                                                                             F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                             June 29, 2006
                                    TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                             Clerk of Court


 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 05-2206
 OSCAR ORTUNO-CABALLERO                                 (D.C. No. CR-05-466-JP)
                                                           (D. New Mexico)
           Defendant-Appellant.




                                 ORDER AND JUDGMENT *


Before HENRY, BRISCOE, and O’BRIEN, Circuit Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore,

ordered submitted without oral argument.

       Defendant Oscar Ortuno-Caballero pled guilty to illegal reentry after deportation

subsequent to a felony, in violation of 8 U.S.C. §§ 1326(a)(1), (a)(2), and (b)(1), and was



       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
sentenced to a term of imprisonment of 46 months. Defendant now appeals, challenging

the reasonableness of his sentence. The United States asserts that the district court erred

in computing defendant’s sentencing guideline range, and that its error was plain error

requiring our remand for resentencing. We exercise jurisdiction pursuant to 28 U.S.C. §

1291 and, for the reasons outlined below, we remand with directions to vacate

defendant’s sentence and resentence.

                                              I.

       On January 12, 2005, defendant was taken into custody by a United States Border

Patrol agent in the State of New Mexico. Defendant admitted he was a citizen of Mexico

and had entered the United States illegally. A subsequent records check revealed that

defendant had previously been convicted in the State of Colorado for attempted first

degree criminal trespass of a dwelling and, subsequent to that conviction, had been

deported.

       On January 14, 2005, a criminal complaint was filed against defendant in federal

court charging him with illegal reentry. On March 21, 2005, defendant pled guilty to one

count of illegal reentry after deportation subsequent to a felony conviction (i.e., his prior

Colorado state conviction) in violation of 8 U.S.C. §§ 1326(a)(1), (a)(2) and (b)(1). On

June 16, 2005, the district court sentenced defendant to a term of imprisonment of 46

months. In doing so, the district court applied a base offense level of 8 pursuant to

U.S.S.G. § 2L1.2(a), imposed a 16-level increase pursuant to U.S.S.G. § 2L1.2(b)(1)(A)

on the grounds that defendant’s prior Colorado state conviction constituted a “crime of

                                             -2-
violence,” and then granted defendant a 3-level reduction for acceptance of responsibility

pursuant to U.S.S.G. § 3E1.1. Together with defendant’s criminal history category of III,

this resulted in a Guideline range of 46-57 months. Although the district court rejected

defendant’s request to impose a sentence below the Guideline range, it ultimately

imposed a sentence at the very bottom of the Guideline range.

                                            II.

       On appeal, defendant challenges the length of his sentence, arguing, in pertinent

part, that the 16-level enhancement imposed by the district court under U.S.S.G. §

2L1.2(b)(1)(A) was unreasonable. The government, in response, concedes the district

court erred in imposing the 16-level enhancement and asks that we remand for

resentencing. For the reasons discussed below, we agree that defendant is entitled to be

resentenced.

                                    Standard of review

       Generally speaking, “we are required,” consistent with the Supreme Court’s

decision in United States v. Booker, 543 U.S. 220 (2005), “to review district court

sentencing decisions for ‘reasonableness.’” United States v. Cage, — F.3d —, 2006 WL

1554674 at *5 (10th Cir. June 8, 2006). “Reasonableness has both procedural and

substantive components.” Id. (citing United States v. Kristl, 437 F.3d 1050, 1054-55

(10th Cir. 2006). “To be reasonable, a sentence must be ‘reasoned,’ or calculated

utilizing a legitimate method.” Id. “As such, sentences based on miscalculations of the

Guidelines are considered unreasonable because ‘the manner in which [they were]

                                            -3-
determined was unreasonable.’” Id. (quoting Kristl, 437 F.3d at 1055).

       Because, however, defendant did not challenge the district court’s application of §

2L1.2(b)(1)(A) at the time of sentencing, we must review the district court’s decision

under a plain error standard.1 See United States v. Lopez-Flores, 444 F.3d 1218, 1221

(10th Cir. 2006). “Plain error occurs when there is (1) error, (2) that is plain, which (3)

affects substantial rights, and which (4) seriously affects the fairness, integrity, or public

reputation of judicial proceedings.” Id. at 1222 (internal quotation marks omitted).

                            Enhancement under § 2L1.2(b)(1)(A)

       Section 2L1.2(a) of the United States Sentencing Guidelines requires a sentencing

court to impose a base offense level of 8 for any defendant convicted of illegally

reentering the United States. If the defendant previously was deported after having been

convicted of certain crimes, § 2L1.2(b)(1) requires a sentencing court to impose an

enhancement of from 4 to 16 levels, depending upon the nature of the prior conviction(s).

