United States v. Margarito Flores-Cordero , 723 F.3d 1085 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA , No. 12-10220
Plaintiff-Appellee,
D.C. No.
v. 4:11-cr-02432-
CKJ-GEE-1
MARGARITO FLORES-CORDERO ,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted June 13, 2013
Withdrawn From Submission
Resubmitted July 12, 2013
San Francisco, California
Filed July 25, 2013
Before: Mary M. Schroeder and Consuelo M. Callahan,
Circuit Judges, and Sarah S. Vance, Chief District Judge.*
Opinion by Judge Schroeder
*
The Honorable Sarah S. Vance, Chief United States District Judge for
the Eastern District of Louisiana, sitting by designation.
2 UNITED STATES V . FLORES-CORDERO
SUMMARY**
Criminal Law
The panel vacated a sentence and remanded for
resentencing without a “crime of violence” adjustment under
U.S.S.G. § 2L1.2(b)(1)(A) based on a prior conviction for
resisting arrest in violation of Ariz. Rev. Stat. § 13-
2508(A)(1).
The panel held that in light of decisions of Arizona courts,
which hold that the use of minimal force is sufficient to
constitute “resisting arrest,” a conviction under § 13-
2508(A)(1) is not categorically a crime of violence within the
meaning of federal law, and that Estrada-Rodriguez v.
Mukasey, 512 F.3d 517 (9th Cir. 2007), to the extent it
suggests otherwise, has been superseded by controlling,
intervening authority.
Applying Descamps v. United States, 133 S. Ct. 2276(2013), the panel held that because § 13-2508(A)(1) is not a
divisible statute with alternative elements, remand for
application of the modified categorical approach is not
appropriate.
COUNSEL
Myrna R. Beards (argued), Law Office of Myrna Rodriguez
Beards, Tucson, Arizona, for Defendant-Appellant.
**
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 . FLORES-CORDERO 3
John S. Leonardo, United States Attorney, District of
Arizona, Christina M. Cabanillas, Appellate Chief, Matthew
C. Cassell (argued), Assistant United States Attorney,
Tucson, Arizona, for Plaintiff-Appellee.
OPINION
SCHROEDER, Circuit Judge:
The issue in this sentencing appeal is whether the
defendant’s prior Arizona conviction for resisting arrest is a
“crime of violence” that authorized a sixteen-level increase to
the base offense level under United States Sentencing
Guidelines (“U.S.S.G.”) § 2L1.2. On the basis of decisions
of the Arizona courts that we must follow in ascertaining the
scope of the Arizona criminal statute, we hold that the prior
conviction was not categorically a crime of violence and
therefore vacate the sentence and remand for resentencing.
BACKGROUND
Defendant-Appellant Margarito Flores-Cordero pled
guilty to illegal reentry in violation of 8 U.S.C. § 1326 under
an agreement providing that the government could withdraw
in the event that the presentence report reflected a prior
conviction of a crime of violence. The presentence report
showed that Flores-Cordero had a prior conviction for
“resisting arrest” in violation of Ariz. Rev. Stat. § 13-2508.
The district court held that this conviction was for a crime of
violence and relied on this court’s decision in Estrada-
Rodriguez v. Mukasey, 512 F.3d 517 (9th Cir. 2007), an
immigration case in which we held that the violation of the
Arizona statute was categorically a crime of violence. In
4 UNITED STATES V . FLORES-CORDERO
Estrada-Rodriguez, we looked primarily to the language of
the Arizona statute and to an earlier Arizona case holding that
nonviolent flight from an arrest did not violate the Arizona
statute. See State v. Womack, 847 P.2d 609 (Ariz. Ct. App.
1992). In this appeal, however, Flores-Cordero points to
more recent Arizona decisions that clarify the scope of the
Arizona criminal statute to include conduct that does not rise
to the level of violence within the meaning of the federal
statute.
The existence of a prior conviction for a “crime of
violence” is important in a number of federal contexts. In the
immigration context, noncitizens convicted of crimes of
violence are aggravated felons, and therefore ineligible for
certain forms of discretionary relief from removal including
asylum. 8 U.S.C. § 1227(a)(2)(iii); 8 U.S.C.
§ 1158(b)(2)(B)(i). Under the Armed Career Criminal Act
(“ACCA”), three prior convictions for “violent felonies”
establish a defendant as a career criminal and subject him to
a potential life sentence. 18 U.S.C. § 924(e)(1). In the illegal
reentry context, as we deal with here, the defendant’s prior
deportation stemming from a conviction for a “crime of
violence” gives rise to a significant upward sentencing
adjustment. U.S.S.G § 2L1.2(b)(1)(A). Here, Flores-
Cordero’s Guideline range increased from 18 to 27 months
without the adjustment to 70 to 87 months with the
adjustment, and the district court imposed a below-Guideline
sentence of 63 months.
