                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                       PUBLISH                 February 10, 2012
                                                              Elisabeth A. Shumaker
                    UNITED STATES COURT OF APPEALS                Clerk of Court

                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,
          v.                                            No. 10-1541
 ABRAM VENZOR-GRANILLO, also
 known as Sergio Lerma-Cano,

               Defendant - Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLORADO
                     (D.C. NO. 1:10-CR-00314-PAB-1)


John T. Carlson, Assistant Federal Public Defender (Raymond P. Moore, Federal
Public Defender, with him on the briefs), Denver, Colorado, for Defendant -
Appellant.

Paul Farley, Assistant United States Attorney (John F. Walsh, United States
Attorney, with him on the brief), Denver, Colorado, for Plaintiff - Appellee.


Before MURPHY, BALDOCK, and SILER, * Circuit Judges.


MURPHY, Circuit Judge.




      *
       The Honorable Eugene E. Siler, Jr., United States Circuit Judge, Sixth
Circuit, sitting by designation.
I. Introduction

      Abram Venzor-Granillo appeals the district court’s application of an eight-

level sentence enhancement under U.S.S.G. § 2L1.2(b)(1)(C). He argues the

district court erred by using the modified categorical approach to conclude his

prior Colorado conviction for first degree criminal trespass was a theft offense,

warranting the enhancement. The district court properly applied the modified

categorical approach because the Colorado statute under which Venzor-Granillo

was convicted is ambiguous: it reaches a broad range of conduct, some of which

merits the enhancement and some of which does not. The charging document 1

and plea agreement underlying Venzor-Granillo’s prior conviction reveal he

necessarily admitted all the elements of the generic offense of attempt to commit

theft. Therefore, the district court did not err in imposing the sentence

enhancement. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a), this court affirms the sentence imposed by the district court.

II. Background

      Venzor-Granillo pleaded guilty to illegally reentering the United States

following a prior removal, in violation of 8 U.S.C. § 1326(a) and (b)(2). The

Presentence Investigation Report (“PSR”) treated Venzor-Granillo’s prior

conviction for first degree criminal trespass under Colo. Rev. Stat. § 18-4-502 as

      1
        The charging document underlying Venzor-Granillo’s prior offense is
titled “complaint and information.” This opinion will refer to this document as
the charging document.

                                         -2-
an aggravated felony and therefore recommended an eight-level sentence

enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(C). 2 In so doing, however, the

PSR recognized that the question whether Venzor-Granillo’s prior conviction fell

within the definition of aggravated felony was a legal issue for the district court

to determine at sentencing.

      Venzor-Granillo objected to the application of the eight-level sentence

enhancement, claiming his prior conviction did not constitute an aggravated

felony. The Colorado statute under which Venzor-Granillo was convicted states:

“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.” Colo.

Rev. Stat. § 18-4-502. Venzor-Granillo admitted he was convicted under the

latter part of the statute, which criminalizes entering a motor vehicle with intent

to commit a crime therein (the “trespass to a motor vehicle” part of the statute).

He asserted, however, that a conviction under this part of the statute does not

necessarily constitute an aggravated felony. Moreover, he argued, the district

court was prohibited from applying the modified categorical approach and

reviewing the charging document and plea agreement underlying his prior



      2
      Venzor-Granillo was sentenced pursuant to the 2009 version of the
Sentencing Guidelines. Unless otherwise noted, all further references to the
Guidelines are to the 2009 version.

                                         -3-
conviction to determine whether he was actually convicted of an aggravated

felony.

      The district court rejected Venzor-Granillo’s argument. It determined the

modified categorical approach should be applied and reviewed the charging

document and plea agreement underlying Venzor-Granillo’s prior conviction.

