United States v. Martinez-Martinez

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 06-10015

Plaintiff-Appellee,

v.  D.C. No.

CR-05-1030-DCB

PEDRO MARTINEZ-MARTINEZ,

OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the District of Arizona

David C. Bury, District Judge, Presiding

Argued and Submitted

October 16, 2006—San Francisco, California

Filed November 14, 2006

Before: Pamela Ann Rymer and Sidney R. Thomas,

Circuit Judges, and Stephen G. Larson,* District Judge.

Opinion by Judge Larson

*The Honorable Stephen G. Larson, United States District Judge for the

Central District of California, sitting by designation.

18517

18520 UNITED STATES v. MARTINEZ-MARTINEZ

COUNSEL

Roger H. Sigal, Law Offices Roger H. Sigal, Tucson, Ari-

zona, for the defendant-appellant.

Elizabeth Berenguer, Assistant United States Attorney, Tuc-

son, Arizona, for the plaintiff-appellee.

UNITED STATES v. MARTINEZ-MARTINEZ 18521

OPINION

LARSON, District Judge:

Pedro Martinez-Martinez pled guilty to illegal reentry into

the United States after being deported following a conviction

for a felony and was sentenced to forty-six months in federal

prison. This case presents the question of whether, in comput-

ing Martinez-Martinez’s prison sentence, the district court

erred in treating Martinez-Martinez’s prior state-court convic-

tion in Arizona for discharging a firearm at a residential struc-

ture as a “crime of violence” under United States Sentencing

Guidelines (“USSG”) section 2L1.2(b)(1)(A)(ii). For the rea-

sons set forth below, we find that the district court did so err.

I. PROCEDURAL HISTORY

On June 28, 2005, Martinez-Martinez pled guilty to one

count of unlawfully re-entering the United States after being

deported following a conviction for a felony in violation of 8

U.S.C. § 1326. This was not the first time Martinez-Martinez

had been found residing in this country illegally. Martinez-

Martinez was deported in 2002 following a one-year state

prison sentence in Arizona for discharging a firearm at a resi-

dential structure, a violation of Arizona Revised Statutes § 13-

1211, and for endangerment, a violation of Arizona Revised

Statutes § 13-1201. Martinez-Martinez illegally re-entered

this country the following year, was detained by border patrol

agents, pled guilty to violating section 1326, served eight

months in federal prison, and was again deported. On April

27, 2005, a border patrol agent apprehended Martinez-

Martinez in Willcox, Arizona, leading to the present charges

against him.

Martinez-Martinez filed objections to the pre-sentence

report, which recommended that the base offense level for his

crime should be increased from eight to twenty-four for hav-

ing been previously convicted of a crime of violence, namely,

18522 UNITED STATES v. MARTINEZ-MARTINEZ

his 2001 conviction in Arizona state court for discharging a

firearm at a residential structure. At the sentencing hearing,

the district court overruled Martinez-Martinez’s objection to

treating his prior conviction as a crime of violence, pointing

to this court’s decision in United States v. Cortez-Arias, 403

F.3d 1111 (9th Cir. 2005), where we found that California’s

statute barring the discharge of a firearm at an “inhabited

dwelling house” was a crime of violence. The district court

found that the Arizona statute in Martinez-Martinez’s case

was equivalent to the one under review in Cortez-Arias

because the Arizona statute barred discharging a firearm at a

“residential structure.” The district court found the statute’s

reference to a residence as sufficient to fall within our deci-

sion in Cortez-Arias. Essentially, the district court equated the

statutory use of the term residence with that of a person’s

present home. Significantly, the district court did not inquire

into what the Arizona statute meant by “residential structure”

and whether that definition went beyond the California statute

we reviewed in Cortez-Arias. This appeal followed.

II. WHAT CONSTITUTES A CRIME OF VIOLENCE?

In determining whether a state criminal statute is a “crime

of violence,” we must follow the path set for us in Taylor v.

