United States v. Velasquez-Reyes ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 04-30292
v.
 D.C. No.
CR-03-02122-WFN
JAVIER VELASQUEZ-REYES, a.k.a.
Javier Alvarado-Hernandez, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, Senior Judge, Presiding
Argued & Submitted
September 16, 2005—Seattle, Washington
Filed November 8, 2005
Before: Before: Mary M. Schroeder, Chief Judge,
Arthur L. Alarcón and Edward Leavy, Circuit Judges.
Opinion by Judge Alarcón
15233
UNITED STATES v. VELASQUEZ-REYES 15235
COUNSEL
Anne Walstrom and Kurt Rowland, Federal Defenders of
Eastern Washington and Idaho, Yakima, Washington, for the
defendant-appellant.
15236 UNITED STATES v. VELASQUEZ-REYES
James P. Hagarty, Assistant United States Attorney, Yakima,
Washington, for the plaintiff-appellee.
OPINION
ALARCÓN, Circuit Judge:
Defendant Javier Velasquez-Reyes appeals from the order
sentencing him to 48 months of imprisonment on the ground
that the district court erred in imposing a 16-level enhance-
ment to his sentence based on a prior conviction for second
degree arson under Washington law. He contends that second
degree arson is not a crime of violence under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). We affirm the imposition of the 16-level
enhancement because we conclude that second degree arson
under Washington law is categorically a crime of violence.
Mr. Velasquez-Reyes was sentenced under the mandatory
provisions of the Sentencing Guidelines. Accordingly, we
remand in accordance with United States v. Ameline, 409 F.3d
1073 (9th Cir. 2005) (en banc).
I
Mr. Velasquez-Reyes pled guilty to reentering the United
States illegally after having been deported. At sentencing, he
received a 16-level enhancement based on his prior conviction
under Washington law for second degree arson. This prior
conviction was not alleged in the indictment.
[1] Mr. Velasquez-Reyes contends that Apprendi v. New
Jersey, 530 U.S. 466 (2000) overruled United States v.
Almendarez-Torres, 523 U.S. 224 (1998) and requires the
Government to plead prior convictions in the indictment and
prove them beyond a reasonable doubt to the jury unless the
defendant admits the prior convictions. This argument is fore-
closed by the law of this circuit. In United States v. Pacheco-
UNITED STATES v. VELASQUEZ-REYES 15237
Zepeda, 234 F.3d 411, 415 (9th Cir. 2000), we rejected an
identical contention. We held in Pacheco-Zepeda, that
Apprendi did not overrule Almendarez-Torres. Id. at 414-15.
We reaffirmed our holding in Pacheco-Zepeda in United
States v. Brown, 417 F.3d 1077, 1078-79 (9th Cir. 2005), fol-
lowing the Supreme Court’s decision in United States v.
Booker, 125 S. Ct. 738 (2005). In his opening brief, Mr.
Velasquez-Reyes recognized that this argument has been pre-
cluded by the law of this circuit and Supreme Court prece-
dent. He acknowledges that he raised this issue “in order to
preserve it for en banc or Supreme Court review.”
II
[1] Mr. Velasquez-Reyes also argues that the district court
erred in determining that his conviction for second degree
arson under Washington law was a crime of violence under
U.S.S.G. § 2L1.2(b)(1)(A)(ii). He asserts that “[t]he Washing-
ton arson statute is overbroad, because it criminalizes conduct
that would not be a crime under federal law.” Appellants’
Opening Br. at 18. We review de novo a district court’s deci-
sion that a prior conviction is a crime of violence under the
Sentencing Guidelines. See United States v. Rivera-Sanchez,
247 F.3d 905, 907 (9th Cir. 2001).
[2] Section 2L1.2(b)(1)(A)(ii) provides for a 16-level
enhancement if the defendant has a prior conviction for a
crime of violence. A crime of violence is defined under the
Application Notes to § 2L1.2(b)(1)(A)(ii) as:
murder, manslaughter, kidnapping, aggravated
assault, forcible sex offenses, statutory rape, sexual
abuse of a minor, robbery, arson, extortion, extor-
tionate extension of credit, burglary of a dwelling, or
any 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.
15238 UNITED STATES v. VELASQUEZ-REYES
U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (2001) (emphasis added).
