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United States v. Rivera-Ramos

August 21, 2009

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
EFRAIN RIVERA-RAMOS, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Arizona. Raner C. Collins, District Judge, Presiding. D.C. No. 4:07-cr-00307-RCC-HCE-1.

The opinion of the court was delivered by: Reinhardt, Circuit Judge

FOR PUBLICATION

OPINION

Argued and Submitted April 14, 2009 -- San Francisco, California

Before: Stephen Reinhardt, Eugene E. Siler, Jr.,*fn1 and M. Margaret McKeown, Circuit Judges.

We must decide whether New York's definition of "at-tempt" is categorically broader than the common law definition, so that an attempted robbery conviction in the state of New York is not a "crime of violence" for purposes of the Sentencing Guidelines. Following the Second Circuit, we hold that New York's definition, which requires conduct that comes within a "dangerous proximity to the criminal end to be attained," People v. Warren, 66 N.Y.2d 831, 832-33 (1985) (emphasis added), is no broader than the definition at common law, which requires a "substantial step towards committing the crime," United States v. Sarbia, 367 F.3d 1079, 1085-86 (9th Cir. 2004) (emphasis added). Accordingly, the district court correctly determined that Efrain Rivera-Ramos's prior attempted robbery conviction was a "crime of violence," and we affirm his sentence.

I.

Rivera-Ramos, a native and citizen of Mexico, first entered the United States illegally in 1994. In 2002, he was convicted of attempted robbery in the state of New York and received a three-and-a-half year sentence. He was deported in 2004, but returned to the United States two-and-a-half years later in order to try to earn money to obtain medical care for his father, "who had recently had one of his legs amputated and who had severe diabetes," and to support his nine siblings, his son, and his common law wife, who was pregnant with his second child. Rivera-Ramos was indicted by a Grand Jury for illegal re-entry after deportation in violation of 8 U.S.C. § 1326. He was also charged with a sentence enhancement, pursuant to 8 U.S.C. § 1326(b)(2), on account of his prior attempted robbery conviction, which was, according to the Government, a "crime of violence." He pled guilty to the illegal re-entry charge. At sentencing, he argued that his attempted robbery conviction was not a crime of violence and that a 16-level upward adjustment should not be applied. The district judge disagreed, but gave Rivera-Ramos the opportunity - which he took - to withdraw his plea agreement and preserve his right to appeal. Taking into account the compelling reasons for Rivera-Ramos's return to the United States, the fact that he did not have multiple reentries after his initial deportation, and his limited criminal record, which consisted solely of the attempted robbery conviction, the district court imposed a 30-month sentence and 36 months of supervised release. The advisory Sentencing Guidelines range was 41-51 months.*fn2

Rivera-Ramos, on appeal, challenges only the district court's determination that an attempted robbery conviction under New York state law is categorically a "crime of violence" for the purposes of the Sentencing Guidelines. We have jurisdiction pursuant to 28 U.S.C. § 1291 (granting jurisdiction over "appeals from all final decisions of the district courts of the United States") and 18 U.S.C. § 3742 (granting jurisdiction to review a sentence "imposed as a result of an incorrect application of the sentencing guidelines"). We review the "district court's determination that a prior conviction qualifies as a 'crime of violence' under the Guidelines . . . de novo." United States v. Rodriguez-Guzman, 506 F.3d 738, 740-41 (9th Cir. 2007) (citing United States v. Rivera-Sanchez, 247 F.3d 905, 907 (9th Cir. 2001) (en banc)).

II.

U.S.S.G. § 2L1.2(b)(1)(A)(ii) provides for an upward adjustment of 16 levels "[i]f the defendant previously was deported, or unlawfully remained in the United States, after . . . a conviction for a felony that is . . . a crime of violence." Robbery is enumerated as a "crime of violence." U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). "[A]iding and abetting, conspiring, and attempting, to commit" an offense that would be a "crime of violence" if completed qualifies as such, as well. U.S.S.G. § 2L1.2 cmt. n.5 (emphasis added).

Rivera-Ramos concedes that a completed first-degree robbery conviction in New York is a "crime of violence." See N.Y. Penal Law § 160.15(3) ("A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime . . . [u]ses or threatens the immediate use of a dangerous instrument"). He argues, however, that New York's definition of "attempt" is broader than the common law definition, and that, under the categorical approach set forth in Taylor v. United States, 495 U.S. 575 (1990), an attempted robbery in New York is not, therefore, a crime of violence.*fn3 The Government disagrees, as do we.

[1] Although we are not bound by it, we find dispositive the Second Circuit's analysis of the precise question before us. In the absence of compelling reasons, we would not create a circuit split with the circuit that encompasses New York regarding the meaning of New York law. The Second Circuit has concluded that New York's definition of attempt is coextensive with the common law definition:

[t]he New York courts . . . make clear that a defendant must perform conduct quite severe in order to be convicted of the crime of attempt. The difference between the federal law's requirement of a "substantial step" and the New York law's requirement of "dangerous proximity" is . . . "more semantic than real." We thus conclude that the district court did not err in concluding that Fernandez-Antonia's conviction of attempted robbery ...


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