United States v. Cristobal Colon-Arreola , 753 F.3d 841 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10341
Plaintiff-Appellee,
D.C. No.
v. 4:12-cr-02541-
DCB-LAB
CRISTOBAL COLON-ARREOLA, AKA
Gustavo Colon, AKA Cristobal
Colon-Arreloa, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
James G. Carr, District Judge, Presiding
Argued and Submitted
April 9, 2014—San Francisco, California
Filed May 22, 2014
Before: Mary M. Schroeder and Consuelo M. Callahan,
Circuit Judges, and Robert W. Pratt, Senior District Judge.*
Opinion by Judge Pratt
*
The Honorable Robert W. Pratt, Senior United States District Judge for
the U.S. District Court for the Southern District of Iowa, sitting by
designation.
2 UNITED STATES V. ARREOLA
SUMMARY**
Criminal Law
The panel affirmed a sentence for illegal reentry after
deportation in a case in which the defendant challenged the
district court’s application of an enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) based on his prior conviction for battery
with injury on a peace officer in violation of California Penal
Code § 243(c)(2).
The panel held that a conviction under § 243(c)(2) is a
categorical crime of violence under § 2L1.2 because a person
cannot be convicted under § 243(c)(2) unless he willfully and
unlawfully applies force sufficient to not just inflict a
physical injury on the victim, but to inflict a physical injury
severe enough that it requires professional medical treatment.
COUNSEL
Matthew J. McGuire, Patagonia, Arizona, for Defendant-
Appellant.
Brian Robert Decker, Assistant United States Attorney,
Office of the United States Attorney, 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. ARREOLA 3
OPINION
PRATT, District Judge:
INTRODUCTION
Cristobal Colon-Arreola (“Colon-Arreola”) appeals his
sentence for illegal reentry into the United States after
deportation in violation of 8 U.S.C. § 1326. In particular,
Colon-Arreola challenges the district court’s application of a
sixteen-level enhancement under United States Sentencing
Guidelines (“U.S.S.G.” or “Guidelines”) § 2L1.2(b)(1)(A)(ii)
based on his prior conviction for battery with injury on a
peace officer in violation of California Penal Code
§ 243(c)(2). We have jurisdiction pursuant to 28 U.S.C.
§ 1291. Because we conclude that California Penal Code
§ 243(c)(2) is a categorical crime of violence under U.S.S.G.
§ 2L1.2, we affirm Colon-Arreola’s sentence.
STANDARD OF REVIEW
We review de novo a district court’s determination that a
prior conviction constitutes a “crime of violence” under
U.S.S.G. § 2L1.2. United States v. Bolanos-Hernandez,
492 F.3d 1140, 1141 (9th Cir. 2007) (citing United States v.
Rodriguez-Rodriguez, 393 F.3d 849, 856 (9th Cir. 2005)).
DISCUSSION
Section 2L1.2 of the Guidelines provides that a base
offense level of eight applies to violations of 8 U.S.C. § 1326.
See U.S.S.G. § 2L1.2 cmt. statutory provisions (2012). A
sixteen-level enhancement is applicable if a defendant’s prior
deportation occurred following a felony conviction for a
4 UNITED STATES V. ARREOLA
crime of violence. U.S.S.G. § 2L1.2(b)(1)(A)(ii). A “crime
of violence” is defined in the Commentary as:
any of the following offenses under federal,
state, or local law: murder, manslaughter,
kidnapping, aggravated assault, forcible sex
offenses . . . 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.
U.S.S.G. § 2L1.2, cmt. n.1(B)(iii).
To determine whether Colon-Arreola’s conviction for
battery on a peace officer qualifies as a crime of violence
under the “catch-all” provision of § 2L1.2(b)(1)(A)(ii), we
apply the framework established in Taylor v. United States,
495 U.S. 575 (1990). This approach requires that we look
“not to the facts underlying the prior conviction[],” but “only
to the fact of conviction and the statutory definition of the
prior offense.” Id. at 600, 602. The 2L1.2 sentencing
enhancement will apply categorically only if “the full range
of conduct covered by [the statute] falls within the meaning
of that term.” United States v. Castillo-Marin, 684 F.3d 914,
919 (9th Cir. 2012) (quoting United States v. Grajeda,
581 F.3d 1186, 1189 (9th Cir. 2009)). “If the statute of
conviction is overbroad—that is, if it punishes some conduct
that qualifies as a crime of violence and some conduct that
does not—it does not categorically constitute a crime of
violence.” Id.
UNITED STATES V. ARREOLA 5
The Supreme Court has held that the “critical aspect” of
a crime of violence is that it involves the use of physical force
against another person. Leocal v. Ashcroft, 543 U.S. 1, 9
(2004).1 “Use” requires “active employment” and a “higher
degree of intent than negligent or merely accidental conduct.”