The fact that arson is specifically enumerated as a crime of
violence in § 2L1.2(b)(1)(A)(ii) indicates that it is a crime of
violence. United States v. Bonilla-Montenegro, 331 F.3d
1047, 1051 (9th Cir. 2003). To determine whether a convic-
tion for second degree arson under Washington law comes
within the Sentencing Guidelines definition of arson, we must
use the categorical approach set forth in Taylor v. United
States, 495 U.S. 575, 600 (1990). See United States v. Fish,
368 F.3d 1200, 1202 (9th Cir. 2004).
[3] Under the categorical approach, we do not look to the
specific conduct that was the basis of a defendant’s state con-
victions. Instead, we consider the statutory definition of the
crime. Fish, 368 F.3d at 1202. A state’s definition of arson
must be compared with the generic definition of that crime to
determine if the defendant’s conviction is a crime of violence
pursuant to the Sentencing Guidelines. Taylor, 495 U.S. at
602; see United States v. Anderson, 989 F.2d 310, 312 (9th
Cir. 1993) (“[W]e must look to the ‘generic’ definitions of
burglary, arson, or extortion—the meanings likely ascribed to
these words by the federal legislators who adopted the stat-
ute.”); United States v. Hathaway, 949 F.2d 609, 610 (2d Cir.
1991) (“[I]f [the state’s] definition of third degree arson sub-
stantially corresponds to a modern generic definition of arson,
then appellant’s conviction may be counted as ‘arson’ for pur-
poses of the federal sentencing statute.”).
[4] Wash. Rev. Code § 9A.48.030 (1991), provides:
Arson in the second degree
(1) A person is guilty of arson in the second
degree if he knowingly and maliciously causes a fire
or explosion which damages a building, or any struc-
ture or erection appurtenant to or joining any build-
ing, or any wharf, dock, machine, engine,
automobile, or other motor vehicle, watercraft, air-
UNITED STATES v. VELASQUEZ-REYES 15239
craft, bridge, or trestle, or hay, grain, crop, or timber,
whether cut or standing or any range land, or pasture
land, or any fence, or any lumber, shingle, or other
timber products, or any property.
[5] The modern generic definition of arson includes a “will-
ful and malicious burning” of property. Hathaway, 949 F.2d
at 610; see United States v. Doe, 136 F.3d 631, 634 (9th Cir.
1998) (describing the common law definition of arson as the
“willful and malicious burning of a building”). Mr.
Velasquez-Reyes argues that 18 U.S.C. § 81, the federal stat-
ute that defines arson committed within special maritime and
territorial jurisdiction, requires proof that the defendant acted
“willfully and maliciously,” while the Washington statute
identifies the mens rea as “knowing and malicious.”1
[6] Although the Washington statute identifies the requisite
mens rea as “knowing and malicious,” we are unable to dis-
cern any meaningful distinction between “knowing” and
“willful” in this context. “To be a willful act, the setting of the
fire must be a conscious, intentional act done knowingly and
according to a purpose, as distinguished from a fire that was
started by accident or defendant’s involuntary act.” Doe, 136
F.3d at 635. (citation omitted). Thus, the common law defini-
tion of “willful” encompasses “knowing.” Id. Mr. Velasquez-
1
Section 81 provides as follows:
Whoever within the special maritime and territorial jurisdiction
of the United States, willfully and maliciously sets fire to or
burns, or attempts to set fire to or burn any building, structure or
vessel, any machinery or building materials or supplies, military
or naval stores, munitions of war, or any structural aids or appli-
ances for navigation or shipping, . . . shall be imprisoned for not
more than 25 years, fined the greater of the fine under this title
or the cost of repairing or replacing any property that is damaged
or destroyed, or both.
If the building be a dwelling or if the life of any person be
placed in jeopardy, he shall be fined under this title or imprisoned
for any terms of years or for life, or both.
15240 UNITED STATES v. VELASQUEZ-REYES
Reyes has failed to demonstrate how a person could act
“knowingly and maliciously” but not “willfully and mali-
ciously.”
III
[7] Mr. Velasquez-Reyes also argues that the Washington
statute does not come within the generic definition of arson
because it criminalizes setting fire to personal property, such
as timber, crops, cars, and other forms of personal property.
We disagree. A majority of state arson statutes, and the fed-
eral arson statute, extend beyond dwellings or buildings to
include various types of personal property.2 Although some of
these statutes add a limitation that the personal property be
burned for insurance proceeds, e.g., 18 Pa. Cons. Stat. Ann.
