United States v. Victor Biurquez-Zaragoza , 425 F. App'x 609 ( 2011 )

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                                                                           FILED
NOT FOR PUBLICATION                            MAR 31 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,                        No. 09-10517
Plaintiff - Appellee,            D.C. No. 4:09-cr-00796-DCB-
BPV-1
v.
VICTOR MANUEL BIURQUEZ-                          MEMORANDUM *
ZARAGOZA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted March 15, 2011 **
San Francisco, California
Before:         W. FLETCHER and M. SMITH, Circuit Judges, and WU,
District Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable George H. Wu, United States District Judge for the
Central District of California, sitting by designation.
Victor Manuel Biurquez-Zaragoza appeals from the 51-month sentence
imposed following his guilty-plea conviction for re-entry after deportation, in
violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291 and we
affirm.
Biurquez-Zaragoza contends that the district court erred when it determined
that his prior conviction for attempted robbery categorically qualified as a crime of
violence under U.S.S.G. § 2L1.2. He argues that the Kansas definition of robbery
is not a “crime of violence” under the sentencing guidelines because it contains no
element of violent force. This is incorrect.
We have previously held that the enumerated offenses are “per se crimes of
violence. . . . even though ‘force,’ as such, is not an essential element for
conviction of those offenses.” United States v. Pereira-Salmeron,

337 F.3d 1148

,
1152 (9th Cir. 2003). This holding was not altered by Johnson v. United States,
559 U.S. __,

130 S. Ct. 1265

(2010), which only addressed the term “violent
felony” as used in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1). “Crime
of Violence” as used in the sentencing guidelines is a term of art; it explicitly
includes crimes that do not contain an element of violent force such as statutory
rape, arson, extortion and extortionate extension of credit. U.S.S.G. § 2L1.2 at
cmt. n.(1)(B)(iii). See also

Pereira-Salmeron, 337 F.3d at 1152

; United States v.
2
Harris,

572 F.3d 1065

, 1066 (9th Cir. 2009) (per curiam) (recognizing that a
robbery statute may meet the generic definition of robbery even if the robbery
statute makes the degree of force immaterial); United States v. Gomez-Leon,

545 F.3d 777

, 789 (9th Cir. 2008) (stating that when the court considers whether a
crime of conviction falls within the list of enumerated offenses, it does so without
regard for whether the crime meets the requirement of the application note’s
alternative residual clause element test). Biurquez-Zaragoza’s conviction for
attempted robbery therefore qualifies as a crime of violence. See U.S.S.G. § 2L1.2
cmt. n.5 (stating that prior conviction for attempt to commit crime of violence
constitutes crime of violence).
Biurquez-Zaragoza also contends in his reply brief that his crime of
conviction was not categorically a crime of violence under § 2L1.2 because
Kansas’s definition of “attempt” is broader than the federal definition. Biurquez-
Zaragoza forfeited this argument by failing to raise it in his opening brief. See
Eberle v. City of Anaheim,

901 F.2d 814

, 818 (9th Cir. 1990). Even were we to
reach the merits of this claim, Biurquez-Zaragoza’s argument is unpersuasive.
When a state’s definition of “attempt” is different from the federal definition, as is
the case here, we look to how the state applies the definition to see if it overlaps in
practice with the federal definition. United States v. Rivera-Ramos,

578 F.3d 1111

,
3
1114 (9th Cir. 2009). After reviewing cases from the Kansas Supreme Court, we
conclude that Kansas applies the “overt act” test in the same way the Ninth Circuit
applies the “substantial step” test. See, e.g., State v. Gobin,

531 P.2d 16

19 Kan. 1975

) (collecting cases) (stating that attempt requires “steps beyond mere
preparation by doing something directly moving toward and bringing nearer the
crime” and must approach “sufficiently near to consummation of the offense”); see
also State v. Peterman,

118 P.3d 1267