UNITED STATES v. CORTEZ ARIAS

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United States Court of Appeals,Ninth Circuit.

UNITED STATES of America, Plaintiff-Appellee, v. Jose Emilio CORTEZ-ARIAS, Defendant-Appellant.

No. 04-10184.

Decided: April 18, 2005

Before D.W. NELSON, KLEINFELD, and GOULD, Circuit Judges. Robert B. Walker, Carson City, NV, for the appellant. Daniel G. Bogden, United States Attorney, and Robert Don Gifford, Assistant United States Attorney, Reno, NV, for the appellee.

Jose Emilio Cortez-Arias appeals from the 46-month prison sentence that the district court imposed for illegal re-entry into the United States after being deported, in violation of 8 U.S.C. § 1326(a).   The district court imposed a sixteen level increase in offense level pursuant to United States Sentencing Commission, Guidelines Manual (USSG), § 2L1.2(b)(1)(A), because it found that under our precedent in United States v. Weinert, 1 F.3d 889 (9th Cir.1993) (per curiam), Cortez-Arias's prior conviction for shooting at an inhabited dwelling, in violation of California Penal Code section 246, was a conviction for a “crime of violence.”

Cortez-Arias contends that Weinert is not controlling because it involved an interpretation of a section of the Sentencing Guidelines containing a broader definition of “crime of violence.”   Cortez-Arias further contends that his prior conviction was not for a “crime of violence” under § 2L1.2's categorical approach because California Penal Code section 246 prohibits shooting at a dwelling, whether occupied or not, and the commentary to § 2L1.2 defines a “crime of violence” with respect to “physical force against the person of another.”  USSG § 2L1.2 comment. (n.1(B)(iii)) (emphasis added).

We have jurisdiction pursuant to 28 U.S.C. § 1291, and although we disagree with the reasoning of the district court, we agree with its conclusion that shooting at an inhabited dwelling, in violation of California Penal Code section 246, is a “crime of violence” under § 2L1.2, and so we affirm.

I

Cortez-Arias was arrested on October 14, 2003, for illegal reentry into the United States by a deported alien, in violation of 8 U.S.C. § 1326(a).   On October 22, 2003, a federal grand jury indicted Cortez-Arias for this offense.   Cortez-Arias pleaded guilty as charged on December 11, 2003.

The United States Probation Office's pre-sentence report recommended that, under USSG § 2L1.2(b)(1)(A)(ii),1 the district court impose a sixteen level increase of the base offense level for illegal reentry 2 because Cortez-Arias previously was deported after being convicted for shooting at an inhabited dwelling, in violation of section 246 of the California Penal Code.3 Cortez-Arias objected to the recommendation, arguing that a violation of California Penal Code section 246 was not a “crime of violence” under USSG § 2L1.2 because the California law does not require the presence of a person occupying the dwelling in order for the accused to be convicted, and so does not have as an element the use, attempted use, or threatened use of physical force against another person.

The district court, quoting our decision in Weinert, overruled Cortez-Arias's objection because it is “the risk inherent in the act of shooting at an inhabited building, as opposed to the presence of a victim that makes this particular offense a crime of violence.”   The district court applied a categorical approach, looking “to the statutory definition of the crime, not to the specific conduct that occasions a prior conviction,” and concluded that, consistent with Weinert, California Penal Code section 246 “has as an element the use, attempted use, or threatened use of physical force against a person of another.”   Cortez-Arias timely appealed.

II

We must first decide whether the district court properly concluded that Weinert controls the outcome of Cortez-Arias's sentencing challenge.4  The district court held that our decision in Weinert, which interpreted a “crime of violence” under a different provision of the Guidelines, was dispositive of Cortez-Arias's challenge because the predicate offense addressed in Weinert, a violation of section 246 of the California Penal Code, is the same as the predicate offense committed by Cortez-Arias. We disagree with this reasoning.

Weinert held that California Penal Code section 246 is a “crime of violence” under USSG § 4B1.2.5 1 F.3d at 890-91.  Section 4B1.2(a) defined a crime of violence then as

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious risk of physical injury to another.

(emphasis added).  Weinert reasoned that, even though an inhabited dwelling need not be occupied when it is shot at, “it is the risk inherent in the act of shooting at an inhabited building, as opposed to the presence of a victim, that makes [California Penal Code section 246] a crime of violence.”  1 F.3d at 891.   In our view, this reasoning is most normally read to suggest that Weinert's rule was based on § 4B1.2(a)'s final clause, emphasized above, which supports that shooting at an inhabited dwelling is a “crime of violence” because it “involves conduct that presents a serious risk of physical injury to another,” whether or not a victim is present.6

By contrast, Cortez-Arias received a sentencing enhancement under USSG § 2L1.2. The commentary to that section defines a “crime of violence” somewhat differently than does § 4B1.2(a);  under the commentary to § 2L1.2 a “crime of violence” is defined to mean any of the following:

murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate 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.

