United States v. Melchor-Meceno

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 09-10012

Plaintiff-Appellee, D.C. No.

v.  4:08-CR-00854-

MERCED MELCHOR-MECENO, JMR-BPV

Defendant-Appellant.

 OPINION

Appeal from the United States District Court

for the District of Arizona

John M. Roll, Chief District Judge, Presiding

Argued and Submitted

April 12, 2010—San Francisco, California

Filed September 1, 2010

Before: Mary M. Schroeder and N. Randy Smith,

Circuit Judges, and James Maxwell Moody, Judge.*

Opinion by Judge N.R. Smith

*The Honorable James Maxwell Moody, United States District Judge

for the District of Arkansas, sitting by designation.

13275

UNITED STATES v. MELCHOR-MECENO 13277

COUNSEL

Defendant-appellant Merced Melchor-Meceno is represented

by Jon M. Sands, Federal Public Defender, and Richard W.

Raynor, Assistant Federal Public Defender, Tucson, Arizona.

Plaintiff-appellee United States of America is represented by

Dennis K. Burke, United States Attorney, Christina M.

Cabanillas, Appellate Chief, and Celeste Benita Corlett,

Assistant United States Attorney, Tucson, Arizona.

13278 UNITED STATES v. MELCHOR-MECENO

OPINION

N.R. SMITH, Circuit Judge:

Merced Melchor-Meceno (Melchor-Meceno) pleaded

guilty to illegally re-entering the United States after deporta-

tion in violation of 8 U.S.C. § 1326. After conviction, the dis-

trict court sentenced him to a seventy-five month term of

imprisonment. The length of the term of imprisonment

included an enhancement pursuant to the United States Sen-

tencing Guidelines Manual (U.S.S.G.) § 2L1.2 for Melchor-

Meceno’s prior conviction of a crime of violence. Melchor-

Meceno appeals, claiming his prior Colorado state conviction

for menacing does not qualify as a “crime of violence.”

Because the Colorado felony menacing statute is categorically

a crime of violence (as outlined in U.S.S.G. § 2L1.2), the dis-

trict court properly applied the enhancement to Melchor-

Meceno’s sentence. We need not address whether the convic-

tion constitutes a crime of violence under the modified cate-

gorical approach.

I. BACKGROUND

Following felony convictions, the United States Immigra-

tion and Customs Enforcement twice deported Melchor-

Meceno (a citizen of Mexico) from the United States in 2000

and 2007. On June 13, 2008, Border Patrol agents found

Melchor-Meceno back again in the United States near Sells,

Arizona. A grand jury subsequently indicted Melchor-Meceno

for illegally re-entering the United States after deportation in

violation of 8 U.S.C. § 1326.

After pleading guilty to the charge, the probation officer

prepared a Pre-Sentence Report (PSR) recommending that

Melchor-Meceno’s sentence be enhanced 16 levels for depor-

tation after a crime of violence. Prior to the sentencing hear-

ing, Melchor-Meceno filed an objection to the proposed 16-

level enhancement, arguing that his 1995 Colorado state fel-

UNITED STATES v. MELCHOR-MECENO 13279

ony menacing conviction1 was not a crime of violence. At the

sentencing hearing, the district court concluded that the 1995

conviction constituted a crime of violence and applied the 16-

level enhancement to Melchor-Meceno’s sentence.

The district court noted that “looking at the totality of the

charges, the predicate facts, which are the basis of the

charges, that clearly what the defendant was convicted of was

a crime of violence and menacing is in fact a crime of vio-

lence.” The district court applied the 16-level enhancement

and sentenced Melchor-Meceno to a seventy-five month term

of imprisonment.2 The district court found Melchor-Meceno

1

In 1995, the Colorado Delta County district attorney filed an Amended

Information charging Melchor-Meceno with felony menacing under Colo-

rado Revised Statute (C.R.S.) § 18-3-206. Count 2 of the Amended Infor-

mation stated that:

On or about August 10, 1994, in Delta County, Colorado, MER-

CED MELCHOR MECENO, by threat and physical action and

by use of a deadly weapon, to-wit: a .22 cal. automatic pistol, did

unlawfully feloniously and knowingly place and attempt to place

Andronaco B.M. in fear of imminent serious bodily injury; in

violation of C.R.S. 18-3-206. FELONY MENACING (F-5).

