United States v. Benito Sanchez-Rodriguez

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 15-41056 FILED

July 8, 2016

Lyle W. Cayce

UNITED STATES OF AMERICA, Clerk

Plaintiff - Appellee

v.

BENITO SANCHEZ-RODRIGUEZ,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before KING, JOLLY, and ELROD, Circuit Judges.

PER CURIAM:

Defendant–Appellant Benito Sanchez-Rodriguez was convicted in 2002

of dealing in stolen property in a Florida state court. On April 30, 2015,

Sanchez-Rodriguez pleaded guilty to one count of illegal reentry in violation of

8 U.S.C. § 1326(a) and (b)(1). In sentencing him, the district court concluded

that Sanchez-Rodriguez’s 2002 Florida conviction was an aggravated felony

within the meaning of U.S.S.G. § 2L1.2(b)(1)(C). However, because the

relevant Florida statute applies to conduct outside the definition of the generic

crime under the sentencing Guidelines, we cannot agree that Sanchez-

Rodriguez’s conviction was an aggravated felony under U.S.S.G.

No. 15-41056

§ 2L1.2(b)(1)(C). Accordingly, we VACATE Sanchez-Rodriguez’s sentence and

REMAND for re-sentencing.

I. FACTUAL AND PROCEDURAL BACKGROUND

In June 2002, the State of Florida filed a three-count criminal

information against Defendant–Appellant Benito Sanchez-Rodriguez. As

relevant here, the third count charged Sanchez-Rodriguez with “Dealing in

Stolen Property,” in violation of Florida Statute § 812.019. Specifically, the

third count stated that Sanchez-Rodriguez “unlawfully traffic[ked] or

endeavor[ed] to traffic in stolen property . . . and in so doing [Sanchez-

Rodriguez] knew or should have known that said property was stolen.”

Sanchez-Rodriguez subsequently pleaded guilty to this count in Florida state

court, and he was sentenced to three years’ imprisonment, which was

suspended for three years’ probation. Following this conviction, Sanchez-

Rodriguez, who is a citizen of Mexico and who had no legal status in the United

States, was deported to Mexico in December 2002.

In May 2014, Sanchez-Rodriguez was arrested for driving while

intoxicated in Texas. Immigration and Customs Enforcement agents

encountered Sanchez-Rodriguez while he was detained at a local jail following

his arrest, and he admitted to them that he was a citizen of Mexico without

legal status in the United States. Sanchez-Rodriguez was subsequently

indicted on one count of illegal reentry in violation of 8 U.S.C. § 1326(a) and

(b)(1). On April 30, 2015, he pleaded guilty to the indictment without a plea

agreement, and the district court accepted his plea in August 2015.

A United States Probation Officer prepared a presentence investigation

report (PSR) using the 2014 edition of the United States Sentencing Guidelines

(U.S.S.G.). Under U.S.S.G. § 2L1.2(a), Sanchez-Rodriguez was assigned a base

offense level of eight. The base offense level was enhanced by eight levels

because, according to the PSR, Sanchez-Rodriguez’s 2002 Florida conviction

2

No. 15-41056

for dealing in stolen property qualified as an “aggravated felony” under

U.S.S.G. § 2L1.2(b)(1)(C). Sanchez-Rodriguez’s offense level was reduced by

three levels based on his acceptance of responsibility and his guilty plea,

yielding a total offense level of 13. See U.S.S.G. § 3E1.1. Based on his criminal

history, Sanchez-Rodriguez was assigned a criminal history category of IV.

With an offense level of 13 and a criminal history category of IV, the Guidelines

range for Sanchez-Rodriguez was 24 to 30 months’ imprisonment.

Sanchez-Rodriguez filed written objections to the PSR, arguing that his

stolen-property conviction was not an aggravated felony as defined by U.S.S.G.

§ 2L1.2(b)(1)(C) or 8 U.S.C. § 1101(a)(43) and that, therefore, he was not

eligible for the eight-level enhancement. Sanchez-Rodriguez also objected to

the enhancement at sentencing, arguing that “the Florida statute is overly

broad.” The district court overruled Sanchez-Rodriguez’s objections and

adopted the PSR in full. The court then sentenced him to 27 months’

imprisonment—the middle of the Guidelines range. Sanchez-Rodriguez timely

appealed, challenging the aggravated-felony enhancement based on

overbreadth.