United States, 495 U.S. 575 (1990) — we look to the statutory

elements of the prior offense, not the underlying conduct giv-

ing rise to the offense itself or the statutory label affixed to the

crime in question, and compare it to the generic definition of

the offense. See Huerta-Guevara v. Ashcroft, 321 F.3d 883,

887 (9th Cir. 2003) (court “make[s] a categorical comparison

of the elements of the statute of conviction to the generic defi-

nition [of a ‘crime of violence’], and decide[s] whether the

conduct proscribed [by the state statute] is broader than, and

so does not categorically fall within, this generic definition”

(citing Chang v. INS, 307 F.3d 1185, 1189 (9th Cir. 2002))).

Such a categorical approach is an outgrowth of the fact that

USSG section 2L1.2 refers to predicate offenses not in terms

UNITED STATES v. MARTINEZ-MARTINEZ 18523

of the defendant’s prior conduct but to his prior “convictions”

and the “elements” of that prior offense.

A limited exception exists to this categorical approach.

Taylor recognized that state criminal statutes that define their

offenses broadly enough to go beyond that covered by the

generic definition may nonetheless be used to enhance a

defendant’s sentence when the defendant’s prior conviction

necessarily rested on those elements identifying the crime as

a generic offense. 495 U.S. at 602. Significant for this case,

in conducting this modified categorical approach in cases

where the prior conviction was obtained through a guilty plea,

the Supreme Court has limited the court’s review to those

documents “made or used in adjudicating guilt” such as “the

terms of the charging document, the terms of a plea agree-

ment or [the] transcript of [the] colloquy between judge and

defendant in which the factual basis for the plea was con-

firmed by the defendant, or to some comparable judicial

record of this information.” Shepard v. United States, 544

U.S. 13, 20, 26 (2005).

[1] At the outset some background is in order. The sentenc-

ing enhancement at issue in this case provides that the base

offense level for a person convicted of violating section 1326

is eight. See USSG § 2L1.2(a). That base level, however, is

increased by sixteen if the defendant was “previously . . .

deported . . . after a conviction for a felony that is . . . a crime

of violence . . . .” USSG § 2L1.2(b)(1)(A)(ii). The commen-

tary to this section of the Sentencing Guidelines defines a

“crime of violence” as including those offenses “under fed-

eral, state, or local law that [have] as an element the use,

attempted use, or threatened use of physical force against the

person of another.” USSG § 2L1.2, cmt. n. 1(B)(iii) (2006).

As we noted in Cortez-Arias, “[n]either this guideline nor its

commentary in explicit words refer to [what] crimes involve

‘conduct that presents a serious risk of physical injury to

another.’ ” 403 F.3d at 1114. Cortez-Arias filled this gap in

18524 UNITED STATES v. MARTINEZ-MARTINEZ

the context of an offense involving the discharge of a firearm

at structures.

The primary issue pressed by the parties in this case con-

cerns the scope of the generic definition for a crime of vio-

lence with respect to state laws proscribing the discharge of

firearms at buildings pursuant to Cortez-Arias. Posed another

way, what was it about the California statute at issue in

Cortez-Arias that convinced this court that a conviction for

violating that statute amounted to a “crime of violence”? Only

by understanding this point can we determine whether Arizo-

na’s comparable statute meets the generic definition and, if

not, whether any judicially noticeable document demonstrates

that Martinez-Martinez’s 2001 prior conviction necessarily

rested on those elements we identified in Cortez-Arias that

render the crime a generic offense.

