Court: Court of Appeals for the Ninth Circuit; November 14, 2006; Federal Appellate Court
Pedro Martinez-Martinez pled guilty to illegal reentry into the United States after being deported due to a felony conviction and received a 46-month prison sentence. The case centers on whether the district court incorrectly classified Martinez-Martinez's prior Arizona state conviction for discharging a firearm at a residential structure as a "crime of violence" under the United States Sentencing Guidelines (USSG) section 2L1.2(b)(1)(A)(ii).
Martinez-Martinez's prior conviction, which stemmed from a 2001 incident, involved the illegal discharge of a firearm, leading to his deportation in 2002. He illegally re-entered the U.S. and was subsequently deported again after serving time for another violation. During the sentencing phase for the current illegal reentry charge, the pre-sentence report suggested increasing his offense level based on the prior conviction being classified as a crime of violence.
The district court rejected Martinez-Martinez's objections, citing the precedent set in United States v. Cortez-Arias, which determined a similar California statute was a crime of violence. The court reasoned that the Arizona statute's reference to "residential structure" was comparable and sufficient to deem it a crime of violence. However, the district court did not explore the specific definition of "residential structure" under Arizona law, which could differ from the California statute. This decision is now under appeal, raising questions about the appropriate classification of Martinez-Martinez's prior conviction.
To determine if a state criminal statute qualifies as a "crime of violence," the approach established in Taylor v. United States mandates examining the statutory elements of the prior offense rather than the conduct or label associated with it. This involves a categorical comparison between the elements of the state's statute and the generic definition of a "crime of violence." The U.S. Sentencing Guidelines (USSG) section 2L1.2 focuses on prior "convictions" and their "elements," not the defendant's conduct. A modified categorical approach is applicable, especially in cases involving guilty pleas, limiting review to specific documents used in adjudicating guilt, such as charging documents or plea agreements.
In this context, a sentencing enhancement applies to individuals convicted under section 1326, where the base offense level increases from eight to sixteen if the defendant has been "previously deported after a conviction for a felony that is a crime of violence." The definition of "crime of violence" encompasses offenses that involve the use, attempted use, or threatened use of physical force. The commentary to the guidelines does not explicitly address crimes that present a serious risk of physical injury. The case of Cortez-Arias previously clarified this definition regarding offenses involving discharging firearms at structures. The current case examines whether Arizona's law aligns with the generic definition established in Cortez-Arias and whether evidence exists to confirm that Martinez-Martinez's prior conviction met those elements.
California Penal Code section 246 defines a felony as the malicious and willful discharge of a firearm at an inhabited dwelling house, with "inhabited" indicating usage for dwelling purposes, regardless of occupancy. In Cortez-Arias, the court determined that an "inhabited dwelling house" is synonymous with one's home, emphasizing that such offenses carry a high potential for violence and are inherently dangerous. The court interpreted the Guideline's reference to "threatened use of physical force" as encompassing actions that imply an intent to use physical force against another person, including discharging a firearm at someone's residence. The court ruled that this offense qualifies as a "crime of violence" even if the resident is not present at the time of the shooting, as the act instills a sense of threat regarding the resident's safety and personal space. The psychological connection between a person's home and their identity underlies the court's finding that an attack on a home constitutes a threat to the resident. The government argued that the decision's implications extend beyond the text, citing California appellate cases suggesting that the statute covers dwellings even if residents are temporarily absent. However, the court clarified that the absence of the resident is not crucial to the assessment; rather, the defining factor is that the structure is the resident's current and permanent home.
Most cases cited by the government establish that a dwelling is deemed inhabited during the process of moving in or out, as demonstrated in cases like *People v. Hughes* and *People v. Hernandez*. Additionally, a tenant's intention to move out, without actual movement, also does not negate the status of a dwelling as inhabited, as seen in *People v. Jackson*. However, these cases do not contradict the requirement outlined in *Cortez-Arias* that for California Penal Code section 246 to apply, the residence must be the individual's "home."
In *People v. Marquez*, the court determined that a house remained inhabited despite the occupant's two-and-a-half-year absence due to conservatorship. While such an absence might suggest abandonment, the Marquez court clarified that liability for burglary hinges on the current intent of the occupant rather than the length of absence. The court emphasized that the definition of inhabited relies on present use and the intent of the person entitled to occupy the dwelling.
The court in Marquez noted that if the owner had indeed abandoned the residence, the burglary charge would not hold. Thus, for a dwelling to be considered inhabited under section 246, there must be a present intent to maintain it as a permanent home, even during temporary absences. This principle aligns with the determination in *Cortez-Arias* regarding what constitutes a "crime of violence." Lastly, even if California's definition of an inhabited dwelling includes temporarily abandoned properties, this does not alter the conclusion that only actions targeting a person's current residence can reasonably threaten their personal safety, a key consideration for evaluating whether Arizona Revised Statutes section 13-1211 fits the generic definition of a "crime of violence."
