Argued May 13, 2015
Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. (4:13-cr-00080-FL-1). Louise W. Flanagan, District Judge.
Eric Joseph Brignac, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant.
Kristine L. Fritz, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Thomas P. McNamara, Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Before TRAXLER, Chief Judge, and WILKINSON and FLOYD, Circuit Judges. Judge Floyd wrote the opinion, in which Chief Judge Traxler joined. Judge Wilkinson wrote a dissenting opinion.
FLOYD, Circuit Judge.
Each year, thousands of immigrants are deported for illegally entering the country. But before leaving, many face a prolonged pit stop in federal prison. The 16-level sentencing enhancement under U.S.S.G. § 2L1.2 may extend their stay even longer
for those previously deported for committing a " crime of violence."
This case concerns whether a Mexican citizen, Edgar Parral-Dominguez, was properly subject to that enhancement and sentenced to over five years' imprisonment. After Dominguez pleaded guilty to illegally reentering the country, the district court applied the enhancement because, in its view, Dominguez's previous conviction in North Carolina for discharging a firearm into an occupied building is a requisite " crime of violence." Specifically, the district court ruled that Dominguez's offense necessarily involved the use, attempted use, or threatened use of force against a person. In fact, under North Carolina law, there need be only the use of force against property to sustain a conviction. Because the court's decision was in error and should not be construed as harmless, we vacate Dominguez's sentence and remand for further proceedings.
In 2000, Appellant-Defendant Edgar Parral-Dominguez (Dominguez) left Mexico with his father and entered the United States. At the time, Dominguez was 14 years old. Although his father eventually returned to Mexico, Dominguez remained.
On New Year's Day 2006, a firearm was discharged toward a woman's residence in Winston-Salem, North Carolina. Over a year later, North Carolina law enforcement arrested and charged Dominguez for the incident. Specifically, Dominguez was charged with and eventually convicted for an aggravated felony, discharging a firearm into a building under N.C.G.S.A. § 14-34.1 (" the State Offense" ).
During his post-arrest processing, state authorities found that Dominguez was unlawfully present in the country. Thus, after he pleaded guilty to the State Offense, agents from U.S. Immigration and Customs Enforcement (ICE) detained him and in August 2007 deported him to Mexico. Within months, however, Dominguez returned to North Carolina, eventually settling in Wilmington.
Three years after his deportation, local county law enforcement arrested Dominguez with more than an ounce of cocaine. He was ultimately convicted in state court for the single offense of trafficking cocaine, but as part of his post-arrest processing, state authorities discovered that Dominguez had been deported and was unlawfully present in the country. ICE officials met with Dominguez in December 2010 and August 2011, confirming his status as an illegal alien.
In December 2013, a federal grand jury sitting in the Eastern District of North Carolina indicted Dominguez under 8 U.S.C. § § 1326(a) and (b)(2) for illegally reentering the United States after being convicted of an aggravated felony. ICE officials took custody of Dominguez the same month, and he pleaded guilty to the charged offense on March 11, 2014, without the benefit of a plea agreement.
Before Dominguez's sentencing, U.S. Probation prepared a presentence investigation report (PSR). The parties do not dispute that the PSR correctly stated all the facts contained therein; that Dominguez has a Category IV criminal history;
that his base offense level is eight; and that he earned a three-point reduction for acceptance of responsibility. Dominguez lodged a single objection to the PSR, which is now at the center of this appeal.
The PSR proposed a 16-level enhancement to Dominguez's offense level for his having been previously convicted of a " crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Applying this enhancement, the PSR calculated that Dominguez's total offense level was 21--resulting in a Guidelines range of 57 to 71 months' imprisonment.
Dominguez argued that, as a matter of law, the State Offense did not constitute the requisite crime of violence under § 2L1.2(b)(1)(A) (ii). He did, however, concede that he merited an 8-level enhancement under § 2L1.2(b) (1) (C) because his previous conviction was an aggravated felony. Thus, according to Dominguez, his total offense level should be 13. Under Dominguez's proposed treatment, his Guidelines range would be 24 to 30 months' imprisonment.