III. CALIFORNIA STATUTE AT ISSUE IN

CORTEZ-ARIAS

The particular statute under review in Cortez-Arias was

California Penal Code section 246. The statute provided, in

relevant part, that “[a]ny person who shall maliciously and

willfully discharge a firearm at an inhabited dwelling house

. . . is guilty of a felony,” and further provided that “ ‘inhab-

ited’ means currently being used for dwelling purposes,

whether occupied or not.” CAL. PENAL CODE § 246. In deter-

mining whether a violation of section 246 was a “crime of

violence” under USSG section 2L1.2, we first noted that,

under California law, an “inhabited dwelling house” has

invariably been described as meaning one’s home. Cortez-

Arias, 403 F.3d at 1115 (citing People v. White, 4 Cal.App.4th

1299, 1301-03 (1992) (labeling an “inhabited dwelling house”

as one that is “lived in” or where “a person currently and per-

manently lives”)). It was the present occupancy of the struc-

ture in question that drove California courts to remark that

commission of the offense “always present[ed] a potential for

violence” and involved “a high probability that death will

UNITED STATES v. MARTINEZ-MARTINEZ 18525

result and therefore is an inherently dangerous felony.” Id.

(quoting White, 4 Cal.App.4th at 1305 and People v. Hansen,

9 Cal.4th 300, 309 (1994)).

[2] With this understanding of the nature of the statutory

offense at issue, we next gave meaning to the Guideline’s ref-

erence to the “threatened use of physical force against the per-

son of another” as including “acts that communicate to

another person an intent to use physical force against that per-

son and acts suggesting that physical force against that person

may be impending.” Id. at 1116. Taking this definition and

applying it to the context of discharging a firearm at a struc-

ture, we noted that such an offense would qualify as a “crime

of violence” where the structure in question was that person’s

current and permanent residence, even if the person was not

inside the structure at the time the firearm was discharged at

it. As we explained:

A person whose home is shot up by an instrument

of deadly force, even though that person may have

been absent at the time of the shooting, will surely

feel threatened by the physical force that has

intruded on his or her home. We hold that mali-

ciously and willfully shooting a gun at a person’s

current permanent residence necessarily threatens

the use of physical force against the resident, regard-

less of whether the resident is home at the time the

shot is fired.

Id. In essence, it is the psychological link a person makes

between his or her home and his or her personhood that

prompted us to find that an attack against one is a threat to the

other.

IV. THE GOVERNMENT’S POSITION

The government posits that our decision in Cortez-Arias is

far broader than the statements in that decision would suggest.

18526 UNITED STATES v. MARTINEZ-MARTINEZ

By pointing to a few California appellate court decisions, the

government contends that California Penal Code section 246

has been “interpreted . . . as including dwellings in which the

resident is temporarily absent.” That a person may be absent

from their home, however, is not what this court found to be

determinative insofar as the generic offense was concerned.

We allowed for such absence from the structure in question.

See 403 F.3d at 1116 (noting shooting a firearm at a structure

even if the owner was “absent at the time of the shooting” did

not alter the analysis that the offense met the generic defini-

tion). The occupant’s presence was not what was critical in

making the shooting at the structure a crime of violence;

rather, it was the fact that the structure in question was one’s

current and permanent home that was determinative.

Moreover, most of the cases cited by the government stand

for the unremarkable proposition that a dwelling is considered

inhabited even if the person is still in the midst of moving in

or moving out of the residence, see People v. Hughes, 27

Cal.4th 287 (2002); People v. Hernandez, 9 Cal.App.4th 438

(1992), or where a tenant intends to move out but has yet to

start actually moving out of the dwelling, see People v. Jack-

son, 6 Cal.App.4th 1185 (1992). Nothing in those cases con-

tradicts our statement in Cortez-Arias that California Penal

Code section 246 required the residence in question to be

one’s “home” in order for it to fall within that statute’s provi-

sions. Id. at 1116.

Even the one case that appears at first blush to be the most

helpful in the government’s cause, People v. Marquez, 143

Cal.App.3d 797 (1983), does not, in the end, change the cal-

culus framed in Cortez-Arias. In Marquez, the California

appellate court found that a house was still considered inhab-

ited even though the resident had been absent from the home

for over two-and-a-half years under a conservatorship. 143

Cal.App.3d at 802. Such a lengthy absence may well convey

the impression that the home had been abandoned by the

owner and thereby reinforce the government’s contention

UNITED STATES v. MARTINEZ-MARTINEZ 18527

concerning the breadth of section 246. The court in Marquez,

however, stressed that, if in fact the owner had abandoned the

home, the defendant would not have been liable for first-

degree burglary. Id. The court observed that whether a dwell-

ing is considered inhabited turns on its “present use rather

than past or future intended use . . . .” Id. at 801 (emphasis

added). As that court explained:

Just as we look to the intent of the intruder at the

time of entry in determining whether the crime of

burglary was committed, so must we look to the

intent of the occupier or person entitled to occupy

the dwelling to determine if it is inhabited within the

meaning of Penal Code section 459. . . .

