United States v. Benito Sanchez-Rodriguez ( 2016 )


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  •         IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 15-41056                         FILED
    July 8, 2016
    Lyle W. Cayce
    UNITED STATES OF AMERICA,                                                 Clerk
    Plaintiff - Appellee
    v.
    BENITO SANCHEZ-RODRIGUEZ,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    Before KING, JOLLY, and ELROD, Circuit Judges.
    PER CURIAM:
    Defendant–Appellant Benito Sanchez-Rodriguez was convicted in 2002
    of dealing in stolen property in a Florida state court. On April 30, 2015,
    Sanchez-Rodriguez pleaded guilty to one count of illegal reentry in violation of
    
    8 U.S.C. § 1326
    (a) and (b)(1). In sentencing him, the district court concluded
    that Sanchez-Rodriguez’s 2002 Florida conviction was an aggravated felony
    within the meaning of U.S.S.G. § 2L1.2(b)(1)(C).         However, because the
    relevant Florida statute applies to conduct outside the definition of the generic
    crime under the sentencing Guidelines, we cannot agree that Sanchez-
    Rodriguez’s    conviction    was     an   aggravated   felony   under      U.S.S.G.
    No. 15-41056
    § 2L1.2(b)(1)(C). Accordingly, we VACATE Sanchez-Rodriguez’s sentence and
    REMAND for re-sentencing.
    I. FACTUAL AND PROCEDURAL BACKGROUND
    In June 2002, the State of Florida filed a three-count criminal
    information against Defendant–Appellant Benito Sanchez-Rodriguez.           As
    relevant here, the third count charged Sanchez-Rodriguez with “Dealing in
    Stolen Property,” in violation of Florida Statute § 812.019. Specifically, the
    third count stated that Sanchez-Rodriguez “unlawfully traffic[ked] or
    endeavor[ed] to traffic in stolen property . . . and in so doing [Sanchez-
    Rodriguez] knew or should have known that said property was stolen.”
    Sanchez-Rodriguez subsequently pleaded guilty to this count in Florida state
    court, and he was sentenced to three years’ imprisonment, which was
    suspended for three years’ probation.     Following this conviction, Sanchez-
    Rodriguez, who is a citizen of Mexico and who had no legal status in the United
    States, was deported to Mexico in December 2002.
    In May 2014, Sanchez-Rodriguez was arrested for driving while
    intoxicated in Texas.     Immigration and Customs Enforcement agents
    encountered Sanchez-Rodriguez while he was detained at a local jail following
    his arrest, and he admitted to them that he was a citizen of Mexico without
    legal status in the United States.      Sanchez-Rodriguez was subsequently
    indicted on one count of illegal reentry in violation of 
    8 U.S.C. § 1326
    (a) and
    (b)(1). On April 30, 2015, he pleaded guilty to the indictment without a plea
    agreement, and the district court accepted his plea in August 2015.
    A United States Probation Officer prepared a presentence investigation
    report (PSR) using the 2014 edition of the United States Sentencing Guidelines
    (U.S.S.G.). Under U.S.S.G. § 2L1.2(a), Sanchez-Rodriguez was assigned a base
    offense level of eight. The base offense level was enhanced by eight levels
    because, according to the PSR, Sanchez-Rodriguez’s 2002 Florida conviction
    2
    No. 15-41056
    for dealing in stolen property qualified as an “aggravated felony” under
    U.S.S.G. § 2L1.2(b)(1)(C). Sanchez-Rodriguez’s offense level was reduced by
    three levels based on his acceptance of responsibility and his guilty plea,
    yielding a total offense level of 13. See U.S.S.G. § 3E1.1. Based on his criminal
    history, Sanchez-Rodriguez was assigned a criminal history category of IV.
    With an offense level of 13 and a criminal history category of IV, the Guidelines
    range for Sanchez-Rodriguez was 24 to 30 months’ imprisonment.
    Sanchez-Rodriguez filed written objections to the PSR, arguing that his
    stolen-property conviction was not an aggravated felony as defined by U.S.S.G.
    § 2L1.2(b)(1)(C) or 
    8 U.S.C. § 1101
    (a)(43) and that, therefore, he was not
    eligible for the eight-level enhancement. Sanchez-Rodriguez also objected to
    the enhancement at sentencing, arguing that “the Florida statute is overly
    broad.”     The district court overruled Sanchez-Rodriguez’s objections and
    adopted the PSR in full.         The court then sentenced him to 27 months’
    imprisonment—the middle of the Guidelines range. Sanchez-Rodriguez timely
    appealed,    challenging   the    aggravated-felony   enhancement     based   on
    overbreadth.
