United States v. Horacio Parra-Moraza , 180 F. App'x 612 ( 2006 )


Menu:
  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 05-1987
    ___________
    United States of America,            *
    *
    Appellee,                *
    * Appeal from the United States
    v.                              * District Court for the
    * District of Minnesota.
    Horacio Parra-Moraza, also known as *
    Shady,                               * [UNPUBLISHED]
    *
    Appellant.               *
    ___________
    Submitted: May 5, 2006
    Filed: May 11, 2006
    ___________
    Before WOLLMAN, MURPHY, and COLLOTON, Circuit Judges.
    ___________
    PER CURIAM.
    Horacio Parra-Moraza pleaded guilty to conspiring to distribute and possess
    with intent to distribute more than 50 grams of actual methamphetamine, aiding and
    abetting the distribution of more than 50 grams of actual methamphetamine, and
    aiding and abetting the distribution of more than 5 grams of actual methamphetamine,
    in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) & (B), 846, and 18 U.S.C. § 2.
    Parra-Moraza appeals his sentence arguing that (1) it was error for the district court
    to treat his California second-degree burglary convictions as crimes of violence which
    triggered the career-offender enhancement; (2) the district court violated the principles
    in United States v. Booker, 
    543 U.S. 220
    (2005), by holding him responsible for a
    drug quantity larger than that to which he had pleaded guilty; and (3) his sentence is
    unreasonable.
    Because the district court treated the Guidelines as advisory, it did not commit
    Booker error by making a drug-quantity finding, see 
    Booker, 543 U.S. at 233
    , 244-46,
    258-60, and the court’s finding was amply supported by evidence presented at the
    sentencing hearing, see United States v. Allen, 
    440 F.3d 449
    , 452 (8th Cir. 2006)
    (standard of review).
    We find, however, that the district court erred in concluding that Parra-
    Moraza’s two second-degree burglary convictions were crimes of violence for
    purposes of the career-offender Guideline. See U.S.S.G. §§ 4B1.1, 4B1.2; United
    States v. Lindquist, 
    421 F.3d 751
    , 753 (8th Cir. 2005) (standard of review). Parra-
    Moraza was convicted under Cal. Penal Code §§ 459 (defining burglary) and 460(b)
    (defining second-degree burglary) (2006), which criminalize the breaking into and
    entering of such things as sealed cargo containers and vehicles. We therefore look to
    the charging papers introduced at sentencing. These papers alleged that Parra-Moraza
    had entered another person’s locked vehicle to commit theft, which we have held does
    not involve a substantial risk of physical injury to another. See United States v.
    Livingston, 
    442 F.3d 1082
    , 1084-87 (8th Cir. 2006) (where burglary statute
    criminalizes various types of conduct, court looks at charging papers to decide
    whether burglary was violent felony within meaning of “otherwise involves”
    provision of Armed Career Criminal Act (ACCA)1; breaking and entering vehicle
    1
    Under 18 U.S.C. § 924(e)(2)(B)(ii) the definition of “violent felony” includes
    any felony that is “burglary, arson, or extortion, involves use of explosives, or
    otherwise involves conduct that presents a serious potential risk of physical injury to
    another.” Under the career-offender Guideline, a “crime of violence” similarly
    includes any crime that is “burglary of a dwelling, arson, or extortion, involves use of
    explosives, or otherwise involves conduct that presents a serious potential risk of
    physical injury to another.” See U.S.S.G. § 4B1.2(a)(2). The parties agree that Parra-
    Moraza’s offense does not constitute generic burglary.
    -2-
    charged in indictment is not violent felony); United States v. Abernathy, 
    277 F.3d 1048
    , 1051 (8th Cir.) (noting ACCA and Guidelines define crime of violence and
    violent felony in identical terms), cert. denied, 
    535 U.S. 1089
    (2002); cf. Sareang Ye
    v. INS, 
    214 F.3d 1128
    , 1133-34 (9th Cir. 2000) (California conviction for entering
    locked vehicle with intent to steal was not “crime of violence” under 18 U.S.C. § 16,
    because it was not offense that by its nature, involved substantial risk that physical
    force against person or property of another might be used in committing offense).
    Accordingly, we remand for resentencing consistent with this opinion, and thus
    we do not address Parra-Moraza’s final argument that his sentence was unreasonable.
    ______________________________
    -3-