United States v. Guerrero-Velasquez ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-30066
Plaintiff-Appellant, D.C. No.
v.
 CR-04-02115-WFN
ADOLFO GUERRERO-VELASQUEZ, ORDER AND
Defendant-Appellee. AMENDED
 OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, Senior Judge, Presiding
Submitted November 18, 2005*
Seattle, Washington
Filed January 19, 2006
Amended February 7, 2006
Before: David R. Hansen,** William A. Fletcher, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable David R. Hansen, Senior United States Circuit Judge
for the Eighth Circuit, sitting by designation.
1367
1370 UNITED STATES v. GUERRERO-VELASQUEZ
COUNSEL
K. Jill Bolton and James A. McDevitt, United States Attor-
ney’s Office, Yakima, Washington, for the plaintiff-appellant.
Alex B. Hernandez, III, Federal Defenders of Eastern Wash-
ington and Idaho, Yakima, Washington, for the defendant-
appellee.
ORDER
The opinion, filed January 19, 2006, slip opinion 773, and
appearing at ___ F.3d ___ (9th Cir. 2006), is amended as fol-
lows:
1. At slip op. 777, footnote 1, line 8; ___ F.3d at ___,
footnote 1, line ___, delete, “We also note that, on appellate
review, a sentence suggested by the guidelines is presump-
tively reasonable.”
2. At slip op. 776, line 2; ___ F.3d at ___, line ___,
change the counsel listing for plaintiff-appellant to read, “K.
Jill Bolton and James A. McDevitt, United States Attorney’s
Office, Yakima, Washington, for the plaintiff-appellant.”
With the filing of the amended opinion, Appellant’s pend-
ing Motion to Modify Decision is DENIED as moot, without
prejudice to filing a petition for rehearing and/or rehearing en
banc. See 9th Cir. G.O. 5.3(a).
OPINION
BYBEE, Circuit Judge:
There are two questions before us on this appeal. First, is
a guilty plea an admission of the facts charged in the indict-
UNITED STATES v. GUERRERO-VELASQUEZ 1371
ment? Second, is an Alford plea, in which the defendant enters
a guilty plea while maintaining his innocence, nevertheless a
guilty plea under Taylor v. United States, 495 U.S. 575(1990)? The first of these questions is well established in our
decisions; the second is not. We answer both in the affirma-
tive, vacate the defendant’s sentence, and remand to the dis-
trict court for resentencing.
I. BACKGROUND
Guerrero-Velasquez was charged with being an alien in the
United States after deportation in violation of 8 U.S.C.
§ 1326. He pled guilty on September 28, 2004. The United
States Probation office submitted a presentence investigation
report, and the government objected to the report’s treatment
of Guerrero-Velasquez’s previous conviction for second-
degree burglary in Washington. Specifically, the government
argued that under § 2L1.2(b)(1)(A)(ii) of the United States
Sentencing Guidelines, the report should have imposed “a 16-
level specific offense characteristic enhancement for the
Defendant’s prior crime of violence conviction.”
Applying Taylor, the district court found that second-
degree burglary was not categorically a crime of violence
under Washington state law. The court then applied Taylor’s
modified categorical approach; after conducting a limited fac-
tual inquiry into Guerrero-Velasquez’s criminal history, the
court found that the government had not submitted any evi-
dence from which the court could conclude that he had been
convicted of a crime of violence. It therefore rejected the gov-
ernment’s position and sentenced him without imposing the
enhancement. The government now appeals.
II. ANALYSIS
[1] Section 2L1.2(b)(1)(A)(ii) of the United States Sentenc-
ing Guidelines provides that an alien who has illegally reen-
tered the United States should receive a sixteen-level
1372 UNITED STATES v. GUERRERO-VELASQUEZ
sentencing enhancement if he has a prior conviction for “a
crime of violence.” See U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2003).1
The commentary accompanying the sentencing guidelines
defines a crime of violence to include the “burglary of a
dwelling.” See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (2003). The
question before this Court is whether Guerrero-Velasquez’s
conviction for second degree burglary constitutes a conviction
for burglary of a dwelling.
