United States v. Mendez , 924 F.3d 1122 ( 2019 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 17, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-1259
ARMANDO MENDEZ,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 1:17-CR-00434-RM-1)
_________________________________
Howard A. Pincus, Office of the Federal Public Defender, Denver Colorado, for
Defendant-Appellant.
Paul Farley, Assistant United States Attorney, (Jason R. Dunn, United States Attorney,
with him on the brief), Office of the United States Attorney, Denver, Colorado, for
Plaintiff-Appellee.
_________________________________
Before HARTZ, SEYMOUR, and HOLMES, Circuit Judges.
_________________________________
SEYMOUR, Circuit Judge.
_________________________________
Armando Mendez appeals the sentence imposed after he pled guilty in 2018 to
violating 18 U.S.C. § 922(g)(1), which prohibits felons from possessing firearms. On
appeal, he contends his sentence was improperly inflated because the district court
held that a prior conviction for attempted robbery in Colorado qualified as a “crime
of violence” under § 4B1.2(a) of the United States Sentencing Guidelines
(“U.S.S.G.” or “the guidelines”). We affirm.
I.
Mr. Mendez entered an unconditional guilty plea but objected to the probation
officer’s presentence report, which calculated a recommended sentence of 30-37
months under the sentencing guidelines. Specifically, Mr. Mendez disputed the
determination that a 2001 conviction for attempted robbery in Colorado qualified as a
prior “crime of violence,” which resulted in an enhanced base offense level of 20
under U.S.S.G. § 2K2.1(a)(4)(A). Arguing that the conviction did not qualify, Mr.
Mendez asked the court to impose a sentence of 15-21 months using a base offense
level of 14, the level applicable to Mr. Mendez absent the crime-of-violence
enhancement. After briefing and oral argument on the matter, the district court
imposed a sentence of 30 months, holding that Mr. Mendez’s 2001 conviction was a
crime of violence.
II.
Whether a prior conviction qualifies as a crime of violence for purposes of the
sentencing guidelines is a matter of statutory interpretation. United States v. Charles,
576 F.3d 1060, 1066 (10th Cir. 2009). Accordingly, our review is de novo. Id.
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We apply a categorical approach to determine whether a prior conviction falls
within U.S.S.G. § 4B1.2(a),1 which provides that an offense is a “crime of violence”
if (1) its elements include “the use, attempted use, or threatened use of physical force
against the person of another”, or (2) the offense is any of several crimes enumerated
in the guideline itself. See United States v. O’Connor, 874 F.3d 1147, 1151–52 (10th
Cir. 2017). Under the categorical approach, it is not the particular defendant’s
conduct that counts but the scope of conduct that may be prosecuted under the statute
of his conviction. Id. at 1151. Violation of the underlying statute must categorically
constitute a crime of violence for the enhancement to apply. If a course of conduct
would be criminal under the statute but the same conduct would not satisfy either
prong of § 4B1.2(a), then no conviction under the statute will serve as a predicate.
The test is all or nothing. O’Connor, 874 F.3d at 1151.
This case appears, on first blush, deceptively easy to resolve. The application
note appended to the guideline defining “crime of violence” clarifies that the term
includes “attempting to commit” such a crime. § 4B1.2 cmt. n.1. Moreover, we have
previously held that Colorado’s definition of robbery is a crime of violence under §
4B1.2 because it involves the use or threatened use of physical force. See United
States v. Crump, 674 Fed. Appx. 802 (10th Cir. 2017) (unpublished); cf. United
States v. Harris, 844 F.3d 1260 (10th Cir. 2017) (holding that a conviction under
1
The guideline governing the applicable base offense level for unlawful
possession of a firearm incorporates by reference the definition of “crime of
violence” in § 4B1.2(a) and Application Note 1 of the commentary to § 4B1.2.
U.S.S.G. § 2K2.1 cmt. n.1.
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Colorado’s robbery statute triggers enhancement under 18 U.S.C. § 924(e)(1)). This,
however, does not end our enquiry.
Section 4B1.2 offers no definition of what constitutes “attempt.” If criminal
attempt as defined by Colorado law covers a broader scope of conduct than “attempt”
for the purposes of the guidelines, then attempted robbery under Colorado law is not
categorically a crime of violence and Mr. Mendez is not subject to the enhancement.
The operative portion of Colorado’s criminal-attempt statute provides as follows:
A person commits criminal attempt if, acting with the kind of culpability
otherwise required for commission of an offense, he engages in conduct
constituting a substantial step toward the commission of the offense. A
substantial step is any conduct . . . which is strongly corroborative of the
firmness of the actor’s purpose to complete the commission of the offense.
Colo. Rev. Stat. § 18-2-101(1). Because § 4B1.2 does not define attempt, we
compare Colorado’s law to a generic definition, which can be formulated by looking
to “a wide range of sources . . . , including federal and state statutes, the Model Penal
Code, dictionaries, and treatises.” See O’Connor, 874 F.3d at 1151. Here, both
parties construct their arguments by comparing Colorado attempt to attempt under the
Model Penal Code. We therefore see no reason to do otherwise.