In all of the federal contexts, the definitions require
application of “physical force” for a prior crime to be
considered violent. See 18 U.S.C. § 16 (“Crime of violence”
in immigration context means “an offense that has as an
element the use, attempted use, or threatened use of physical
UNITED STATES V . FLORES-CORDERO 5
force against the person or property of another.”); 18 U.S.C.
§ 924(e)(2)(B) (In the ACCA context, “violent felony” is any
crime 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) (In illegal
reentry sentencing scheme, “crime of violence” includes any
offense “that has as an element the use, attempted use, or
threatened use of physical force against the person of
another.”).
Flores-Cordero’s prior Arizona conviction was for
resisting arrest in violation of Ariz. Rev. Stat. § 13-
2508(A)(1). That statute provides:
A. A person commits resisting arrest by
intentionally preventing or attempting to
prevent a person reasonably known to him
to be a peace officer, acting under color of
such peace officer’s official authority,
from effecting an arrest by:
1. Using or threatening to use physical
force against the peace officer or
another.
Since all the statutes refer to “physical force,” the meaning of
that phrase under state and federal law is critical. We must
therefore analyze the Arizona statute in light of recent
controlling decisions in the federal and Arizona state courts.
DISCUSSION
The legal framework for our decision in this case was
established by the United States Supreme Court in Johnson
6 UNITED STATES V . FLORES-CORDERO
v. United States, 559 U.S. 133 (2010), decided three years
after our decision in Estrada-Rodriguez. The Court in
Johnson was concerned with whether a prior state court
conviction for battery was a “violent felony” for purposes of
the ACCA. Id. at 135. The Court stressed in Johnson that
while interpretation of the federal statute is a question of
federal law, the nature of a prior state conviction is
determined by state law. Id. at 138. The Court said that what
constitutes a “violent felony” within the meaning of the
ACCA is an issue of federal law, but that in determining the
meaning or scope of the crime of conviction, the federal
courts are bound by the state courts’ interpretations of state
criminal statutes. Id. The Court then adopted as a matter of
federal law the Seventh Circuit’s definition of “physical
force” that required “force capable of causing physical pain
or injury to another person.” Id. at 140 (citing Flores v.
Ashcroft, 350 F.3d 666, 672 (7th Cir. 2003)). That definition
applies to the Sentencing Guideline at issue here. See United
States v. Villavicencio-Burruel, 608 F.3d 556, 561–63 (9th
Cir. 2010).
The Court in Johnson had before it a Florida conviction
for battery, and it therefore looked to Florida law to
determine what conduct was criminalized under the state
statute. 559 U.S. at 138. Because under Florida law, battery
included any touching, no matter how slight, the Court held
that the Florida battery conviction was not a violent felony
within the meaning of the federal statute. Id.
In this case, we are concerned with the Arizona statute
that criminalizes “resisting arrest.” It requires use or
threatened use of physical force against an officer. Ariz. Rev.
Stat. § 13-2508(A)(1). One of the early Arizona decisions
interpreting that statute was Womack, 847 P.2d at 609, upon
UNITED STATES V . FLORES-CORDERO 7
which we relied in Estrada-Rodriguez. The conduct in
Womack did not involve any physical contact. The Arizona
court held that the “resisting arrest” statute required use of
actual physical force or risk of physical injury. Id. at 613.
The court accordingly ruled that nonviolent flight from the
prospect of an arrest was not within the scope of the
“resisting arrest” statute. Id.
In Estrada-Rodriguez, relying on Womack, we held that
because the Arizona statute required use of force or risk of
injury, it qualified as a “crime of violence” within the
meaning of the federal statute. Estrada-Rodriguez, 512 F.3d
at 521. We did not deal with the level of force required.
After both Womack and Estrada-Rodriguez, the Arizona
courts decided cases involving resisting arrest where there
was physical contact between officers and arrestees. The
leading case is State v. Lee, 176 P.3d 712 (Ariz. Ct. App.
2008). There, the criminal prosecution was prompted by the
defendant’s struggle to keep from being handcuffed. Id. at
713. Lee kicked the officers trying to control her. Id. She
argued on appeal that her conduct did not amount to
“resisting arrest” because no one was injured or placed in any
danger of injury, so the episode amounted to a “minor
scuffle” that was outside the scope of the resisting arrest
statute. Id. The Arizona Court of Appeals rejected that
argument, holding that because some physical force was used,
the conduct was within the scope of the resisting arrest
statute. Id. at 705. The court’s holding in Lee has been
followed consistently in Arizona. See State v. Vasquez, 2011
WL 2418629 (Ariz. Ct. App. June 14, 2011) (unpublished);
State v. Schmitt, 2010 WL 5018308 (Ariz. Ct. App. Dec. 7,
2010) (unpublished); State v. Richardson, 2010 WL 5054454(Ariz. Ct. App. Dec. 7, 2010) (unpublished). Under
8 UNITED STATES V . FLORES-CORDERO
prevailing Arizona law, the use of minimal force is sufficient
to constitute “resisting arrest.”