These documents showed Venzor-Granillo was charged with, and pleaded guilty

to, trespass to a motor vehicle with intent to commit the crime of theft. The

district court therefore concluded Venzor-Granillo’s prior conviction constituted a

theft offense, falling within the definition of aggravated felony and warranting the

eight-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C). See U.S.S.G. § 2L1.2

cmt. n.3(A); 8 U.S.C. § 1101(a)(43)(G), (U). The district court sentenced

Venzor-Granillo to thirty-six months in prison.

III. Analysis

      This court reviews de novo the district court’s conclusion that Venzor-

Granillo’s prior conviction is an aggravated felony under the Sentencing

Guidelines. United States v. Venegas-Ornelas, 348 F.3d 1273, 1274 (10th Cir.

2003). In interpreting the Guidelines, this court looks “at the language in the

guideline itself, as well as at the interpretative and explanatory commentary to the

guideline provided by the Sentencing Commission.” United States v. McConnell,

605 F.3d 822, 824 (10th Cir. 2010) (quotation omitted). “Commentary to the

Guidelines is authoritative unless it violates the Constitution or a federal statute,

                                          -4-
or is inconsistent with, or a plainly erroneous reading of, that guideline.” Id.

(quotations omitted).

      A.     The Categorical Approach

      U.S.S.G. § 2L1.2(b)(1)(C) requires an eight-level increase in the base

offense level of a defendant who unlawfully reenters the United States after a

previous removal following a conviction for an aggravated felony. Aggravated

felony includes “a theft offense . . . for which the term of imprisonment [is] at

least one year” and an attempt to commit a theft offense. 8 U.S.C.

§ 1101(a)(43)(G), (U); see also U.S.S.G. § 2L1.2 cmt. n.3(A). This enhancement

provision refers to the generic offenses of theft and attempted theft, i.e., it refers

to those offenses as they are generally committed. Nijhawan v. Holder, 129 S. Ct.

2294, 2298-99 (2009). Thus, in determining whether a prior conviction warrants

an enhancement as a theft offense or attempted theft offense, the court must use

the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 600-

02 (1990), and Shepard v. United States, 544 U.S. 13, 25-26 (2005). Id.; see also

United States v. Martinez-Hernandez, 422 F.3d 1084, 1086 (10th Cir. 2005)

(stating the categorical approach applies “when the language of the enhancement

confines the court’s inquiry to the terms of the statute of conviction” (quotation

and alteration omitted)). Indeed, several other circuits apply the categorical

approach to determine whether a defendant’s prior conviction warrants an

enhancement as a theft offense or attempted theft offense under § 2L1.2(b)(1)(C)

                                          -5-
and 8 U.S.C. § 1101(a)(43)(G) and (U). See Ngaeth v. Mukasey, 545 F.3d 796,

800-01 (9th Cir. 2008); United States v. Martinez-Garcia, 268 F.3d 460, 464-66

(7th Cir. 2001); Lopez-Elias v. Reno, 209 F.3d 788, 791 (5th Cir. 2000); see also

Gonzales v. Duenas-Alvarez, 549 U.S. 183, 185-86 (2007) (“In determining

whether a conviction . . . falls within the scope of a listed offense (e.g., ‘theft

offense’), the lower courts uniformly have applied” the categorical approach.).

      Under the categorical approach, a sentencing court determines whether a

prior conviction requires application of a sentence enhancement by “looking not

to the particular facts of the prior conviction but to the terms of the underlying

statute.” Martinez-Hernandez, 422 F.3d at 1086; see also Taylor, 495 U.S. at 600

(stating that under the categorical approach a court may look “only to the

statutory definitions of the prior offenses, and not to the particular facts

underlying those convictions”). In the case of a generic offense enhancement

provision, the categorical approach “requires a comparison of the elements of the

relevant state statute with the basic elements of [the generic offense].”3 United

States v. Barney, 955 F.2d 635, 638 (10th Cir. 1992). “If the relevant statute is in

substantial accord with the [generic offense], the conviction may be used for

enhancement purposes.” Id.; see also Taylor, 495 U.S. at 602.


