Argued and Submitted October 10, 2013, San Francisco, California
Appeal from the United States District Court for the District of Arizona. D.C. No. 4:10-cr-02123-DCB-JJM-1. David C. Bury, District Judge, Presiding.
Roger H. Sigal, Law Offices of Roger H. Sigal, Tucson, Arizona, for Defendant-Appellant.
Erica Anderson McCallum (argued), Assistant United States Attorney; John S. Leonardo, United States Attorney; Robert L. Miskell, Appellate Chief, United States Attorney's Office, Tucson, Arizona, for Plaintiff-Appellee.
Before: J. Clifford Wallace, Milan D. Smith, Jr., and Sandra S. Ikuta, Circuit Judges. Opinion by Judge Ikuta. WALLACE, Circuit Judge, concurring.
IKUTA, Circuit Judge.
This appeal raises the question whether Delaware's criminal attempt statutes, see Del. Code Ann. tit. 11, § § 531(2), 532, constitute a federal generic attempt crime for purposes of imposing an enhancement under the U.S. Sentencing Guidelines. Because we conclude that Delaware's definition of " attempt" criminalizes more conduct than the federal generic definition, we conclude that the district court erred in imposing the enhancement.
On August 4, 2011, Alvaro Gonzalez-Monterroso pleaded guilty to one count of illegal reentry, pursuant to 8 U.S.C. § 1326, in the District of Arizona. Gonzalez claims that the district court erred in determining that his prior state court conviction for attempted rape in the fourth degree, under Del. Code Ann. tit. 11, § § 531, 532, 770, qualified as a " crime of violence" warranting a 16-level enhancement under § 2L1.2(b)(1)(A)(ii) of the federal Sentencing Guidelines.
To analyze this appeal, we first set forth the statutory framework. The Sentencing Guidelines impose a base offense level of 8 for an alien convicted of unlawful reentry in violation of 8 U.S.C. § 1326. See U.S.S.G. § 2L1.2(a). If the defendant has
a prior felony conviction that qualifies as a " crime of violence," the Guidelines provide for a 16-level enhancement. Id. § 2L1.2(b)(1)(A)(ii). A " crime of violence" is defined to include a range of offenses, including " statutory rape" and " sexual abuse of a minor."  Id. § 2L1.2 cmt. n.1(B)(iii). A prior conviction for an attempt to commit a state offense also constitutes a " crime of violence" if the completed offense qualifies as a " crime of violence" in its own right. Id. § 2L1.2 cmt. n.5; see also United States v. Saavedra-Velazquez, 578 F.3d 1103, 1106 (9th Cir. 2009).
To determine whether a prior state court conviction constitutes a " crime of violence" warranting a 16-level enhancement, a sentencing court must employ the approach outlined in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). First, the court compares the elements of the state statute of conviction with the federal generic definition of the crime. United States v. Velasquez-Bosque, 601 F.3d 955, 957-58 (9th Cir. 2010). Where the federal generic offense encompasses numerous crimes, as is the case with the " crime of violence" offense, the court must compare the crime of conviction with each of the crimes falling within that offense category. Rodriguez-Castellon v. Holder, 733 F.3d 847, 853 (9th Cir. 2013); see also Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008).
If the defendant is convicted of an attempt crime, a sentencing court must determine: " whether the defendant's conviction establishes that he committed the elements of the generic definition of 'attempt' and that the underlying offense he attempted meets the generic definition of that offense." United States v. Gomez-Hernandez, 680 F.3d 1171, 1175 (9th Cir. 2012). If the state attempt statute criminalizes more conduct than the federal generic definition of " attempt," a state attempt crime does not categorically constitute a generic federal attempt crime. If the state attempt statute is a categorical match for the federal generic definition of " attempt," then the court must proceed to determine whether the state crime of conviction for the underlying offense is a categorical match for any of the federal generic offenses that are listed as crimes of violence. See id. In sum, in dealing with attempt crimes, the district court can impose the 16-level enhancement under § 2L1.2(a) only if both the state's definition of " attempt" and the underlying state offense are categorical matches for the federal generic " attempt" definition and the underlying federal generic offense.
Where the state statute of conviction criminalizes more conduct than the federal generic offense, the sentencing court may apply a modified categorical approach in a " 'narrow range of cases.'" Descamps v. United States, 133 S.Ct. 2276, 2283-84, 186 L.Ed.2d 438 (2013) (quoting Taylor, 495 U.S. at 602); see also United States v. Acosta-Chavez, 727 F.3d 903, 907 (9th Cir. 2013). As Descamps recently clarified, application of the modified categorical approach is appropriate only where the state criminal statute is divisible. 133 S.Ct. at 2283-85. " [D]ivisibility exists only when an element of the crime of conviction contains alternatives, one of which is an element of its federal analogue." Acosta-Chavez, 727 F.3d at 909 (citing Descamps, 133 S.Ct. at 2283-84). For example, if a state statute prohibits breaking and entering in any of four alternative places (a building, ship, vessel, or vehicle) and only one of these alternatives (breaking into a building) qualifies as the federal generic offense of burglary, then a court may consider whether the defendant's conviction was based on unlawful entry into a building. See Descamps, 133 S.Ct. at 2284 (discussing Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). In making this determination, the court may consider a limited class of judicially noticeable documents to determine whether the applicable alternative (i.e., breaking into a building, rather than a vehicle, in the example given in Descamps ) was the basis of the conviction. See United States v. Snellenberger, 548 F.3d 699, 701-02 (9th Cir. 2008) (en banc) (per curiam), abrogated on other grounds by Young v. Holder, 697 F.3d 976, 979 (9th Cir. 2012) (en banc). Applied in this manner, the modified categorical approach " merely helps implement the categorical approach" by identifying the specific statutory elements of the conviction to compare to the generic offense. Descamps, 133 S.Ct. at 2285.
We apply the same modified categorical analysis in cases where the defendant was convicted of an attempt crime, if the state attempt statute is divisible and some of the alternative definitions of " attempt" do not categorically match the federal generic definition of " attempt." In such a case, the sentencing court may determine, based on judicially noticeable documents, whether the defendant was convicted of a statutory definition of " attempt" that meets the federal generic definition. See id.
We now turn to the facts of this case. Gonzalez was born in 1981 in Guatemala. At the age of 19, he entered the United States illegally. He eventually settled in ...