There is no evidence in the record that Lindemann

or her conservators acting on her behalf ever vacated

or abandoned her residence to live in some other

place. . . . It is the intent and not the length of

absence which controls.

Id. at 801-802. Far from suggesting that a discharge of a fire-

arm into an abandoned dwelling would fall within the stat-

ute’s sweep, Marquez provides that only so long as someone

has a present intention to keep a dwelling as their current and

permanent home (even if they are temporarily absent from the

same) will the burglary statute apply. It is this precise element

that we found in Cortez-Arias was necessary for section 246

to fall within the generic definition of a state law that “has as

an element the use, the attempted use, or threatened use of

physical force against the person of another.”

[3] Finally, even if the government is correct that California

defines inhabited dwelling so as to include temporarily aban-

doned structures, this does not undermine our independent

determination in Cortez-Arias as to what suffices to meet the

generic definition of a “crime of violence” — that only by

shooting at a person’s “current and permanent residence” can

18528 UNITED STATES v. MARTINEZ-MARTINEZ

someone threaten the person of another because one’s home

is so intimately intertwined into their physical being and feel-

ings of security and well-being. One can be mistaken as to the

former without vitiating the legal soundness of the latter. It is

that principle of law from Cortez-Arias that guides our deci-

sion as to whether Arizona Revised Statutes section 13-1211

falls within the generic definition for a “crime of violence.”

V. ARIZONA STATUTE AT ISSUE HERE

[4] Arizona Revised Statutes section 13-1211 provides, in

relevant part, that “[a] person who knowingly discharges a

firearm at a residential structure is guilty of a class 2 felony.

. . . For the purposes of this section: . . . ‘[r]esidential struc-

ture’ means a movable or immovable or permanent or tempo-

rary structure that is adapted for both human residence or

lodging [and] ‘[s]tructure’ means any building, vehicle, rail-

road car or place with sides and a floor that is separately

securable from any other structure attached to it and that is

being used for lodging, business or transportation.”

The parties have not cited to, nor have we been able to find,

any Arizona state court opinion construing section 13-1211’s

terms. One Arizona state appellate court opinion did, in pass-

ing, describe section 13-1211 as “knowingly discharging a

firearm at an occupied residence, a class 2 dangerous felony

. . . .” State v. Cutright, 2 P.3d 657, 659 (Ariz Ct. App. 1999),

overruled on other grounds by, State v. Miranda, 22 P.3d 506

(Ariz. 2001). Reference by that court to section 13-1211 as

involving an “occupied” residence certainly could meet this

court’s generic definition of a “crime of violence.” See United

States v. Lopez-Torres, 443 F.3d 1182, 1185 (9th Cir.

2006)(“Because the other places enumerated in section 246—

motor vehicles, buildings, and air craft—must be occupied,

shooting at one of these places also involves ‘the use,

attempted use, or threatened use of physical force against the

person of another,’ and qualify as a crime of violence under

§ 2L1.2”). To commit the offense the defendant would have

UNITED STATES v. MARTINEZ-MARTINEZ 18529

to discharge his firearm at a structure that was “occupied” by

someone. The existence of a present occupant to the structure

attacked by the defendant would have all the hallmarks we

held in Cortez-Arias as making the offense one where there

is a threat of force to the person of another — a structure that

is closely associated by a person with their own physical

integrity. That said, the state court decision did not so much

construe section 13-1211 as it simply came up with a short-

hand way of referring to it; Cutright did not explicate the stat-

ute’s elements or seek to elucidate their meaning.

