United States v. Genaro Acevedo-De La Cruz

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF No. 15-10418
AMERICA,
Plaintiff-Appellee, D.C. No.
4:14-cr-01196-RM-EJM-1
v.
GENARO ACEVEDO-DE LA OPINION
CRUZ,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Rosemary Marquez, District Judge, Presiding
Argued and Submitted October 21, 2016
San Francisco, California
Filed January 5, 2017
Before: Carlos T. Bea and Sandra S. Ikuta,
Circuit Judges, and Jane A. Restani, Judge.*
Opinion by Judge Ikuta
*
The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.
2 UNITED STATES V. ACEVEDO-DE LA CRUZ
SUMMARY**
Criminal Law
Affirming a sentence, the panel held that a violation of a
protective order involving an act of violence or credible threat
of violence in violation of California Penal Code § 273.6(d)
is a categorical crime of violence for purposes of U.S.S.G.
§ 2L1.2(b)(1)(A)(ii).
COUNSEL
Henry Jacobs (argued), Law Offices of Henry Jacobs PLLC,
Tucson, Arizona, for Defendant-Appellant.
Lauren LaBuff (argued), Assistant United States Attorney;
Robert L. Miskell, Appellate Chief; John S. Leonardo, United
States Attorney; United States Attorney’s Office, Tucson,
Arizona; for Plaintiff-Appellee.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. ACEVEDO-DE LA CRUZ 3
OPINION
IKUTA, Circuit Judge:
This appeal raises the question whether a violation of a
protective order involving an act of violence or credible threat
of violence in violation of section 273.6(d) of the California
Penal Code is a categorical crime of violence for purposes of
§ 2L1.2(b)(1)(A)(ii) of the United States Sentencing
Guidelines (“U.S.S.G.” or “Sentencing Guidelines”).1 We
review de novo the district court’s determination that Genaro
Acevedo-De La Cruz’s prior conviction constitutes a crime of
violence, United States v. Mendoza-Padilla, 833 F.3d 1156,
1158 (9th Cir. 2016), and we affirm.
I
We first set forth the legal framework applicable to this
appeal. The federal Sentencing Guidelines impose a base
offense level of 8 for defendants convicted of unlawful
reentry in violation of 8 U.S.C. § 1326. See U.S.S.G.
§ 2L1.2(a). If the defendant had a prior felony conviction for
“a crime of violence,” the Sentencing Guidelines in effect at
the time of Acevedo-De La Cruz’s sentencing provided for a
1
All citations to the United States Sentencing Guidelines are to the
2014 manual, which applied at the time of Acevedo-De La Cruz’s
sentencing. See Johnson v. Gomez, 92 F.3d 964, 968 (9th Cir. 1996).
Amendments to the Sentencing Guidelines effective November 1, 2016,
eliminated the relevant language in U.S.S.G. § 2L1.2(b)(1)(A)(ii). U.S.
Sentencing Guidelines Manual app. C, amend. 802, at 147–49 (U.S.
Sentencing Comm’n 2016).
4 UNITED STATES V. ACEVEDO-DE LA CRUZ
16-level sentence enhancement. Id. § 2L1.2(b)(1)(A)(ii).2 A
“crime of violence” is defined to include 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.” Id. § 2L1.2, cmt. n.1(B)(iii).3 “Physical
force” for purposes of the Sentencing Guidelines means
“force capable of causing physical pain or injury to another
2
U.S.S.G. § 2L1.2, “Unlawfully Entering or Remaining in the United
States” provided, in pertinent part:
(a) Base Offense Level: 8
(b) Specific Offense Characteristic
(1) Apply the Greatest:
If the defendant previously was deported, or unlawfully remained
in the United States, after—
(A) a conviction for a felony that is . . . (ii) a crime of
violence . . . increase by 16 levels if the conviction receives
criminal history points under Chapter Four or by 12 levels
if the conviction does not receive criminal history points.
3
Application Note 1(B)(iii) to § 2L1.2 provided:
“Crime of violence” means any of the following
offenses under federal, state, or local law: murder,
manslaughter, kidnapping, aggravated assault, forcible
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, incompetent, or coerced),
statutory rape, sexual abuse of a minor, robbery, arson,
extortion, extortionate extension 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.