Arizona Revised Statutes section 13-1211 classifies the act of knowingly discharging a firearm at a residential structure as a class 2 felony. A "residential structure" is defined broadly to include any movable or immovable structure used for human residence, which encompasses buildings, vehicles, and railroad cars that can be separately secured. There is a lack of Arizona state court interpretations of this statute's terms, although one appellate court referred to it as involving an "occupied" residence, which aligns with the definition of a "crime of violence" under federal law. For the offense to occur, the firearm must be discharged at a structure occupied by an individual, indicating a threat of force against that person. The state court's reference did not provide an in-depth analysis of the statute's elements.
Martinez-Martinez argues that the statute's definitions extend beyond traditional homes to include temporary structures. However, the court finds this interpretation unconvincing, clarifying that "temporary" modifies "structures," not the duration of residence. The statute aims to encompass a wide range of structures that individuals might use as a home, including unconventional shelters like tents or makeshift materials, without diminishing the requirement that these must be someone's current place of residence. The court concludes that the statute's language does not allow for a separate classification of "temporary residences" outside of the context of what constitutes a person's home.
The statute in question pertains to structures "adapted for both human residence or lodging," indicating that such structures may either currently serve as residences or be capable of being inhabited. The term "adapted," defined as "fitted," suggests that prior modifications allowed for human occupancy, but it does not necessitate current habitation. This distinction is crucial under Arizona law, specifically in light of the Cortez-Arias decision, which emphasizes that a genuine threat to an individual is associated with their current home rather than an unoccupied structure, even if it is suitable for living. Legislative history cited by the government suggests that section 13-1211 was intended to cover inhabited residences, supported by statements from individuals during hearings on the statute. However, concerns were raised about the broad interpretation of "structure," leading to a call for more precise language to limit its application strictly to homes. Ultimately, while the legislative discussions indicate a focus on currently inhabited structures, they do not explicitly exclude uninhabited yet habitable structures, and lawmakers opted not to amend the language despite recognizing its potential for broad interpretation.
The ambiguity of the statute's terms, coupled with unclear legislative history, has led to a reliance on the definition of "residential structure" in other statutory contexts, particularly Arizona's residential burglary law. Both section 13-1211 and the Arizona burglary statute define "residential structure" similarly, making relevant case law applicable for interpretation. Martinez-Martinez's argument, based on the case State v. Bass, posits that a building that has "never yet served" as a residence qualifies as a residential structure. However, this interpretation is unsupported by the facts of Bass, where the court ruled that an almost-completed log cabin did not meet the criteria for a residential structure due to lack of operable utilities and installations. The critical issue is not whether a structure must be habitable for section 13-1211 to apply, but whether actual occupancy is required at the time of the offense. In State v. Gardella, the court indicated that "residence" implies a distinction from commercial use and includes elements enhancing human occupancy. However, subsequent cases focused more on the suitability for habitation than on current occupancy itself. For instance, in State v. Ekmanis, a storage room was deemed a residential structure due to its contribution to the home's comfort, emphasizing suitability over occupancy. This interpretation was further reinforced in State v. Engram, which continued to explore the definitions surrounding residential structures.
The defendant was convicted of residential burglary after breaking into an apartment building under remodeling and attempting to steal gas heaters. At the time of the crime, one unit was rented, while others were unoccupied and being remodeled, with the last tenant having vacated a month prior. The defendant contended that his conviction was invalid due to the apartments being unfit for human habitation. However, the state appellate court held that for residential burglary, it suffices that the structure is intended for residential use, regardless of current occupancy. The court emphasized that as long as the apartments were deemed suitable for residential use, the jury could determine if the burglary occurred. Thus, a residential structure can be considered for the crime even if vacant or awaiting new occupants. This interpretation diverges from previous rulings, as it implies that without current occupants, actions like discharging a firearm at such a structure do not pose a direct threat to individuals, undermining the classification of such an act as a "crime of violence." Consequently, the defendant's prior conviction for discharging a firearm at a residential structure does not meet the criteria for a crime of violence. The district court assessed the case based on the plea agreement, indictment, and judgment of conviction, confirming that the defendant was charged and pled guilty to discharging a firearm at a designated residential structure, classified as a non-dangerous crime in the plea agreement.
Recitation of statutory elements alone does not suffice to prove that a prior conviction includes the generic definition of a "crime of violence," particularly when the state statute is overly broad. The Ninth Circuit in *United States v. Lopez-Montanez* emphasized that merely stating a defendant pled no contest to a statute is inadequate; instead, judicially noticeable documents must clearly show that the defendant was convicted of the specifically defined crime, even if the statute is broad. In the case of Martinez-Martinez, the provided address for the crime does not confirm that the structure was inhabited; it merely denotes its location. The connection between two offenses he pled guilty to—discharging a firearm and causing substantial risk of imminent death—was not established within the plea agreement, which could imply the offenses occurred at different locations or times. A pre-sentence report detailing the facts of the conviction is not a proper source for establishing connections, as Supreme Court precedent disallows reliance on police reports unless they are incorporated by reference in the underlying complaint. Hence, the district court's enhancement of Martinez-Martinez's sentence by sixteen levels under USSG section 2L1.2(b)(1)(A)(ii) was erroneous, leading to a reversal and remand for re-sentencing. Arizona's burglary statute, which defines entry into a "residential structure" as a second-degree burglary, further complicates the assessment of the conviction's alignment with the generic offense definition.