With no state court opinion construing the statute’s ele-

ments, we must begin with the statute itself. Martinez-

Martinez asserts that the statute’s terms include structures

ranging far beyond those traditionally conceived as a person’s

home, and include structures such as a person’s temporary, as

opposed to permanent, residence. Addressing each point in

turn, we find that neither construction is worthy of credence.

That the statute includes structures such as railroad cars or a

lean-to made up of cardboard and other make-shift materials

is not itself a fault for purposes of this case. Such structures

are commonly used by the homeless as a shelter from the ele-

ments. That a structure may be dilapidated does not make it

any less a person’s home. Fault would only lie if the statute

covered such structures without requiring that they be a per-

son’s present home.

Martinez-Martinez’s repeated refrain that section 13-1211

covers “temporary residences” fares no better. His argument

conflates two distinct concepts contained in section 13-1211:

When section 13-1211 employs the word “temporary” it does

so in relation to and to modify the term “structures,” not the

length or duration of the person’s residence. By noting that

“temporary” as well as other types of “structures” were cov-

ered under the statute’s prohibitions, the state legislature

sought to capture as many structures as possible that individu-

als might use as their home, from buildings traditionally asso-

18530 UNITED STATES v. MARTINEZ-MARTINEZ

ciated with a person’s living quarters to such transitory

structures as a tent or a lean-to.

[5] When speaking of the nature of the residence — the

occupancy question that is central to the question presented in

this case — the statute covers those structures “adapted for

both human residence or lodging.” That the structure is one

that has been “adapted” for human residence could certainly

connote that the structure is presently being used for such res-

idence. The word adapt is written in the past tense, meaning

that whatever made the structure a residence or lodging

occurred before the offense in question took place. Indeed, the

word adapted is defined as “fitted.” Oxford English Dictio-

nary (2nd ed. 1989). If something has been fitted as a resi-

dence one could reasonably envision it as currently serving as

one as well. That being said, adapted can also simply denote

that the structure is capable of being inhabited, not that it is,

in fact, inhabited. The dictionary defines adapted as also

meaning “fit” or “suitable.” Id. If something is simply capable

of being a residence, instead of actually serving as one, then

the commission of the offense under Arizona law would not

square with our holding in Cortez-Arias; it would be difficult

to conceive of a sufficiently close connection existing

between a person and a currently unoccupied, uninhabited

structure (even if it is capable of being used as a residence at

any time). Under the reasoning of Cortez-Arias, for there to

be a threat to one’s person, the structure attacked by a firearm

must have an individual whose sense of self is closely con-

nected to that structure; the only instance in which we have

found such a close connection is when the structure is some-

one’s current home.

Given the ambiguity of the statutory terms on the critical

issue in this case, the government has pointed to parts of the

statute’s rather sparse legislative history to buttress its argu-

ment that section 13-1211 covers only presently inhabited res-

idences. There are statements from individuals who testified

in support of section 13-1211’s passage that the meaning of

UNITED STATES v. MARTINEZ-MARTINEZ 18531

“residential structure” was “meant to be a home,” and that the

statute’s purpose “was to cover those individuals who get out

of a car to do a drive-by shooting.” Hearing on H.B. 2001,

H.B. 2056, H.B. 2002, and H.B. 2011 Before the H. Commit-

tee on the Judiciary, 42nd Leg., 3rd Spec. Sess. 2-3 (Jan. 17,

1996) (statements of William Perry, Chief Criminal Deputy of

the Pinal County Attorney’s Office, and Fred Griisser, a rep-

resentative of the NRA).

The remark in the committee hearing on section 13-1211

that the statute was meant to protect a person’s “home” is

undermined by the speaker’s further statement regarding the

breadth of the statutory language in accomplishing that goal.

The speaker expressed concern that, while “[t]he intent of

‘structure’ is meant to be a home . . . , as written, [it] could

be construed to mean any structure.” Hearing on H.B. 2002

Before the House Committee on the Judiciary, 42nd Leg., 3rd

Spec. Sess. 3 (Jan. 17, 1996) (statement of Fred Griisser).