UNITED STATES V. ACEVEDO-DE LA CRUZ 5
person.” United States v. Flores-Cordero, 723 F.3d 1085,
1087 (9th Cir. 2013) (quoting Johnson v. United States,
559 U.S. 133, 140 (2010)). To determine whether a prior
conviction qualifies as a crime of violence, we use the
categorical approach set forth in Taylor v. United States,
495 U.S. 575 (1990). We first identify the elements of the
statute of conviction, and then compare those elements to the
generic federal definition of a crime of violence to determine
whether the statute of conviction criminalizes more conduct
than the generic federal crime. Almanza-Arenas v. Lynch,
815 F.3d 469, 475 (9th Cir. 2016) (en banc). If the statute of
conviction criminalizes the same (or less) conduct as does the
generic federal crime, then the sentence enhancement applies
to every conviction under the statute of conviction.4 Id.
When interpreting a state statute of conviction, we look to
the state’s rules of statutory construction. Id. “Under
California law, the cardinal rule of statutory construction is to
determine the intent of the legislature.” Id. (quoting
Lieberman v. Hawkins (In re Lieberman), 245 F.3d 1090,
1092 (9th Cir. 2001)). To ascertain the intent of the
legislature, we look first to the plain language of the statute.
Id. “We give the language its usual and ordinary meaning,
and ‘[i]f there is no ambiguity, then we presume the
lawmakers meant what they said.’” People v. Gutierrez,
58 Cal. 4th 1354, 1369 (2014) (alterations in original)
(quoting Mays v. City of Los Angeles, 43 Cal. 4th 313, 321
4
If the statute of conviction criminalizes more conduct than the
generic federal crime, we consider whether the statute is divisible; if it is
divisible, then we apply the modified categorical approach. Descamps v.
United States, 133 S. Ct. 2276, 2284 (2013). Here, we do not need to
apply the modified categorical approach because we conclude that a
conviction under section 273.6(d) of the California Penal Code is
categorically a crime of violence.
6 UNITED STATES V. ACEVEDO-DE LA CRUZ
(2008)). “When attempting to ascertain the ordinary, usual
meaning of a word, courts appropriately refer to the
dictionary definition of that word.” Wasatch Prop. Mgmt. v.
Degrate, 35 Cal. 4th 1111, 1121–22 (2005).
The conclusion that a state statute criminalizes more
conduct than is included in the generic federal definition of a
crime of violence “requires more than the application of legal
imagination to a state statute’s language.” Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007). Rather, “[i]t
requires a realistic probability, not a theoretical possibility,
that the State would apply its statute to conduct that falls
outside the generic definition of a crime.” Id. To show that
realistic probability, the defendant “must at least point to his
own case or other cases in which the state courts in fact did
apply the statute in the special (nongeneric) manner for which
he argues.” Id.
The state statute of conviction at issue here is section
273.6(d) of the California Penal Code, which criminalizes a
violation of a protective order “involving an act of violence
or ‘a credible threat’ of violence.”5 “A credible threat” of
violence is defined as “a threat made with the intent and the
5
Cal. Penal Code § 273.6(d) provides:
A subsequent conviction for [an “intentional and
knowing violation” of certain protective orders
described in section 273.6(a)], occurring within seven
years of a prior conviction for a violation of an order
described in subdivision (a) and involving an act of
violence or “a credible threat” of violence, as defined in
subdivision (c) of Section 139, is punishable by
imprisonment in a county jail not to exceed one year, or
pursuant to subdivision (h) of Section 1170.
UNITED STATES V. ACEVEDO-DE LA CRUZ 7
apparent ability to carry out the threat so as to cause the target
of the threat to reasonably fear for his or her safety or the
safety of his or her immediate family.” Cal. Penal Code
§ 139(c).
II
We now turn to the facts of this case. On April 23, 2015,
Acevedo-De La Cruz pleaded guilty to one count of illegal
reentry following deportation in violation of 8 U.S.C.
§ 1326(a). At sentencing, the district court considered the
effect of Acevedo-De La Cruz’s previous felony conviction
under section 273.6(d) of the California Penal Code for a
violation of a protective order involving an act of violence or
a credible threat of violence. The district court concluded
that this prior conviction was a categorical crime of violence
warranting a 16-level sentence enhancement under
§ 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines.