The issue here is whether the conviction under Ariz. Rev.
Stat. § 13-2508(A)(1) as interpreted in Lee is a crime of
violence under the federal Sentencing Guideline for illegal
reentry. U.S.S.G. § 2L1.2(b)(1)(A). The Guideline requires
use or threatened use of “physical force.” The operative
definition is that adopted by the U.S. Supreme Court in
Johnson. 559 U.S. at 140 (“Physical force” is “force capable
of causing physical pain or injury to another person.”).
We must conclude that the conduct involved in Lee,
which could be characterized as a “minor scuffle,” did not
necessarily involve force capable of inflicting pain or causing
serious injury as contemplated by the Supreme Court’s
definition of violence in Johnson. The state appellate court
did not require there to have been such force in holding that
the defendant, by instigating a scuffle with officers, could be
guilty of “resisting arrest.” After Lee, an Arizona conviction
for resisting arrest cannot be considered categorically a crime
of violence under the federal Sentencing Guidelines.
This court has not had any occasion to examine the
Arizona statute since Estrada-Rodriguez, decided a year
before Lee. The only intervening decision of our court
making any reference to the Arizona statute is Flores-Lopez
v. Holder, 685 F.3d 857 (9th Cir. 2012). That case, however,
was about whether a California statute qualified as a crime of
violence. Distinguishing Estrada-Rodriguez, we held that the
California statute was not categorically a crime of violence
because it encompassed nonviolent conduct. Id. at 865.
Flores-Lopez does not affect our ruling here because we were
not dealing with a conviction under Arizona law, and
UNITED STATES V . FLORES-CORDERO 9
therefore had no occasion to look to Arizona law to define its
scope, as under Johnson, we are required to do here.
Accordingly, this is the first case requiring interpretation
of the Arizona resisting arrest statute since Estrada-
Rodriguez. When we decided Estrada-Rodriguez in 2007, we
did not have the benefit of the Supreme Court’s decision in
Johnson providing the definition of “physical force” under
federal law, nor did we have the benefit of the state court’s
decision in Lee, which clarified the scope of the Arizona
statute with respect to physical contact. We must now
conclude that conviction of “resisting arrest” under Arizona
law is not categorically a crime of violence within the
meaning of federal law, and that our decision in Estrada-
Rodriguez, to the extent it suggests otherwise, has been
superseded by controlling, intervening authority. See Miller
v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). We
hold that Flores-Cordero’s prior conviction for resisting arrest
in violation of Ariz. Rev. Stat. § 13-2508(A)(1) was not
categorically a crime of violence.
Under our law prior to the Supreme Court’s recent
decision in Descamps v. United States, 133 S. Ct. 2276(2013), that conclusion would not end our inquiry. We would
have to remand for the district court to determine whether the
prior conviction was a crime of violence by looking to
judicially noticeable documents under the modified
categorical approach. See United States v. Aguila-Montes de
Oca, 655 F.3d 915 (9th Cir. 2011) (en banc), overruled by
Descamps, 133 S. Ct. at 2283. The Supreme Court, however,
has now decided Descamps and has held that the modified
categorical approach should not be applied when the statute
of prior conviction is indivisible. Descamps, 133 S. Ct. at
2293. Use of the modified categorical approach is
10 UNITED STATES V . FLORES-CORDERO
appropriate only when the state statute lists multiple,
alternative elements, and the federal court is attempting to
determine the elements implicated in a particular defendant’s
violation of the statute. Id. at 2285. The government
suggests in a supplemental brief addressing Descamps that we
could remand so the district court may apply the modified
categorical approach to determine under which subsection of
Ariz. Rev. Stat. § 13-2508 Flores-Cordero was convicted.
However, Flores-Cordero’s pre-sentence investigation report
indicates that his conviction was under section 13-
2508(A)(1), and the parties did not dispute this fact in the
district court or in their principal briefs on appeal. Since
Ariz. Rev. Stat. § 13-2508(A)(1) is not a divisible statute with
alternative elements, remand for application of the modified
categorical approach is not appropriate.
CONCLUSION
Flores-Cordero’s sentence is VACATED and the matter
is REMANDED for resentencing without any adjustment
under U.S.S.G § 2L1.2(b)(1)(A) for a “crime of violence”
conviction.