Melchor-Meceno pleaded guilty to “Count 2 of the Amended Informa-

tion which charges the crime of Felony Menacing in violation of C.R.S.

18-3-206, a class 5 felony.” The factual basis in Melchor-Meceno’s Plea

Agreement stated:

On August 10, 1994, in Delta, Colorado, the defendant became

angry with Marta A.C.B. for talking to a boyfriend on the tele-

phone. The defendant took the weapon from his vehicle after

which he pointed at Andronaco B.M. During a scuffle for the

weapon (pistol) it went off wounding Marta.

The Amended Information also charged Melchor-Meceno in Count 1

with second degree assault. However, the government has not argued that

the assault conviction is a crime of violence.

2

The district court found a criminal history category V, a base offense

level of 8, a 16-level enhancement for deportation after a crime of vio-

lence, a 2 point deduction for acceptance of responsibility, and a 1 point

deduction for cultural assimilation, leaving a total offense level of 21 and

a sentencing range of 70 to 87 months.

13280 UNITED STATES v. MELCHOR-MECENO

was convicted of a crime of violence, but did not specifically

state whether the court applied the categorical or modified

categorical approach in making such a finding. Melchor-

Meceno argues, on appeal, that the statute could not be found

to be a crime of violence under either the categorical or modi-

fied categorical approach.

II. STANDARD OF REVIEW

“We review de novo a sentencing court’s interpretation of

the Guidelines, including its determination whether a prior

conviction is a crime of violence for the purposes of U.S.S.G.

§ 2L1.2.” United States v. Laurico-Yeno, 590 F.3d 818, 820

(9th Cir. 2010) (citation and internal quotation marks omit-

ted).

III. CRIME OF VIOLENCE ENHANCEMENT

To determine whether a C.R.S. § 18-3-206 felony convic-

tion for menacing is a categorical “crime of violence” for pur-

poses of U.S.S.G. § 2L1.2, we apply the approach set forth in

Taylor v. United States, 495 U.S. 575 (1990). See United

States v. Grajeda, 581 F.3d 1186, 1189 (9th Cir. 2009); see

also Laurico-Yeno, 590 F.3d at 820-21. “Under [the categori-

cal] approach, we do not look to the facts of the underlying

conviction, but rather to the state statute defining the convic-

tion.” Laurico-Yeno, 590 F.3d at 821. “In order for a violation

of the state statute to qualify as a predicate offense, the full

range of conduct covered by the state statute must fall within

the scope of the federal statutory provision.” Id. (citation,

alteration and internal quotation marks omitted). Therefore, to

determine whether the state statute falls within the scope of

the federal statutory provision, we look at the least egregious

end of the state statute’s range of conduct. See id. We com-

pare the terms of U.S.S.G. § 2L1.2 with the elements of the

state statute. See id.

If the state conviction is a categorical crime of violence

then “our inquiry is complete.” Grajeda, 581 F.3d at 1189. “If

UNITED STATES v. MELCHOR-MECENO 13281

not, we turn to the modified categorical approach to determine

if there is sufficient evidence in the record to conclude that

[Melchor-Meceno] was convicted of the elements of the

generically defined crime.” Id. (citations, alterations and inter-

nal quotation marks omitted). Because we conclude that the

state conviction is categorically a crime of violence, we do

not apply the modified categorical approach here.

IV. DISCUSSION

[1] Under U.S.S.G. § 2L1.2, a 16-level enhancement is

warranted “[i]f the defendant previously was deported, or

unlawfully remained in the United States, after (A) a convic-

tion for a felony that is . . . (ii) a crime of violence.” U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) (2007). An offense constitutes a crime of

violence if it is one of the enumerated offenses3 or if the crime

“has as an element the use, attempted use, or threatened use

of physical force against the person of another.” U.S.S.G.