[2] To answer this question, we must define “burglary of a
dwelling” under the sentencing guidelines. Under Taylor, “a
state conviction meets the generic definition of burglary if the
burglary statute ‘contains at least the following elements: an
unlawful or unprivileged entry into, or remaining in, a build-
ing or other structure, with intent to commit a crime.’ ”
United States v. Rodriguez-Rodriguez, 393 F.3d 849, 857 (9th
Cir. 2005) (emphasis omitted) (quoting Taylor, 495 U.S. at
598). “The definition of ‘burglary of a dwelling’ is the same
as the ‘Taylor definition of burglary, with the narrowing qual-
ification that the burglary occur in a dwelling.’ ” Id. (quoting
United States v. Wenner, 351 F.3d 969, 973 (9th Cir. 2003)).
[3] Under Taylor, we apply a “categorical approach” to
determine whether a conviction constitutes a crime of violence.2
495 U.S. at 600. Under this approach, we look to the statutory
definition of the crime for which a defendant was convicted
instead of examining the particular facts underlying the con-
1
We realize, of course, that the sentencing guidelines are advisory and
not mandatory. See United States v. Booker, 543 U.S. 220 (2005); United
States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc). However, the
guidelines are still an important aid for district judges seeking to deter-
mine the appropriate sentence for a defendant and which help to maintain
uniformity in sentencing throughout the country. It is therefore appropriate
that we consider whether the district judge correctly interpreted and
applied the guidelines below.
2
Taylor dealt with this issue in the context of the Armed Career Crimi-
nal Act, but this Court has extended this approach to the question it faces
here. See United States v. Becker, 919 F.2d 568, 570 (9th Cir. 1990).
UNITED STATES v. GUERRERO-VELASQUEZ 1373
viction. Id. However, if the defendant’s conviction does not
meet the statutory definition for burglary under the categorical
approach, a court may conduct a limited factual inquiry into
the records of the defendant’s prior conviction:
[T]he sentencing court [may] go beyond the mere
fact of conviction in a narrow range of cases where
a jury was actually required to find all the elements
of generic burglary. For example, in a State whose
burglary statutes include entry of an automobile as
well as a building, if the indictment or information
and jury instructions show that the defendant was
charged only with a burglary of a building, and that
the jury necessarily had to find an entry of a building
to convict, then the Government should be allowed
to use the conviction for enhancement.
Id. at 602. Thus, “courts may examine the record for docu-
mentation or judicially noticeable facts that clearly establish
that the conviction is a predicate conviction for enhancement
purposes.” United States v. Corona-Sanchez, 291 F.3d 1201,
1211 (9th Cir. 2002) (en banc) (internal quotations omitted),
superseded by statute, U.S.S.G. § 2L1.2 cmt. n.5 (2002). This
limited inquiry has been dubbed the “modified categorical
approach.” Id. (quoting Ye v. INS, 214 F.3d 1128, 1133 (9th
Cir. 2000)).
[4] In United States v. Wenner, 351 F.3d 969 (9th Cir.
2003), this Court applied Taylor and held that second-degree
burglary was not a categorical crime of violence under Wash-
ington state law.3 Below, the district court correctly followed
3
Technically, this Court found that residential burglary was not a cate-
gorical crime of violence under Washington state law. However, under
Washington state law, second-degree burglary is an inferior degree of resi-
dential burglary. Compare WASH. REV. CODE § 9A.52.025(1) (2005) (“A
person is guilty of residential burglary if, with intent to commit a crime
against a person or property therein, the person enters or remains unlaw-
1374 UNITED STATES v. GUERRERO-VELASQUEZ
this precedent, and the parties do not dispute this issue on
appeal.
