                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-1-2006

USA v. Bonilla Velasquez
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3002




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                                                               NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                 __________

                                     NO. 05-3002
                                     __________

                          UNITED STATES OF AMERICA

                                            v.

                      JUAN CARLOS BONILLA VELASQUEZ,
                                          Appellant
                                __________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                          D.C. Criminal No. 03-cr-00068-01
                          (Honorable Christopher C. Conner)
                                     __________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   April 25, 2006

              Before: SCIRICA, Chief Judge, NYGAARD, Circuit Judge,
                            and YOHN, District Judge*

                                  (Filed June 1, 2006)

                                     __________

                             OPINION OF THE COURT
                                   __________

__________________________________

    * The Honorable William H. Yohn Jr., United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
YOHN, District Judge.

       Appellant Juan Carlos Bonilla Velasquez appeals his sentence entered by the

United States District Court for the Middle District of Pennsylvania. We have

jurisdiction pursuant to 18 U.S.C. § 3742(a) and will affirm.

       Velasquez is a native and citizen of Honduras. On May 20, 1997, he pleaded

guilty in the District Court of Nassau County in New York to one count of second-degree

attempted burglary in violation of N.Y. Penal Law §§ 140.25 and 110.00. He was

sentenced to one year in prison, and upon release from confinement was deported to

Honduras.

       On June 6, 2002, Velasquez reentered the United States, was arrested by the INS,

and was placed into removal proceedings. He failed to appear at his initial hearing, and a

warrant of removal was issued. In November 2002, deportation officers located

Velasquez in Dauphin County Prison in Harrisburg, Pennsylvania. On March 19, 2003, a

one-count indictment was issued against Velasquez, charging him with unlawful reentry

by an alien previously deported after a conviction for an aggravated felony in violation of

8 U.S.C. § 1326. On February 22, 2005, Velasquez pleaded guilty to the charge.

       During sentencing for the unlawful reentry offense, the District Court ruled, over

Velasquez’s objection, that Velasquez’s previous conviction for attempted burglary




                                             2
constituted an aggravated felony under 8 U.S.C. § 1101(a)(43)(G),1 which increased his

statutory-maximum sentence from two years under § 1326(a) to twenty years under §

1326(b)(2). Additionally, in calculating a sentence under the advisory United States

Sentencing Guidelines, the District Court concluded, again over Velasquez’s objection,

that Velasquez’s attempted burglary offense was a crime of violence under USSG §

2L1.2, which triggered a sixteen-level increase to his base offense level. The Guidelines

yielded a sentencing range of seventy-seven to ninety-six months, and the District Court

sentenced Velasquez to eighty-five months’ imprisonment.

         Velasquez now appeals his sentence, arguing: (1) that the District Court erred in

applying the aggravated-felony enhancement under § 1326(b)(2); (2) that the District

Court erred in applying the crime-of-violence enhancement under section 2L1.2; and (3)

that his sentence is unreasonable under United States v. Booker, 543 U.S. 220 (2005).

         Velasquez first challenges the District Court’s application of 8 U.S.C. §

1326(b)(2)’s increased statutory maximum, arguing that his attempted burglary conviction

is not an aggravated felony under 8 U.S.C. § 1101(a)(43). We exercise plenary review

over this legal question. See United States v. Randolph, 364 F.3d 118, 121 (3d Cir.

2004).

         Section 1326(b)(2) prescribes a twenty-year maximum sentence for aliens “whose




         1
         Under § 1101(a)(43)(U) an attempt to commit an offense described in paragraph
43 is also an aggravated felony.

                                               3
removal was subsequent to a conviction for commission of an aggravated felony.” An

alien has been convicted of an aggravated felony when he or she has been convicted of

any one of numerous crimes listed in 8 U.S.C. § 1101(a)(43), including, inter alia, a

“burglary offense for which the term of imprisonment [imposed is] at least one year,” §

1101(a)(43)(G), and attempt thereof, § 1101(a)(43)(U). Thus, if Velasquez’s state

conviction was for such a burglary offense, this enhancement applies.

       We employ the formal categorical approach of Taylor v. United States, 495 U.S.

575 (1990), to evaluate whether Velasquez’s state conviction constitutes a burglary

offense under § 1101(a)(43)(G). Under this approach, we look only to the statutory

definition of the predicate offense, and may not consider the particular facts underlying

the conviction. Taylor, 495 U.S. at 600. Velasquez was convicted of second-degree

attempted burglary under N.Y. Penal Law §§ 140.25, 110.00 2 . Under section 140.25, “A

person is guilty of burglary in the second degree when he knowingly enters or remains

unlawfully in a building with intent to commit a crime therein, and when . . . [t]he

building is a dwelling.” While we have not defined a burglary offense for purposes of §



       2
         N.Y. Penal Law § 110.00, a conventional attempt statute, states “A person is
guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in
conduct which tends to effect the commission of such crime.” An attempt to commit an
aggravated felony is itself an aggravated felony, § 1101(a)(43)(U), and, as noted infra, an
attempt to commit a crime of violence under the Guidelines is itself a crime of violence,
USSG § 2L1.2, comment. (n.5). Thus, for the duration of this opinion we will proceed as
if Velasquez had been convicted of the substantive offense second-degree burglary, even
though he actually pleaded guilty to attempted second-degree burglary. See Tran v.
Gonzales, 414 F.3d 464, 468 n.3 (3d Cir. 2005).

