           Case: 14-10230   Date Filed: 02/06/2015   Page: 1 of 12


                                                                     [PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-10230
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 2:08-cr-00110-JES-UAM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

RUDY ESTRADA,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (February 6, 2015)

Before HULL, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Defendant Rudy Estrada pled guilty to illegal re-entry after being deported

subsequent to an aggravated felony conviction, in violation of 8 U.S.C. §1326(a)

and (b)(2). He now appeals the 48-month sentence imposed by the district court,

arguing that the district court erred in applying a 16-level enhancement pursuant to

U.S.S.G. § 2L1.2(b)(1)(A)(ii).

      This particular enhancement is triggered when, among other things, a

defendant has been convicted of a crime of violence prior to his deportation. The

district court found that Defendant’s prior conviction for a violation of Florida

Statute § 790.19 was a conviction for a crime of violence within the meaning of the

enhancement. The government acknowledges that, since the district court’s

imposition of sentence, this Court has issued an opinion that vindicates

Defendant’s earlier claim of error. Accordingly, the government concedes that the

16-level enhancement was erroneously applied based on this particular conviction.

After our own review, we agree and remand for resentencing.

                                  I. Background

      In August 2004, Defendant, a Mexican citizen, was convicted in a Florida

state court of throwing a deadly missile, in violation of Florida Statute § 790.19.

Subsequently, Defendant was deported to Mexico, but he later illegally reentered

the United States. Defendant’s illegal reentry into the United States was




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discovered after his arrest on state drug charges, and he thereafter pled guilty in the

criminal case that is now before us.

      Prior to sentencing, the probation office prepared a presentence report

(“PSR”) that calculated a base offense level of 8, a 16-level enhancement for a

previous crime of violence, and a 3-level reduction for acceptance of

responsibility, pursuant to U.S.S.G. § 2L1.2(a), § 2L1.2(b)(1)(A)(ii), and

§ 3E1.1(a) and (b), respectively. These calculations yielded a total offense level of

21. Defendant has a lengthy criminal record that includes felony convictions for

burglary, grand theft, battery, and drug trafficking. As a result of his numerous

convictions, Defendant was assessed 17 criminal history points, placing him in the

highest criminal history category of the Guidelines: Category VI. Based on a total

offense level of 21 and a criminal history category of VI, the PSR calculated a

guideline range of 77-96 months’ imprisonment.

      Prior to and during his sentencing hearing, Defendant objected to the 16-

level crime of violence enhancement. Defendant argued that his prior Florida

§ 790.19 conviction did not qualify as a crime of violence within the meaning of

§ 2L1.2(b)(1)(A)(ii). The commentary for this section of the Guidelines defines

“crime of violence” as either being one of the enumerated offenses set out therein

or any offense “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, comment.


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(n.1(B)(iii)). The prior Florida conviction at issue was not one of the enumerated

offenses set out in the application note and Defendant argued that it did not have an

element that required the use, attempted use, or threatened use of physical force

against another person. Defendant, however, conceded that an 8-level aggravated

felony enhancement pursuant to § 2L1.2(b)(1)(C) was appropriate in lieu of the 16-

level enhancement. 1

       Concluding that the Florida statute in question did qualify as a crime of

violence, the district court therefore overruled Defendant’s objection to the 16-

level enhancement. Nevertheless, the district court agreed to downwardly vary

from the calculated range of 77-96 months, and he sentenced Defendant to a 48-

month sentence of imprisonment.

                                        II. Discussion

       On appeal, Defendant argues, and the government concedes, that our recent

decision in United States v. Estrella, 758 F.3d 1239 (11th Cir. 2014), requires a

conclusion that the district court erred in applying the 16-level enhancement

because Defendant’s prior § 790.19 conviction was not a crime of violence for

purposes of § 2L1.2(b)(1)(A)(ii).

       A.      Estrella Decision


       1
         The application of the 8-level enhancement in lieu of the 16-level enhancement would
have resulted in a total offense level of 13. Based on a total offense level of 13 and a criminal
history score of VI, Defendant’s guideline range would have been 33-41 months’ imprisonment.
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      We review de novo whether a defendant’s prior conviction qualifies as a

crime of violence under the Sentencing Guidelines. Estrella, 758 F.3d at 1244.