    II. STANDARD OF REVIEW
    We review a district court’s sentencing decision “for reasonableness.”
    United States v. Anderson, 
    559 F.3d 348
    , 354 (5th Cir. 2009). In doing so, we
    review the district court’s interpretation of the Guidelines de novo. United
    States v. Cisneros–Gutierrez, 
    517 F.3d 751
    , 764 (5th Cir. 2008).          If the
    defendant fails to object at sentencing, our review is only for plain error.
    Anderson, 
    559 F.3d at 354
    . Sanchez-Rodriguez argues that the appropriate
    standard of review is de novo, while the Government contends that plain error
    review applies.    However, the court, not the parties, must determine the
    appropriate standard of review. United States v. Torres-Perez, 
    777 F.3d 764
    ,
    766 (5th Cir. 2015).
    3
    No. 15-41056
    To preserve an error, an objection must be sufficiently specific to alert
    the district court to the nature of the alleged error and to provide an
    opportunity for correction. United States v. Ocana, 
    204 F.3d 585
    , 589 (5th Cir.
    2000). Sanchez-Rodriguez filed a written objection and objected at sentencing,
    raising essentially the same—if not as refined—argument that he raises on
    appeal. Thus, the district court was adequately notified of the grounds upon
    which Sanchez-Rodriguez’s objection was made. See, e.g., United States v.
    Garcia-Perez, 
    779 F.3d 278
    , 282 (5th Cir. 2015) (determining that, although
    the defendant refined his argument on appeal, his objection to the
    classification of his prior conviction as a crime of violence was sufficient to
    preserve the issue on appeal).    Because the district court was adequately
    notified of the grounds of Sanchez-Rodriguez’s objection, our review is de novo.
    See id.; Ocana, 
    204 F.3d at
    588–89.
    III. AGGRAVATED FELONY UNDER U.S.S.G. § 2L1.2(b)(1)(C)
    Under U.S.S.G. § 2L1.2(b)(1)(C), a defendant’s base offense level will be
    increased by eight levels “[i]f the defendant previously was deported, or
    unlawfully remained in the United States, after . . . a conviction for an
    aggravated felony.” Id. The commentary to the Guidelines provides that “[f]or
    the purposes of subsection (b)(1)(C), ‘aggravated felony’ has the meaning given
    that term in section 101(a)(43) of the Immigration and Nationality Act (
    8 U.S.C. § 1101
    (a)(43)), without regard to the date of conviction for the
    aggravated felony.” U.S.S.G. § 2L1.2 cmt. n.3(A); see also United States v.
    McKinney, 
    520 F.3d 425
    , 429 (5th Cir. 2008) (“The commentary's
    interpretation of the guidelines is generally authoritative.”). That statute
    defines “aggravated felony” as “a theft offense (including receipt of stolen
    property) or burglary offense for which the term of imprisonment [is] at least
    one year.” 
    8 U.S.C. § 1101
    (a)(43)(G). In this case, the district court concluded
    that Sanchez-Rodriguez’s 2002 Florida conviction for dealing in stolen property
    4
    No. 15-41056
    constituted an aggravated felony within this definition. We disagree and hold
    that Sanchez-Rodriguez’s Florida conviction is not an aggravated felony within
    this definition and that, therefore, the district court erred in applying a
    sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(C).
    “To determine whether a prior conviction qualifies as an offense under
    the Sentencing Guidelines, we begin with the categorical approach described
    in Taylor v. United States, 
    495 U.S. 575
    , 602 (1990).”                   United States v.
    Rodriguez-Negrete, 
    772 F.3d 221
    , 224–25 (5th Cir. 2014).                   This court has
    previously explained:
    [W]hen applying the categorical approach, courts “compare the
    elements of the statute forming the basis of the defendant’s
    conviction with the elements of the ‘generic’ crime—i.e., the offense
    as commonly understood” that triggers the sentencing
    enhancement. “If the [offense of conviction] has the same elements
    as the ‘generic’ . . . crime [in the sentencing enhancement], then
    the prior conviction can serve as [the] predicate; so too if the
    statute defines the crime more narrowly, because anyone convicted
    under that law is ‘necessarily . . . guilty of all the [generic crime’s]
    elements.’”
