United States v. Jose Moreno-Tobar , 452 F. App'x 763 ( 2011 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                              OCT 06 2011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. 10-50378
    Plaintiff - Appellee,              DC. No. 3:09-cr-03027-JLS-1
    v.
    MEMORANDUM *
    JOSE MORENO-TOBAR,
    Defendant - Respondent.
    Appeal from the United States District Court
    for the Southern District of California
    Janis L. Sammartino, District Judge, Presiding
    Argued and Submitted August 30, 2011
    Pasadena, California
    Before: SCHROEDER and GOULD, Circuit Judges, and SEEBORG, District
    Judge.**
    Appellant Jose Moreno-Tobar (“Moreno”) pleaded guilty to illegal re-entry
    into the United States in violation of 8 U.S.C. § 1326, and was sentenced to a term
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The Honorable Richard Seeborg, United States District Judge for the
    Northern District of California, sitting by designation.
    of 60 months in prison, to be followed by three years supervised release. On
    appeal, Moreno contends the district court erred in determining that his prior
    conviction under California Penal Code § 243(d) for battery constituted a “crime of
    violence,” thereby warranting a sixteen-level increase to his base offense level
    pursuant to § 2L1.2 of the United States Sentencing Guidelines (“U.S.S.G.”or “the
    Guidelines”). We agree and remand for resentencing.
    Whether a prior conviction constitutes a “crime of violence” under U.S.S.G.
    § 2L1.2(b)(1)(A)(ii) is a question of law that is subject to de novo review. United
    States v. Grajeda, 
    581 F.3d 1186
    , 1188 (9th Cir. 2009). The approach set forth in
    Taylor v. United States, 
    495 U.S. 575
    , 602, 
    110 S. Ct. 2143
    , 
    109 L. Ed. 2d 607
    (1990), governs the analysis of whether a defendant’s prior conviction satisfies the
    Guidelines definition of a crime of violence. United States v. Esparza-Herrera, 
    557 F.3d 1019
    , 1022 (9th Cir. 2009) (per curiam). “Under this approach the state
    statute of conviction is ‘compared with the generic definition of that crime to
    determine if the defendant’s conviction is a crime of violence pursuant to the
    Sentencing Guidelines.’” 
    Id. (quoting United
    States v. Velasquez-Reyes, 
    427 F.3d 1227
    , 1229 (9th Cir. 2005)).
    The Application Note to section 2L1.2 of the Guidelines does not include the
    generic crime of “battery” among the specifically listed qualifying offenses, but it
    2
    extends the definition of “crime of violence” to include “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 n.
    1(b)(iii).1 The issue, therefore, is whether the California Penal Code sections under
    which Moreno was convicted “require intentional use, attempted use, or threatened
    use of force.” 
    Grajeda, 581 F.3d at 1191
    (emphasis added). Critically, “neither
    recklessness nor negligence is enough.” 
    Id. Furthermore, the
    requisite force “must
    actually be violent in nature.” 
    Id. (quoting United
    States v. Lopez-Montanez, 
    421 F.3d 926
    , 929 (9th Cir. 2005)).
    Section 242 of the California Penal Code defines “battery” as “any willful
    and unlawful use of force or violence upon the person of another.” The
    subdivisions of section 243, in turn, set out the punishments for acts of battery,
    depending on the particular circumstances in which they were committed. Moreno
    pleaded guilty under section 243(d), which provides for a prison term of up to four
    years where “serious bodily injury is inflicted.”
    At first blush, it might appear that battery under the California Penal Code
    necessarily is a “crime of violence” given the use of the phrase “unlawful force or
    1
    This portion of the definition is sometimes referred to as the “element”
    prong or test, as contrasted to the “enumerated offense” prong. See 
    Grajeda, 581 F.3d at 1189-90
    .
    3
    violence” in the statutory definition. In Ortega-Mendez v. Gonzales, (“Ortega”)
    
    450 F.3d 1010
    (9th Cir. 2006), however, this court firmly rejected any such
    reasoning. Ortega first observed that the disjunctive “force or violence” on its face
    is susceptible to an interpretation that non-violent force suffices. 
    Id. at 1016.
    More importantly, as Ortega found, the California courts have consistently
    interpreted that phrase as “a term of art, requiring neither a force capable of hurting
    or causing injury nor violence in the usual sense of the term.” 
    Id. The California
    authorities on which Ortega relied included People v. Colantuono, 
    7 Cal. 4th 206
    ,
    
