USA v. Daniel Salinas-Silva

Filing 511132252

USA v. Daniel Salinas-Silva

Doc. 511132252

Case: 09-40644

Document: 00511132252

Page: 1

Date Filed: 06/04/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40644 S u m m a r y Calendar June 4, 2010 Lyle W. Cayce Clerk

U N I T E D STATES OF AMERICA, P l a in t i f f - A p p e l l a n t v. D A N I E L SALINAS-SILVA, D e fe n d a n t-A p p e lle e

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 1:08-CR-1372-1

B e fo r e JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges. P E R CURIAM:* D a n ie l Salinas-Silva pleaded guilty to illegally reentering the United S t a te s after he had been deported. He received a four-level upward adjustment t o his offense level under U.S.S.G. § 2L1.2(b)(1)(D) because he previously had b e e n convicted in North Carolina of three counts of burning personal p r o p e r ty -- a felony. The Government objected, arguing that Salinas-Silva should h a v e received a 16-level increase under § 2L1.2(b)(1)(A) because, it asserted, b u r n in g personal property amounts to arson, a crime of violence. See § 2L1.2,
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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c o m m e n t. (n.1(b)(iii)). The district court disagreed and sentenced Salinas-Silva t o a 24-month prison term, which was at the top of the guidelines range. The G o v e r n m e n t appeals. W e review de novo the district court's conclusion as to whether a prior c o n v ic t io n constitutes a crime of violence for purpose of the Sentencing G u i d e l in e s . United States v. Santiesteban-Hernandez, 469 F.3d 376, 378 (5th C ir . 2006). At the time Salinas-Silva was sentenced, we had not yet determined t h e meaning of the term "arson" as used in the application notes to § 2L1.2. S in c e then, we have determined that arson involves "a willful and malicious b u r n in g of property." United States v. Velez-Alderete, 569 F.3d 541, 546 (5th Cir. 2 0 0 9 ). S a lin a s -S ilv a 's convictions under N.C. GEN. STAT. § 14-66 were for crimes o f violence if the full range of conduct prohibited under the statute falls within th e definition of arson. See Velez-Alderete, 569 F.3d at 544; United States v. G o m e z -G o m e z , 547 F.3d 242, 244 (5th Cir. 2008) (en banc). If the statute

p r o h ib it s some conduct that does not constitute arson, then a conviction under it is not for a crime of violence. Gomez-Gomez, 547 F.3d at 244-45. The statute u n d e r which Salinas-Silva was convicted makes it a crime to wantonly and willfully set fire to or burn, or cause to be b u rn e d , or aid, counsel or procure the burning of, any g o o d s , wares, merchandise or other chattels or personal p r o p e r t y of any kind, whether or not the same shall at t h e time be insured by any person or corporation a g a in s t loss or damage by fire, with intent to injure or p r e ju d ic e the insurer, the creditor or the person owning t h e property, or any other person, whether the property is that of such person or another. N .C . GEN. STAT. § 14-66. Salinas-Silva's arguments that this statute is broader than our definition o f arson are unavailing. He contends that the North Carolina statute was not s i n g l e d out by the court in Velez-Alderete as an example of a state criminal

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s t a tu te that contributes to a consensus on the meaning of arson. This argument is unpersuasive because the Velez-Alderete court cited the state arson statutes fo r the sole purpose of explaining why it rejected that defendant's argument that a r s o n necessarily involves harm to a person. Velez-Alderete, 569 F.3d at 544-45 & n.4. The court did not suggest that the cited statutes constituted an

e x h a u s tiv e list of state arson statutes. S a lin a s -S i lv a also argues that the North Carolina statute is broader than o u r definition of arson, observing that the statute forbids burning one's own p r o p e r t y (rather than requiring that the property belong to another person) and t h a t it criminalizes burning property if the defendant intends to injure or p r e ju d ic e anyone, even someone with no ownership interest in the property. H o w e v e r , like the North Carolina statute, the Texas statute that we found to c o n s t it u te an arson statute in Velez-Alderete did not require that the property b u rn e d belong to another person or that the burning injure or prejudice someone w ith an ownership interest. Velez-Alderete, 569 F.3d at 544. A ll of the conduct that the North Carolina statute prohibits--willfully b u r n in g or participating in the burning of personal property intending to injure o r prejudice another person--constitutes the "malicious burning of property," a n d thus Salinas-Silva has been convicted of arson and is subject to § 2L1.2(b)(1)(a)(ii)'s 16-level enhancement. See Velez-Alderete, 569 F.3d at 546. T h e r e fo r e , Salinas-Silva's sentence is VACATED and the case is R E M A N D E D to the district court for resentencing.

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