    United States v. Schofield, 
    802 F.3d 722
    , 727–28 (5th Cir. 2015) (alterations in
    original) (citation omitted) (quoting Descamps v. United States, 
    133 S. Ct. 2276
    ,
    2281, 2283 (2013)). Where, as here, a defendant was convicted of violating a
    divisible statute, 1 we employ the modified categorical approach, which “helps
    implement the categorical approach when a defendant was convicted of
    violating a divisible statute.” Descamps, 
    133 S. Ct. at 2285
    . “[T]he modified
    categorical approach permits sentencing courts to consult a limited class of
    documents, such as indictments and jury instructions, to determine which
    1 A divisible statute “lists multiple, alternative elements, and so effectively creates
    ‘several different . . . crimes.’” Descamps, 
    133 S. Ct. at 2285
     (quoting Nijhawan v. Holder,
    
    557 U.S. 29
    , 41 (2009)).
    5
    No. 15-41056
    alternative formed the basis of the defendant’s prior conviction.” Id. at 2281.
    Having made this determination, “[t]he court can then do what the categorical
    approach demands: compare the elements of the crime of conviction (including
    the alternative element used in the case) with the elements of the generic
    crime.” Id.
    Here, the generic crime is “a theft offense (including receipt of stolen
    property) or burglary offense for which the term of imprisonment [is] at least
    one year.” 
    8 U.S.C. § 1101
    (a)(43)(G). “The provision does not define ‘theft
    offense.’” United States v. Medina-Torres, 
    703 F.3d 770
    , 774 (5th Cir. 2012)
    (per curiam). Accordingly, we have previously applied “‘the generic,
    contemporary meaning’ of ‘theft offense’ under § 1101(a)(43)(G),” which is “a
    taking of property or an exercise of control over property without consent with
    the criminal intent to deprive the owner of rights and benefits of ownership,
    even if such deprivation is less than total or permanent.” Id. (quoting Burke v.
    Mukasey, 
    509 F.3d 695
    , 697 (5th Cir. 2007) (per curiam)). As relevant to the
    instant case, “this generic definition requires ‘an intent to deprive the owner
    of the benefit proceeding from possession of the stolen goods.’” 
    Id. at 775
    (quoting Burke, 
    509 F.3d at 697
    )). The statute forming the basis of Sanchez-
    Rodriguez’s crime of conviction is Florida Statute § 812.019, which provides
    that “[a]ny person who traffics in, or endeavors to traffic in, property that he
    or she knows or should know was stolen shall be guilty of a felony of the second
    degree.” Florida law further provides that:
    “Traffic” means:
    (a) To sell, transfer, distribute, dispense, or otherwise
    dispose of property.
    (b) To buy, receive, possess, obtain control of, or use property
    with the intent to sell, transfer, distribute, dispense, or
    otherwise dispose of such property.
    
    Fla. Stat. § 812.012
    (8).
    6
    No. 15-41056
    Sanchez-Rodriguez argues that the Florida statute is overly broad for
    the purposes of the enhancement he received because it does not require proof
    of the specific “intent to deprive the owner of rights and benefits of ownership,”
    which is an element of the generic offense of theft.              Therefore, Sanchez-
    Rodriguez argues, his conviction cannot serve as the predicate for a sentencing
    enhancement under U.S.S.G. § 2L1.2(b)(1)(C). We agree that the conviction
    cannot serve as the predicate for such an enhancement.
    Because the relevant Florida statute “comprises multiple, alternative
    versions of the crime,” Descamps, 
    133 S. Ct. at 2284
    , we first turn to the
    “charging document, written plea agreement, transcript of plea colloquy, and
    any explicit factual finding by the trial judge to which the defendant assented,”
    Shepard v. United States, 
    544 U.S. 13
    , 16 (2005), to determine which version
    of the crime formed the basis of Sanchez-Rodriguez’s conviction. In the 2002
    Florida case, Sanchez-Rodriguez pleaded guilty to a charge that he “did
    unlawfully traffic or endeavor to traffic in stolen property, to-wit: a television
    and/or stereo equipment and/or a camera the property of [the victim] . . . and
    in so doing . . . knew or should have known that said property was stolen.” 2
    Thus, Sanchez-Rodriguez may have been convicted because he knew the
    relevant property was stolen or because he should have known that property
    was stolen. “Where [the Shepard-compliant] documents do not identify the
    offense of conviction, we must consider whether the ‘least culpable’ means of
    violating the statute of conviction qualifies as an offense under the Sentencing
    Guidelines.” Rodriguez-Negrete, 772 F.3d at 225. This is so because “[a]
    sentence enhancement is properly applied only if the ‘least culpable’ means of
    violating the state statute makes the defendant eligible for the enhancement.”
