United States v. Mendez
Opinion
Armando Mendez appeals the sentence imposed after he pled guilty in 2018 to violating
I.
Mr. Mendez entered an unconditional guilty plea but objected to the probation *1124 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
,
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
,
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
,
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 *1125 step is any conduct ... which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense.
The Model Penal Code definition of attempt shares the same basic requirements as Colorado's definition, providing in relevant part that a person is guilty of criminal attempt when, acting with the required kind of culpability, he makes a "a substantial step in a course of conduct planned to culminate in his commission of the crime." Model Penal Code § 5.01(1)(c). Conduct is not a substantial step "unless it is strongly corroborative of the actor's criminal purpose."
Mr. Mendez attempts to create some daylight between the two formulations by crafting an argument based on formal logic. While Colorado and the Model Penal Code both require a substantial step, Mr. Mendez argues, they differ as to what conduct will qualify. Under the Model Penal Code, an act is not a substantial step unless the "strongly corroborative" element is met, but that does not necessarily mean that
all
"strongly corroborative" conduct will be a substantial step.
See
Aplt. Br. at 15-20. The Colorado formulation, by contrast, provides that "
any
conduct ... which is strongly corroborative" will be a substantial step.
Mr. Mendez's hairsplitting focus on formal logic loses sight of the categorical approach's purpose, which is to carry out congressional intent by giving a word its commonly understood meaning when the statute itself leaves the term undefined.
See generally
Taylor v. United States,
Mr. Mendez points to
People v. Lehnert
,
Significantly, Mr. Mendez's assertion that Colorado criminalizes conduct that would not qualify as an attempted robbery elsewhere is purely speculative. The categorical approach focuses on the minimum conduct criminalized by the state statute, but this "is not an invitation to apply 'legal imagination' to the state offense; there must be 'a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.' "
Moncrieffe v. Holder
,
Mr. Mendez does no more than offer theoretical grounds on which some conduct might constitute criminal attempt in Colorado but not under the generic definition of the term. He offers no cases to demonstrate that the state has actually prosecuted anyone under his broader definition. He does not even offer a hypothetical course of conduct where it might. For the foregoing reasons, we agree with the district court that attempted robbery as defined in Colorado law is a crime of violence for the purposes of § 4B1.2(a). Accordingly, we AFFIRM Mr. Mendez's sentence.
The guideline governing the applicable base offense level for unlawful possession of a firearm incorporates by reference the definition of "crime of violence" in § 4B1.2(a) and Application Note 1 of the commentary to § 4B1.2. U.S.S.G. § 2K2.1 cmt. n.1.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff - Appellee, v. Armando MENDEZ, Defendant - Appellant.
- Cited By
- 10 cases
- Status
- Published