USSG § 2L1.2 comment. (n.1(B)(iii)).   Neither this guideline nor its commentary in explicit words refer to crimes that involve “conduct that presents a serious risk of physical injury to another.”

Accordingly, we conclude that Weinert standing alone does not control the outcome of Cortez-Arias's appeal.  Weinert's holding that California Penal Code section 246 is a “crime of violence” because it involves conduct that presents a serious risk of physical injury to another does not necessarily resolve the question of whether the same offense is a “crime of violence” for purposes of USSG § 2L1.2.

III

 Having determined that Weinert does not require us to affirm, we must squarely face and determine whether California Penal Code section 246 is a “crime of violence” allowing a sixteen level sentencing enhancement under USSG § 2L1.2(b)(1)(A).7  We apply a categorical approach to determine whether a prior state law conviction is a predicate for a sentencing enhancement under the Guidelines.  United States v. Asberry, 394 F.3d 712, 715 (9th Cir.2005);  see also Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).   Thus, under § 2L1.2(b)(1)(A)(ii) we look to the prior offense, and not the underlying conduct, to determine whether that offense is a “crime of violence” allowing a sixteen level increase to the base offense level for unlawfully entering or remaining in the United States.8

 Our review of California law and the Sentencing Guidelines satisfies us that the district court correctly enhanced Cortez-Arias's sentence.   We hold that California Penal Code section 246 is a “crime of violence” under the commentary to USSG § 2L1.2 because shooting at an inhabited dwelling necessarily involves the “threatened use of physical force against the person of another.”

The text of § 2L1.2 allows a sixteen level increase in offense level for a defendant who unlawfully enters the United States and who was previously deported after “a conviction for a felony that is ․ a crime of violence.”   We have held “that the force necessary to constitute a crime of violence [ ] must actually be violent in nature.”  United States v. Ceron-Sanchez, 222 F.3d 1169, 1172 (9th Cir.2000) (quoting Ye v. INS, 214 F.3d 1128, 1133 (9th Cir.2000)) (alteration in original) (internal quotation marks omitted).   The commentary to the Guidelines includes within its definition of a “crime of violence” state-law offenses that have “as an element the ․ threatened use of physical force against the person of another.”  USSG § 2L1.2 comment. (n.1(B)(iii)).

Before Cortez-Arias reentered this country illegally, he had been convicted of a felony for shooting at an inhabited dwelling, in violation of California Penal Code section 246.   California law provides in relevant part that “[a]ny person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house ․ is guilty of a felony․ As used in this section, ‘inhabited’ means currently being used for dwelling purposes, whether occupied or not.”  Cal.Penal Code § 246.   California case law defines an “inhabited dwelling house” as “lived in.”  People v. White, 4 Cal.App.4th 1299, 1303, 6 Cal.Rptr.2d 259 (1992).

 By its terms and as authoritatively construed, the California statute requires proof of three elements:  (1) a malicious and willful state of mind, (2) the discharge of a firearm, (3) at an inhabited dwelling house, meaning a house in which a person currently and permanently lives.   See id. at 1301 n. 5, 1302-03, 6 Cal.Rptr.2d 259.   California state court interpretations of section 246 shed light on the statute's requirements.

The California state courts have interpreted section 246 to proscribe an “act of violence committed against the person” because the statute requires that the defendant “maliciously and willfully discharge a firearm at an ․ occupied building,” and the statute criminalizes acts “committed either ‘with the intent to harm ․ or by means likely to cause harm’ to one or more persons.”  People v. Hall, 83 Cal.App.4th 1084, 1089-90, 100 Cal.Rptr.2d 279 (2000).   To hold that shooting at an inhabited dwelling is a crime of moral turpitude under California law, the state appellate court held that “the least adjudicated elements of Penal Code section 246 ․ always present a potential for violence.”  White, 4 Cal.App.4th at 1305, 6 Cal.Rptr.2d 259.   Moreover, in holding that section 246 is a predicate felony offense for purposes of the State's felony-murder rule, the Supreme Court of California held that section 246 “involves a high probability that death will result and therefore is an inherently dangerous felony.”  People v. Hansen, 9 Cal.4th 300, 36 Cal.Rptr.2d 609, 885 P.2d 1022, 1026-27 (1994).