Finding fault with “the broadness of the definition,” the

speaker urged state legislators to “amend [the] language to be

more specific” to cover only the discharge of a firearm at

one’s home instead of “some individuals [who] practice target

shooting at vehicles.” Id. The state legislators rejected the

suggestion, expressing “satisfaction with the [statute’s] lan-

guage . . . as written,” and even opining that “any reasonable

person can make a distinction between target practice and the

actual shooting at an object, structure, etc.,” making it unnec-

essary “to amend [the] language to make the distinction.” Id.

(statements of Chairman Smith and Mr. Mortensen).

Although these statements during the drafting of section 13-

1211 certainly would support the notion that the statute at

least covers presently inhabited structures, nothing in those

statements connotes that such a purpose was to the exclusion

of also covering presently uninhabited, but capable of being

inhabited, structures. The legislators were made aware that the

statute’s provisions as written were susceptible to being con-

strued very broadly, but did nothing to attempt to cabin the

statute’s reach.

18532 UNITED STATES v. MARTINEZ-MARTINEZ

With the statute’s terms open to debate and the legislative

history not illuminating on the topic, the parties have directed

our attention to use of the term “residential structure” in other

statutory provisions, most notably Arizona’s residential bur-

glary statute. As both section 13-1211 and the Arizona bur-

glary statute utilize the same terms and, indeed, define those

terms nearly identically, the case law elucidating the meaning

of those same terms as used in the burglary statute is applica-

ble to understanding the scope of section 13-1211’s terms.1

Martinez-Martinez argues that the state appellate court

decision in State v. Bass, 911 P.2d 549 (Ariz. Ct. App. 1995),

demonstrates that a residential structure includes a building

that has “never yet served” as a residence. His argument is not

supported by the facts or holding in that case. In Bass, the

court was called upon to decide whether someone who bur-

glarized “an almost-completed log cabin home” was guilty of

second-degree burglary. In answering this question, whether

the log cabin qualified as a residential structure was critical,

as only breaking and entering into a residential structure qual-

ifies as second-degree burglary. As recounted by the state

court, “[a]t the time of the burglary, the cabin shell was up,

the roof was installed, and the windows were in, but the

plumbing and electrical systems were not operative, and the

doors had not been installed. The cabin had passed ‘rough-in

final’ inspection but had not received a certificate of occupan-

cy.” Id. at 550. Despite the nearing completion of the log

cabin, the court held that “the State failed to present substan-

tial evidence that the almost-completed cabin” was “adapted

for both human residence and lodging.” Id. at 552. Bass thus

stands for the proposition that, unless and until a structure is

1

Arizona’s burglary statute classifies the entry into a “residential struc-

ture” with the intent to commit a felony therein as second-degree burglary,

a class three felony. See Ariz. Rev. Stat. § 13-1507. The term “residential

structure” in turn is defined as “any structure, movable or immovable, per-

manent or temporary, adapted for both human residence and lodging

whether occupied or not.” Ariz. Rev. Stat. § 13-1501(11).

UNITED STATES v. MARTINEZ-MARTINEZ 18533

one where a person can in fact live, it does not qualify as a

residential structure.

The critical point for our purposes, however, is not whether

a structure must be habitable for section 13-1211’s provisions

to apply, but whether section 13-1211 requires that someone

be actually living at the structure when the offense takes

place. Other state court decisions shed light on that particular

question.

In State v. Gardella, 751 P.2d 1000, 1002 (Ariz. Ct. App.

