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Keywords

defendantstatuteappealpleafelonydeportationsentencing guidelines

defendantstatuteappealpleafelonysentencing guidelines

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U.S. v. Cervantes-Blanco, 504 F.3d 576

Facts

Cervantes pleaded guilty to illegal reentry after deportation under 8 U.S.C. § 1326(a). The district court enhanced his offense level by sixteen levels based on a prior conviction for attempted second-degree kidnapping in Colorado, which Cervantes contested. The presentence report recommended this enhancement, but Cervantes objected, arguing that his prior offense did not constitute a crime of violence under the guidelines.

Cervantes pleaded guilty to a one-count indictment charging him with being in the United States unlawfully after removal, in violation of 8 U.S.C. § 1326(a).

Issue

Did the district court err in enhancing Cervantes's sentence based on his prior conviction for attempted second-degree kidnapping, classifying it as a crime of violence under the sentencing guidelines?

Rule

Under U.S.S.G. § 2L1.2(b)(1)(A)(ii), a sixteen-level increase to the defendant's base offense level is warranted if the defendant was previously deported following a conviction for a felony that is a crime of violence, which is defined as either an enumerated offense or any offense that has as an element the use, attempted use, or threatened use of physical force against another person.

For violations of 8 U.S.C. § 1326, section 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines provides for a sixteen-level increase to the defendant's base offense level where the defendant was previously deported following a conviction for a felony that is a crime of violence.

Analysis

The court analyzed whether Cervantes's conviction for attempted second-degree kidnapping met the criteria for a crime of violence. It determined that the Colorado statute under which Cervantes was convicted did not align with the generic definition of kidnapping as it lacked the necessary elements, particularly the requirement of substantial interference with the victim's liberty. The court concluded that the district court erred in applying the enhancement.

A close reading of the Colorado second-degree kidnapping statute, Colorado opinions interpreting the statute, and this court's most recent opinions on this issue, Gonzalez-Ramirez and Iniguez-Barba, reveals that Cervantes's conviction does not qualify as a conviction for the enumerated offense of “kidnapping.”

Conclusion

The Court of Appeals vacated Cervantes's sentence and remanded the case for resentencing, determining that the prior conviction did not qualify as a crime of violence under the guidelines.

We therefore conclude that the district court erred by enhancing Cervantes's sentence by sixteen levels as a crime of violence conviction under U.S.S.G. § 2L1.2.

Who won?

Jorge Cervantes-Blanco prevailed in the appeal because the Court of Appeals found that the district court incorrectly enhanced his sentence based on a prior conviction that did not meet the criteria for a crime of violence.

Cervantes now appeals this enhancement. For the reasons that follow, we vacate Cervantes's sentence and remand for resentencing.

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