II. STANDARD OF REVIEW

We review a district court’s sentencing decision “for reasonableness.”

United States v. Anderson, 559 F.3d 348, 354 (5th Cir. 2009). In doing so, we

review the district court’s interpretation of the Guidelines de novo. United

States v. Cisneros–Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). If the

defendant fails to object at sentencing, our review is only for plain error.

Anderson, 559 F.3d at 354. Sanchez-Rodriguez argues that the appropriate

standard of review is de novo, while the Government contends that plain error

review applies. However, the court, not the parties, must determine the

appropriate standard of review. United States v. Torres-Perez, 777 F.3d 764,

766 (5th Cir. 2015).

3

No. 15-41056

To preserve an error, an objection must be sufficiently specific to alert

the district court to the nature of the alleged error and to provide an

opportunity for correction. United States v. Ocana, 204 F.3d 585, 589 (5th Cir.

2000). Sanchez-Rodriguez filed a written objection and objected at sentencing,

raising essentially the same—if not as refined—argument that he raises on

appeal. Thus, the district court was adequately notified of the grounds upon

which Sanchez-Rodriguez’s objection was made. See, e.g., United States v.

Garcia-Perez, 779 F.3d 278, 282 (5th Cir. 2015) (determining that, although

the defendant refined his argument on appeal, his objection to the

classification of his prior conviction as a crime of violence was sufficient to

preserve the issue on appeal). Because the district court was adequately

notified of the grounds of Sanchez-Rodriguez’s objection, our review is de novo.

See id.; Ocana, 204 F.3d at 588–89.

III. AGGRAVATED FELONY UNDER U.S.S.G. § 2L1.2(b)(1)(C)

Under U.S.S.G. § 2L1.2(b)(1)(C), a defendant’s base offense level will be

increased by eight levels “[i]f the defendant previously was deported, or

unlawfully remained in the United States, after . . . a conviction for an

aggravated felony.” Id. The commentary to the Guidelines provides that “[f]or

the purposes of subsection (b)(1)(C), ‘aggravated felony’ has the meaning given

that term in section 101(a)(43) of the Immigration and Nationality Act (8

U.S.C. § 1101(a)(43)), without regard to the date of conviction for the

aggravated felony.” U.S.S.G. § 2L1.2 cmt. n.3(A); see also United States v.

McKinney, 520 F.3d 425, 429 (5th Cir. 2008) (“The commentary's

interpretation of the guidelines is generally authoritative.”). That statute

defines “aggravated felony” as “a theft offense (including receipt of stolen

property) or burglary offense for which the term of imprisonment [is] at least

one year.” 8 U.S.C. § 1101(a)(43)(G). In this case, the district court concluded

that Sanchez-Rodriguez’s 2002 Florida conviction for dealing in stolen property

4

No. 15-41056

constituted an aggravated felony within this definition. We disagree and hold

that Sanchez-Rodriguez’s Florida conviction is not an aggravated felony within

this definition and that, therefore, the district court erred in applying a

sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(C).

“To determine whether a prior conviction qualifies as an offense under

the Sentencing Guidelines, we begin with the categorical approach described

in Taylor v. United States, 495 U.S. 575, 602 (1990).” United States v.

Rodriguez-Negrete, 772 F.3d 221, 224–25 (5th Cir. 2014). This court has

previously explained:

[W]hen applying the categorical approach, courts “compare the

elements of the statute forming the basis of the defendant’s

conviction with the elements of the ‘generic’ crime—i.e., the offense

as commonly understood” that triggers the sentencing

enhancement. “If the [offense of conviction] has the same elements

as the ‘generic’ . . . crime [in the sentencing enhancement], then

the prior conviction can serve as [the] predicate; so too if the

statute defines the crime more narrowly, because anyone convicted

under that law is ‘necessarily . . . guilty of all the [generic crime’s]

elements.’”