Here, the district court concluded that defendant’s prior Colorado state conviction for

attempted first degree criminal trespass of a dwelling qualified as a “crime of violence”

under § 2L1.2(b)(1)(A), and thus warranted a 16-level enhancement to defendant’s base




       1
         The government does not assert that defendant waived this challenge, nor do we
conclude that he did. See generally United States v. Olano, 507 U.S. 725, 733 (“Whereas
forfeiture is the failure to make the timely assertion of a right, waiver is the intentional
relinquishment or abandonment of a known right.”). Rather, “[w]e conclude that
[defendant]’s failure to object to the 16-level adjustment resulted from an oversight by
defense counsel and was therefore accidental rather than deliberate.” United States v.
Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir. 2005).

                                              -4-
offense level.

       The term “crime of violence,” as used in § 2L1.2(b)(1)(A), is defined as:

       [A]ny of the following: murder, manslaughter, kidnapping, aggravated
       assault, forcible sex offenses, statutory rape, sexual abuse of a minor,
       robbery, arson, extortion, extortionate extension of credit, burglary of a
       dwelling, or 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.

U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii) (2004).

       In characterizing defendant’s prior Colorado state conviction as a “crime of

violence,” the probation officer who prepared the presentence report, and in turn the

district court, offered what appears to have been two alternative rationales. First, they

concluded that defendant’s prior Colorado state conviction effectively constituted a

“burglary,” and thus fell within the list of crimes specifically enumerated in the above

definition. Second, and alternatively, they concluded that our decision in United States v.

Venegas-Ornelas, 348 F.3d 1273 (10th Cir. 2003), supported treating defendant’s prior

Colorado state conviction as a “crime of violence.”

       We reject both of these rationales. To begin with, nothing in the definitional

language quoted above indicates, either expressly or implicitly, that a prior conviction for

criminal trespass can reasonably be treated as a “burglary” for purposes of applying the

“crime of violence” enhancement. Moreover, it appears well-accepted that criminal

trespass is a crime distinct from burglary. See 12A C.J.S. Burglary § 2 (2005) (noting

that “[c]riminal trespass has been distinguished from burglary in that criminal trespass



                                              -5-
may be upon vacant property, but burglary is limited to entry of a structure or other

specified enclosure,” and that burglary includes “the aggravating factor [of] the

trespasser’s intent to commit a separate crime.”).

       Nor does our decision in Venegas-Ornelas support treating defendant’s prior

conviction as a “crime of violence” under § 2L1.2(b)(1)(A). In that case, we were asked

to determine whether the defendant’s prior conviction under Colorado law for first degree

criminal trespass of a dwelling qualified as an “aggravated felony” for purposes of §

2L1.2(b)(1)(C). In concluding that it did, we determined that the conviction qualified as a

“crime of violence” under 18 U.S.C. § 16 because it created a substantial risk that

physical force would be used against the residents or property in the dwelling. 348 F.3d

at 1276. Importantly, however, the term “crime of violence” “is defined more narrowly

in § 2L1.2[(b)(1)(A)] than in [18 U.S.C. § 16] because the definition does not encompass

acts involving the use of force against property or acts that merely pose a risk of harm to

another person.” Jaimes-Jaimes, 406 F.3d at 849. Thus, our conclusion in Venegas-

Ornelas that the crime of first degree criminal trespass of a dwelling under Colorado law

qualifies as a “crime of violence” for purposes of 18 U.S.C. § 16 does not mean that the

same crime (or, more appropriately, a conviction for attempted first degree criminal

trespass of a dwelling) qualifies as a “crime of violence” for purposes of §

2L1.2(b)(1)(A).

       Because defendant has not been convicted of any of the crimes specifically

enumerated in the first portion of § 2L1.2(b)(1)(A)’s “crime of violence” definition, the

                                             -6-
only way he could be subjected to the 16-level enhancement thereunder is if his prior

Colorado state conviction for attempted first degree criminal trespass of a dwelling “ha[d]

as element the use, attempted use, or threatened use of physical force against the person

of another.” In Venegas-Ornelas, we noted that, to be convicted under Colorado law of

first degree criminal trespass of a dwelling, it must be established that the defendant “(1)

knowingly, (2) unlawfully, (3) entered or remained (4) in the dwelling of another.” 348

F.3d at 1276. Because defendant’s conviction was for attempted first degree criminal

trespass of a dwelling, it would have included the additional elements of (1) the intent to

commit the crime of first degree criminal trespass of a dwelling, and (2) having engaged

in conduct constituting a substantial step toward the commission of that crime. See Colo.