§ 3301 (West 2005), or set a minimum damage limitation,
e.g., Vt. Stat. Ann. tit. 13, § 504 (2005), these limits do not
disrupt the “interstate consensus” that the burning of personal
property constitutes arson. See Anderson, 989 F.2d at 312
2
See 18 U.S.C. § 81; Ariz. Rev. Stat. Ann. § 13-1703 (West 2005); Ark.
Code Ann. § 5-38-301 (West 2005); Cal. Penal Code § 451 (West 2005);
Colo. Rev. Stat. Ann. § 18-4-103 (West 2005); Fla. Stat. Ann. § 806.01
(West 2005); Ga. Code Ann. § 16-7-61 (West 2005); Idaho Code Ann.
§ 18-804 (2005); 720 Ill. Comp. Stat. Ann. 5/20-1 (West 2005); Ind. Code
Ann. § 35-43-1-1 (West 2005); Iowa Code Ann. § 712.3 (West 2005);
Kan. Stat. Ann. § 21-3718 (2005); La. Rev. Stat. Ann. § 14:52 (2005); Me.
Rev. Stat. Ann. tit. 17-A, § 802 (2005); Minn. Stat. Ann. § 609.562 (West
2005); Miss. Code Ann. § 97-17-7 (West 2005); Mont. Code Ann. § 45-6-
103 (2005); Neb. Rev. Stat. § 28-504 (2005); N.H. Rev. Stat. Ann. § 634:1
(2005); N.J. Stat. Ann. § 2C:17-1 (West 2005); N.M. Stat. Ann. § 30-17-
5 (West 2005); N.Y. Penal Law § 150.01 (McKinney 2005); N.D. Cent.
Code § 12.1-21-01 (2005); Ohio Rev. Code Ann. § 2909.03 (West 2005);
Okla. Stat. tit. 21, § 1403 (2005); Or. Rev. Stat. Ann. § 164.315 (West
2005); 18 Pa. Cons. Stat. Ann. § 3301 (West 2005); R.I. Gen. Laws § 11-
4-4 (2005); S.C. Code Ann. § 16-11-110 (2005); S.D. Codified Laws § 22-
33-9.2 (2005); Tenn. Code Ann. § 39-14-303 (West 2005); Tex. Penal
Code Ann. § 28.02 (Vernon 2005); Utah Code Ann. § 76-6-102 (West
2005); Vt. Stat. Ann. tit. 13, § 504 (2005); W. Va. Code § 61-3-3 (2005);
Wis. Stat. Ann. § 943.03 (West 2005); Wyo. Stat. Ann. § 6-3-102 (2005).
UNITED STATES v. VELASQUEZ-REYES 15241
(considering whether there was an interstate consensus
regarding the definition of extortion).
[8] Furthermore, to the extent there is some inconsistency
among the states regarding whether burning personal property
constitutes arson, the federal statute lends guidance to the
meaning of the term “arson” as used in the Sentencing Guide-
lines. See id. (relying on a federal statute to determine federal
common law because of the absence of a national consensus
regarding the definition of extortion). The federal arson stat-
ute extends to personal property—it includes, inter alia,
machinery, building materials, supplies, and military and
naval stores—and does not have an insurance proceeds limita-
tion or minimum damage limit. 18 U.S.C. § 81. Washington’s
inclusion of the burning of personal property, without a mini-
mum damage limit, is consistent with the modern generic def-
inition of arson.
Conclusion
[9] We hold that Mr. Velasquez-Reyes’s Washington state
conviction for second degree arson is categorically a crime of
violence. Accordingly, the district court did not err in its inter-
pretation of the Sentencing Guidelines.
[10] Mr. Velasquez-Reyes was sentenced under the manda-
tory provisions of the Sentencing Guidelines. In United States
v. Moreno-Hernandez, 419 F.3d 906 (9th Cir. 2005), we held
that defendants are entitled to limited remands in cases
involving non-constitutional Booker error. Id. at 916. The
record does not reflect whether Mr. Velasquez-Reyes would
have received a different sentence had the district court
known that the Sentencing Guidelines were advisory. There-
fore, we must remand this matter to the district court for a
determination whether “the sentence imposed would have
been materially different had the district court known that the
sentencing guidelines were advisory.” Ameline, 409 F.3d at
1074; Moreno-Hernandez, 419 F.33d 916.
AFFIRMED IN PART; REMANDED IN PART.