United States v. Schofield, 802 F.3d 722, 727–28 (5th Cir. 2015) (alterations in

original) (citation omitted) (quoting Descamps v. United States, 133 S. Ct. 2276,

2281, 2283 (2013)). Where, as here, a defendant was convicted of violating a

divisible statute, 1 we employ the modified categorical approach, which “helps

implement the categorical approach when a defendant was convicted of

violating a divisible statute.” Descamps, 133 S. Ct. at 2285. “[T]he modified

categorical approach permits sentencing courts to consult a limited class of

documents, such as indictments and jury instructions, to determine which

1 A divisible statute “lists multiple, alternative elements, and so effectively creates

‘several different . . . crimes.’” Descamps, 133 S. Ct. at 2285 (quoting Nijhawan v. Holder,

557 U.S. 29, 41 (2009)).

5

No. 15-41056

alternative formed the basis of the defendant’s prior conviction.” Id. at 2281.

Having made this determination, “[t]he court can then do what the categorical

approach demands: compare the elements of the crime of conviction (including

the alternative element used in the case) with the elements of the generic

crime.” Id.

Here, the generic crime is “a theft offense (including receipt of stolen

property) or burglary offense for which the term of imprisonment [is] at least

one year.” 8 U.S.C. § 1101(a)(43)(G). “The provision does not define ‘theft

offense.’” United States v. Medina-Torres, 703 F.3d 770, 774 (5th Cir. 2012)

(per curiam). Accordingly, we have previously applied “‘the generic,

contemporary meaning’ of ‘theft offense’ under § 1101(a)(43)(G),” which is “a

taking of property or an exercise of control over property without consent with

the criminal intent to deprive the owner of rights and benefits of ownership,

even if such deprivation is less than total or permanent.” Id. (quoting Burke v.

Mukasey, 509 F.3d 695, 697 (5th Cir. 2007) (per curiam)). As relevant to the

instant case, “this generic definition requires ‘an intent to deprive the owner

of the benefit proceeding from possession of the stolen goods.’” Id. at 775

(quoting Burke, 509 F.3d at 697)). The statute forming the basis of Sanchez-

Rodriguez’s crime of conviction is Florida Statute § 812.019, which provides

that “[a]ny person who traffics in, or endeavors to traffic in, property that he

or she knows or should know was stolen shall be guilty of a felony of the second

degree.” Florida law further provides that:

“Traffic” means:

(a) To sell, transfer, distribute, dispense, or otherwise

dispose of property.

(b) To buy, receive, possess, obtain control of, or use property

with the intent to sell, transfer, distribute, dispense, or

otherwise dispose of such property.

Fla. Stat. § 812.012(8).

6

No. 15-41056

Sanchez-Rodriguez argues that the Florida statute is overly broad for

the purposes of the enhancement he received because it does not require proof

of the specific “intent to deprive the owner of rights and benefits of ownership,”

which is an element of the generic offense of theft. Therefore, Sanchez-

Rodriguez argues, his conviction cannot serve as the predicate for a sentencing

enhancement under U.S.S.G. § 2L1.2(b)(1)(C). We agree that the conviction

cannot serve as the predicate for such an enhancement.

Because the relevant Florida statute “comprises multiple, alternative

versions of the crime,” Descamps, 133 S. Ct. at 2284, we first turn to the

“charging document, written plea agreement, transcript of plea colloquy, and

any explicit factual finding by the trial judge to which the defendant assented,”

Shepard v. United States, 544 U.S. 13, 16 (2005), to determine which version

of the crime formed the basis of Sanchez-Rodriguez’s conviction. In the 2002

Florida case, Sanchez-Rodriguez pleaded guilty to a charge that he “did

unlawfully traffic or endeavor to traffic in stolen property, to-wit: a television

and/or stereo equipment and/or a camera the property of [the victim] . . . and

in so doing . . . knew or should have known that said property was stolen.” 2

Thus, Sanchez-Rodriguez may have been convicted because he knew the

relevant property was stolen or because he should have known that property

was stolen. “Where [the Shepard-compliant] documents do not identify the

offense of conviction, we must consider whether the ‘least culpable’ means of

violating the statute of conviction qualifies as an offense under the Sentencing

Guidelines.” Rodriguez-Negrete, 772 F.3d at 225. This is so because “[a]

sentence enhancement is properly applied only if the ‘least culpable’ means of

violating the state statute makes the defendant eligible for the enhancement.”

