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United States v. Mendez

United States Court of Appeals, Tenth Circuit

May 17, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
ARMANDO MENDEZ, Defendant-Appellant.

          Appeal from the United States District Court for the District of Colorado (D.C. No. 1:17-CR-00434-RM-1)

          Howard A. Pincus, Office of the Federal Public Defender, Denver Colorado, for Defendant-Appellant.

          Paul Farley, Assistant United States Attorney, (Jason R. Dunn, United States Attorney, with him on the brief), Office of the United States Attorney, Denver, Colorado, for Plaintiff-Appellee.

          Before HARTZ, SEYMOUR, and HOLMES, Circuit Judges.

          SEYMOUR, CIRCUIT JUDGE.

         Armando Mendez appeals the sentence imposed after he pled guilty in 2018 to violating 18 U.S.C. § 922(g)(1), which prohibits felons from possessing firearms. On appeal, he contends his sentence was improperly inflated because the district court held that a prior conviction for attempted robbery in Colorado qualified as a "crime of violence" under § 4B1.2(a) of the United States Sentencing Guidelines ("U.S.S.G." or "the guidelines"). We affirm.

         I.

         Mr. Mendez entered an unconditional guilty plea but objected to the probation officer's presentence report, which calculated a recommended sentence of 30-37 months under the sentencing guidelines. Specifically, Mr. Mendez disputed the determination that a 2001 conviction for attempted robbery in Colorado qualified as a prior "crime of violence," which resulted in an enhanced base offense level of 20 under U.S.S.G. § 2K2.1(a)(4)(A). Arguing that the conviction did not qualify, Mr. Mendez asked the court to impose a sentence of 15-21 months using a base offense level of 14, the level applicable to Mr. Mendez absent the crime-of-violence enhancement. After briefing and oral argument on the matter, the district court imposed a sentence of 30 months, holding that Mr. Mendez's 2001 conviction was a crime of violence.

         II.

         Whether a prior conviction qualifies as a crime of violence for purposes of the sentencing guidelines is a matter of statutory interpretation. United States v. Charles, 576 F.3d 1060, 1066 (10th Cir. 2009). Accordingly, our review is de novo. Id.

         We apply a categorical approach to determine whether a prior conviction falls within U.S.S.G. § 4B1.2(a), [1] which provides that an offense is a "crime of violence" if (1) its elements include "the use, attempted use, or threatened use of physical force against the person of another", or (2) the offense is any of several crimes enumerated in the guideline itself. See United States v. O'Connor, 874 F.3d 1147, 1151-52 (10th Cir. 2017). Under the categorical approach, it is not the particular defendant's conduct that counts but the scope of conduct that may be prosecuted under the statute of his conviction. Id. at 1151. Violation of the underlying statute must categorically constitute a crime of violence for the enhancement to apply. If a course of conduct would be criminal under the statute but the same conduct would not satisfy either prong of § 4B1.2(a), then no conviction under the statute will serve as a predicate. The test is all or nothing. O'Connor, 874 F.3d at 1151.

         This case appears, on first blush, deceptively easy to resolve. The application note appended to the guideline defining "crime of violence" clarifies that the term includes "attempting to commit" such a crime. § 4B1.2 cmt. n.1. Moreover, we have previously held that Colorado's definition of robbery is a crime of violence under § 4B1.2 because it involves the use or threatened use of physical force. See United States v. Crump, 674 Fed.Appx. 802 (10th Cir. 2017) (unpublished); cf. United States v. Harris, 844 F.3d 1260 (10th Cir. 2017) (holding that a conviction under Colorado's robbery statute triggers enhancement under 18 U.S.C. § 924(e)(1)). This, however, does not end our enquiry.

         Section 4B1.2 offers no definition of what constitutes "attempt." If criminal attempt as defined by Colorado law covers a broader scope of conduct than "attempt" for the purposes of the guidelines, then attempted robbery under Colorado law is not categorically a crime of violence and Mr. Mendez is not subject to the enhancement. The operative portion of Colorado's criminal-attempt statute provides as follows:

A person commits criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense. A substantial step is any conduct . . . which is strongly corroborative of the firmness ...

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