Pursuant to Florida Statute § 790.19:

      Whoever, wantonly or maliciously, shoots at, within, or into, or
      throws any missile or hurls or projects a stone or other hard
      substance which would produce death or great bodily harm, at,
      within, or in any public or private building, occupied or
      unoccupied, or public or private bus or any train, locomotive,
      railway car, caboose, cable railway car, street railway car,
      monorail car, or vehicle of any kind which is being used or
      occupied by any person, or any boat, vessel, ship, or barge lying
      in or plying the waters of this state, or aircraft flying through
      the airspace of this state shall be guilty of a felony of the second
      degree.

Fla. Stat. § 790.19.

      Estrella was also an illegal reentry case, in which Estrella’s prior § 790.19

conviction was based on an assault that he directed at an occupied vehicle.

Likewise in this case, the PSR indicates that defendant Estrada’s assault was also

targeted at an occupied automobile. In Estrella, we first examined whether

§ 790.19 had as an element the use, attempted use, or threatened use of physical

force against the person of another, which is required before a statute can be

deemed a crime of violence for purposes of § 2L1.2. We noted that, as a

categorical matter, it did not, because some prongs of the statute did not contain an

element requiring that the physical force threatened, attempted, or used be directed

against a person, as opposed to property. This meant that the statute punished


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some conduct that would fit the Guidelines’ definition of a crime of violence, but it

also punished some conduct that would not satisfy that definition. Estrella, 758

F.3d at 1248. Stated more simply, some parts of the statute would permit

conviction even when the defendant had not directed physical force against a

person, as opposed to physical property.

      Our analysis did not stop there, however. We looked further to see whether

the statute could be considered to be a divisible statute, as set out in Descamps v.

United States, 570 U.S. ___, 133 S. Ct. 2276 (2013). If the statute were considered

to be divisible, we could then proceed to analyze whether, under a modified

categorical test, the particular conviction meshed with those elements required for

an offense to constitute a crime of violence. If the statute were deemed,

indivisible, however, the inquiry was over and the particular conviction could not

be considered a crime of violence for purposes of enhancing the defendant’s

sentence. Estrella, 758 F.3d at 1245-47.

      In examining § 790.19, we concluded that it was a divisible statute; that is, it

“effectively create[s] several different crimes.” Id. at 1249 (alteration in original)

(citation omitted). Given that conclusion, we then applied the modified categorical

test to determine whether defendant Estrella had been effectively convicted of an

offense with elements equivalent to those elements found in an offense for a crime

of violence. We concluded that Estrella could be deemed to have been convicted


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of a crime of violence if his conviction was for wanton conduct, because Florida

law defines “wanton” to mean that one has acted intentionally or with reckless

indifference to the consequences and with knowledge that damage is likely to be

done to some person. Id. at 1253. But if instead Estrella had been convicted of

only malicious conduct, the latter was satisfied by knowledge that injury or

damage would be done to a person or to property and, in that case, Estrella would

not be deemed to have been convicted of a crime of violence.

      Having set up the analytical model, we then looked to Shepard-approved2

documents to see if we could determine on which of the above two mental

elements the defendant had been convicted. That review revealed only a charging

document which showed that Estrella had been charged in the disjunctive with

“‘wantonly or maliciously’ targeting ‘a vehicle being used or occupied by a

person.’” Id. at 1254. Accordingly, as the only document before us did not clarify

which of the two alternative mental states formed the basis for the defendant’s

conviction and as one of those mental states would preclude the offense from being

deemed a crime of violence, we concluded that Estrella’s prior conviction was not

a qualifying conviction for purposes of the § 2L1.2(b)(1)(A)(ii) enhancement. Id.

      B.       Application of Estrella to This Case




      2
          Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254 (2005).
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      Summarizing, Estrella held that a conviction under Florida Statute § 790.19

is not categorically a crime of violence for purposes of application of the 16-level

crime-of-violence enhancement under § 2L1.2(b)(1)(A)(ii). But that is not the end

of the analysis because Estrella also concluded that § 790.19 is a divisible statute

and hence use of the modified categorical test is appropriate. To apply that test

here, we must next examine any Shepard-approved documents to see whether

those documents identify the particular mens rea element upon which the prior

conviction of the defendant in this case rested. But the government has conceded

that the only Shepard-approved document here is the information charging

Defendant with § 790.19, which information charges that Defendant “wantonly or

maliciously” threw a deadly missile at an occupied vehicle. As Defendant’s nolo

contendere plea was to an information charging him in the disjunctive with

wantonly or maliciously committing a particular act in violation of § 790.19 (not

with “wantonly and maliciously” doing so), we are likewise unable to determine

on which mens rea element Defendant’s conviction was based. For that reason, we

concur with Defendant’s argument and accept the government’s concession that

the district court erred in concluding that this prior conviction was for a crime-of-

violence offense.