    2 This charge comes directly from the charging document in the 2002 Florida case. No
    other Shepard-compliant documents further elucidate which version of the dealing in stolen
    property statute formed the basis of Sanchez-Rodriguez’s conviction.
    7
    No. 15-41056
    Id. Accordingly, we evaluate whether Sanchez-Rodriguez was eligible for the
    enhancement assuming that he was convicted under the “should have known”
    version of the Florida statute.
    Based on the “should have known” version of the statute, we cannot say
    that the stolen property offense under Florida law requires “an intent to
    deprive the owner of the benefit proceeding from possession of the stolen
    goods.” Burke, 
    509 F.3d at 697
    . Although no federal court of appeals has
    reached the specific question of intent at issue today, 3 Florida courts have
    consistently held that, while “[b]urglary, grand theft, and petit theft are
    specific intent crimes . . . [d]ealing or trafficking in stolen property is not a
    specific intent crime.” Reese v. State, 
    869 So. 2d 1225
    , 1227 (Fla. Dist. Ct. App.
    2004); accord Aversano v. State, 
    966 So. 2d 493
    , 495 (Fla. Dist. Ct. App. 2007).
    In Glenn v. State, 
    753 So. 2d 669
     (Fla. Dist. Ct. App. 2000), a defendant was
    charged with burglary, grand theft, and dealing in stolen property. 
    Id. at 670
    .
    A Florida appellate court explained that, because dealing in stolen property
    was not a specific intent crime like burglary and grand theft, the defendant
    could not use voluntary intoxication as a defense. 
    Id.
     at 670–71. The court
    further explained that “[c]learly, the plain language of the statute requires
    only general intent concerning the statutory element that the property
    3 In the district court, the Government pointed to an unpublished Eleventh Circuit
    decision, United States v. Dawkins, 341 F. App’x 520 (11th Cir. 2009) (per curiam), in arguing
    that dealing in stolen property under Florida law is an aggravated felony under U.S.S.G.
    § 2L1.2(b)(1)(C). In Dawkins, the defendant objected to the aggravated-felony enhancement
    based on his conviction for conspiracy to transport stolen property. Id. at 522. The Eleventh
    Circuit affirmed the enhancement based on the second prong of plain error review but noted
    that “it appear[ed] that Dawkins’s conviction for conspiracy to transport stolen property
    would qualify as an aggravated felony theft offense.” Id. at 522 n.3. On appeal, the
    Government notes that, although Dawkins originated in the Southern District of Florida,
    neither the opinion nor the Government’s brief in that case confirms whether the conviction
    arose under Florida law. For this reason, as well as the court’s specific holding, the
    Government abandoned its reliance on Dawkins on appeal. We similarly find Dawkins
    unpersuasive on the issue before us.
    8
    No. 15-41056
    transferred be stolen, because it is sufficient if the [defendant] should have
    known this fact.” 4 Id. at 671.
    The Florida courts’ analyses are supported by the plain language of the
    Florida “dealing in stolen property” and “theft” statutes. Consistent with the
    generic crime of theft, Florida’s theft statute requires that a defendant have
    “the intent to . . . deprive the other person of a right to the property or a benefit
    from the property.” 
    Fla. Stat. § 812.014
    . This intent element is entirely absent
    from Florida’s “dealing in stolen property” statute. See 
    Fla. Stat. § 812.019
    .
    Based on this absence and Florida courts’ consistent holdings that dealing in
    stolen property requires no specific intent, we conclude that the crime of
    dealing in stolen property is defined more broadly under Florida law than the
    generic crime of “theft” under U.S.S.G. § 2L1.2(b)(1)(C). Cf. Burke, 
    509 F.3d at
    696–97 (determining that a New York conviction for criminal possession of
    stolen property constituted an aggravated felony because the statute required
    the necessary criminal “intent to deprive the owner of the benefit proceeding
    from possession of the stolen goods”).
