USA v. Jose Flores-Mejia

Filing

FILED OPINION (BETTY BINNS FLETCHER, KIM MCLANE WARDLAW and JAY S. BYBEE) AFFIRMED. Judge: JSB Authoring. FILED AND ENTERED JUDGMENT. [8280737]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE FLORES-MEJIA,
Defendant-Appellant.

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


No. 11-50340
D.C. No.
3:10-cr-04971-L-1
OPINION

Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, Senior District Judge, Presiding
Argued and Submitted
June 4, 2012—Pasadena, California
Filed August 9, 2012
Before: Betty B. Fletcher, Kim McLane Wardlaw, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee

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UNITED STATES v. FLORES-MEJIA

COUNSEL
James Fife, Federal Defenders of San Diego, Inc., San Diego,
California, for the appellant.

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Mark R. Rehe and Michael E. Lasater, Assistant U.S. Attorneys, San Diego, California, for the appellee.

OPINION
BYBEE, Circuit Judge:
Jose Flores-Mejia, an alien, was convicted of robbery under
California Penal Code § 211 in 1994 and again in 1996. In
March 2009, he was deported to Mexico and then arrested in
September 2010 after he illegally reentered the United States.
He pleaded guilty to a charge of unlawful reentry under 8
U.S.C. § 1326(a). The Presentence Report recommended a
16-level enhancement in the offense level for his two prior
robbery convictions, which it identified as crimes of violence
under
U.S.
Sentencing
Guideline
(“U.S.S.G.”)
§ 2L1.2(b)(1)(A)(ii). Flores-Mejia objected to the enhancement, arguing that after a recent decision by the California
Supreme Court, convictions under § 211 were no longer categorical crimes of violence. The district court rejected this
argument and imposed the 16-level enhancement. FloresMejia timely appealed.
“We review de novo whether a prior conviction constitutes
a crime of violence under U.S.S.G. § 2L1.2.” United States v.
Espinoza-Morales, 621 F.3d 1141, 1144 (9th Cir. 2010). We
conclude that the district court did not err in rejecting FloresMejia’s argument and imposing the crime of violence
enhancement, and we affirm.
Flores-Mejia argues on appeal that the district court erred
in holding that a robbery conviction under § 2111 categori1

California Penal Code § 211 provides: “Robbery is the felonious taking
of personal property in the possession of another, from his person or
immediate presence, and against his will, accomplished by means of force
or fear.”

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cally qualifies as a crime of violence for purposes of sentencing under U.S.S.G. § 2L1.2.2 He contends the California
Supreme Court in People v. Anderson, 252 P.3d 968 (Cal.
2011), changed California law and broadened the conduct
falling within § 211 so that it is no longer categorically a
crime of violence.
[1] In United States v. Becerril-Lopez, we held that § 211
was categorically a crime of violence for purposes of § 2L1.2.
541 F.3d 881, 890-93 (9th Cir. 2008). In doing so, we adopted
the federal generic definition of robbery from the Fifth Circuit: “ ‘aggravated larceny, containing at least the elements of
misappropriation of property under circumstances involving
immediate danger to the person.’ ” Id. at 891 (emphasis
removed) (quoting United States v. Santiesteban-Hernandez,
469 F.3d 376, 380 (5th Cir. 2006)). We found § 211 to be
broader than the generic crime of robbery “because it encompasses mere threats to property.” Id. That is, California
defines fear as used in § 211 as either “ ‘[t]he fear of an
unlawful injury to the person or property of the person
robbed, or of any relative of his or member of his family,’ or
‘[t]he fear of an immediate and unlawful injury to the person
or property of anyone in the company of the person robbed at
the time of the robbery.’ ” Id. at 890-91 (alterations in original) (quoting Cal. Penal Code § 212). We concluded, however, that even if “[t]akings through threats to property and
other threats of unlawful injury,” id. at 891, did not fall within
generic robbery, they did constitute federal generic extortion,
which the Supreme Court defined as “ ‘obtaining something
of value from another with his consent induced by the wrongful use of force, fear, or threats,’ ” id. (quoting Scheidler v.
Nat’l Org. for Women, Inc., 537 U.S. 393, 409 (2003)). As a
2

This provision defines “crime of violence” as “any of the following
offenses under federal, state, or local law: . . . robbery, . . . extortion, . . .
or any other offense . . . 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).