1988), the court noted that “the word ‘residence’ as used in

the [burglary] statute embraces two concepts: (1) the word is

in contradiction to a general commercial use or a use unasso-

ciated with a home, . . . and (2) the word ‘residence’ includes

everything connected with the residential structure to make it

more suitable, comfortable or enjoyable for human occupan-

cy.” The Gardella court’s reference to a “residential struc-

ture” as one that is associated with a person’s “home”

certainly would support the notion that the present existence

of a human occupant of the structure is a necessary condition

for the offense to occur. Later cases, however, stressed the lat-

ter half of Gardella’s formulation — its suitability for habita-

tion (not its present occupancy) — in determining what is and

what is not a residential structure. Thus, in State v. Ekmanis,

901 P.2d 1210, 1212-13 (Ariz. Ct. App. 1995), the court

found that a storage room attached to a home was a “residen-

tial structure” because it made the house proper more com-

fortable or suitable for occupancy. In rendering this decision

the court specifically referenced the second half of Gardella’s

formulation. Id. This line of cases reached its fullest expres-

sion in State v. Engram, 831 P.2d 362 (Ariz. Ct. App. 1991).

There the defendant was convicted of committing a resi-

dential burglary when he broke into and attempted to steal gas

wall heaters from an apartment building that was undergoing

remodeling. At the time of the burglary, “one of the ten

[apartment] units was rented” and the others were being

18534 UNITED STATES v. MARTINEZ-MARTINEZ

remodeled. Id. at 367. Even though a lease existed as to one

of the apartment units, “there were no tenants living in the

apartments” there. Id. Indeed, the last time someone had actu-

ally been living in the apartment complex was a month prior

to the burglary. Id. The defendant argued that his conviction

was improper “because there was evidence . . . that the apart-

ments were not fit for human habitation.” Id. The state appel-

late court disagreed, noting that “all that is necessary to

support a charge of residential burglary” is that the structure

in question was “intended for residential use,” not that it was

in fact being used as a residence at the time. Id. (emphasis

added). So long as there was evidence indicating that “the

apartments were . . . suitable for residential use,” that was

enough to let the issue go to the jury to resolve whether the

defendant had committed second-degree burglary. Id. (empha-

sis added).

[6] In other words, for purposes of the crime of second-

degree burglary, a residential structure includes even one that

was presently vacant and uninhabited or not in use pending

occupation by a different occupant at the time the burglary

was committed. The state court’s focus on a structure’s suit-

ability for residency, as opposed to whether the structure was

in fact occupied, places the Arizona statute much further

afield from the conduct sought to be captured by our holding

in Cortez-Arias. If a residential structure need not even be

someone’s home (in the sense that the structure had a present

occupant) for the offense to have been committed, it is hard

to conceive how shooting a firearm at such a vacant building

would threaten the person of another, there being no one with

a close connection or identity to the structure in question such

that an attack against it would be felt as an immediate and pal-

pable threat against that person. Without some occupant (even

an absent one) to feel threatened by the attack against the

building, violating section 13-1211 simply cannot categori-

cally serve as a “crime of violence.” As that is how the Ari-

zona statute under review applies, Martinez-Martinez’s prior

UNITED STATES v. MARTINEZ-MARTINEZ 18535

conviction for discharging a firearm at a residential structure

is not categorically a conviction for a crime of violence.

VI. APPLICATION OF THE MODIFIED APPROACH

[7] If the statute criminalizes conduct that goes beyond that

which would constitute a “crime of violence” under the

generic definition, then we consider whether documentation

or other judicially noticeable facts in the record indicate that

Martinez-Martinez was convicted of the elements of the

generically defined crime. See Shepard, 544 U.S. at 20-21.

The only documentation before the district court in this case

was the plea agreement entered into by Martinez-Martinez in

the 2001 proceedings, the indictment, and the judgment of

conviction. Those documents simply show that Martinez-

Martinez was charged, later pled guilty to, and was eventually

sentenced for “knowingly discharg[ing] a firearm at a residen-

tial structure at 5977 Heather Drive, Willcox, Arizona,” in

violation of section “13-1211” that was “[s]pecifically desig-

nated [as] a non-dangerous crime for the purpose of this plea

agreement.”