      3
       The elements of a generic offense are determined based on the offense’s
“generic, contemporary meaning” or “the generic sense in which the term is now
used in the criminal codes of most States.” Taylor v. United States, 495 U.S. 575,
598 (1990).

                                           -6-
      B.    The Modified Categorical Approach

      In certain circumstances, application of the categorical approach requires

courts to look beyond the terms of the statute of conviction. “When the

underlying statute reaches a broad range of conduct, some of which merits an

enhancement and some of which does not, courts resolve the ambiguity by

consulting reliable judicial records, such as the charging document, plea

agreement, or plea colloquy” to determine whether the defendant’s prior

conviction warrants an enhancement. Martinez-Hernandez, 422 F.3d at 1086; see

also Shepard, 544 U.S. at 26; Taylor, 495 U.S. at 599-602. This process of

applying the categorical approach, and if necessary, going beyond the terms of the

underlying statute to determine whether the particular defendant’s conviction

warrants an enhancement, is commonly referred to as the modified categorical

approach. United States v. Torres-Romero, 537 F.3d 1155, 1158 (10th Cir. 2008).

      Relying on this court’s decisions in United States v. Zuniga-Soto, 527 F.3d

1110, 1113 (10th Cir. 2008), and United States v. Herrera, 286 F. App’x 546, 555

(10th Cir. 2008), Venzor-Granillo argues the sole purpose of the modified

categorical approach is to determine which part of a divisible statute was charged

against a defendant and, therefore, which part of the statute to examine on its

face. Venzor-Granillo admits that because the Colorado statute he was convicted

under criminalizes both trespass to a dwelling and trespass to a motor vehicle, the

modified categorical approach can be used to determine which of these parts of

                                        -7-
the statute he violated. Thus, he concedes the district court appropriately applied

the modified categorical approach to determine he was convicted under the

trespass to a motor vehicle part of the statute. He argues, however, the modified

categorical approach cannot be further applied to that part, i.e., to determine what

crime he intended to commit when he entered the motor vehicle. Therefore, his

argument continues, once the district court used the modified categorical

approach to determine he was convicted under the trespass to a motor vehicle part

of the statute, it was required to abstain from further review of the judicial

records underlying his prior conviction, disregard any additional facts those

records revealed, and return to the pure categorical approach. Thus, Venzor-

Granillo asserts the district court should have compared the elements of the

trespass to a motor vehicle part of the statute with the generic definition of theft

or attempted theft to determine whether that part of the statute is categorically a

theft offense. Had the district court done so, he concludes, it would have

discovered that neither theft nor attempted theft is an element of entering a

“motor vehicle with intent to commit a crime therein.” Ultimately, Venzor-

Granillo’s position is that because the trespass to a motor vehicle part of the

Colorado statute is not categorically a theft offense, his Colorado conviction is

not an aggravated felony for purposes of U.S.S.G. § 2L1.2(b)(1)(C)’s sentence

enhancement. We reject this myopic view of the modified categorical approach.




                                          -8-
      Venzor-Granillo’s reliance on Zuniga-Soto, and Herrera, is misplaced. In

those decisions this court sought to determine whether a defendant’s prior

conviction warranted a sentence enhancement as a crime of violence under

U.S.S.G. § 2L1.2 because it constituted an “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.” Zuniga-Soto, 527 F.3d at 1115 (quotation

omitted); Herrera, 286 F. App’x at 550 (quotation and alteration omitted). In

Zuniga-Soto, we determined that § 2L1.2’s “as an element” language demands a

narrow application of the modified categorical approach:

      Whereas generic offense enhancement provisions, such as the one at
      issue in Shepard and Taylor, require that, in some instances, courts
      look beyond the statutory definition of an offense to determine
      whether a crime committed under [a] broader state statute fits within
      the narrower federal definition of the generic offense, [§ 2L1.2’s “as
      an element” language] demands that sentencing courts look at (and
      not beyond) the statute of conviction in order to identify the elements
      of the offense.