                                             4
1101(a)(43)(G), our interpretation of that term is informed by its plain meaning and the

Supreme Court’s generic definition of burglary (developed for purposes of 18 U.S.C. §

924(e)), which requires the offense to include “an unlawful or unprivileged entry into, or

remaining in, a building or other structure, with intent to commit a crime,” Taylor, 495

U.S. at 598. Based on these considerations, we conclude that § 1101(a)(43)(G)’s burglary

offense encompasses a conviction under section 140.25. Further, Velasquez received a

one-year sentence; thus, “the term of imprisonment [imposed was] at least one year.” See

Drakes v. Zimski, 240 F.3d 246, 251 (3d Cir. 2001). Accordingly, the District Court’s

application of this enhancement was correct and Velasquez’s arguments to the contrary

are without merit.3

         Velasquez also challenges the District Court’s application of the sixteen-level

increase to his base offense level on the ground that his conviction is not a crime of

violence under USSG § 2L1.2. We review the District Court’s interpretation of the

Sentencing Guidelines de novo. United States v. Pojilenko, 416 F.3d 243, 246 (3d Cir.

2005).

         Section 2L1.2(b)(1)(A) provides for a sixteen-level increase if the unlawful reentry

charge followed “a conviction for a felony that is . . . a crime of violence.” The

Guidelines define crime of violence to include burglary of a dwelling, USSG § 2L1.2,




         3
        Velasquez’s arguments focus on § 1101(a)(43)(F) while the enhancement was
based on subsections (G) and (U).

                                               5
comment. (n.1(B)(iii)), and attempt thereof, USSG § 2L1.2, comment. (n.5). Velasquez

presents several arguments tending to show that his burglary conviction did not involve

the use of force; however, we have explained that the offenses specifically enumerated in

the definition -- such as burglary of a dwelling -- are always crimes of violence, even

absent a showing that force was involved. See United States v. Remoi, 404 F.3d 789, 796

(3d Cir. 2005). Thus, if Velasquez’s previous conviction constitutes a burglary of a

dwelling under the Guidelines, the enhancement applies.

       The formal categorical approach, as described above, also controls this inquiry. In

addition to the general burglary elements, New York’s second-degree burglary statute

requires that the offense take place in a dwelling. See N.Y. Penal Law § 140.25. While

we also have yet to define burglary of a dwelling under this section, we give the term its

plain meaning and conclude that a conviction under section 140.25 necessarily establishes

burglary of a dwelling. Accordingly, the District Court correctly applied the

enhancement.4



       4
         To the extent that Velasquez argues that the word “dwelling” in the New York
statute is broader than the word “dwelling” in the Guidelines because New York courts
have interpreted a dwelling to include a garage that is attached to the house, we find the
argument meritless. We previously have utilized Black’s Law Dictionary’s definition of
“dwelling,” see United States v. McClenton, 53 F.3d 584, 587 (3d Cir. 1995) (defining
dwelling as a “‘building or portion thereof, a tent, a mobile home, a vehicle or other
enclosed space which is used or intended for use as a human habitation, home or
residence’” (quoting Black’s Law Dictionary 505 (6th ed. 1990))) (emphasis omitted),
and now note that Black’s also states that “dwelling” generally includes “the structures
connected either directly with the house or by an enclosed passageway.” Black’s Law
Dictionary 546 (8th ed. 2004). This definition embraces an attached garage and comports

                                             6
       Velasquez’s final argument is that his sentence is unreasonable under United

States v. Booker, 543 U.S. 220 (2005), because the District Court focused excessively on

the Guidelines range to the detriment of the other 18 U.S.C. § 3553(a) factors.

       We require the District Court to give “meaningful consideration” to the factors

enumerated in § 3553(a).5 United States v. Cooper, 437 F.3d 324, 329 (3d Cir. 2006).

The District Court must also consider “any sentencing grounds properly raised by the

parties which have recognized legal merit and factual support in the record.” Id. at 332.

In ruling, the Court need not “discuss and make findings as to each of the § 3553(a)

factors if the record makes clear the court took the factors into account in sentencing.”

Id. at 329.

       Our review of the record shows that the district court appropriately considered the

§ 3553(a) factors and Velasquez’s arguments. Specifically, the court found that:


with a reasonable understanding of the scope of a dwelling, and thus is no broader than
the dwelling component of the Guidelines.
       5
        The § 3553(a) factors a court must consider are:
       (1) the nature and circumstances of the offense and the history and
       characteristics of the defendant; (2) the need for the sentence imposed -- (A)
       to reflect the seriousness of the offense, to promote respect for the law, and to
       provide just punishment for the offense; (B) to afford adequate deterrence to
       criminal conduct; (C) to protect the public from further crimes of the
       defendant; and (D) to provide the defendant with needed educational or
       vocational training, medical care, or other correctional treatment in the most
       effective manner; (3) the kinds of sentences available; (4) the kinds of
       sentence and the sentencing range established for . . . the applicable category
       of offense committed by the applicable category of defendant as set forth in the
       guidelines . . . .


                                              7
       The sentence imposed satisfies the purposes set forth in Title 18 of the United
       States Code, Section 3553(a), including the necessity of deterrence and just
       punishment, promotion of respect for the law, protection of the public,
       avoidance of unwanted disparities, and assurance of correctional treatment for
       the defendant, and reflects full consideration of all factors relevant to the
       sentencing determination, including the nature and seriousness of the offense,
       the history and characteristics of the defendant, the kinds of sentences
       available, and the advisory range and policies prescribed by the sentencing
       commission.

Further, the District Court considered and discussed both Velasquez’s objections to the

two sentencing enhancements and his § 3553(a) argument that his criminal history

overrepresented the seriousness of his conduct. Finally, there is no evidence that the

District Court failed to address any “ground of recognized legal merit” raised by

Velasquez. Thus, we are satisfied that Velasquez’s sentence in this case is reasonable.

       The District Court correctly applied the law and imposed a reasonable sentence.

Accordingly, we will affirm the judgment of sentence.




                                             8