2 This charge comes directly from the charging document in the 2002 Florida case. No

other Shepard-compliant documents further elucidate which version of the dealing in stolen

property statute formed the basis of Sanchez-Rodriguez’s conviction.

7

No. 15-41056

Id. Accordingly, we evaluate whether Sanchez-Rodriguez was eligible for the

enhancement assuming that he was convicted under the “should have known”

version of the Florida statute.

Based on the “should have known” version of the statute, we cannot say

that the stolen property offense under Florida law requires “an intent to

deprive the owner of the benefit proceeding from possession of the stolen

goods.” Burke, 509 F.3d at 697. Although no federal court of appeals has

reached the specific question of intent at issue today, 3 Florida courts have

consistently held that, while “[b]urglary, grand theft, and petit theft are

specific intent crimes . . . [d]ealing or trafficking in stolen property is not a

specific intent crime.” Reese v. State, 869 So. 2d 1225, 1227 (Fla. Dist. Ct. App.

2004); accord Aversano v. State, 966 So. 2d 493, 495 (Fla. Dist. Ct. App. 2007).

In Glenn v. State, 753 So. 2d 669 (Fla. Dist. Ct. App. 2000), a defendant was

charged with burglary, grand theft, and dealing in stolen property. Id. at 670.

A Florida appellate court explained that, because dealing in stolen property

was not a specific intent crime like burglary and grand theft, the defendant

could not use voluntary intoxication as a defense. Id. at 670–71. The court

further explained that “[c]learly, the plain language of the statute requires

only general intent concerning the statutory element that the property

3 In the district court, the Government pointed to an unpublished Eleventh Circuit

decision, United States v. Dawkins, 341 F. App’x 520 (11th Cir. 2009) (per curiam), in arguing

that dealing in stolen property under Florida law is an aggravated felony under U.S.S.G.

§ 2L1.2(b)(1)(C). In Dawkins, the defendant objected to the aggravated-felony enhancement

based on his conviction for conspiracy to transport stolen property. Id. at 522. The Eleventh

Circuit affirmed the enhancement based on the second prong of plain error review but noted

that “it appear[ed] that Dawkins’s conviction for conspiracy to transport stolen property

would qualify as an aggravated felony theft offense.” Id. at 522 n.3. On appeal, the

Government notes that, although Dawkins originated in the Southern District of Florida,

neither the opinion nor the Government’s brief in that case confirms whether the conviction

arose under Florida law. For this reason, as well as the court’s specific holding, the

Government abandoned its reliance on Dawkins on appeal. We similarly find Dawkins

unpersuasive on the issue before us.

8

No. 15-41056

transferred be stolen, because it is sufficient if the [defendant] should have

known this fact.” 4 Id. at 671.

The Florida courts’ analyses are supported by the plain language of the

Florida “dealing in stolen property” and “theft” statutes. Consistent with the

generic crime of theft, Florida’s theft statute requires that a defendant have

“the intent to . . . deprive the other person of a right to the property or a benefit

from the property.” Fla. Stat. § 812.014. This intent element is entirely absent

from Florida’s “dealing in stolen property” statute. See Fla. Stat. § 812.019.

Based on this absence and Florida courts’ consistent holdings that dealing in

stolen property requires no specific intent, we conclude that the crime of

dealing in stolen property is defined more broadly under Florida law than the

generic crime of “theft” under U.S.S.G. § 2L1.2(b)(1)(C). Cf. Burke, 509 F.3d at

696–97 (determining that a New York conviction for criminal possession of

stolen property constituted an aggravated felony because the statute required

the necessary criminal “intent to deprive the owner of the benefit proceeding

from possession of the stolen goods”).