§ 2L1.2, cmt. n.1(B)(iii) (2007). This is referred to as the ele-

ment prong or test. See Grajeda, 581 F.3d at 1189.

Under the element prong, the nature of the crime should

“be in the category of violent, active crimes.” Laurico-Yeno,

590 F.3d at 821 (citation and internal quotation marks omit-

ted). A minimal, nonviolent touching or threat to general

safety does not constitute sufficient force. See Johnson v.

United States, 130 S.Ct. 1265, 1268, 1269-70 (2010) (holding

that a “Florida felony offense of battery by actually and inten-

tionally touching another person [does not have] as an ele-

ment the use of physical force” because the offense may occur

by the slightest offensive touching (alterations and internal

3

The enumerated offenses include “murder, manslaughter, kidnapping,

aggravated assault, forcible sex offenses (including where consent to the

conduct is not given or is not legally valid, such as where consent to the

conduct is involuntary, incompetent, or coerced), statutory rape, sexual

abuse of a minor, robbery, arson, extortion, extortionate extension of

credit, [and] burglary of a dwelling.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iii)

(2007).

13282 UNITED STATES v. MELCHOR-MECENO

quotation marks omitted)); see also United States v. Jones,

231 F.3d 508, 519 n.6, 520 (9th Cir. 2000) (concluding that

a stalking statute requiring a “threat with the intent to place

[a] person in reasonable fear for his or her safety” was not a

crime of violence because a threat to general safety did not

mean only physical safety).

[2] In addition to requiring a certain degree of force, “a

predicate offense must [also] require intentional use,

attempted use, or threatened use of force to constitute a crime

of violence under § 2L1.2; neither recklessness nor negli-

gence is enough.” Grajeda, 581 F.3d at 1191 (citations omit-

ted). Such intentionality may be found in a general intent

crime. See Grajeda, 581 F.3d at 1196-97 (holding that assault,

a general intent crime, satisfied the mens rea requirement for

a crime of violence, because it requires “an intentional act and

actual knowledge of those facts sufficient to establish that the

act by its nature will probably and directly result in the appli-

cation of physical force against another” (citation and internal

quotation marks omitted)).

[3] We must then compare this guideline language (as

defined by the statute and case law) to the Colorado menacing

statute. The statute provides:

A person commits the crime of menacing if, by any

threat or physical action, he or she knowingly places

or attempts to place another person in fear of immi-

nent serious bodily injury. Menacing is a class 3 mis-

demeanor, but, it is a class 5 felony if committed: (a)

By the use of a deadly weapon or any article used or

fashioned in a manner to cause a person to reason-

ably believe that the article is a deadly weapon; or

(b) By the person representing verbally or otherwise

that he or she is armed with a deadly weapon.4

4

The fact that C.R.S. § 18-3-206 permits a misdemeanor or felony

charge does not preclude our categorical analysis. See Laurico-Yeno, 590

UNITED STATES v. MELCHOR-MECENO 13283

C.R.S. § 18-3-206. Under C.R.S. § 18-3-206, “[m]enacing,

whether a misdemeanor or a felony, is a general intent crime.”

People v. Dist. Court of Colorado’s Seventeenth Judicial

Dist., 926 P.2d 567, 571 (Colo. 1996) (en banc) (citation and

footnote reference omitted). “Serious bodily injury means

bodily injury which, either at the time of the actual injury or

at a later time, involves a substantial risk of death, a substan-

tial risk of serious permanent disfigurement, a substantial risk

of protracted loss or impairment of the function of any part or

organ of the body, or breaks, fractures, or burns of the second

or third degree.” C.R.S. § 18-1-901(p).

[4] Comparing the guideline language to felony menacing

under C.R.S. § 18-3-206, the statute is categorically a crime

of violence under the element prong of U.S.S.G. § 2L1.2. The

nature of the force required for felony menacing is in the cate-

gory of violent active crimes, because it penalizes imminent

serious bodily injury, rather than a minimal, non-violent

touching, and necessarily involves a threat to physical safety,

rather than general safety. Furthermore, the predicate offense

of menacing, a general intent crime, includes the requisite

mens rea of intent for a crime of violence. It requires the

defendant to knowingly place another person in fear of immi-

nent serious bodily harm.

