May 22, 2014
UNITED STATES OF AMERICA, Plaintiff-Appellee,
CRISTOBAL COLON-ARREOLA, AKA Gustavo Colon, AKA Cristobal Colon-Arreloa, Defendant-Appellant
Argued and Submitted, San Francisco, California:
April 9, 2014.
Appeal from the United States District Court for the District of Arizona. D.C. No. 4:12-cr-02541-DCB-LAB. James G. Carr, District Judge, Presiding.
Matthew J. McGuire, Patagonia, Arizona, for Defendant-Appellant.
Brian Robert Decker, Assistant United States Attorney, Office of the United States Attorney, Tucson, Arizona, for Plaintiff-Appellee.
Before: Mary M. Schroeder and Consuelo M. Callahan, Circuit Judges, and Robert W. Pratt, Senior District Judge.[*] Opinion by Judge Pratt.
PRATT, District Judge:
Cristobal Colon-Arreola (" Colon-Arreola" ) appeals his sentence for illegal reentry into the United States after deportation in violation of 8 U.S.C. § 1326. In particular, Colon-Arreola challenges the district court's application of a sixteen-level enhancement under United States Sentencing Guidelines (" U.S.S.G." or " Guidelines" ) § 2L1.2(b)(1)(A)(ii) based on his prior conviction for battery with injury on a peace officer in violation of California Penal Code § 243(c)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291. Because we conclude that California Penal Code § 243(c)(2) is a categorical crime of violence under U.S.S.G. § 2L1.2, we affirm Colon-Arreola's sentence.
STANDARD OF REVIEW
We review de novo a district court's determination that a prior conviction constitutes a " crime of violence" under U.S.S.G. § 2L1.2. United States v. Bolanos-Hernandez, 492 F.3d 1140, 1141 (9th Cir. 2007) (citing United States v. Rodriguez-Rodriguez, 393 F.3d 849, 856 (9th Cir. 2005)).
Section 2L1.2 of the Guidelines provides that a base offense level of eight applies to violations of 8 U.S.C. § 1326. See U.S.S.G. § 2L1.2 cmt. statutory provisions (2012). A sixteen-level enhancement is applicable if a defendant's prior deportation occurred following a felony conviction for a crime of violence. U.S.S.G. § 2L1.2(b)(1)(A)(ii). A " crime of violence" is defined in the Commentary as:
any of the following offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses . . . statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other 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.
U.S.S.G. § 2L1.2, cmt. n.1(B)(iii).
To determine whether Colon-Arreola's conviction for battery on a peace officer qualifies as a crime of violence under the " catch-all" provision of § 2L1.2(b)(1)(A)(ii), we apply the framework established in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). This approach requires that we look " not to the facts underlying the prior conviction," but " only to the fact of conviction and the statutory definition of the prior offense." Id. at 600, 602. The 2L1.2 sentencing enhancement will apply categorically only if " the full range of conduct covered by [the statute] falls within the meaning of that term." United States v. Castillo-Marin, 684 F.3d 914, 919 (9th Cir. 2012) (quoting United States v. Grajeda, 581 F.3d 1186, 1189 (9th Cir. 2009)). " If the statute of conviction is overbroad--that is, if it punishes some conduct that qualifies as a crime of violence and some conduct that does not--it does not categorically constitute a crime of violence." Id.
The Supreme Court has held that the " critical aspect" of a crime of violence is that it involves the use of physical force against another person. Leocal v. Ashcroft, 543 U.S. 1, 9, 125 S.Ct. 377,
160 L.Ed.2d 271 (2004). " Use" requires " active employment" and a " higher degree of intent than negligent or merely accidental conduct." Id. (explaining that it is not natural to say a person " actively employs physical force against another person by accident" ). Thus, a crime may only qualify as a " crime of violence" if the use of force is intentional. See Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006) (overruling prior cases that permitted a crime of violence to include offenses committed through the reckless or grossly negligent use of force); cf. United States v. Laurico-Yeno, 590 F.3d 818, 822 n.4 (9th Cir. 2010) (clarifying that Fernandez-Ruiz " did not hold that 'crime of violence' is limited to specific intent crimes" and that a " general intent crime can satisfy the generic definition of 'crime of violence'" ). Additionally, " 'the force necessary to constitute a crime of violence . . . must actually be violent in nature.'" Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016 (9th Cir. 2006) (quoting Singh v. Ashcroft, 386 F.3d 1228, 1233 (9th Cir. 2004)).
A conviction for battery of a peace officer under § 243(c)(2) requires proof of the following elements: (1) the offender committed a battery, defined by California Penal Code § 242 as " any willful and unlawful use of force or violence upon the person of another" ; 2) the battery was committed against a peace officer engaged in the performance of his duties; 3) knowledge by the offender that the victim was a peace officer engaged in the performance of his duties; and 4) an injury was inflicted on the victim. See Cal. Penal Code § § 242, 243(c)(1)-(2).
In Ortega-Mendez, this Court held that misdemeanor battery under § 242 is not a categorical crime of violence because the statute does not require the use of violent force. 450 F.3d at 1016 (" '[F]orce or violence' indicates that nonviolent force suffices; otherwise the 'or' has no function." (alterations in original)). Ortega-Mendez is plainly distinguishable, however, because § 243(c)(2) requires proof of an element that § 242 does not, namely, that an " injury is inflicted on [a peace officer] victim."  The term " injury" is defined as " any physical injury which requires professional medical treatment." Cal. Penal Code § 243(f)(5). Thus, a person cannot be convicted under § 243(c)(2) unless he willfully and unlawfully applies force sufficient to not just inflict a physical injury on the victim, but to inflict a physical
injury severe enough that it requires professional medical treatment. Section 243(c)(2), therefore, " fits squarely within the term [crime of violence] by requiring the deliberate use of force that injures another." See Laurico-Yeno, 590 F.3d at 820-22 (holding that California Penal Code § 273.5, making it a crime for " [a]ny person [to] willfully inflict upon [certain persons in domestic relationships] corporal injury resulting in a traumatic condition,"  was a categorical crime of violence for purposes of U.S.S.G. § 2L1.2).
For the foregoing reasons, we hold that Colon-Arreola's conviction under California Penal Code § 243(c)(2) is a categorical crime of violence within the meaning of § 2L1.2.