Id. (explaining that it is not natural to say a person “actively
employs physical force against another person by accident”).
Thus, a crime may only qualify as a “crime of violence” if the
use of force is intentional. See Fernandez-Ruiz v. Gonzales,
466 F.3d 1121, 1132 (9th Cir. 2006) (overruling prior cases
that permitted a crime of violence to include offenses
committed through the reckless or grossly negligent use of
force); cf. United States v. Laurico-Yeno, 590 F.3d 818, 822
n.4 (9th Cir. 2010) (clarifying that Fernandez-Ruiz “did not
hold that ‘crime of violence’ is limited to specific intent
crimes” and that a “general intent crime can satisfy the
generic definition of ‘crime of violence’”). Additionally,
“‘the force necessary to constitute a crime of violence . . .
must actually be violent in nature.’” Ortega-Mendez v.
Gonzales, 450 F.3d 1010, 1016 (9th Cir. 2006) (quoting Singh
v. Ashcroft, 386 F.3d 1228, 1233 (9th Cir. 2004)).
A conviction for battery of a peace officer under
§ 243(c)(2) requires proof of the following elements: (1) the
offender committed a battery, defined by California Penal
Code § 242 as “any willful and unlawful use of force or
violence upon the person of another”; 2) the battery was
committed against a peace officer engaged in the performance
of his duties; 3) knowledge by the offender that the victim
1
Leocal was decided using the definition of “crime of violence” in
18 U.S.C. § 16(a), which this Court has found identical to the U.S.S.G.
§ 2L1.2 definition in all material respects. See United States v. Grajeda,
581 F.3d 1186, 1190 (9th Cir. 2009).
6 UNITED STATES V. ARREOLA
was a peace officer engaged in the performance of his duties;
and 4) an injury was inflicted on the victim.2 See Cal. Penal
Code §§ 242, 243(c)(1)–(2).
In Ortega-Mendez, this Court held that misdemeanor
battery under § 242 is not a categorical crime of violence
because the statute does not require the use of violent force.
450 F.3d at 1016 (“‘[F]orce or violence’ indicates that
nonviolent force suffices; otherwise the ‘or’ has no function.”
(alterations in original)). Ortega-Mendez is plainly
distinguishable, however, because § 243(c)(2) requires proof
of an element that § 242 does not, namely, that an “injury is
inflicted on [a peace officer] victim.”3 The term “injury” is
defined as “any physical injury which requires professional
medical treatment.” Cal. Penal Code § 243(f)(5). Thus, a
person cannot be convicted under § 243(c)(2) unless he
2
A conviction for battery under § 242 is punishable by a fine of $2,000,
six months imprisonment, or both. See Cal. Penal Code § 243(a). Section
243 provides enhanced penalties for battery when certain additional
criteria are satisfied. For instance, section 243(c)(1) provides that the
maximum term of imprisonment is one year when a battery is committed
against certain officials engaged in the performance of their duties, and
when the “person committing the offense knows or reasonably should
know that the victim is [such an official], and an injury is inflicted on that
victim.” Section 243(c)(2) provides for both an increased maximum fine
and an increased term of imprisonment when “the battery specified in
[§ 243(c)](1) is committed against a peace officer engaged in the
performance of his or her duties.”
3
If a battery is committed against a peace officer that does not result in
the infliction of an injury, the crime would fall under a separate provision
of the statute. See Cal. Penal Code §243(b).
UNITED STATES V. ARREOLA 7
willfully4 and unlawfully applies force sufficient to not just
inflict a physical injury on the victim, but to inflict a physical
injury severe enough that it requires professional medical
treatment. Section 243(c)(2), therefore, “fits squarely within
the term [crime of violence] by requiring the deliberate use of
force that injures another.” See Laurico-Yeno, 590 F.3d at
820–22 (holding that California Penal Code § 273.5, making
it a crime for “[a]ny person [to] willfully inflict[] upon
[certain persons in domestic relationships] corporal injury
resulting in a traumatic condition,”5 was a categorical crime
of violence for purposes of U.S.S.G. § 2L1.2).
CONCLUSION
For the foregoing reasons, we hold that Colon-Arreola’s
conviction under California Penal Code § 243(c)(2) is a
categorical crime of violence within the meaning of § 2L1.2.
AFFIRMED.
4
The term “willfully” is synonymous to the term “intentionally.” See
Laurico-Yeno, 590 F.3d at 821 (citing Cal. Penal Code § 7).
5
California Penal Code § 273.5(d) defines “traumatic condition” as “a
condition of the body, such as a wound, or external or internal injury,
including, but not limited to, injury as a result of strangulation or
suffocation, whether of a minor or serious nature, caused by physical
force.”