Accordingly, the district court sentenced Acevedo-De La
Cruz to 46 months imprisonment.
III
On appeal, Acevedo-De La Cruz claims that his
conviction under section 273.6(d) of the California Penal
Code is not a categorical crime of violence for purposes of
§ 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines. He
reasons that one element of section 273.6(d) refers only to “a
credible threat of violence” while § 2L1.2(b)(1)(A)(ii) refers
to a threat of “physical force,” and argues that “violence”
criminalizes more conduct than “physical force.” In making
this argument, Acevedo-De La Cruz relies on the third
definition of “violence” in the Merriam-Webster Online
Dictionary, which defines “violence” as including “vehement
8 UNITED STATES V. ACEVEDO-DE LA CRUZ
feeling or expression: fervor.” In light of this definition, he
contends, section 273.6(d) could criminalize a credible threat
of violence without the threatened use of physical force.
No California court has yet construed the word “violence”
for purposes of section 273.6(d), so we begin with the plain
text of the statute. Almanza-Arenas, 815 F.3d at 475. The
primary definition of “violence” in the dictionary requires
physical force. Black’s Law Dictionary defines “violence” as
“[t]he use of physical force, [usually] accompanied by fury,
vehemence, or outrage; [especially] physical force unlawfully
exercised with the intent to harm.” Black’s Law Dictionary
(10th ed. 2014) (emphasis added). The Oxford English
Dictionary similarly defines “violence” as “[t]he deliberate
exercise of physical force against a person, property, etc.;
physically violent behaviour or treatment;” and “the unlawful
exercise of physical force, intimidation by the exhibition of
such force.” Oxford English Dictionary (3d ed. 2014)
(emphasis added).
When interpreting other state statutes, California courts
have adopted this common understanding of the word
“violence” in concluding that force can occur without
violence, but violence cannot occur without force. See
People v. Babich, 14 Cal. App. 4th 801, 807 & n.2 (1993)
(holding that “violence” under the California false
imprisonment statute means “the exercise of physical force
used to restrain over and above the force reasonably
necessary to effect such restraint,” and noting that such a
conclusion is “consistent with applicable dictionary
definitions, which suggest violence always includes force, but
force may or may not include violence” (emphasis added));
see also People v. Newman, 238 Cal. App. 4th 103, 108
(2015); People v. Dominguez, 180 Cal. App. 4th 1351, 1357
UNITED STATES V. ACEVEDO-DE LA CRUZ 9
(2010). We see no basis for departing from this common-
sense interpretation of “violence” for purposes of section
273.6(d). See Wasatch Prop. Mgmt., 35 Cal. 4th at 1122
(“The court will apply common sense to the language at hand
and interpret the statute to make it workable and
reasonable.”). The usual and ordinary definition of
“violence” includes physical force. See Gutierrez, 58 Cal. 4th
at 1369.
While Acevedo-De La Cruz correctly notes that
dictionaries have provided other definitions of “violence,”
including the expression of vehement feelings, he fails to
point us to any “cases in which the state courts in fact did
apply [section 273.6(d)] in the special (nongeneric) manner
for which he argues.” Duenas-Alvarez, 549 U.S. at 193. Nor
has he otherwise demonstrated that there is “a realistic
probability, not a theoretical possibility” that California
would deem the term “violence” to include rhetorical
vehemence, without more, for purposes of a violation of
section 273.6(d). Id. Therefore, Acevedo-De La Cruz’s
contention that the California legislature intended “violence”
under section 273.6(d) to mean the expression of vehement
feeling without physical force relies on “legal imagination.”
Id. We conclude that “a credible threat of violence” under
section 273.6(d) does not criminalize more conduct than the
threatened use of physical force for purposes of
§ 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines.
We therefore hold that a conviction under section
273.6(d) of the California Penal Code is a categorical crime
of violence for purposes of § 2L1.2(b)(1)(A)(ii) of the
10 UNITED STATES V. ACEVEDO-DE LA CRUZ
Sentencing Guidelines. The district court did not err in
adding a 16-level enhancement to Acevedo-De La Cruz’s
sentence.6
AFFIRMED.
6
Acevedo-De La Cruz’s October 27, 2016, motion is granted.