Zuniga-Soto, 527 F.3d at 1120 (emphasis in original). Consistent with this focus

on the statutory definition of the prior offense, a sentencing court may consult the

judicial records approved in Taylor and Shepard, but only “to determine which

part of the statute was charged against the defendant and, thus, which portion of

the statute to examine on its face.” Id. at 1121 (quotations omitted). This

statement in Zuniga-Soto makes clear that if the enhancement at issue implicates a

generic offense, a sentencing court may look beyond the face of the statute of


                                         -9-
conviction to determine whether the elements of the offense the defendant was

previously convicted of warrant the enhancement. 4 Indeed, Zuniga-Soto

specifically acknowledged that the purpose of the modified categorical approach

with respect to generic offense enhancement provisions like the one applied to

Venzor-Granillo, is to enable the sentencing court to identify those facts that

necessarily supported a prior conviction. See id. at 1119. Once it has done so,

the court can ascertain whether the jury necessarily had to find, or the defendant

necessarily admitted, “facts that would also satisfy the definition” of a generic

offense enhancement provision. Id.

      Not only does Zuniga-Soto undermine Venzor-Granillo’s argument, his

position is also foreclosed by this court’s decision in Vargas v. Department of

Homeland Security, 451 F.3d 1105, 1108-09 (10th Cir. 2006). In Vargas we

concluded the defendant’s prior Colorado state conviction for contributing to the

delinquency of a minor constituted “sexual abuse of a minor,” falling within the

definition of “aggravated felony” under 8 U.S.C. § 1101(a)(43)(A). Id. at 1106.

The Colorado statute under which the defendant pleaded guilty provided: “Any

person who induces, aids, or encourages a child to violate any federal or state


      4
       This conclusion is not inconsistent with the Supreme Court’s recent
decisions in Johnson v. United States, 130 S. Ct. 1265, 1269, 1273 (2010), and
Nijhawan v. Holder, 129 S. Ct. 2294, 2298-303 (2009). See United States v.
Ventura-Perez, No. 10-1529, 2012 WL 130716, at *3-6 (10th Cir. Jan. 18, 2012);
United States v. Aguila-Montes de Oca, 655 F.3d 915, 928-31 (9th Cir. 2011) (en
banc).

                                        -10-
law, municipal or county ordinance, or court order commits contributing to the

delinquency of a minor.” Id. at 1108-09 (quotation omitted). We noted the

statute “encompasses a multitude of crimes, one for each predicate offense that

the child might be urged to commit.” Id. at 1109. Because the statute “reaches a

broad range of conduct, some of which would constitute an aggravated felony and

some of which would not,” we applied the modified categorical approach to

“determine whether a particular conviction under the contributing-to-the-

delinquency-of-a-minor statute was for sexual abuse of a minor.” Id. (quotation

omitted). In other words, because the statute contained the broad language

“federal or state law, municipal or county ordinance, or court order,” this court

concluded the modified categorical approach should be applied to determine

which law the defendant induced the minor to violate and whether that crime

warranted the sentence enhancement. Id.

      Moreover, we pointed out, “the specific predicate offense must be charged

and proved as an element of the offense of contributing to the delinquency of a

minor.” Id. Thus, to convict a defendant of contributing to the delinquency of a

minor, a jury necessarily has to find, or a defendant has to admit, “a specified

predicate offense that the defendant induced, aided, or encouraged the child to

violate.” Id. Accordingly, we upheld the Board of Immigration Appeals’s

conclusion that the defendant was convicted of an offense that constituted sexual

abuse of a minor because the charging document revealed he pleaded guilty to

                                         -11-
contributing to the delinquency of a minor by encouraging a child to engage in

nonconsensual sexual contact. Id. We did not, as Venzor-Granillo argues we

must, apply the modified categorical approach to determine which part of the

Colorado statute the defendant violated and then examine that part of the statute

on its face to determine whether it was categorically sexual abuse of a minor.

