United States v. Efrain Rivera-Ramos ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-10174
Plaintiff-Appellee, D.C. No.
v.  4:07-cr-00307-RCC-
EFRAIN RIVERA-RAMOS, HCE-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Argued and Submitted
April 14, 2009—San Francisco, California
Filed August 21, 2009
Before: Stephen Reinhardt, Eugene E. Siler, Jr.,* and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge Reinhardt
*The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge
for the Sixth Circuit, sitting by designation.
11531
UNITED STATES v. RIVERA-RAMOS 11533
COUNSEL
Roger H. Sigal, Tucson, Arizona, for the defendant-appellant.
Diane J. Humetewa, United States Attorney, and Angela W.
Woodridge, Assistant United States Attorney, Tucson, Ari-
zona, for the plaintiff-appellee.
OPINION
REINHARDT, Circuit Judge:
We must decide whether New York’s definition of “at-
tempt” is categorically broader than the common law defini-
tion, so that an attempted robbery conviction in the state of
New York is not a “crime of violence” for purposes of the
Sentencing Guidelines. Following the Second Circuit, we
hold that New York’s definition, which requires conduct that
comes within a “dangerous proximity to the criminal end to
be attained,” People v. Warren, 66 N.Y.2d 831, 832-33
(1985) (emphasis added), is no broader than the definition at
common law, which requires a “substantial step towards com-
mitting the crime,” United States v. Sarbia, 367 F.3d 1079,
11534 UNITED STATES v. RIVERA-RAMOS
1085-86 (9th Cir. 2004) (emphasis added). Accordingly, the
district court correctly determined that Efrain Rivera-Ramos’s
prior attempted robbery conviction was a “crime of violence,”
and we affirm his sentence.
I.
Rivera-Ramos, a native and citizen of Mexico, first entered
the United States illegally in 1994. In 2002, he was convicted
of attempted robbery in the state of New York and received
a three-and-a-half year sentence. He was deported in 2004,
but returned to the United States two-and-a-half years later in
order to try to earn money to obtain medical care for his
father, “who had recently had one of his legs amputated and
who had severe diabetes,” and to support his nine siblings, his
son, and his common law wife, who was pregnant with his
second child. Rivera-Ramos was indicted by a Grand Jury for
illegal reentry after deportation in violation of 8 U.S.C.
§ 1326. He was also charged with a sentence enhancement,
pursuant to 8 U.S.C. § 1326(b)(2), on account of his prior
attempted robbery conviction, which was, according to the
Government, a “crime of violence.” He pled guilty to the ille-
gal reentry charge. At sentencing, he argued that his
attempted robbery conviction was not a crime of violence and
that a 16-level upward adjustment should not be applied. The
district judge disagreed, but gave Rivera-Ramos the opportu-
nity — which he took — to withdraw his plea agreement and
preserve his right to appeal. Taking into account the compel-
ling reasons for Rivera-Ramos’s return to the United States,
the fact that he did not have multiple reentries after his initial
deportation, and his limited criminal record, which consisted
solely of the attempted robbery conviction, the district court
imposed a 30-month sentence and 36 months of supervised
release. The advisory Sentencing Guidelines range was 41-51
months.1
1
Although the Guidelines are no longer mandatory, United States v.
Booker, 543 U.S. 220, 245 (2005), the sentencing court’s first obligation
UNITED STATES v. RIVERA-RAMOS 11535
Rivera-Ramos, on appeal, challenges only the district
court’s determination that an attempted robbery conviction
under New York state law is categorically a “crime of vio-
lence” for the purposes of the Sentencing Guidelines. We
have jurisdiction pursuant to 28 U.S.C. § 1291 (granting juris-
diction over “appeals from all final decisions of the district
courts of the United States”) and 18 U.S.C. § 3742 (granting
jurisdiction to review a sentence “imposed as a result of an
incorrect application of the sentencing guidelines”). We
review the “district court’s determination that a prior convic-
tion qualifies as a ‘crime of violence’ under the Guidelines
. . . de novo.” United States v. Rodriguez-Guzman, 506 F.3d
738, 740-41 (9th Cir. 2007) (citing United States v. Rivera-
Sanchez, 247 F.3d 905, 907 (9th Cir. 2001) (en banc)).
II.
U.S.S.G. § 2L1.2(b)(1)(A)(ii) provides for an upward
adjustment of 16 levels “[i]f the defendant previously was
deported, or unlawfully remained in the United States, after
. . . a conviction for a felony that is . . . a crime of violence.”
Robbery is enumerated as a “crime of violence.” U.S.S.G.
§ 2L1.2 cmt. n.1(B)(iii). “[A]iding and abetting, conspiring,
and attempting, to commit” an offense that would be a “crime
of violence” if completed qualifies as such, as well. U.S.S.G.