      C.     Terms of the Order of Remand




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      The only dispute between the parties is how we should couch our order of

remand. The government contends that our limited remand of this case should

direct the district court to vacate its determination that a 16-level enhancement

applies pursuant to § 2L1.2(b)(1)(A)(ii) and instead to apply an 8-level

enhancement for a prior aggravated felony, pursuant to § 2L1.2(b)(1)(C), based on

Defendant’s prior Florida conviction for a violation of § 790.19. Significantly, as

the government notes, Defendant not only conceded at the original sentencing that

this 8-level enhancement should apply, but he explicitly requested that

enhancement in lieu of the 16-level enhancement recommended by the PSR.

      Further, the government explains why the 8-level enhancement is warranted

here. Under § 2L1.2(b)(1)(C), the offense level of a defendant convicted of illegal

reentry shall be enhanced by 8 levels if he has previously been convicted of an

aggravated felony. The commentary to this section indicates that an aggravated

felony is defined in the Immigration and Nationality Act, 8 U.S.C. §1101(a)(43).

USSG §2L1.2, comment. (n.3(A)). Section 1101(a)(43) contains a long list of

offenses that constitute an aggravated felony. It includes “a crime of violence” as

an aggravated felony and provides that one should look to 18 U.S.C. § 16 for the

definition of a crime of violence. 8 U.S.C. § 1101(a)(43)(F). Title 18 U.S.C. § 16

provides that a crime of violence is (a) an offense that has as an element the use,

attempted use, or threatened use of physical force against the person or property of


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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. Id. Notably, while a “crime of

violence” as set out in § 2L1.2(b)(1)(A)(ii), requires that the act of physical force

be directed against “the person of another,” 18 U.S.C. §16 provides a broader

definition of the target of the physical force, indicating that the latter need only be

directed against the person “or property” of another. Id.

          There is no question that Defendant’s conviction for § 790.19 meets the

definition of an aggravated felony, as described above. The criminal information

for this particular conviction indicated that the defendant had thrown a missile “at,

within, or into a vehicle . . . which at the time was being used or occupied by Jesus

Reyes.” Whether or not Defendant’s physical force was directed toward the person

of another, it certainly was directed at the property of another, which is all that is

required for it to constitute a crime of violence for purposes of aggravated felony

status.

          Indeed, in explicitly requesting that the district court impose the 8-level

enhancement for an aggravated felony, instead of the 16-level enhancement for a

crime of violence, defense counsel exhaustively explained at sentencing why this

8-level enhancement was appropriate in this case. In response now to the

government’s argument that, on remand, the district court should be directed to


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impose the 8-level enhancement for this prior conviction, Defendant does not deny

that he had requested imposition of this 8-level enhancement at his original

sentencing. Nor does he deny that imposition of that enhancement is appropriate

and that he had so stipulated at the sentencing hearing. Finally, he offers no

reasons why the enhancement should not be applied. Instead, with no effort to

counter the government’s argument, he simply asks that this Court not require the

district court to apply the 8-level enhancement at the resentencing hearing

following remand.

      We find the government’s request meritorious. The defendant stipulated

below that the 8-level enhancement should apply and he has offered no argument

why his reasoning in support of that stipulation is no longer valid. We therefore

vacate Defendant’s sentence and remand to the district court for the limited

purpose of the latter (1) vacating its determination that a 16-level enhancement for

a prior crime of violence should apply, and instead imposing an 8-level

enhancement for an aggravated felony, pursuant to § 2L1.2(b)(1)(C), and (2)

resentencing the Defendant in light of a correctly-calculated advisory Guidelines

range of 33-41 months. See United States v. Martinez, 606 F.3d 1303, 1304 (11th

Cir. 2010) (28 U.S.C. § 2106 grants a circuit court broad discretion to fashion an

appropriate mandate on remand after the vacatur of a sentence in a criminal case).

In resentencing Defendant, the district court shall consider all appropriate 18


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U.S.C. § 3553(a) factors in determining a reasonable sentence. Assuming no plea

agreement to the contrary, either party is free to advocate for a departure or

variance above or below the correctly-calculated Guidelines range.

      VACATED AND REMANDED.




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