Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Montiel-Cortes

United States Court of Appeals, Fifth Circuit

January 30, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
BRANDON GABRIEL MONTIEL-CORTES, also known as Brandon Gabriel Garcia-Co, also known as Brandon Gabriel Garcia-Cortez, Defendant-Appellant

          REVISED February 1, 2017

         Appeal from the United States District Court for the Western District of Texas

          Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.

          PER CURIAM

         Brandon Gabriel Montiel-Cortes pleaded guilty to illegal reentry following deportation. At sentencing, the district court concluded that his 2013 Nevada conviction for robbery constituted a "crime of violence" within the meaning of United States Sentencing Guidelines § 2L1.2(b)(1)(A) (2015), thus triggering a 16-level increase to his offense level. Applying the enhancement over Montiel-Cortes's objection, the district court sentenced him to 57 months in prison and three years of nonreporting supervised release. Montiel timely appealed. We affirm.

          I.

         After Montiel-Cortes pleaded guilty without a plea agreement to illegal reentry following deportation, his presentence investigation report ("PSR") determined that his total offense level was 21, which included, inter alia, a 16-level increase for his 2013 Nevada conviction for robbery, in violation of Nev. Rev. Stat. Ann. § 200.380. The PSR included other state court documents relating to Montiel-Cortes's Nevada conviction, including the charging document, his Alford plea, [1] and the judgment of conviction.

         The PSR concluded that Montiel-Cortes's Nevada robbery conviction qualified as a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A) (2015), which imposed a 16-level enhancement if the "defendant previously was deported, or unlawfully remained in the United States, after" a felony conviction for a crime of violence.[2] The Application Notes defined "crime of violence" as either (1) any of the enumerated offenses, including robbery or extortion, or (2) "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."[3] The PSR further determined that Montiel-Cortes's criminal history category was IV and that his advisory guidelines range of imprisonment was 57 to 71 months.

         Montiel-Cortes objected to the 16-level enhancement, arguing that the Nevada robbery offense was not a crime of violence because it encompassed conduct broader than the generic, contemporary definition of robbery. He argued that the Nevada offense, in contrast to generic robbery, did not require immediacy or a specific use of force. He also argued that the Supreme Court's grant of a writ certiorari in Mathis v. United States, - U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), discussed below, might have some impact on his case.

         The district court overruled Montiel-Cortes's objection, holding that his Nevada robbery conviction was necessarily a crime of violence-specifically, the generic crime of robbery-under the modified categorical approach, also discussed below. The court sentenced him to 57 months in prison and three years of nonreporting supervised release. He timely appealed.

         II.

         This appeal turns on whether the district court correctly interpreted the sentencing guidelines when it determined, under the modified categorical approach, that Montiel-Cortes's 2013 Nevada robbery conviction necessarily constituted the generic crime of robbery. We review the district court's interpretation of the sentencing guidelines de novo.[4]

         At the outset, we agree with the parties that, under Mathis, the district court erred by applying the modified categorical framework and instead should have applied the categorical approach. We recently summarized these two approaches in United States v. Howell, 838 F.3d 489, 494 (5th Cir. 2016) as follows:

In determining if a prior conviction is for an offense enumerated or defined in a Guidelines provision, we generally apply the categorical approach and look to the elements of the offense enumerated or defined by the Guideline section and compare those elements to the elements of the prior offense for which the defendant was convicted. We do not consider the actual conduct of the defendant in committing the offense. If the offense is an enumerated offense, such as burglary, we first determine the elements contained in the generic, contemporary meaning of that offense.
In one of several decisions on the subject, the Supreme Court explained the application of the categorical approach in Descamps v. United States [__ U.S. __, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013)]. The Supreme Court also explained in Descamps, as it had in prior opinions, that when a statute defines more than one crime, and not all of them constitute an enumerated generic offense, courts employ the "modified categorical approach" to "determine which crime formed the basis of the defendant's conviction." Courts may consult certain records pertaining to the prior offense to ascertain if the conviction rested on the generic or defined crime or instead was an over-inclusive offense that could not support a sentence enhancement. But, if the statute of conviction is not divisible, "[t]he modified [categorical] approach . . . has no role to play."[5]

         In Mathis, the Supreme Court provided further guidance on how to determine whether a statute is divisible:

Though Mathis dealt with the ACCA [Armed Career Criminal Act], rather than the Guidelines, the methodology of determining whether a statute is divisible and therefore whether the modified categorical approach may be employed, is the same, unless the Guidelines were to specify otherwise. The Supreme Court explained that if a statute sets forth only various means of committing the offense, it is not divisible, but if the statute sets forth more than one offense by including alternative elements of each offense, then the statute is divisible. The test to distinguish means from elements is whether a jury must agree.[6]

         In this case, both Montiel-Cortes and the Government agree that Nev. Rev. Stat. Ann. § 200.380 sets out alternative means of committing the crime of robbery, rather than alternative elements. Thus, under Mathis, Nev. Rev. Stat. Ann. § 200.380 is indivisible, and the district court erred by applying the modified categorical approach. More particularly, the district court erred by examining the state court documents to determine how, precisely, Montiel-Cortes violated Nev. Rev. Stat. Ann. § 200.380.

         Instead, under Mathis, we must determine whether Nev. Rev. Stat. Ann. § 200.380, as an indivisible whole, categorically qualifies as a crime of violence such that any conduct criminalized by the Nevada robbery statute necessarily qualified as a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A) (2015). If there is any conduct that would violate Nev. Rev. Stat. Ann. § 200.380 but would not qualify as a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A), then the Nevada statute cannot support the Guidelines enhancement under the categorical approach.[7]

          III.

         Given the above, we must determine whether conduct that violates Nev. Rev. Stat. Ann. § 200.380 necessarily qualifies as a "crime of violence, " as defined in the Application Notes to U.S.S.G. § 2L1.2(b)(1)(A)(ii) as follows: (1) any of the enumerated offenses, including robbery and extortion, or (2) "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."[8]

         A. The Enumerated Offense of Robbery

         The parties primarily argue about whether the Nevada robbery statute proscribes conduct that falls within the generic, contemporary meaning of robbery. Under the categorical framework, we compare the elements of the Nevada statute with the generic definition to determine whether conduct proscribed by the statute is broader than the generic definition.[9] Here, Montiel-Cortes argues that the Nevada statute is broader than the generic, contemporary meaning of robbery.

         The Fifth Circuit has recognized that the generic, contemporary definition of robbery encompassed by the guidelines corresponds to the definition found in a majority of states' criminal codes and draws on the Model Penal Code, treatises, and other trusted authorities.[10] We have held that "robbery may be thought of as aggravated larceny, containing at least the elements of misappropriation of property under circumstances involving [immediate] danger to the person."[11] The immediate ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.