Appeal from the United States District Court for the District of Nevada. Larry R. Hicks, District Judge, Presiding. D.C. No. CR07-065-LRH-RAM.
The opinion of the court was delivered by: Reinhardt, Circuit Judge
Argued and Submitted April 14, 2009 -- San Francisco, California
Before: Stephen Reinhardt, Eugene E. Siler, Jr.,*fn1 and M. Margaret McKeown, Circuit Judges.
Opinion by Judge Reinhardt; Special Concurrence by Judge Reinhardt
As an "attempt" in the state of California requires only "slight acts in furtherance of the [criminal] design," People v. Superior Court, 157 P.3d 1017, 1022 (Cal. 2007) (emphasis added), one would reasonably expect that the California definition was categorically broader than the definition at common law, which requires a "substantial step towards committing the crime," United States v. Sarbia, 367 F.3d 1079, 1085-86 (9th Cir. 2004) (emphasis added). Strangely enough, however, we are required by precedent to conclude that the two definitions are functionally equivalent.
Jose Martin Saavedra-Velazquez ("Saavedra-Velazquez"), a native and citizen of Mexico, first entered the United States more than thirty years ago. He has spent the vast majority of his life in this country, was married to a United States citizen, and has a United States citizen son.
From 1999 to 2007, Saavedra-Velazquez was removed from the United States on four separate occasions, most recently on March 3, 2007. After once again illegally reentering the United States, he was arrested for a misdemeanor offense in Reno, Nevada on June 17, 2007. He was at the time on supervised release following a 2005 conviction for illegal re-entry after deportation. Saavedra-Velazquez was indicted by the grand jury for illegal re-entry by a deported alien in violation of 8 U.S.C. § 1326(a) and entered an unconditional guilty plea.
At sentencing, the district court placed Saavedra-Velazquez in a criminal history category VI, with an advisory Sentencing Guidelines range of 77-96 months. Saavedra-Velazquez had accumulated a number of arrests and felony convictions over the course of his time in the United States. Most resulted in relatively short periods of incarceration, none of which lasted longer than three years. For the previous ten years, SaavedraVelazquez had no violent criminal history. In 1989, however, he was convicted of felony attempted robbery under Cal. Penal Code § 211. On account of this conviction, the district court determined that he "previously was deported . . . after . . . a conviction for a felony that is . . . a crime of violence" and, in calculating Saavedra-Velazquez's advisory Sentencing Guidelines range, included a 16-level upward adjustment of his base offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).
Saavedra-Velazquez argued at sentencing that the California conviction for attempted robbery was not, categorically, a "crime of violence" for the purposes of U.S.S.G. § 2L1.2, and that the 16-level upward adjustment should not be applied. The district judge, relying on United States v. McDougherty, 920 F.2d 569 (9th Cir. 1990), disagreed. The judge nevertheless sentenced Saavedra-Velazquez to only 41 months in prison, well below the Guidelines range,*fn2 due in part to his showing of "cultural assimilation" and to the fact that, for ten years, he had no violent criminal history.*fn3
Saavedra-Velazquez appeals the determination that his attempted robbery conviction is a crime of violence and the resulting 16-level upward adjustment of his base offense level. We have jurisdiction over his appeal pursuant to 28 U.S.C. § 1291 (granting jurisdiction to hear "appeals from all final decisions of the district courts of the United States") and 18 U.S.C. § 3742 (granting jurisdiction to review a sentence "imposed as a result of an incorrect application of the sentencing guidelines"). We review de novo "a district court's determination that a prior conviction ...