    26 Cal. Rptr. 2d 908
    , 
    865 P.2d 704
    (1994), in which the state supreme court
    explained that, “[i]t has long been established, both in tort and criminal law, that
    the least touching may constitute battery. In other words, force against the person
    is enough, it need not be violent or severe . . . 
    .” 7 Cal. 4th at 214
    n. 4; see also,
    
    Ortega, 450 F.3d at 1016
    –17 (listing additional California precedents).
    In light of California’s definition of “force or violence” in the context of
    battery, Ortega squarely held that a conviction under section 242 of the state’s
    Penal Code can not be categorically deemed a “crime of violence” under the Taylor
    4
    
    approach. 450 F.3d at 1020
    .2 In so holding, Ortega declined to follow a prior
    decision which found, without substantive analysis, that the language of section
    242 supported a conclusion that a battery conviction represented a “crime of
    violence.” See 
    Ortega, 450 F.3d at 1018
    –19 (discussing United States v.
    Robinson, 
    967 F.2d 287
    (9th Cir. 1992)). The Ortega court concluded that in
    addition to having not fully considered the issue, Robinson could not be deemed
    good law as the result of intervening higher precedent. 
    Ortega, 450 F.3d at 1020
    .
    Accordingly, Moreno’s conviction for battery under the California Penal Code
    cannot be categorically deemed a crime of violence that would support imposition
    of a sixteen-level enhancement.3
    2
    Ortega involved the definition of “crime of violence” found in 18 U.S.C. §
    16(a), which applies to an alien’s eligibility for cancellation of removal, rather than
    to sentencing enhancements under the Guidelines. This court, however, applies
    precedents from the 18 U.S.C. § 16(a) context to cases such as this one, because
    “the relevant definitions under § 16(a) and U.S.S.G. § 2L1.2 are identical.”
    
    Grajeda, 581 F.3d at 1190
    (quoting United States v. Narvaez-Gomez, 
    489 F.3d 970
    , 976 (9th Cir. 2007)).
    3
    The fact that Moreno pleaded guilty under section 343(d) does not alter the
    analysis. While that provision applies when a battery has resulted in “serious
    bodily injury,” there is still no requirement of a use of force that is “violent in
    nature.” A non-violent but unlawful touching could result in serious bodily injury
    under any number of possible factual scenarios. Cf. 
    Grajeda, 581 F.3d at 1192
    (holding “crime of violence” definition to be satisfied categorically by statute
    requiring force “likely to produce great bodily injury” because, “such force must
    necessarily go beyond the ‘least touching,’ and represents ‘actual force’ that is
    violent in nature”).
    5
    Pursuant to United States v. Aguila-Montes De Oca, __ F.3d__, No. 05-
    50170, 
    2011 WL 3506442
    , at *11 (9th Cir. Aug. 11, 2011), upon concluding that a
    particular conviction is not categorically a crime of violence, the “modified
    categorical approach” is to be applied. There is no dispute here, however, that
    neither the amended information nor the abstract of judgment add anything of
    substance to the statutory language. As such, even under the modified categorical
    approach Moreno’s conviction cannot be deemed to have been for a crime of
    violence. See 
    id. at *26
    (“In short, conviction records for California burglary
    cannot demonstrate that a defendant was convicted of generic burglary unless they
    do something more than simply repeat the elements of California burglary.”).
    Moreno’s sentence must therefore be vacated and the matter remanded for re-
    sentencing.
    Moreno’s further contention that three criminal history points for California
    Vehicle Code violations were improperly assessed is not persuasive, as the
    Guidelines do not impose a knowledge requirement, and a Taylor-style analysis as
    to whether the California Vehicle Code provisions meet the Guidelines definition
    is not required. See United States v. Ellsworth, 
    456 F.3d 1146
    , 1152 (9th Cir.
    2006) (“a criminal history calculation is not predicated on the commission of an
    underlying generically defined crime.”). Moreno’s final argument that the claimed
    6
    errors culminated in a substantively unreasonable sentence is moot in light of the
    conclusion that the battery conviction does not qualify as a “crime of violence.”
    SENTENCE VACATED; REMANDED FOR RESENTENCING.
    7