United States v. Raymond Lozano

FILED
NOT FOR PUBLICATION JUL 06 2012
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. 08-50239
Plaintiff - Appellee, D.C. No. 3:06-cr-02564-H-2
v.
MEMORANDUM *
RAYMOND LOZANO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Argued and Submitted July 10, 2009
Withdrawn and Deferred July 10, 2009
Argued and Resubmitted September 22, 2010
Withdrawn and Deferred March 10, 2011
Resubmitted June 20, 2012**
San Francisco, California
Before: WARDLAW, RAWLINSON, and N.R. SMITH, Circuit Judges.
*
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).
Raymond Lozano appeals the district court’s imposition of his 262-month
sentence. Lozano contends that the district court erred in enhancing his sentence
pursuant to the career offender enhancement. See U.S.S.G. §§ 4B1.1(a) and 4B1.2.
Lozano specifically asserts that the enhancement is inappropriate because his 1998
California conviction for false imprisonment in violation of California Penal Code
§§ 236 and 237 is not a crime of violence under § 4B1.2(a)(2) of the Guidelines.
We have jurisdiction pursuant to 18 U.S.C. § 3742 and affirm the district court.
Because California Penal Code §§ 236 and 237 may be violated through the
use of deceit, Lozano’s conviction is not categorically a crime of violence. See
People v. Rios, 177 Cal. App. 3d 445, 451-52 (1986); see also Sykes v. United
States, – U.S. –, 131 S. Ct. 2267, 2273 (2011) (explaining that a crime is not
categorically a crime of violence if it can be effected in a non-violent manner).
However, Lozano’s conviction meets the requirements for a crime of violence
under the modified categorical approach. The district court correctly determined
that Lozano’s admission in his guilty plea that he committed “false imprisonment
by menace” is sufficient to establish that his conviction was for a crime of violence
under the modified categorical approach, because false imprisonment by means of
menace cannot be effected in a non-violent manner. See Sykes, 131 S. Ct. at 2273,
2275 (concluding that the level of risk posed by an offense determines whether it
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should be categorized as violent under the residual clause); see also United States
v. Tafoya-Montelongo, 659 F.3d 738, 743-44 (9th Cir. 2011) (recognizing that a
district court may rely on statements in a guilty plea to support a conclusion that
the defendant’s action constituted a crime of violence); People v. Wardell, 162 Cal.
App. 4th 1484, 1490 (2008) (noting that California defines “[m]enace. . . as a
threat of harm express or implied by word or act”) (citation and internal quotation
marks omitted); United States v. Ladwig, 432 F.3d 1001, 1005 (9th Cir. 2005)
(concluding that threats of harm, by their very nature, involve aggressive, violent,
conduct). Therefore, the district court did not err in applying the career offender
enhancement.
AFFIRMED.
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