USA v. Moises Cruz-Rodriguez

Filing

PUBLISHED OPINION FILED. [09-40500 Affirmed ] Judge: CDK , Judge: FPB , Judge: JWE Mandate pull date is 11/23/2010 for Appellant Moises Cruz-Rodriguez [09-40500]

USA v. Moises Cruz-Rodriguez Case: 09-40500

Document: 00511281829 Page: 1 Date Filed: 11/02/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40500 S u m m a r y Calendar November 2, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e , v. M O I S E S CRUZ-RODRIGUEZ, D e fe n d a n t -A p p e lla n t .

A p p e a l from the United States District Court fo r the Southern District of Texas

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM: M o is e s Cruz-Rodriguez appeals from his conviction for illegal reentry into t h e United States. He contends that the district court erred by increasing his o ffe n s e level by 16 levels based on 1997 California convictions of making c r im in a l threats, under California Penal Code § 422, and willful infliction of c o r p o r a l injury, under California Penal Code § 273.5. The district court

d e t e r m in e d that each offense is a "crime of violence" warranting the 16-level a d ju s tm e n t. C r u z -R o d r ig u e z argues that neither offense is a crime of violence under U .S .S .G . § 2L1.2(b)(1)(A)(ii). Because he raises his contention for the first time o n appeal, our review is for plain error. See United States v. Lopez-Velasquez,

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Case: 09-40500 Document: 00511281829 Page: 2 Date Filed: 11/02/2010 No. 09-40500 5 2 6 F.3d 804, 806 (5th Cir. 2008). A plain error is a forfeited error that is clear o r obvious and affects the defendant's substantial rights. United States v. Ellis, 5 6 4 F.3d 370, 377 (5th Cir.), cert. denied, 130 S. Ct. 371 (2009). When those e le m e n t s are shown, this court has the discretion to correct the error only if it " s e r io u s ly affects the fairness, integrity, or public reputation of judicial p r o c e e d in g s ." Id. (internal quotation and citation omitted). T h e term, crime of violence, is defined as "murder, manslaughter, k id n a p p in g , aggravated assault, forcible sex offenses, statutory rape, sexual a b u s e of a minor, robbery, arson, extortion, extortionate extension of credit, b u r g la r y of a dwelling, or any offense under federal, state, or local law that has a s an element the use, attempted use, or threatened use of physical force against t h e person of another." U.S.S.G. § 2L1.2 cmt. 1(B)(iii). We agree with CruzR o d r ig u e z that neither offense is specifically enumerated in the Sentencing G u id e lin e s ' definition. Cruz-Rodriguez also argues, however, that the 16-level a d ju s tm e n t was error because neither offense "has as an element the use, a t t e m p t e d use, or threatened use of physical force against the person of a n o t h e r ." Id. W it h respect to the willful infliction of corporal injury offense, we p r e v io u s ly rejected this argument in an unpublished opinion, holding that C a lifo r n ia Penal Code § 237.5(a) "penalizes the intentional use of force that r e s u lt s in a traumatic condition." United States v. Gutierrez, 371 F. App'x 550, 5 5 1 (5th Cir. 2010) (unpublished) (internal quotation marks and citation o m it t e d ). We find this reasoning persuasive. Moreover, our previous decision is consistent with the Ninth Circuit's analysis of § 237.5(a). United States v. L a u r ic o -Y e n o , 590 F.3d 818, 820 (9th Cir. 2010), cert. denied, 2010 WL 2551985 (O c t . 4, 2010) (No. 09-11533) ("Because the use of physical force against the p e r s o n of another is an element of the statute, we hold that California Penal C o d e § 273.5 is a categorical crime of violence under U.S.S.G. § 2L1.2."). Accordingly, we hold that the offense of willful infliction of corporal injury is a 2

Case: 09-40500 Document: 00511281829 Page: 3 Date Filed: 11/02/2010 No. 09-40500 c r im e of violence for the purpose of sentence adjustments under U.S.S.G. § 2L1.2(b)(1)(A)(ii). O n the other hand, with respect to the offense of making a criminal threat, w e previously held in an unpublished opinion that "the use, attempted use, or t h r e a te n e d use of physical force against the person of another" is not an element o f California Penal Code § 2L1.2(b)(1)(A)(ii) "because it is possible under [C a lifo r n ia ] law for the State to obtain a conviction under . . . the terroristic t h r e a ts statute without proof of the threatened use of physical force against a n o t h e r person . . . ." United States v. De La Rosa-Hernandez, 264 F. App'x 446, 4 4 7 -4 9 (5th Cir. 2008) (unpublished) (internal quotation marks and citations o m it t e d ) (alteration in original). We likewise find this reasoning persuasive. In a d d it io n , this court reached the same conclusion with respect to a similar P e n n s y lv a n ia statute, holding that the generic terroristic-threat offense at issue i n that case is not a crime of violence. United States v. Ortiz-Gomez, 562 F.3d 6 8 3 , 684-86 (5th Cir. 2009). Therefore, we hold that the offense of making a c r im in a l threat is not a crime of violence for the purpose of sentencing a d ju s tm e n t s under U.S.S.G. § 2L1.2(b)(1)(A)(ii). A c c o r d in g ly , the district court erred by relying on the criminal threat c o n v ic t io n in adjusting Cruz-Rodriguez's sentence. Nevertheless, that error did n ot affect his substantial rights and, therefore, did not constitute reversible plain e r r o r . See United States v. Garza, 587 F.3d 304, 309, 313 (5th Cir. 2009). The 1 6 -le v e l adjustment was appropriate solely on the basis of Cruz-Rodriguez's c o n v ic tio n for willfully inflicting a corporal injury. See U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). A F F IR M E D .

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