However, this conclusion, by itself, is insufficient to hold that Florida

Statute § 812.019 cannot serve as the predicate for a sentencing enhancement

under U.S.S.G. § 2L1.2(b)(1)(C). Sanchez-Rodriguez must also demonstrate “a

realistic probability, not a theoretical possibility,” that Florida “would apply its

statute to conduct falling outside the generic definition” in order to establish

4 The Government argues that Glenn is inapposite because its analysis was specific to

“the element of selling or transferring property.” Glenn, 753 So. 2d at 671. However, the

Glenn court was simply analyzing the relevant part of § 812.019 based on the facts of the case

before it. That statute defines “trafficking” stolen property as either selling or

buying/receiving stolen goods. Fla. Stat. § 812.012(8). Because only the selling aspect of

trafficking was relevant to the case before it, the Glenn court focused its attention there. This

does not render Glenn inapposite to the issue before us. Considering, as we must, the “‘least

culpable’ means of violating the statute of conviction,” Rodriguez-Negrete, 772 F.3d at 225,

Glenn clearly establishes that a defendant need have no specific intent in order to be found

guilty under Florida Statute § 812.019.

9

No. 15-41056

error on the part of the district court. Gonzales v. Duenas-Alvarez, 549 U.S.

183, 193 (2007). Sanchez-Rodriguez did so here by pointing to multiple Florida

cases explicitly stating that dealing in stolen property requires no criminal

intent to deprive the owner of rights and benefits of ownership. See, e.g.,

Aversano, 966 So. 2d at 495; Reese, 869 So. 2d at 1227; Glenn, 753 So. 2d at

671. Because Florida applies this statute to conduct outside the generic

definition of theft in U.S.S.G. § 2L1.2(b)(1)(C), the district court erred in using

Sanchez-Rodriguez’s conviction for dealing in stolen property as the predicate

for a sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(C). 5

While “certain ‘harmless’ errors do not warrant reversal,” the error here

was not harmless. United States v. Delgado-Martinez, 564 F.3d 750, 752–53

(5th Cir. 2009). Without the eight-level enhancement for an aggravated felony,

Sanchez-Rodriguez’s 2002 Florida conviction would have qualified for only a

four-level enhancement for “any other felony.” See § 2L1.2(b)(1)(D). A four-

level enhancement, combined with a base offense level of eight and a two-level

reduction for acceptance of responsibility, would have resulted in a total

offense level of 10. 6 A total offense level of 10, combined with a criminal

5 The Government argues that, “[i]f the defendant knew or believed the property to be

stolen, it logically follows that the defendant intended to deprive the property’s true owner of

the rights and benefits of ownership.” And “the statute’s focus on the defendant’s ‘guilty

knowledge’ suggests that [a] defendant who genuinely, but mistakenly, believes that the

property is not stolen could not be convicted of dealing in stolen property.” However, these

arguments are unpersuasive, as they are directly refuted by at least three decisions from

Florida appellate courts. Moreover, all of the cases the Government cites in support of its

arguments address situations where the State introduced evidence that the defendants knew,

not that they should have known, that the relevant property was stolen. See, e.g., Newberry

v. State, 442 So. 2d 334, 335 (Fla. Dist. Ct. App. 1983) (noting that the State introduced

evidence that the defendants lied about their authority to sell property, suggesting that they

knew that the property was stolen).

6 Sanchez-Rodriguez originally received a three-level reduction of his offense level

under U.S.S.G. § 3E1.1(a) and (b). However, given a base offense level of eight and a four-

level enhancement, Sanchez-Rodriguez would only be eligible for a two-level reduction under

U.S.S.G. § 3E1.1(a).

10

No. 15-41056

history category of IV, would have resulted in a Guidelines range of 15 to 21

months of imprisonment. U.S.S.G. Ch. 5, Pt. A. The district court imposed a

sentence of 27 months, which is outside the correct Guidelines range of

imprisonment, and the court did not indicate that it would have imposed an

identical sentence despite any error in its ruling. See Delgado-Martinez, 564

F.3d at 753. Because the correct Guidelines range is less than the 24 to 30

month range Sanchez-Rodriguez originally faced, the error was not harmless.

Accordingly, we must remand the case for re-sentencing pursuant to the proper

Guidelines range.

IV. CONCLUSION

For the foregoing reasons, we VACATE Sanchez-Rodriguez’s 27-month

sentence and REMAND the case for re-sentencing.

11