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result, any conviction under § 211 constitutes a crime of violence for purposes of § 2L1.2, regardless of whether the crime
of conviction could be characterized as generic robbery or
generic extortion.
Becerril-Lopez thus forecloses Flores-Mejia’s argument
unless, as he maintains, the California Supreme Court’s decision in Anderson “undercut[s] the theory or reasoning underlying [Becerril-Lopez] in such a way that the cases are clearly
irreconcilable.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.
2003) (en banc). Flores-Mejia cannot make this showing.
[2] First, it is not clear that Anderson changed California’s
interpretation of § 211. For a defendant to be convicted of
robbery in California, he “must apply . . . force for the purpose of accomplishing the taking.” Anderson, 252 P.3d at 972
(emphasis omitted) (quoting People v. Bolden, 58 P.3d 931,
957 (Cal. 2002)). In Anderson, the defendant argued that for
the forcible taking in that case to be considered robbery (he
stole the victim’s car and then struck her with it while escaping), he would have had to apply the force with the intent to
strike or frighten the victim. Id. at 970, 972. The court
rejected the defendant’s argument, stating that “no authority
cited to us provides positive support for defendant’s argument. Nor do[es] . . . anything . . . convince us robbery contains a heretofore unidentified element of intent to cause the
victim to experience force or fear.” Id. at 972. Relying on a
preexisting definition of robbery, the court concluded that
although “the law does require that the perpetrator exert some
quantum of force in excess of that ‘necessary to accomplish
the mere seizing of the property,’ ” the crime “was robbery
even if, as [the defendant] claims, he did not intend to strike
[the victim], but did so accidentally.” Id. (quoting People v.
Morales, 122 Cal. Rptr. 157, 160 (Ct. App. 1975)). Thus, far
from changing the law, Anderson confirms that to commit
robbery, the defendant must intentionally use force to effect
the taking, but need not use force intentionally against the victim. Because Anderson appears to have done nothing more

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than confirm California’s definition of robbery—a definition
that existed when we decided Becerril-Lopez—our decision
and Anderson are not “clearly irreconcilable.” Miller, 335
F.3d at 900.
Flores-Mejia nonetheless argues that Anderson broadened
the definition of robbery such that Ҥ 211 lacks the necessary,
intentional mens rea to qualify” as the generic crime because
it omits any requirement that the defendant intend to use force
against the victim. To support his claim that § 211 is broader
than the federal definition, Flores-Mejia relies on the Supreme
Court’s decision in Leocal v. Ashcroft, 543 U.S. 1, 9 (2004)
(and our subsequent decisions interpreting Leocal), which
held that the definition of crime of violence under 18 U.S.C.
§ 16(a) means “active employment” of force against another,
as opposed to the reckless or negligent use of force. FloresMejia argues that because § 211 has no requirement of intent
to harm the victim, while the generic federal definition does,
§ 211 encompasses a broader range of conduct and therefore
cannot categorically constitute a crime of violence under
§ 2L1.2.
Leocal does not control the outcome here. In Leocal, the
Supreme Court defined “crime of violence,” but did so for
purposes of 18 U.S.C. § 16. Here, however, we are concerned
with the enumerated “crime of violence” offenses listed in
U.S.S.G. § 2L1.2, which we have recognized “contains its
own approach to defining a crime of violence that is only
partly similar to the 18 U.S.C. § 16 definition.” United States
v. Gomez-Leon, 545 F.3d 777, 787 (9th Cir. 2008). Section
2L1.2 defines “crime of violence” in two ways: (1) an “element” based definition (“any offense . . . 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)), which is “identical” to the definition contained in
18 U.S.C. § 16, United States v. Narvaez-Gomez, 489 F.3d
970, 976 (9th Cir. 2007); and (2) an “enumerated offenses”
definition listing specific crimes, including robbery, U.S.S.G.

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§ 2L1.2 cmt. n.1(B)(iii). This case concerns the latter definition of “crime of violence,” and it is here that Flores-Mejia’s
argument falls apart. As we previously held, since the “enumerated offenses” definition “does not require us to apply . . .
the element test . . . the underlying conviction need not be for
an offense that involves the intentional use of force.” GomezLeon, 545 F.3d at 789; accord Narvaez-Gomez, 489 F.3d at
976 n.2 (“The government argues that the definitions are different, but the cases it cites involved enumerated crimes in the
‘crime of violence’ definition under § 2L1.2 that are not relevant here.”). Because we are concerned with an enumerated
offense (robbery), “Leocal does not apply” to our crime-ofviolence analysis. Id.
[3] In sum, we hold that a conviction under California
Penal Code § 211 remains a categorical crime of violence
under the “enumerated offenses” definition in U.S.S.G.
§ 2L1.2.
AFFIRMED.