    However, this conclusion, by itself, is insufficient to hold that Florida
    Statute § 812.019 cannot serve as the predicate for a sentencing enhancement
    under U.S.S.G. § 2L1.2(b)(1)(C). Sanchez-Rodriguez must also demonstrate “a
    realistic probability, not a theoretical possibility,” that Florida “would apply its
    statute to conduct falling outside the generic definition” in order to establish
    4 The Government argues that Glenn is inapposite because its analysis was specific to
    “the element of selling or transferring property.” Glenn, 753 So. 2d at 671. However, the
    Glenn court was simply analyzing the relevant part of § 812.019 based on the facts of the case
    before it.    That statute defines “trafficking” stolen property as either selling or
    buying/receiving stolen goods. 
    Fla. Stat. § 812.012
    (8). Because only the selling aspect of
    trafficking was relevant to the case before it, the Glenn court focused its attention there. This
    does not render Glenn inapposite to the issue before us. Considering, as we must, the “‘least
    culpable’ means of violating the statute of conviction,” Rodriguez-Negrete, 772 F.3d at 225,
    Glenn clearly establishes that a defendant need have no specific intent in order to be found
    guilty under Florida Statute § 812.019.
    9
    No. 15-41056
    error on the part of the district court. Gonzales v. Duenas-Alvarez, 
    549 U.S. 183
    , 193 (2007). Sanchez-Rodriguez did so here by pointing to multiple Florida
    cases explicitly stating that dealing in stolen property requires no criminal
    intent to deprive the owner of rights and benefits of ownership. See, e.g.,
    Aversano, 
    966 So. 2d at 495
    ; Reese, 
    869 So. 2d at 1227
    ; Glenn, 753 So. 2d at
    671.    Because Florida applies this statute to conduct outside the generic
    definition of theft in U.S.S.G. § 2L1.2(b)(1)(C), the district court erred in using
    Sanchez-Rodriguez’s conviction for dealing in stolen property as the predicate
    for a sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(C). 5
    While “certain ‘harmless’ errors do not warrant reversal,” the error here
    was not harmless. United States v. Delgado-Martinez, 
    564 F.3d 750
    , 752–53
    (5th Cir. 2009). Without the eight-level enhancement for an aggravated felony,
    Sanchez-Rodriguez’s 2002 Florida conviction would have qualified for only a
    four-level enhancement for “any other felony.” See § 2L1.2(b)(1)(D). A four-
    level enhancement, combined with a base offense level of eight and a two-level
    reduction for acceptance of responsibility, would have resulted in a total
    offense level of 10. 6      A total offense level of 10, combined with a criminal
    5  The Government argues that, “[i]f the defendant knew or believed the property to be
    stolen, it logically follows that the defendant intended to deprive the property’s true owner of
    the rights and benefits of ownership.” And “the statute’s focus on the defendant’s ‘guilty
    knowledge’ suggests that [a] defendant who genuinely, but mistakenly, believes that the
    property is not stolen could not be convicted of dealing in stolen property.” However, these
    arguments are unpersuasive, as they are directly refuted by at least three decisions from
    Florida appellate courts. Moreover, all of the cases the Government cites in support of its
    arguments address situations where the State introduced evidence that the defendants knew,
    not that they should have known, that the relevant property was stolen. See, e.g., Newberry
    v. State, 
    442 So. 2d 334
    , 335 (Fla. Dist. Ct. App. 1983) (noting that the State introduced
    evidence that the defendants lied about their authority to sell property, suggesting that they
    knew that the property was stolen).
    6 Sanchez-Rodriguez originally received a three-level reduction of his offense level
    under U.S.S.G. § 3E1.1(a) and (b). However, given a base offense level of eight and a four-
    level enhancement, Sanchez-Rodriguez would only be eligible for a two-level reduction under
    U.S.S.G. § 3E1.1(a).
    10
    No. 15-41056
    history category of IV, would have resulted in a Guidelines range of 15 to 21
    months of imprisonment. U.S.S.G. Ch. 5, Pt. A. The district court imposed a
    sentence of 27 months, which is outside the correct Guidelines range of
    imprisonment, and the court did not indicate that it would have imposed an
    identical sentence despite any error in its ruling. See Delgado-Martinez, 
    564 F.3d at 753
    . Because the correct Guidelines range is less than the 24 to 30
    month range Sanchez-Rodriguez originally faced, the error was not harmless.
    Accordingly, we must remand the case for re-sentencing pursuant to the proper
    Guidelines range.
    IV. CONCLUSION
    For the foregoing reasons, we VACATE Sanchez-Rodriguez’s 27-month
    sentence and REMAND the case for re-sentencing.
    11