Cortez-Arias concedes that shooting at an inhabited dwelling involves the use of “physical force,” but contends that since the California law considers a dwelling inhabited “whether occupied or not,” the state law does not have as an element the use of physical force “against the person of another.”   We reject appellant's contention because California law recognizes that the required elements of violation of section 246 “always present a potential for violence,” White, 4 Cal.App.4th at 1305, 6 Cal.Rptr.2d 259, and it follows that there is always a “threatened use of physical force against the person of another.” 9

In the plain sense, “threatened” means “held out or presented as impending.”   See Oxford English Dictionary, available at www.oed.com. In the legal sense, a “threat” is a “communicated intent to inflict harm or loss” or an “indication of an approaching menace.”   See Black's Law Dictionary 1519 (8th ed.2004).   In the context of the Guidelines commentary, “threatened use of physical force against the person of another” must logically include acts that communicate to another person an intent to use physical force against that person and acts suggesting that physical force against that person may be impending.

A person whose home is shot up by an instrument of deadly force, even though that person may have been absent at the time of the shooting, will surely feel threatened by the physical force that has intruded on his or her home.   We hold that maliciously and willfully shooting a gun at a person's current permanent residence necessarily threatens the use of physical force against the resident, regardless of whether the resident is home at the time the shot is fired.

IV

We conclude that shooting at an inhabited dwelling, in violation of California Penal Code section 246, is a “crime of violence” under USSG § 2L1.2. Because Cortez-Arias unlawfully entered the United States after previously being convicted of a “crime of violence,” the district court did not err in enhancing his sentence.

AFFIRMED.

FOOTNOTES

1.   USSG § 2L1.2(b)(1)(A)(ii) applies if “the defendant previously was deported, or unlawfully remained in the United States, after a conviction for a felony that is ․ a crime of violence.”

2.   The base offense level for unlawfully entering or remaining in the United States is eight.  USSG § 2L1.2(a).

3.   California Penal Code section 246 provides, in relevant part, that “[a]ny person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house ․ is guilty of a felony․ As used in this section, ‘inhabited’ means currently being used for dwelling purposes, whether occupied or not.”

4.   We review de novo this question of law relating to the applicability of the U.S. Sentencing Guidelines.   See United States v. Hernandez-Valdovinos, 352 F.3d 1243, 1246 (9th Cir.2003).

5.   This section defines terms, including “crime of violence,” found in the “Career Offenders” provision, § 4B1.1 of the Guidelines.   A “career offender” is one who “has at least two prior felony convictions of either a crime of violence or a controlled substance offense.”  USSG § 4B1.1(a);  see also id. comment. (n.1)(indicating that, for the purposes of § 4B1.1, a “crime of violence” is defined in § 4B1.2).

6.   Weinert citation to Taylor v. United States, 495 U.S. 575, 582-87, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (discussing the Armed Career Criminal Act's, 18 U.S.C. § 924(e)(2)(B)(ii), amendment to include burglary and other crimes that involve “conduct that presents a serious risk of physical injury to another” as predicates for sentencing enhancements), and United States v. Huffhines, 967 F.2d 314, 320-21 (9th Cir.1992) (holding that possession of a firearm silencer does not have as an element the use, attempted use, or threatened use of physical force against a person of another, but that such an offense “involves conduct that presents a serious risk of physical injury to another,” and so is a “crime of violence” under § 4B1.2(a)(2)), reinforces the view that the Weinert rule rested significantly on § 4B1.2(a)'s catchall provision.   See 1 F.3d at 891.

7.   We review de novo whether a prior conviction is a “crime of violence” under § 2L1.2 of the Sentencing Guidelines.  United States v. Rodriguez-Rodriguez, 393 F.3d 849, 856 (9th Cir.2005).   Under our circuit's law we may of course “affirm on any ground supported by the record even if it differs from the rationale of the district court.”   Nat'l Wildlife Fed'n v. United States Army Corps of Eng'rs, 384 F.3d 1163, 1170 (9th Cir.2004).

8.   Because the sentencing enhancement we address is based only on the fact of a prior conviction, our decision is unaffected by the Supreme Court's recent holding in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).   See United States v. Moreno-Hernandez, 397 F.3d 1248, 1255 n. 8 (9th Cir.2005).

9.   Our conclusion that shooting at an inhabited dwelling is a crime of violence under USSG § 2L1.2 because it always threatens the use of force against another person, regardless of whether that person is in the dwelling when the gun is fired, is reinforced by that Guideline's listed offense of “burglary of a dwelling,” which similarly does not require that a victim be present during commission of the offense to threaten force against that victim.

GOULD, Circuit Judge: