and Submitted October 21, 2016 San Francisco, California
from the United States District Court No.
4:14-cr-01196-RM-EJM-1 for the District of Arizona Rosemary
Marquez, District Judge, Presiding
Jacobs (argued), Law Offices of Henry Jacobs PLLC, Tucson,
Arizona, for Defendant-Appellant.
LaBuff (argued), Assistant United States Attorney; Robert L.
Miskell, Appellate Chief; John S. Leonardo, United States
Attorney; United States Attorney's Office, Tucson,
Arizona; for Plaintiff-Appellee.
Before: Carlos T. Bea and Sandra S. Ikuta, Circuit Judges,
and Jane A. Restani, Judge. [*]
a sentence, the panel held that a violation of a protective
order involving an act of violence or credible threat of
violence in violation of California Penal Code §
273.6(d) is a categorical crime of violence for purposes of
U.S.S.G. § 2L1.2(b)(1)(A)(ii).
appeal raises the question whether a violation of a
protective order involving an act of violence or credible
threat of violence in violation of section 273.6(d) of the
California Penal Code is a categorical crime of violence for
purposes of § 2L1.2(b)(1)(A)(ii) of the United States
Sentencing Guidelines ("U.S.S.G." or
"Sentencing Guidelines"). We review de novo the
district court's determination that Genaro Acevedo-De La
Cruz's prior conviction constitutes a crime of violence,
United States v. Mendoza-Padilla, 833 F.3d 1156,
1158 (9th Cir. 2016), and we affirm.
first set forth the legal framework applicable to this
appeal. The federal Sentencing Guidelines impose a base
offense level of 8 for defendants convicted of unlawful
reentry in violation of 8 U.S.C. § 1326. See
U.S.S.G. § 2L1.2(a). If the defendant had a prior felony
conviction for "a crime of violence, " the
Sentencing Guidelines in effect at the time of Acevedo-De La
Cruz's sentencing provided for a 16-level sentence
enhancement. Id. §
2L1.2(b)(1)(A)(ii). A "crime of violence" is defined
to include 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." Id. § 2L1.2, cmt.
n.1(B)(iii). "Physical force" for purposes of
the Sentencing Guidelines means "force capable of
causing physical pain or injury to another person."
United States v. Flores-Cordero, 723 F.3d 1085, 1087
(9th Cir. 2013) (quoting Johnson v. United States,
559 U.S. 133, 140 (2010)). To determine whether a prior
conviction qualifies as a crime of violence, we use the
categorical approach set forth in Taylor v. United
States, 495 U.S. 575 (1990). We first identify the
elements of the statute of conviction, and then compare those
elements to the generic federal definition of a crime of
violence to determine whether the statute of conviction
criminalizes more conduct than the generic federal crime.
Almanza-Arenas v. Lynch, 815 F.3d 469, 475 (9th Cir.
2016) (en banc). If the statute of conviction criminalizes
the same (or less) conduct as does the generic federal crime,
then the sentence enhancement applies to every conviction
under the statute of conviction. Id.
interpreting a state statute of conviction, we look to the
state's rules of statutory construction. Id.
"Under California law, the cardinal rule of statutory
construction is to determine the intent of the
legislature." Id. (quoting Lieberman v.
Hawkins (In re Lieberman), 245 F.3d 1090, 1092 (9th Cir.
2001)). To ascertain the intent of the legislature, we look
first to the plain language of the statute. Id.
"We give the language its usual and ordinary meaning,
and '[i]f there is no ambiguity, then we presume the
lawmakers meant what they said.'" People v.
Gutierrez, 58 Cal.4th 1354, 1369 (2014) (alterations in
original) (quoting Mays v. City of Los Angeles, 43
Cal. 4Th 313, 321 (2008)). "When attempting to ascertain
the ordinary, usual meaning of a word, courts appropriately
refer to the dictionary definition of that word."
Wasatch Prop. Mgmt. v. Degrate, 35 Cal.4th 1111,
conclusion that a state statute criminalizes more conduct
than is included in the generic federal definition of a crime
of violence "requires more than the application of legal
imagination to a state statute's language."
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193
(2007). Rather, "[i]t requires a realistic probability,
not a theoretical possibility, that the State would apply its
statute to conduct that falls outside the generic definition
of a crime." Id. To show that realistic
probability, the defendant "must at least point to his
own case or ...