Following its determination that Guerrero-Velasquez had
not committed a categorical crime of violence, the district
court proceeded to apply Taylor’s modified categorical
approach. However, the district court erroneously restricted
its factual inquiry to the criminal information and the police
reports submitted by the government. The court cited Wenner
for the proposition that it could not rely on the information
alone to conclude that Guerrero-Velasquez had been con-
victed of a crime of violence, and it relied on Corona-Sanchez
to conclude that the police reports were also insufficient. See
Wenner, 351 F.3d at 974 (“It is well-established that we may
not rely on an information alone to determine the elements of
fully in a dwelling other than a vehicle.”) (emphasis added) with WASH.
REV. CODE § 9A.52.030(1) (2005) (“A person is guilty of burglary in the
second degree if, with intent to commit a crime against a person or prop-
erty therein, he enters or remains unlawfully in a building other than a
vehicle or a dwelling.”) (emphasis added). See generally WASH. REV. CODE
§ 9A.52.025(2) (2005) (“In establishing sentencing guidelines and disposi-
tion standards, the sentencing guidelines commission and the juvenile dis-
position standards commission shall consider residential burglary as a
more serious offense than second degree burglary.”); State v. Tamalini,
953 P.2d 450, 453-54 (Wash. 1998) (explaining the difference under
Washington state law between a lesser included offense and an inferior
degree offense); State v. McDonald, 96 P.3d 468, 470 (Wash. Ct. App.
2004) (“[S]econd degree burglary is an inferior degree of residential bur-
glary.”). Under Washington law, second-degree burglary and residential
burglary are really just offense gradations of the same illegal conduct—
burglary. See Tamalini, 953 P.2d at 453 (stating that one requirement for
an inferior degree offense is that “the statutes for both the [superior
degree] offense and the proposed inferior degree offense ‘proscribe but
one offense’ ”) (quoting State v. Foster, 589 P.2d 789, 794 (1979)). Resi-
dential burglary requires more offensive conduct than second-degree bur-
glary. A determination that residential burglary encompasses too much
(potentially nonviolent) conduct to constitute a categorical crime of vio-
lence therefore necessarily compels the conclusion that second-degree bur-
glary is not a categorical crime of violence either.
UNITED STATES v. GUERRERO-VELASQUEZ 1375
conviction.”); Corona-Sanchez, 291 F.3d at 1212 (“[A] pre-
sentence report reciting the facts of the crime is insufficient
evidence to establish that the defendant pled guilty to the ele-
ments of the generic definition of a crime when the statute of
conviction is broader than the generic definition.”); see also
id. at 1211 (“Charging papers alone are never sufficient.”).
[5] The district court failed to consider Guerrero-
Velasquez’s signed plea agreement,4 in which he pled guilty
to second-degree burglary.5 “By pleading guilty, [a defendant]
admit[s] the factual allegations in the indictment.” Rodriguez-
Rodriguez, 393 F.3d at 857. The charging information stated
that, “with intent to commit a crime against a person or prop-
erty therein,” Guerrero-Velasquez “enter[ed] or remain[ed]
unlawfully in a building located at 1405 Landon Avenue,
Yakima, Washington, the residence of Rena Ramirez.”
(emphasis added).6 By pleading guilty, Guerrero-Velasquez
admitted all of the facts charged in the information; therefore,
the court may properly take judicial notice that he was con-
victed of burglarizing a dwelling. See, e.g., Taylor, 495 U.S.
at 602; United States v. Hernandez-Hernandez, ___ F.3d ___,
No. 02-30429 (9th Cir. Dec. 16, 2005) (relying on stipulations
4
In exchange for his plea, the prosecution dropped a charge of first-
degree burglary and a charge of simple assault.
