     Case: 09-40644     Document: 00511132252          Page: 1    Date Filed: 06/04/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            June 4, 2010
                                     No. 09-40644
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellant

v.

DANIEL SALINAS-SILVA,

                                                   Defendant-Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 1:08-CR-1372-1


Before JONES, Chief Judge, and GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Daniel Salinas-Silva pleaded guilty to illegally reentering the United
States after he had been deported. He received a four-level upward adjustment
to his offense level under U.S.S.G. § 2L1.2(b)(1)(D) because he previously had
been convicted in North Carolina of three counts of burning personal
property—a felony. The Government objected, arguing that Salinas-Silva should
have received a 16-level increase under § 2L1.2(b)(1)(A) because, it asserted,
burning personal property amounts to arson, a crime of violence. See § 2L1.2,

        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                 No. 09-40644

comment. (n.1(b)(iii)). The district court disagreed and sentenced Salinas-Silva
to a 24-month prison term, which was at the top of the guidelines range. The
Government appeals.
      We review de novo the district court’s conclusion as to whether a prior
conviction constitutes a crime of violence for purpose of the Sentencing
Guidelines. United States v. Santiesteban-Hernandez, 469 F.3d 376, 378 (5th
Cir. 2006). At the time Salinas-Silva was sentenced, we had not yet determined
the meaning of the term “arson” as used in the application notes to § 2L1.2.
Since then, we have determined that arson involves “a willful and malicious
burning of property.” United States v. Velez-Alderete, 569 F.3d 541, 546 (5th Cir.
2009).
      Salinas-Silva’s convictions under N.C. G EN. S TAT. § 14-66 were for crimes
of violence if the full range of conduct prohibited under the statute falls within
the definition of arson. See Velez-Alderete, 569 F.3d at 544; United States v.
Gomez-Gomez, 547 F.3d 242, 244 (5th Cir. 2008) (en banc).            If the statute
prohibits some conduct that does not constitute arson, then a conviction under
it is not for a crime of violence. Gomez-Gomez, 547 F.3d at 244-45. The statute
under which Salinas-Silva was convicted makes it a crime to
             wantonly and willfully set fire to or burn, or cause to be
             burned, or aid, counsel or procure the burning of, any
             goods, wares, merchandise or other chattels or personal
             property of any kind, whether or not the same shall at
             the time be insured by any person or corporation
             against loss or damage by fire, with intent to injure or
             prejudice the insurer, the creditor or the person owning
             the property, or any other person, whether the property
             is that of such person or another.
N.C. G EN. S TAT. § 14-66.
      Salinas-Silva’s arguments that this statute is broader than our definition
of arson are unavailing. He contends that the North Carolina statute was not
singled out by the court in Velez-Alderete as an example of a state criminal


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                                No. 09-40644

statute that contributes to a consensus on the meaning of arson. This argument
is unpersuasive because the Velez-Alderete court cited the state arson statutes
for the sole purpose of explaining why it rejected that defendant’s argument that
arson necessarily involves harm to a person. Velez-Alderete, 569 F.3d at 544-45
& n.4.   The court did not suggest that the cited statutes constituted an
exhaustive list of state arson statutes.
      Salinas-Silva also argues that the North Carolina statute is broader than
our definition of arson, observing that the statute forbids burning one’s own
property (rather than requiring that the property belong to another person) and
that it criminalizes burning property if the defendant intends to injure or
prejudice anyone, even someone with no ownership interest in the property.
However, like the North Carolina statute, the Texas statute that we found to
constitute an arson statute in Velez-Alderete did not require that the property
burned belong to another person or that the burning injure or prejudice someone
with an ownership interest. Velez-Alderete, 569 F.3d at 544.
      All of the conduct that the North Carolina statute prohibits—willfully
burning or participating in the burning of personal property intending to injure
or prejudice another person—constitutes the “malicious burning of property,”
and thus Salinas-Silva has been convicted of arson and is subject to
§ 2L1.2(b)(1)(a)(ii)’s 16-level enhancement. See Velez-Alderete, 569 F.3d at 546.
      Therefore, Salinas-Silva’s sentence is VACATED and the case is
REMANDED to the district court for resentencing.




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