After the Government and Probation filed written responses to Dominguez's objection, the district court heard argument at Dominguez's sentencing hearing on July 8, 2014. The court overruled Dominguez's objection because the occupant of a building " will surely feel threatened by the physical force that [has] intruded" from a defendant who shoots at the building. J.A. 75 (quoting United States v. Cortez-Arias, 403 F.3d 1111, 1116 (9th Cir. 2005), abrogated by Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006) (en banc)). Thus, the court imposed the 16-level enhancement, producing an advisory Guidelines range of 57 to 71 months' imprisonment.
The district court then heard argument on how to fashion a proper sentence. Although Dominguez's counsel believed that a sentence in the Guidelines range would be greater than necessary, J.A. 76, the Government " submit[ted] that a guideline sentence would be appropriate" and twice asked the court to " consider somewhere around the mid range to the high end of the guideline range." J.A. 81. In turn, the court sentenced Dominguez in the middle of the Guidelines range: 65 months' imprisonment. In announcing the sentence, the court posited that 65 months' imprisonment is the " only" sentence " that sends the message that the defendant will be punished for his actions and his conduct, that he must respect the law, that his dangerousness must be mitigated, and he cannot come back into this country." J.A. 84.
The day after sentencing, the district court memorialized its decision in a nine-page memorandum opinion. After noting the lack of binding precedent, the court relied heavily on the holding of an unpublished Fourth Circuit decision to conclude that the State Offense is a crime of violence. United States v. Wilkerson, 492 F.Appx. 447, 449 (4th Cir. 2012) (per curiam). The court reiterated its line of reasoning from the sentencing hearing that the act of shooting would inherently threaten any building inhabitants.
Dominguez timely appealed, claiming his sentence is three years longer than what a properly calculated Guidelines range would suggest is appropriate.
This appeal centers on one major issue: Does the state offense of discharging a firearm into an occupied building under N.C.G.S.A. § 14-34.1(a) constitute a crime of violence for federal sentencing purposes under U.S.S.G. § 2L1.2? We review this issue de novo. United States v. Henriquez, 757 F.3d 144, 147 (4th Cir. 2014).
Even if we hold that the North Carolina offense is not a crime of violence, and thus that the district court committed procedural error, we may still affirm Dominguez's 65-month term of imprisonment if we find that the error did not affect his sentence. United States v. Gomez-Jimenez, 750 F.3d 370, 382 (4th Cir. 2014). As discussed below, we find that the State Offense is not a crime of violence, and that the district court's conclusion to the contrary was not harmless.
First, we assess whether the State Offense is a crime of violence under § 2L1.2. To answer this question, we apply the so-called " categorical approach" set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and recently clarified in Descamps v. United States, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). " Under that approach, we consider only the elements of the statute of conviction rather than the defendant's conduct underlying the offense." Omargharib v. Holder, 775 F.3d 192, 196 (4th Cir. 2014). If the State Offense has the same elements as for a " crime of violence" as defined in § 2L1.2, then Dominguez's prior conviction is a predicate offense under that section. Id. But if the State Offense " sweeps more broadly" by criminalizing more conduct than is captured under § 2L1.2(b)(1)(A)(ii), then the State Offense is not a qualifying offense. Id. (quoting Descamps, 133 S.Ct. at 2283). In essence, we must compare the contours of a " crime of violence" under § 2L1.2 with the breadth of conduct proscribed by N.C.G.S.A. § 14-34.1(a).
We begin with § 2L1.2, which states that a 16-level enhancement applies if " the defendant previously was deported . . . after . . . a conviction for a felony that is . . . a crime of violence." U.S.S.G. § 2L1.2(b)(1)(A)(ii). The text of § 2L1.2 does not expressly define the phrase " crime of violence." But the application note clarifies that the phrase contemplates any offense " under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another." Id. § 2L1.2(b)(1) cmt. n.1(B)(iii). This the Government argues that ...