Jury Instr., Criminal 8:01 Criminal Attempt (1993). It is apparent that none of these

elements required the State of Colorado to prove that the defendant used, attempted to

use, or threatened to use physical force against the person of another. Indeed, none of

these elements required the State of Colorado to even prove that another person was

present in the dwelling at issue. Accordingly, we conclude that the district court erred in

treating defendant’s prior conviction as a “crime of violence” for purposes of §

2L1.2(b)(1)(A).

       Before we may exercise our discretion to correct the district court’s error, we must

conclude that the district court’s error was plain, that it affected defendant’s substantial

rights, and that it seriously affected the fairness, integrity or public reputation of judicial

proceedings. With respect to this first question, we readily conclude that the district

                                               -7-
court’s error was plain. In Olano, the Supreme Court held that “‘[p]lain is synonymous

with ‘clear’ or, equivalently, ‘obvious.’” 507 U.S. at 734. Here, there is simply no doubt

that defendant’s prior conviction fails to qualify as a “crime of violence” under §

2L1.2(b)(1)(A), and the government concedes as much. With respect to the second

question, we conclude that the district court’s error affected defendant’s substantial rights

because the imposition of the 16-level enhancement, rather than what appears to have

been the more appropriate 8-level enhancement under § 2L1.2(b)(1)(C) for having

previously been convicted of an “aggravated felony,” caused his Guideline range to

increase from 18 to 24 months to 46 to 57 months. Finally, with respect to the third

question, we conclude that the district court’s error seriously affected the fairness of

defendant’s sentencing proceedings. In particular, we conclude there is more than a

reasonable probability that the district court’s error led to a substantially higher sentence

than would have been imposed had defendant’s Guideline range been properly calculated.

       We REMAND with directions to the district court to vacate defendant’s sentence

and resentence.

                                                    Entered for the Court


                                                    Mary Beck Briscoe
                                                    Circuit Judge




                                              -8-
05-2206 United States v. Ortuno-Caballero
O’Brien, J., concurring


       Like a Chameleon, a “crime of violence” changes with the background. Thus, in

sentencing a felon for possession of a firearm, 18 U.S.C. § 922(g)(1), a prior Colorado

conviction for third degree assault, Colo. Rev. Stat. § 18-3-901(3)(C), is categorically a

crime of violence. United States v. Paxton, 422 F.3d 1203 (10th Cir. 2005). But in

sentencing for illegal reentry, 8 U.S.C. § 1326(a) and (b)(2), a prior conviction of that

same statute, Colo. Rev. Stat. § 18-3-901(3)(C), is not categorically a crime of violence.

United States v. Perez-Vargas, 414 F.3d 1282 (10th Cir. 2005).

       In the criminal code, specifically 18 U.S.C. § 16, crime of violence means:


       (a) an offense that has as an element the use, attempted use, or threatened
       use of physical force against the person or property of another, or
       (b) any other offense that is a felony and that, by its nature, involves a
       substantial risk that physical force against the person or property of another
       may be used in the course of committing the offense.1


For an armed career criminal:

       the term "violent felony" means any crime punishable by imprisonment for a term
       exceeding one year, or any act of juvenile delinquency involving the use or
       carrying of a firearm, knife, or destructive device that would be punishable by
       imprisonment for such term if committed by an adult, that--
              (I) has as an element the use, attempted use, or threatened use of physical
              force against the person of another; or
              (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
              involves conduct that presents a serious potential risk of physical injury to
              another; . . .

       1
        The 18 U.S.C. § 16 definition is used in the sentencing guidelines for offenses
involving the use of body armor. USSG §3B1.5, comment. (n.1).
18 U.S.C. § 924(e)(2)(B).

       For career offenders:2

       (a) The term "crime of violence" means any offense under federal or state
       law, punishable by imprisonment for a term exceeding one year, that --
       (1) has as an element the use, attempted use, or threatened use of physical force
       against the person of another, or
       (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or
       otherwise involves conduct that presents a serious potential risk of physical injury
       to another.
USSG §4B1.2(a).3