§ 2L1.2 cmt. n.5 (emphasis added).
Rivera-Ramos concedes that a completed first-degree rob-
bery conviction in New York is a “crime of violence.” See
N.Y. Penal Law § 160.15(3) (“A person is guilty of robbery
in the first degree when he forcibly steals property and when,
is to make the Guidelines calculation. Gall v. United States, 128 S. Ct.
586, 596 (2007). A failure to do so correctly is reversible error. United
States v. Gomez-Leon, 545 F.3d 777, 782 (9th Cir. 2008) (citing Gall, 128
S. Ct. at 597; United States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008)
(en banc), cert. denied sub nom. Zavala v. United States, 128 S. Ct. 2491(2008)).
11536 UNITED STATES v. RIVERA-RAMOS
in the course of the commission of the crime or of immediate
flight therefrom, he or another participant in the crime . . .
[u]ses or threatens the immediate use of a dangerous instru-
ment”). He argues, however, that New York’s definition of
“attempt” is broader than the common law definition, and
that, under the categorical approach set forth in Taylor v.
United States, 495 U.S. 575 (1990), an attempted robbery in
New York is not, therefore, a crime of violence.2 The Govern-
ment disagrees, as do we.
[1] Although we are not bound by it, we find dispositive the
Second Circuit’s analysis of the precise question before us. In
the absence of compelling reasons, we would not create a cir-
cuit split with the circuit that encompasses New York regard-
ing the meaning of New York law. The Second Circuit has
concluded that New York’s definition of attempt is coexten-
sive with the common law definition:
[t]he New York courts . . . make clear that a defen-
dant must perform conduct quite severe in order to
be convicted of the crime of attempt. The difference
between the federal law’s requirement of a “substan-
tial step” and the New York law’s requirement of
“dangerous proximity” is . . . “more semantic than
real.” We thus conclude that the district court did not
err in concluding that Fernandez-Antonia’s convic-
tion of attempted robbery in the third degree consti-
2
In Rebilas v. Mukasey, we explained:
To hold that Rebilas’s conviction was categorically a conviction
for attempted sexual abuse of a minor . . . , we would have to
hold not only that Arizona’s definition of public sexual indecency
to a minor . . . was categorically sexual abuse of a minor, but also
that Arizona’s definition of attempt . . . was a categorical match
with the federal definition of attempt. This would require a sec-
ond Taylor analysis, comparing the elements of attempt under
Arizona law and the elements of attempt under [federal law].
527 F.3d 783, 787 (9th Cir. 2008).
UNITED STATES v. RIVERA-RAMOS 11537
tuted an “aggravated felony” under U.S. Sentencing
Guidelines § 2L1.2(b)(1)(A).
United States v. Fernandez-Antonia, 278 F.3d 150, 162-63
(2d Cir. 2002).
[2] Rivera-Ramos has provided us with no reason to reject
the Second Circuit’s conclusion. It is true that, were we lim-
ited in our analysis to a facial comparison of the New York
and common law definitions of “attempt,” we would find
Rivera-Ramos’s position persuasive. In New York, “[a] per-
son is guilty of an attempt to commit a crime when, with
intent to commit a crime, he engages in conduct which tends
to effect the commission of such crime.” N.Y. Penal Law
§ 110.00 (emphasis added). By contrast, “[a]t common law an
‘attempt[ ]’ was defined as ‘the specific intent to engage in
criminal conduct and . . . an overt act which is a substantial
step towards committing the crime.’ ” United States v. Sarbia,
367 F.3d 1079, 1085-86 (9th Cir. 2004) (citations and quota-
tion marks omitted) (emphasis added). Similarly, pursuant to
the Model Penal Code,
[a] person is guilty of an attempt to commit a crime
if, acting with the kind of culpability otherwise
required for commission of the crime, he . . . . pur-
posely does or omits to do anything that, under the
circumstances as he believes them to be, is an act or
omission constituting a substantial step in a course
of conduct planned to culminate in his commission
of the crime.
§ 5.01(1)(c) (emphasis added). In interpreting the federal defi-
nition of attempt we have required an act of “such substantial-
ity that, unless frustrated, the crime would have occurred.”
United States v. Harper, 33 F.3d 1143, 1147 (9th Cir. 1994)
(emphasis added); United States v. Buffington, 815 F.2d 1292,
1303 (9th Cir. 1987) (emphasis added).
11538 UNITED STATES v. RIVERA-RAMOS
As Rivera-Ramos rightly points out, the plain language of
the New York definition appears to encompass more conduct
than the common law definition, since it provides no qualifier
demarcating how substantial the requisite conduct must be.
Any act, great or small, substantial or insubstantial, that incre-
mentally tends to effect the commission of the crime would
seem to fit within the definition.
