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United States v. Acevedo-De La Cruz

United States Court of Appeals, Ninth Circuit

January 5, 2017

United States of America, Plaintiff-Appellee,
v.
Genaro Acevedo-De La Cruz, Defendant-Appellant.

          Argued and Submitted October 21, 2016 San Francisco, California

         Appeal from the United States District Court No. 4:14-cr-01196-RM-EJM-1 for the District of Arizona Rosemary Marquez, District Judge, Presiding

          Henry Jacobs (argued), Law Offices of Henry Jacobs PLLC, Tucson, Arizona, for Defendant-Appellant.

          Lauren 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. [*]

         SUMMARY [**]

         Criminal Law

         Affirming 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).

          OPINION

          IKUTA, Circuit Judge.

         This 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").[1] 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.

         I

         We 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).[2] 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).[3] "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.[4] Id.

         When 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, 1121-22 (2005).

         The 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 ...


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