A. Use of Physical Force

Melchor-Meceno asserts that his felony menacing convic-

tion is categorically not a crime of violence because it does

not require active violent force.

F.3d at 821-23 (holding that a Cal. Penal Code § 273.5 conviction for will-

ful infliction of a corporal injury is a categorical “crime of violence” even

though the statute of conviction was a wobbler statute permitting a defen-

dant to be charged with either a felony or misdemeanor); see also Cal.

Penal Code § 273.5; People v. Sillas, 123 Cal. Rptr. 2d 340, 341 (Cal. Ct.

App. 2002) (concluding that Cal. Penal Code § 273.5 is a wobbler statute).

13284 UNITED STATES v. MELCHOR-MECENO

It is impossible to conceive of a situation involving fear of

imminent serious bodily injury without a threat of force. See

United States v. De La Fuente, 353 F.3d 766, 771 (9th Cir.

2003) (holding that “a criminal statute requiring the creation

and use of a fear of unlawful injury includes the element of

a threatened use of physical force” (citations, alterations and

internal quotation marks omitted)).

Other circuits have similarly concluded that menacing

involves a threat of force. The Tenth Circuit expressly held

that a felony menacing conviction under C.R.S. § 18-3-206

constitutes a violent felony under the Armed Career Criminal

Act (ACCA)5 because “[k]nowingly placing someone in fear

by the use of a deadly weapon certainly constitutes threaten-

ing someone.” United States v. Herron, 432 F.3d 1127, 1138

(10th Cir. 2005) (alteration and internal quotation marks omit-

ted); see also United States v. Hernandez, 568 F.3d 827, 831

(10th Cir. 2009) (concluding that an offense requiring “the

purposeful threatened use of physical force against the person

of another” constitutes a violent felony (emphasis omitted)).

The Third, Sixth, and Eleventh Circuits have also held that

similar menacing statutes constitute crimes of violence under

18 U.S.C. § 16(a), which defines a crime of violence as “an

offense that has as an element the use, attempted use, or

threatened use of physical force against the person or property

of another.”6 See Singh v. Gonzales, 432 F.3d 533, 539 (3d

Cir. 2006) (holding that a conviction under a statute providing

that “[a] person is guilty of assault if he attempts by physical

menace to put another in fear of imminent serious bodily inju-

ry” qualified as a crime of violence (citation and alteration

5

Similar to U.S.S.G. § 2L1.2, cmt. n.1(B)(iii), the ACCA provides that

a violent felony “means any crime punishable by imprisonment for a term

exceeding one year . . . that . . . has as an element the use, attempted use,

or threatened use of physical force against the person of another.” 18

U.S.C. § 924(e)(2)(B)(I).

6

“[T]he relevant definitions under [18 U.S.C.] § 16(a) and U.S.S.G.

§ 2L1.2 are identical,” making the reasoning behind each interchangeable.

Grajeda, 581 F.3d at 1190 (citation and footnote reference omitted).

UNITED STATES v. MELCHOR-MECENO 13285

omitted)); United States v. Page, 167 F.3d 325, 332 n.5 (6th

Cir. 1999) (concluding that a menacing statute prohibiting

“knowingly causing another to believe that the offender will

cause physical harm to the person” satisfied the definition of

a crime of violence (alteration and citation omitted)); United

States v. Drummond, 240 F.3d 1333, 1337 (11th Cir. 2001)

(determining that a menacing offense that required the defen-

dant to “intentionally place[ ] or attempt[ ] to place another in

fear of physical injury, serious injury, or death by displaying

a deadly weapon or instrument,” was a crime of violence

(citation omitted)).

