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United States of America v. Flores-Mejia

August 9, 2012

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
FLORES-MEJIA,
DEFENDANT-APPELLANT.



D.C. No. 3:10-cr-04971-L-1 JOSE Appeal from the United States District Court for the Southern District of California M. James Lorenz, Senior District Judge, Presiding

The opinion of the court was delivered by: Bybee, Circuit Judge:

FOR PUBLICATION

OPINION

Argued and Submitted

June 4, 2012-Pasadena, California

Before: Betty B. Fletcher, Kim McLane Wardlaw, and Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee

OPINION

Jose Flores-Mejia, an alien, was convicted of robbery under California Penal Code § 211 in 1994 and again in 1996. In March 2009, he was deported to Mexico and then arrested in September 2010 after he illegally reentered the United States. He pleaded guilty to a charge of unlawful re-entry under 8 U.S.C. § 1326(a). The Presentence Report recommended a 16-level enhancement in the offense level for his two prior robbery convictions, which it identified as crimes of violence under U.S. Sentencing Guideline ("U.S.S.G.") § 2L1.2(b)(1)(A)(ii). Flores-Mejia objected to the enhancement, arguing that after a recent decision by the California Supreme Court, convictions under § 211 were no longer categorical crimes of violence. The district court rejected this argument and imposed the 16-level enhancement. FloresMejia timely appealed.

"We review de novo whether a prior conviction constitutes a crime of violence under U.S.S.G. § 2L1.2." United States v. Espinoza-Morales, 621 F.3d 1141, 1144 (9th Cir. 2010). We conclude that the district court did not err in rejecting FloresMejia's argument and imposing the crime of violence enhancement, and we affirm.

Flores-Mejia argues on appeal that the district court erred in holding that a robbery conviction under § 211*fn1 categori- cally qualifies as a crime of violence for purposes of sentencing under U.S.S.G. § 2L1.2.*fn2 He contends the California Supreme Court in People v. Anderson, 252 P.3d 968 (Cal. 2011), changed California law and broadened the conduct falling within § 211 so that it is no longer categorically a crime of violence.

[1] In United States v. Becerril-Lopez, we held that § 211 was categorically a crime of violence for purposes of § 2L1.2. 541 F.3d 881, 890-93 (9th Cir. 2008). In doing so, we adopted the federal generic definition of robbery from the Fifth Circuit: " 'aggravated larceny, containing at least the elements of misappropriation of property under circumstances involving immediate danger to the person.' " Id. at 891 (emphasis removed) (quoting United States v. Santiesteban-Hernandez, 469 F.3d 376, 380 (5th Cir. 2006)). We found § 211 to be broader than the generic crime of robbery "because it encompasses mere threats to property." Id. That is, California defines fear as used in § 211 as either " '[t]he fear of an unlawful injury to the person or property of the person robbed, or of any relative of his or member of his family,' or '[t]he fear of an immediate and unlawful injury to the person or property of anyone in the company of the person robbed at the time of the robbery.' " Id. at 890-91 (alterations in original) (quoting Cal. Penal Code § 212). We concluded, however, that even if "[t]akings through threats to property and other threats of unlawful injury," id. at 891, did not fall within generic robbery, they did constitute federal generic extortion, which the Supreme Court defined as " 'obtaining something of value from another with his consent induced by the wrongful use of force, fear, or threats,' " id. (quoting Scheidler v. Nat'l Org. for Women, Inc., 537 U.S. 393, 409 (2003)). As a result, any conviction under § 211 constitutes a crime of violence for purposes of § 2L1.2, regardless of whether the crime of conviction could be characterized as generic robbery or generic extortion.

Becerril-Lopez thus forecloses Flores-Mejia's argument unless, as he maintains, the California Supreme Court's decision in Anderson "undercut[s] the theory or reasoning underlying [Becerril-Lopez] in such a way that the cases are clearly irreconcilable." Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). Flores-Mejia cannot make this showing.

[2] First, it is not clear that Anderson changed California's interpretation of ยง 211. For a defendant to be convicted of robbery in California, he "must apply . . . force for the purpose of accomplishing the taking." Anderson, 252 P.3d at 972 (emphasis omitted) (quoting People v. Bolden, 58 P.3d 931, 957 (Cal. 2002)). In Anderson, the defendant argued that for the forcible taking in that case to be considered robbery (he stole the victim's car and then struck her with it while escaping), he would have had to apply the force with the intent to strike or frighten the victim. Id. at 970, 972. The court rejected the defendant's argument, stating that "no authority cited to us provides positive support for defendant's argument. Nor do[es] . . . anything . . . convince us robbery contains a heretofore unidentified element of intent to cause the victim to experience force or fear." Id. at 972. Relying on a pre-existing definition of robbery, the court concluded that although "the law does require that the perpetrator exert some quantum of force in excess of that 'necessary to accomplish the mere seizing of the property,' " the crime "was robbery even if, as [the defendant] claims, he did not intend to strike [the victim], but did so accidentally." Id. (quoting People v. Morales, 122 Cal. Rptr. 157, 160 (Ct. App. 1975)). Thus, far from changing the law, Anderson confirms that to commit robbery, the ...


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