Appeal from the United States District Court for the District of Arizona John M. Roll, Chief District Judge, Presiding. D.C. No. 4:08-CR-00854-JMR-BPV.
The opinion of the court was delivered by: N.R. Smith, Circuit Judge.
Argued and Submitted April 12, 2010 -- San Francisco, California
Before: Mary M. Schroeder and N. Randy Smith, Circuit Judges, and James Maxwell Moody, Judge.*fn1
Merced Melchor-Meceno (Melchor-Meceno) pleaded guilty to illegally re-entering the United States after deportation in violation of 8 U.S.C. § 1326. After conviction, the district court sentenced him to a seventy-five month term of imprisonment. The length of the term of imprisonment included an enhancement pursuant to the United States Sentencing Guidelines Manual (U.S.S.G.) § 2L1.2 for MelchorMeceno's prior conviction of a crime of violence. MelchorMeceno appeals, claiming his prior Colorado state conviction for menacing does not qualify as a "crime of violence." Because the Colorado felony menacing statute is categorically a crime of violence (as outlined in U.S.S.G. § 2L1.2), the district court properly applied the enhancement to MelchorMeceno's sentence. We need not address whether the conviction constitutes a crime of violence under the modified categorical approach.
Following felony convictions, the United States Immigration and Customs Enforcement twice deported MelchorMeceno (a citizen of Mexico) from the United States in 2000 and 2007. On June 13, 2008, Border Patrol agents found Melchor-Meceno back again in the United States near Sells, Arizona. A grand jury subsequently indicted Melchor-Meceno for illegally re-entering the United States after deportation in violation of 8 U.S.C. § 1326.
After pleading guilty to the charge, the probation officer prepared a Pre-Sentence Report (PSR) recommending that Melchor-Meceno's sentence be enhanced 16 levels for deportation after a crime of violence. Prior to the sentencing hearing, Melchor-Meceno filed an objection to the proposed 16-level enhancement, arguing that his 1995 Colorado state felony menacing conviction*fn2 was not a crime of violence. At the sentencing hearing, the district court concluded that the 1995 conviction constituted a crime of violence and applied the 16-level enhancement to Melchor-Meceno's sentence.
The district court noted that "looking at the totality of the charges, the predicate facts, which are the basis of the charges, that clearly what the defendant was convicted of was a crime of violence and menacing is in fact a crime of violence." The district court applied the 16-level enhancement and sentenced Melchor-Meceno to a seventy-five month term of imprisonment.*fn3 The district court found Melchor-Meceno was convicted of a crime of violence, but did not specifically state whether the court applied the categorical or modified categorical approach in making such a finding. MelchorMeceno argues, on appeal, that the statute could not be found to be a crime of violence under either the categorical or modified categorical approach.
"We review de novo a sentencing court's interpretation of the Guidelines, including its determination whether a prior conviction is a crime of violence for the purposes of U.S.S.G. § 2L1.2." United States v. Laurico-Yeno, 590 F.3d 818, 820 (9th Cir. 2010) (citation and internal quotation marks omitted).
III. CRIME OF VIOLENCE ENHANCEMENT
To determine whether a C.R.S. § 18-3-206 felony conviction for menacing is a categorical "crime of violence" for purposes of U.S.S.G. § 2L1.2, we apply the approach set forth in Taylor v. United States, 495 U.S. 575 (1990). See United States v. Grajeda, 581 F.3d 1186, 1189 (9th Cir. 2009); see also Laurico-Yeno, 590 F.3d at 820-21. "Under [the categorical] approach, we do not look to the facts of the underlying conviction, but rather to the state statute defining the conviction." Laurico-Yeno, 590 F.3d at 821. "In order for a violation of the state statute to qualify as a predicate offense, the full range of conduct covered by the state statute must fall within the scope of the federal statutory provision." Id. (citation, alteration and internal quotation marks omitted). Therefore, to determine whether the state statute falls within the ...