[5] Colorado menacing is distinguishable from cases where

the defendant caused injury by deception rather than physical

force. The Colorado menacing statute requires the defendant

to cause fear of injury rather than simply causing the injury

itself. Cf. United States v. Beltran-Munguia, 489 F.3d 1042,

1046 (9th Cir. 2007) (determining that sexual abuse was not

a crime of violence because the defendant could commit the

offense “by surreptitiously adding to his victim’s drink a drug

that affects one’s judgment”). The means of placing a person

in fear of imminent serious bodily injury is a threat of force.

We have only found one case holding that Colorado felony

menacing is not a categorical crime of violence. See United

States v. Perez-Veleta, 541 F. Supp. 2d 1173 (D. N.M. 2008).

The district court in Perez-Veleta reasoned that, because Col-

orado defines “deadly weapon” as including materials and

substances, then “one can place another in imminent fear

through the use of smoke or poison,” which does not neces-

sarily include force. Id. at 1179 (citing C.R.S.§ 18-1-901(e)).

We find Perez-Veleta unpersuasive. One cannot knowingly

place another in fear of being poisoned without threatening to

force the poison on the victim. See De La Fuente, 353 F.3d

at 770-71 (concluding that a threat of anthrax poisoning con-

stituted a threat of force because the defendant’s “letters

clearly threatened death by way of physical contact with

anthrax spores”).

13286 UNITED STATES v. MELCHOR-MECENO

Melchor-Meceno also argues that menacing does not con-

stitute a crime of violence, because the offense includes hold-

ing a weapon to the side rather than pointing it at a person.

This argument lacks merit. Holding a weapon to one’s side

constitutes a threat of physical force,7 and a threat of physical

force is sufficient to constitute a crime of violence under

U.S.S.G. § 2L1.2.

[6] We conclude that C.R.S. § 18-3-206 requires active

violent force. It requires some threat or physical action know-

ingly causing or attempting to cause fear of imminent serious

bodily injury.

B. Mens Rea

Melchor-Meceno argues that his menacing conviction is

not categorically a crime of violence, because the menacing

statute only requires recklessness and is missing the mens rea

element of intentional use or threatened use of violent force.

[7] Melchor-Meceno failed to cite any cases demonstrating

that menacing is a crime of recklessness. Rather, menacing is

a general intent crime that requires the defendant to know-

ingly place another person in fear of imminent serious bodily

harm. See Dist. Court of Colorado’s Seventeenth Judicial

Dist., 926 P.2d at 571; see also C.R.S. § 18-3-206.

7

The Colorado courts have held that “[b]ecause felony menacing is

committed when a person knowingly places or attempts to place another

in fear of imminent serious bodily injury by using or threatening use of a

deadly weapon, it necessarily involves the threat of force.” People v. Mon-

tez, No. 07CA0139, 2010 WL 961652, at *6 (Colo. Ct. App. March 18,

2010) (citing People v. Gallegos, 563 P.2d 937, 938-39 (Colo. 1977) (en

banc)); see also People v. Hines, 780 P.2d 556, 559 (Colo. 1989) (en banc)

(concluding that “an offender may commit felony menacing by the use of

a firearm without actually pointing the firearm at another person” (internal

quotation marks omitted)); People v. Shawn, 107 P.3d 1033, 1035 (Colo.

Ct. App. 2004) (concluding that scratching and pinching the victim while

stating “I’m HIV positive” constituted felony menacing).

UNITED STATES v. MELCHOR-MECENO 13287

[8] Therefore, the predicate offense of menacing includes

the requisite mens rea of intent for a crime of violence. See

Grajeda, 581 F.3d at 1197 (holding that assault, a general

intent crime requiring an intentional act and actual knowledge

that the act will probably result in the application of physical

force, satisfies the mens rea requirement for a crime of vio-

lence).

V. CONCLUSION

[9] Because the Colorado menacing statute involves active

violent force and satisfies the mens rea requirement, we hold

that it is categorically a crime of violence within U.S.S.G.

§ 2L1.2 and that enhancement of Melchor-Meceno’s sentence

was proper.

Melchor-Meceno’s motion to strike Appellee’s Supplemen-

tal Excerpts of Record is denied.

AFFIRMED.