United States v. Cruz-Sanchez , 47 F. App'x 914 ( 2002 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 9 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 02-4048
(D.C. No. 1:01-CR-51-B)
LORENZO CRUZ-SANCHEZ aka (D. Utah)
Ramiro Diaz-Sanchez aka Ramiro
Cruz-Sanchez,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
Defendant appeals his sentence for illegal reentry following deportation in
violation of 8 U.S.C. § 1326(a) entered after Defendant pleaded guilty to the
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
charge. Defendant was sentenced to 57 months of imprisonment to be followed
by a term of 36 months of supervised release. In the presentence report,
Defendant’s sentence was calculated from a guideline base offense level of 8,
increased 16 levels for being previously deported after conviction for a crime of
violence, and decreased 3 levels for acceptance of responsibility, for a net offense
level of 21. Defendant filed an objection to the presentence report arguing that he
was not subject to the 16-level enhancement for a conviction for a crime of
violence because his previous conviction for attempted aggravated burglary
involved the burglary of a business rather than a dwelling. The district court
rejected Defendant’s argument. Defendant appeals to this court.
We review de novo the determination of whether a particular state felony
conviction constitutes a crime of violence. United States v. Moyer, 282 F.3d
1311, 1315 (10th Cir. 2002). A crime of violence is defined as “an offense under
. . . state . . . law that has as an element the use, attempted use, or threatened use
of physical force against the person of another; and includes . . . burglary of a
dwelling.” U.S.S.G. § 2L1.2(b)(1)(A), Application Note 1(B)(ii). Defendant
concedes that his “prior conviction does meet the first requirement for qualifying
as a crime of violence.” Aplt. Br. at 6. Therefore, the only question before us is
whether Application Note 1(B)(ii) limits the availability of the enhancement for
burglary convictions specifically to burglaries of dwellings regardless of the
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aggravated nature of a non-dwelling burglary.
Defendant argues that “the guidelines limit the scope of offenses which are
crimes of violence by defining the phrase as including only those prior offenses
which include an element of the use of force and which are among a number of
crimes specifically listed.” Aplt. Br. at 3. We cannot agree with this strained
reading of U.S.S.G. § 2L1.2(b)(1)(A). The list following the use of the word
“includes” is not exhaustive. The Application Note does not state, as Defendant
proffers, “includes only.” If the list were exhaustive, the first part of the
definition would be unnecessary. The second part of the definition provides
specific offenses which are per se crimes of violence not requiring an examination
of the particular elements.
We agree with the district court that Defendant’s attempted aggravated
burglary conviction was a crime of violence as contemplated by U.S.S.G. §
2L1.2(b)(1)(A) because “it is an offense under . . . state . . . law that has as an
element the use, attempted use, or threatened use of physical force against the
person of another.” Rec., Vol. III, at 7.
AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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