       2
        Career offenders, USSG §4B1.1, and certain other offenses, e.g., explosive
materials crimes, USSG §2K1.3, comment. (n.2); firearms offenses, USSG §2K2.1,
comment. (n.1); money laundering and related crimes, USSG §2S1.1, comment. (n.1);
computation of criminal history, USSG § 4A1.1(p) and §4A1.1, comment. (n.6); high
capacity, semiautomatic firearms, USSG §5K2.17, comment. (n.1); classification of
violations, USSG §7B1.1, comment. (n.2).
       3
         “Crime of violence” includes murder, manslaughter, kidnapping, aggravated
assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit,
and burglary of a dwelling. Other offenses are included as "crimes of violence" if (A) that
offense has as an element the use, attempted use, or threatened use of physical force
against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the
count of which the defendant was convicted involved use of explosives (including any
explosive material or destructive device) or, by its nature, presented a serious potential
risk of physical injury to another.
        “Crime of violence” does not include the offense of unlawful possession of a
firearm by a felon, unless the possession was of a firearm described in 26 U.S.C.
§ 5845(a). Where the instant offense of conviction is the unlawful possession of a firearm
by a felon, §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or
Ammunition; Prohibited Transactions Involving Firearms or Ammunition) provides an
increase in offense level if the defendant had one or more prior felony convictions for a
crime of violence or controlled substance offense; and, if the defendant is sentenced under
the provisions of 18 U.S.C. § 924(e), §4B1.4 (Armed Career Criminal) will apply.
USSG §4B1.2, comment. (n.1).

“It is to be noted that the definitions of ‘violent felony’ and ‘serious drug offense’ in 18

                                             -2-
For unlawful reentry:

       "Crime of violence" means any of the following: murder, manslaughter,
       kidnaping, aggravated assault, forcible sex offenses, statutory rape, sexual
       abuse of a minor, robbery, arson, extortion, extortionate extension of credit,
       burglary of a dwelling, or 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.


USSG §2L1.2 (B)(iii), comment. (n.1).

       The lesson seems to be that logic plays no role; rote application of the various

guideline definitions is the order of the day. It’s a funny way to run a railroad. But there

is a leitmotif — a prior felony is “violent” when the use, attempted use or threatened use

of force against the person (or under 18 U.S.C. § 16, the property) of another is an

element of the crime. And another, when there is a substantial risk that physical force

may be used against the person or property of another, 18 U.S.C. § 16, or the criminal

conduct presents a serious risk of physical injury to another. 18 U.S.C. § 924(e)(2)(b)

and USSG §4B1.2(a). The serious risk of injury seems to inform the inclusion of

burglary, particularly that of a dwelling, in the litany of per se violent felonies. Strikingly

different is USSG §2L1.2, which includes named offenses, burglary is one, and offenses

having as an element the use, attempted use or threatened use of physical force. It omits

conduct that carries a substantial or serious risk of injury. That omission seems



U.S.C. § 924(e)(2) are not identical to the definitions of ‘crime of violence’ and
‘controlled substance offense’ used in §4B1. . . .” USSG, §4B1.4, comment. (n.1).



                                              -3-
inexplicable, as this case illustrates.

       In Colorado the potential risk of injury is virtually the same for first degree

criminal trespass and burglary. The majority says: “Moreover, it appears well-accepted

that criminal trespass is a crime distinct from burglary. See 12A C.J.S. Burglary § 2

(2005) (noting that “[c]riminal trespass has been distinguished from burglary in that

criminal trespass may be upon vacant property, but burglary is limited to entry of a

structure or other specified enclosure,” and that burglary includes “the aggravating factor

[of] the trespasser’s intent to commit a separate crime.”).” Majority Op. at 5. But, like

burglary,4 first degree criminal trespass must be to a dwelling 5 and neither burglary nor

first degree criminal trespass require the dwelling to be occupied. The separate crime

intended in a burglary doesn't have to be a felony; it is commonly theft (sometimes petty




       4
          (1) A person commits second degree burglary, if the person knowingly breaks an
entrance into, enters unlawfully in, or remains unlawfully after a lawful or unlawful entry
in a building or occupied structure with intent to commit therein a crime against another
person or property.

         (2) Second degree burglary is a class 4 felony, but it is a class 3 felony if:
              (a) It is a burglary of a dwelling; or
              (b) It is a burglary, the objective of which is the theft of a controlled
              substance, as defined in section 12-22-303(7), C.R.S., lawfully kept within
              any building or occupied structure.
       Colo. Rev. Stat. § 18-4-203.


       5
        A person commits the crime of first degree criminal trespass if such person
knowingly and unlawfully enters or remains in a dwelling of another or if such person
enters any motor vehicle with intent to commit a crime therein. First degree criminal
trespass is a class 5 felony. Colo. Rev. Stat. § 18-4-502.

                                             -4-
theft). The potential for violence is no less when a criminal is illegally in another's home

in the middle of the night snooping around (criminal trespass) than it would be (burglary)

if he is there to steal $20, video tapes, cigarettes, prescription drugs, or to commit some

other minor crime — any crime against a person or property suffices in Colorado.

       A distinction without a difference leads to a guidelines sentence of 18 to 24

months (the presumptive sentence on remand) instead of a sentence of 46 to 57 months as

imposed by the district court. It is capricious, indeed. But the majority is faithful to the

language of the relevant guideline. I reluctantly concur.




                                             -5-