Indeed, a comparison of the elements present on the face of the relevant part of

the applicable statute with the elements of the generic offense of sexual abuse of

a minor, shows the statute does not, categorically, constitute sexual abuse of a

minor. Id.

      Two recent circuit court decisions are in accord with the approach this

court took in Vargas. United States v. Aguila-Montes de Oca, 655 F.3d 915, 927-

28 (9th Cir. 2011) (en banc); United States v. Fife, 624 F.3d 441, 446 (7th Cir.

2010). In Fife, the Seventh Circuit held a defendant’s prior Illinois conviction for

armed violence constituted a violent offense for purposes of the Armed Career

Criminal Act. 624 F.3d at 449. The statute of conviction at issue was violated if,

“while armed with a dangerous weapon, a person ‘commits any felony defined by

Illinois Law.’” Id. at 444 (emphasis added). The Seventh Circuit concluded this

statute should be examined under the modified categorical approach:

      Fife’s assertion that we are limited to the language of the statute
      without consideration of the felony involved is inconsistent with our
      cases concerning the modified categorical approach. By defining the
      crime of armed violence as the commission of a felony while armed
      with a dangerous weapon, the statute necessarily establishes multiple

                                        -12-
      modes of commission of the crime, dependent upon the underlying
      felony. There is no need that each potential felony be explicitly
      listed and separately enumerated as a subsection, because the
      practical effect is the same. In either scenario, [the modified
      categorical approach applies,] not because each subcategory is
      separately listed, but because [the statute] by its terms . . . creates
      several crimes or a single crime with several modes of commission.

Id. at 446.

      Similarly, in Aguila-Montes de Oca, the Ninth Circuit, sitting en banc, held

the modified categorical approach should be applied to any statute of conviction

that is categorically broader than the generic offense. 655 F.3d at 940. In so

holding, the court determined that statutes which “simply substitute a shorthand

phrase for a list of acts or objects covered by that phrase [are] . . . not

meaningfully different” from statutes which list every kind of act or object

covered under the statute. Id. at 927. The only conceptual difference is that the

latter statutes create an explicitly finite list of possible means of commission,

while the former create an implied list of every means of commission that

otherwise fits the definition of the crime. Id. Thus, the Ninth Circuit held that a

statute that uses the word “‘weapon’ as an element is not analytically different

from [a statute] creating a list of all conceivable weapons.” Id. Because someone

convicted of assault with a “weapon” may have used a gun, the sentencing court

may look to trusted court documents “to determine if the trier of fact was actually

required to find that the defendant used a gun.” Id.; see also id. at 937 (“[T]he

modified categorical approach asks what facts the conviction ‘necessarily rested’

                                           -13-
on in light of the theory of the case as revealed in the relevant Shepard

documents, and whether these facts satisfy the elements of the generic offense.”).

      In sum, the modified categorical approach applies whenever a statute of

conviction is ambiguous because it “reaches a broad range of conduct, some of

which merits an enhancement and some of which does not.” Martinez-Hernandez,

422 F.3d at 1086; see also Shepard, 544 U.S. at 20-21; Taylor, 495 U.S. at 599-

602. The purpose, at least with respect to generic offense enhancement

provisions, is to enable the sentencing court to determine whether the jury

necessarily had to find, or the defendant necessarily admitted, all the elements of

the generic offense before it imposes a sentence enhancement based on a prior

conviction. Shepard, 544 U.S. at 26; Taylor, 495 U.S. at 602.

      C.     Applying the Modified Categorical Approach to This Case

      The trespass to a motor vehicle part of the Colorado statute under which

Venzor-Granillo was convicted criminalizes entering “any motor vehicle with

intent to commit a crime therein.” Colo. Rev. Stat. § 18-4-502 (emphasis added).