[8] Recitation of the statutory elements themselves is insuf-

ficient to demonstrate that a defendant’s prior conviction nec-

essarily included the generic offense where the state statute in

question has been found to be overly broad in relation to the

generic definition for a “crime of violence.” See United States

v. Lopez-Montanez, 421 F.3d 926, 931 (9th Cir. 2005) (hold-

ing that documents submitted are insufficient when they “sim-

ply restate[ ] the language of the statute” and “merely state

that [the defendant] pled no contest to” the charged statute).

Instead, under this modified categorical approach, judicially

noticeable documents must “unequivocally establish[ ] that

the defendant was convicted of the generically defined crime,

even if the statute defining the crime is overly inclusive.” Id.

(quoting United States v. Corona-Sanchez, 291 F.3d 1201,

1211 (9th Cir. 2002)(en banc)(quotations omitted)). Similarly,

the fact that a street address is given for where Martinez-

18536 UNITED STATES v. MARTINEZ-MARTINEZ

Martinez committed his crime in no way by itself unequivo-

cally establishes that the structure in question was currently

inhabited by someone (as opposed to being one that was capa-

ble of housing someone). Such an address simply indicates

that the structure in question was located near or on a street.

Looking at the description of the other offense Martinez-

Martinez was charged with in conjunction with section 13-

1211 is similarly unavailing. Martinez-Martinez also pled

guilty to “caus[ing] a substantial risk of imminent death to

Graciela Garcia” in violation of Arizona Revised Statutes sec-

tion 13-1201 on the same day he discharged a firearm.

Although it is certainly reasonable to assume that the two

crimes were related (and perhaps took place at the same time

given that they occurred on the same day), nothing in the plea

agreement itself ties the two together in such a manner.

Martinez-Martinez could have committed the crimes at two

different places on the same day, just as he could have com-

mitted them at the same place at the same time on the same

day. If the plea agreement had noted the same address with

respect to the discharge of the firearm crime in conjunction

with the one for endangerment, then at least factual inferences

would have started taking shape from which we could begin

to accept such a factual proffer. The plea agreement, however,

does not make such a connection.

[9] Although the pre-sentence report’s recitation of the

facts underlying Martinez-Martinez’s 2001 conviction clearly

provides the nexus between the discharge of the firearm and

the occupancy of the residence, the report is an improper

source to consult. First, the exclusive source for the informa-

tion was the police reports generated at the time of Martinez-

Martinez’s arrest back in 2001. The Supreme Court has

rejected the naked consultation of police reports in performing

a modified categorical approach. See Shepard, 544 U.S. at 21-

23; cf. United States v. Espinoza-Cano, 456 F.3d 1126 (9th

Cir. 2006) (allowing consideration of police report as part of

modified categorical approach but only because the report

UNITED STATES v. MARTINEZ-MARTINEZ 18537

was incorporated by reference into the criminal complaint

underlying the prior conviction). Moreover, we have held that

“a description of the facts underlying the conviction in a pre-

sentence report” is “ ‘insufficient evidence to establish that

the defendant pled guilty to the elements of the generic defini-

tion of a crime when the statute of conviction is broader than

the generic definition.’ ” Huerta-Guevara, 321 F.3d at 888

(quoting Corona-Sanchez, 291 F.3d at 1212).

[10] Given that section 13-1211’s statutory elements

include conduct ranging beyond that we have found to cate-

gorically demonstrate that the discharge of a firearm at a

structure qualifies as a crime of violence, and because the

judicially noticeable documents tendered by the government

to the district court are insufficient to show unequivocally that

Martinez-Martinez was convicted of the generically defined

offense, the district court erred in enhancing Martinez-

Martinez’s sentence by sixteen-levels pursuant to USSG sec-

tion 2L1.2(b)(1)(A)(ii). As a result, we need not reach

Martinez-Martinez’s remaining arguments.

VII. CONCLUSION

Accordingly, the district court’s sixteen-level enhancement

of Martinez-Martinez’s sentence under USSG section

2L1.2(b)(1) is reversed and the matter is remanded for re-

sentencing in conformity with this opinion.

REVERSED AND REMANDED.