The plain language is the beginning of our inquiry, how-
ever, not the end. Under the categorical approach, we must
also compare the “operational meaning” of the two defini-
tions. See Sarbia, 367 F.3d at 1086. Here, as in United States
v. Taylor, which construed Arizona’s attempt statute, “[t]he
wording of the [state] statute deviates from and is broader
than the federal definition; therefore, we must look to [state]
caselaw to determine if [the state statute] is applied in a man-
ner that is contrary to the federal or common-law definition
of attempt.” 529 F.3d 1232, 1238 (9th Cir. 2008).
In practice, New York applies a significantly more strin-
gent test for attempt than is readily apparent from the lan-
guage of N.Y. Penal Law § 110.00. In 1927, the New York
Court of Appeals recognized that “[t]he word ‘tending‘ is
very indefinite. . . . ‘Tending’ means to exert activity in a par-
ticular direction. Any act in preparation to commit a crime
may be said to have a tendency towards its accomplishment.”
People v. Rizzo, 246 N.Y. 334, 336-37 (1927). To make the
statute “practical” the court then narrowed its expansive terms
and required that an attempt bear a tighter link to the ultimate
commission of the crime than the statute’s language provided.
The law must be practical, and, therefore, considers
those acts only as tending to the commission of the
crime which are so near to its accomplishment that
in all reasonable probability the crime itself would
have been committed but for timely interference.
Id. at 337 (emphasis added).
UNITED STATES v. RIVERA-RAMOS 11539
[3] Since 1927, the Court of Appeals has expanded upon
this definition, finding sufficient evidence of an attempt only
where there is both “proof of intent to commit a specific
crime” and “a showing that defendant committed an act or
acts that carried the project forward within dangerous proxim-
ity to the criminal end to be attained.” People v. Warren, 66
N.Y.2d 831, 832-33 (1985) (emphasis added) (holding that
there was no attempt where “several contingencies stood
between the agreement . . . and the contemplated purchase”
of cocaine). In so holding, the court in Warren refused to
“adopt the definition of attempt contained in the Model Penal
Code . . . and applied by the Federal courts,” and instead pre-
served the even more stringent Rizzo rule. Id. Eight years
later, in People v. Acosta, the Court of Appeals reaffirmed
that, “[w]hile the statutory formulation of attempt would seem
to cover a broad range of conduct—anything ‘tend[ing] to
effect’ a crime—case law requires a closer nexus between
defendant’s acts and the completed crime.” 80 N.Y.2d 665,
670 (1993). Acosta went on to explicitly disavow the Model
Penal Code’s test as too broad in comparison to the New York
test: “Though apparently more stringent than the Model Penal
Code ‘substantial step’ test . . . in this State we have adhered
to Rizzo’s ‘very near’ or ‘dangerously near’ requirement . . . .”
Id. (citations omitted) (emphasis added).
[4] Although the “dangerous proximity” test thus appears
to be quite stringent, Rivera-Ramos argues that at least two
cases decided by the New York Court of Appeals have sug-
gested a less demanding standard. In People v. Mahboubian,
the court upheld a conviction for attempted grand larceny
where the defendants had hired thieves who broke into and
tried to steal the property at issue from a warehouse, but
where the defendants had taken no steps to file the subsequent
fraudulent insurance claim that would have been necessary to
complete the offense. 74 N.Y.2d 174, 192 (1989). In People
v. Naradzay, the court upheld a conviction for attempted mur-
der and attempted burglary where the defendant had not yet
entered the property of his intended victim, and where his
11540 UNITED STATES v. RIVERA-RAMOS
shotgun was lying on a snowbank five to ten feet away from
where he stood when arrested. 11 N.Y.3d 460 (2008).
Whether these cases — which, we note, cite approvingly to
Rizzo or its progeny — mark a relaxation of the “dangerous
proximity” text is a close and fact-intensive question. Even if
they do, however, we cannot say that New York’s definition
does not remain, at a minimum, coextensive with the common
law definition, which requires a “substantial step.” Mahbou-
bian explicitly declined to “adopt the Model Penal Code’s
[more expansive] definition of an attempt as a ‘substantial
step’ toward completion of the crime.” 74 N.Y.2d at 191. To
this day, the definition of “attempt” in New York requires a
stronger showing.
[5] We therefore follow the Second Circuit and hold that
attempted robbery in New York is a crime of violence under
the Sentencing Guidelines.3
III.
[6] The operational meaning of “attempt” under New York
law is no broader than the common law definition. The dis-
trict court, therefore, did not err in applying a 16-level upward
adjustment to Rivera-Ramos’s base offense level pursuant to
U.S.S.G. § 2L1.2(b)(1)(A) when calculating his advisory Sen-
tencing Guidelines range. The sentence imposed is, for that
reason,
AFFIRMED.
3
In so holding, we need not reach the Government’s additional conten-
tion that an attempted robbery is an offense “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).