § 7; see
also People v. Lewis, 15 Cal. Rptr. 3d 891, 901 (Cal. Ct. App.
2004). The statute defines a traumatic condition as one that is
“caused by a physical force.” § 273.5(c). Under California
law, this willful infliction requires “a direct application of
force on the victim by the defendant.” People v. Jackson, 91
Cal. Rptr. 2d 805, 810 (Cal. Ct. App. 2000). This means a
defendant can be convicted under § 273.5 only if he or she
intentionally uses “physical force against the person of anoth-
er.” Because a person cannot be convicted without the inten-
tional use of physical force, § 273.5 categorically falls within
the scope of a “crime of violence.”
Laurico argues, however, that § 273.5 includes non-violent
conduct outside the scope of the term “crime of violence.”
The argument is based on California courts interpreting
§ 273.5 on occasion to be a simple battery, with an added
requirement that it result in injury. See People v. Gutierrez,
217 Cal. Rptr. 616, 620-21 (Cal. Ct. App. 1985) (“It is injury
resulting in a traumatic condition that differentiates [§ 273.5]
from lesser offenses. Both simple assault and misdemeanor
battery are included in a prosecution of section 273.5.”)
(emphasis in original and internal citations omitted). Under
California law, a simple battery allows for liability by way of
a “least” or slightest touching. People v. Thurston, 84 Cal.
Rptr. 2d 221, 224 (Cal. Ct. App. 1999). This least touching
“need not be violent or severe,” or even “leave any mark.”
People v. Colantuono, 7 Cal. 4th 206, 214 n.4 (Cal. 1994).
Consequently, Laurico contends a § 273.5 conviction could
result from a non-violent use of force.
[4] Laurico’s argument is without merit. Section 273.5 does
not penalize minimal, non-violent touchings. It penalizes the
58 UNITED STATES v. LAURICO-YENO
intentional use of force that results in a traumatic condition.
This California definition of domestic violence covers a cate-
gory of “violent, active crimes.”
In essence, Laurico is asking us to surmise that a non-
violent “least touching” could result in a § 273.5 conviction.
We need not entertain such a hypothetical possibility. “[T]o
find that a state statute creates a crime outside the generic def-
inition of a listed crime in a federal statute requires more than
the application of legal imagination to a state statute’s lan-
guage.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193
(2007). When the state statute’s greater breadth is not appar-
ent from the language of the statute itself, a defendant must
point to “cases in which the state courts in fact did apply the
statute in the special (nongeneric) manner” to show the statute
applies to conduct outside the federal definition. Id.2
[5] Here, § 273.5’s text does not apply to conduct outside
the term “crime of violence” as defined in the Guidelines. To
the contrary, it fits squarely within the term by requiring the
deliberate use of force that injures another. Laurico is unable
to identify a single § 273.5 case resulting from a non-violent
use of force.3 As such, Laurico presents only a “theoretical
possibility[ ] that [California] would apply its statute to con-
duct” outside the term “crime of violence,” and this is not
enough.4 Id.
2
Although Duenas-Alvarez referred to a federal statute’s definition of a
generic crime, the cited principle applies with equal force to the consider-
ation whether a state statute meets a generic definition appearing in the
Guidelines. See United States v. Saavedra-Velazquez, 578 F.3d 1103,
1108-09 (9th Cir. 2009).
3
Laurico argues People v. Dennis is such a case. No. D044201, 2005
WL 1230772 (Cal. Ct. App. May 24, 2005) (unpublished). In that case,
however, the jury found defendant had pulled the victim’s fingernail off,
more than a non-violent “least touching.”
4
Laurico makes other attempts to portray § 273.5 as broader than a
“crime of violence,” but these other arguments are similarly without merit.
UNITED STATES v. LAURICO-YENO 59
[6] Accordingly, we hold that because California Penal
Code § 273.5 requires the intentional use of physical force
against the person of another it is a “crime of violence” under
the illegal reentry guideline U.S.S.G. § 2L1.2.
AFFIRMED.
He argues § 273.5 applies to negligently or recklessly inflicted injuries,
which do not qualify as a crime of violence. See Fernandez-Ruiz, 466 F.3d
at 1130. Again, however, Laurico is unable to support his contention with
a statute or case law showing that § 273.5 applies to negligent or reckless
conduct.
He also argues that § 273.5 is a general intent crime, and Ninth Circuit
precedent requires a “crime of violence” to be one of specific intent. He
bases this argument on an incorrect reading of our decision in Fernandez-
Ruiz, which held that neither recklessness nor gross negligence supports
a finding of “crime of violence,” but did not hold that “crime of violence”
is limited to specific intent crimes. Id. at 1132. A general intent crime can
satisfy the generic definition of a “crime of violence.”