Eleventh Circuit Holds 16-Level Sentencing Enhancement for Prior Crime of Violence Invalid

In United States v. Estrada, No. 14-10230 (Feb. 6, 2015), the Eleventh Circuit held that the district court erred in applying a 16-level enhancement triggered by a prior “crime of violence” to Estrada’s sentence for illegal re-entry after being deported subsequent to an aggravated felony conviction.

In August 2004, Rudy Estrada, a Mexican citizen, was convicted in a Florida state court of throwing a deadly missile, in violation of Florida Statute § 790.19. Estrada was deported to Mexico, but later illegally reentered the United States. This was discovered when he was arrested on state drug charges, and pled guilty to the offense of illegal re-entry after being deported subsequent to an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(2). Estrada’s presentence report (PSR) included a 16-level enhancement for a previous crime of violence. Prior to and during his sentencing hearing, Estrada objected to the 16-level enhancement, arguing that his prior Florida conviction did not qualify as a crime of violence within the meaning of the Guidelines. The Guidelines define a “crime of violence” as either being one of the enumerated offenses set out or as any offense “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, comment. (n.1(B)(iii)). Estrada’s offense was not enumerated, and he argued that it did not have as an element the use, attempted use, or threatened use of physical force against another person. He did, however, concede that an 8-level aggravated felony enhancement pursuant to § 2L1.2(b)(1)(C) was appropriate instead.

In its per curium opinion, the Eleventh Circuit first concluded that the case was controlled by United States v. Estrella, 758 F.3d 1239 (11th Cir. 2014), and walked through the analysis in that case. The court there noted that, as a categorical matter, Florida Statute § 790.19 did not be deemed a crime of violence for purposes of §2L1.2 because some prongs of the statute did not contain an element requiring that the physical force threatened, attempted, or used be directed against a person rather than property. Id. at 1248. Then, the analysis turned to whether the statute was divisible under Descamps v. United States, 133 S. Ct. 2276 (2013), and the court decided that § 790.19 was divisible and a defendant could be convicted for wanton or malicious conduct. The former would not warrant a crime of violence status, but the latter would. Estrella, 758 F.3d at 1245-47, 1253. Finally, the court was to look to Shepard-approved documents to determine on which of the above two mental elements the defendant had been convicted. Id. At 1254. In the present case, the court noted that there were no Shepard-approved documents that could provide which of he mens rea elements Estrada’s conviction was based, and thus the district court erred in concluding that his prior conviction was for a crime-of-violence offense.

However, the court accepted the government’s argument that there should be a limited remand directed the district court to vacate its determination that a 16-level enhancement applied and instead apply an 8-level enhancement for a prior aggravated felony. It noted that Estrada’s previous conviction constituted an “aggravated felony” for purposes of § 2L1.2(b)(1)(C) since it involved the targeting of physical force against the person or property of another under 18 U.S.C. § 16, which the Guidelines suggest supplies the definition for aggravated felony. The court also gave strong consideration to the fact that defense counsel argued that an 8-level enhancement was appropriate at the district court level. Thus, the court remanded the case with the specific instruction to the district court to apply the 8-level enhancement.

Twitter Digg Delicious Stumbleupon Technorati Facebook Email