5
We note that second-degree burglary is an offense gradation of bur-
glary, a larger form of illegal conduct clearly contemplated to be a crime
of violence. See footnote 3, supra. We therefore find that the statutory def-
inition of second-degree burglary, which expressly excludes burglaries of
dwellings, does not render it a categorically nonviolent crime for purposes
of the advisory federal sentencing guidelines. Accordingly, we need not,
and do not, reach the question of whether a limited factual inquiry is
appropriate under Taylor when the crime of conviction is categorically not
one of violence. We also note that, as it is used in Washington’s statute,
the word “dwelling” refers to that word’s definition under Washington
law. This differs from the definition of “dwelling” under federal law,
which is the relevant question for purposes of the guidelines. See Wenner,
351 F.3d at 972-73.
6
The record is clear that this building was an occupied dwelling at the
time of the burglary; defendant does not dispute this.
1376 UNITED STATES v. GUERRERO-VELASQUEZ
that were the factual basis for a guilty plea to determine that
defendant’s prior conviction was for a crime of violence);
Rodriguez-Rodriguez, 393 F.3d at 857-58 (holding that
because defendant’s conviction contained the element of
“burglary of a dwelling” which was not a required element of
the state crime for which he was convicted, it was a crime of
violence under the sentencing guidelines); Corona-Sanchez,
291 F.3d at 1211 (“[I]f a defendant enters a guilty plea, . . .
court[s] may consider the charging documents . . . to deter-
mine whether [he has] pled guilty to the elements of the
generic crime.”); U.S. v. Sweeten, 933 F.2d 765, 769-70 (9th
Cir. 1991) (finding error when the district court applied Tay-
lor’s modified categorical approach without considering the
defendant’s indictment and guilty plea). Compare Wenner,
351 F.3d at 974 (“The government does not point to a signed
plea agreement . . . demonstrat[ing] that Wenner was con-
victed as charged . . . .”) with Corona-Sanchez, 291 F.3d at
1211 (“[C]harging papers may be considered in combination
with a signed plea agreement.”).
[6] The defense attempts to distinguish these cases by argu-
ing that Guerrero-Velasquez entered an Alford plea for the
burglary in question—that is to say he pled guilty to receive
a lower sentence while maintaining his innocence. See North
Carolina v. Alford, 400 U.S. 25 (1970). This contention is
without merit. Whether or not a defendant maintains his inno-
cence, the legal implications of a guilty plea are the same in
the context of the modified categorical approach under Tay-
lor. The question under the sentencing guidelines is whether
a defendant has “a conviction for a . . . crime of violence,” not
whether the defendant has admitted to being guilty of such a
crime. See U.S.S.G. § 2L1.2(b)(1)(A) (2003) (emphasis
added).
We note that our approach is in accord with that of the Sec-
ond Circuit, the only other federal court of appeals to have
issued a published opinion addressing a similar question. In
Abimbola v. Ashcroft, 378 F.3d 173 (2d Cir. 2004), that court
UNITED STATES v. GUERRERO-VELASQUEZ 1377
concluded that an Alford plea was a conviction for purposes
of the Immigration and Naturalization Act. In doing so, it
drew no greater distinction between an Alford plea and any
other guilty plea than we do here. See id. at 181 (noting that
the relevant question is whether there was a conviction, “as
opposed to an admission of guilt”); id. (“As the plain lan-
guage indicates, ‘conviction’ includes a guilty plea. An Alford
plea is a guilty plea.”); id. (“The fact that his conviction was
the result of an Alford plea is immaterial . . . .”); id. at 180(“We agree with the district court that Abimbola’s argument
is meritless.”).
III. CONCLUSION
[7] Because the district court misapplied the modified cate-
gorical approach under Taylor in sentencing Guerrero-
Velasquez, we vacate his sentence and remand to the district
court for resentencing under the discretionary guidelines. See
United States v. Booker, 543 U.S. 220 (2005); United States
v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc);
Rodriguez-Rodriguez, 393 F.3d at 858.
VACATED and REMANDED.