The Model Penal Code definition of attempt shares the same basic
requirements as Colorado’s definition, providing in relevant part that a person is
guilty of criminal attempt when, acting with the required kind of culpability, he
makes a “a substantial step in a course of conduct planned to culminate in his
commission of the crime.” Model Penal Code § 5.01(1)(c). Conduct is not a
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substantial step “unless it is strongly corroborative of the actor’s criminal purpose.”
Id. § 5.01(2).
Mr. Mendez attempts to create some daylight between the two formulations by
crafting an argument based on formal logic. While Colorado and the Model Penal
Code both require a substantial step, Mr. Mendez argues, they differ as to what
conduct will qualify. Under the Model Penal Code, an act is not a substantial step
unless the “strongly corroborative” element is met, but that does not necessarily
mean that all “strongly corroborative” conduct will be a substantial step. See Aplt.
Br. at 15–20. The Colorado formulation, by contrast, provides that “any conduct . . .
which is strongly corroborative” will be a substantial step. Colo. Rev. Stat. § 18-2-
101(1) (emphasis added). Because showing conduct “strongly corroborative” of
criminal intent is sufficient to prove a substantial step under Colorado law, Mr.
Mendez argues that Colorado criminalizes some conduct that the Model Penal Code
does not. Therefore, he contends, a conviction for attempted robbery in Colorado is
not categorically a “crime of violence” for the purposes of the guidelines. We are not
convinced.
Mr. Mendez’s hairsplitting focus on formal logic loses sight of the categorical
approach’s purpose, which is to carry out congressional intent by giving a word its
commonly understood meaning when the statute itself leaves the term undefined. See
generally Taylor v. United States, 495 U.S. 575, 597 (1990). A statute that mirrors
the generic definition of an offense but makes minor variations in terminology will
suffice if it “corresponds in substance to the generic meaning.” See id. at 599
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(applying a categorical analysis to a state’s burglary statute). Colorado’s definition
of attempt hews closely to that of the Model Penal Code. Both require a substantial
step and both define substantial step by reference to the act’s probative value
regarding the defendant’s criminal intent.
Mr. Mendez points to People v. Lehnert, 163 P.3d 1111 (Colo. 2007), as
evidence that the Colorado Supreme Court views the statute’s departure from the
Model Penal Code as significant, implying that Colorado’s statute would now
criminalize “mere preparation.” See Aplt. Br. at 19–20; Aplt. Reply Br. at 3. His
argument significantly overstates the court’s conclusions. In Lehnert, the Colorado
Supreme Court traced the evolution of Colorado’s treatment of attempt. Id. The
court explained that the emphasis of the current Colorado statute, like the Model
Penal Code, is on the degree to which the defendant’s conduct corroborates his
criminal intent. Id. at 1114–15. Nothing in Lehnert supports the proposition that
Colorado’s statute would criminalize “mere preparation,” which the Lehnert court
actually recognized as “a useful way of describing conduct falling short of a
‘substantial step’” under the current statute. Id. at 1114.
Significantly, Mr. Mendez’s assertion that Colorado criminalizes conduct that
would not qualify as an attempted robbery elsewhere is purely speculative. The
categorical approach focuses on the minimum conduct criminalized by the state
statute, but this “is not an invitation to apply ‘legal imagination’ to the state offense;
there must be ‘a realistic probability, not a theoretical possibility, that the State
would apply its statute to conduct that falls outside the generic definition of a
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crime.’” Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (quoting Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007)). Where a statute does not on its face
criminalize conduct outside the generic definition of the offense, it is not enough to
argue that a state could interpret its statute to criminalize such conduct; the defendant
must show that the state has actually done so. See United States v. Titties, 852 F.3d
1257, 1275 (10th Cir. 2017); see also Moncrieffe, 569 U.S. at 191. “[H]e 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.” Duenas-Alvarez,
549 U.S. at 193; see also United States v. Alexander, 809 F.3d 1029, 1033 (8th Cir.
2016) (rejecting categorical challenge to state attempt statute based on a lack of case
law construing attempt overinclusively); United States v. Havis, 907 F.3d 439, 446
(6th Cir. 2018) (same); United States v. Garcia-Figueroa, 753 F.3d 179, 189 (5th Cir.
2014) (same).
Mr. Mendez does no more than offer theoretical grounds on which some
conduct might constitute criminal attempt in Colorado but not under the generic
definition of the term. He offers no cases to demonstrate that the state has actually
prosecuted anyone under his broader definition. He does not even offer a
hypothetical course of conduct where it might. For the foregoing reasons, we agree
with the district court that attempted robbery as defined in Colorado law is a crime of
violence for the purposes of § 4B1.2(a). Accordingly, we AFFIRM Mr. Mendez’s
sentence.
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