The word “crime” includes one of any number of offenses, including theft

offenses or attempted theft offenses. Thus, the statute is ambiguous because it

“reaches a broad range of conduct, some of which merits an enhancement and

some of which does not.” Martinez-Hernandez, 422 F.3d at 1086; see also

Shepard, 544 U.S. at 20-21; Taylor, 495 U.S. at 599-602; Vargas, 451 F.3d at

1108-09.

                                         -14-
      Moreover, Colorado law requires the ulterior offense to be charged and

proved as an element of the statutory offense of first degree trespass. See People

v. Williams, 984 P.2d 56, 59, 65 (Colo. 1999); People v. Archuleta, 554 P.2d 307,

310 (Colo. 1976). Thus, to support a conviction, a Colorado jury necessarily has

to find, or a defendant has to admit, all the elements of the predicate offense to

convict. See Vargas, 451 F.3d at 1108-09. The modified categorical approach

can therefore be applied to determine what crime the defendant intended to

commit when he entered the motor vehicle and whether the elements of that crime

satisfy the elements of a generic offense set forth in an enhancement provision.

Shepard, 544 U.S. at 26; Taylor, 495 U.S. at 602.

      In this case, the district court appropriately applied the modified categorical

approach. It looked, not only to the definition of the statute of conviction, but

also to the charging document and plea agreement to see what crime Venzor-

Granillo intended to commit when he entered the motor vehicle. Both the

charging document and the plea agreement reveal Venzor-Granillo was convicted

of knowingly and unlawfully entering a motor vehicle “with intent to commit

therein the crime of THEFT; in violation of section 18-4-502, C.R.S.” Moreover,

Venzor-Granillo’s plea agreement states: “‘Theft’ means to knowingly take the

property of another with intent to permanently deprive the rightful owner of the

use or benefit of that property; it means to steal another person[s] property.”




                                         -15-
      A comparison of the elements of Venzor-Granillo’s conviction for first

degree criminal trespass with the elements of the generic definition of attempt to

commit a theft offense shows that Venzor-Granillo necessarily admitted all the

elements of the generic crime of attempt to commit theft. 5 The generic definition

of “theft offense,” as it is used in 8 U.S.C. § 1101(a)(43)(G), “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.” United States v. Vasquez-Flores, 265

F.3d 1122, 1125 (10th Cir. 2001) (quotation omitted). And the generic definition

of “attempt” is an intent to commit a crime and the commission of an act which

constitutes a substantial step toward commission of that crime. See United States

v. Cornelio-Pena, 435 F.3d 1279, 1286 (10th Cir. 2006). Thus, the elements of

the offense Venzor-Granillo pleaded guilty to, as set forth in his plea agreement,

substantially correspond to the elements of the generic offense of attempt to

commit theft. See Ngaeth v. Mukasey, 545 F.3d 796, 800-02 (9th Cir. 2008)

(applying the modified categorical approach to conclude a conviction under a

similar statute for burglary of a vehicle qualified as a conviction for an attempted

theft offense, and therefore an aggravated felony, warranting a sentence


      5
       Venzor-Granillo does not assert the district court erred in interpreting the
charging document and plea agreement underlying his prior Colorado conviction,
which, he admits, “unquestionably reveal” that his conviction, factually speaking,
amounted to at least an attempted theft offense.

                                        -16-
enhancement); United States v. Alfaro-Gramajo, 283 F. App’x 677, 679-81 (11th

Cir. 2008) (unpublished) (same); United States v. Martinez-Garcia, 268 F.3d 460,

466 (7th Cir. 2001) (same); Lopez-Elias v. Reno, 209 F.3d 788, 792-93 (5th Cir.

2000) (same).

      In sum, the part of the Colorado statute under which Venzor-Granillo was

convicted criminalizes both the generic offense of attempt to commit theft as well

as numerous other offenses, warranting application of the modified categorical

approach. A review of the charging document and plea agreement underlying

Venzor-Granillo’s prior conviction reveals he necessarily admitted all the

elements of the generic offense of attempt to commit theft. Thus, the district

court did not err in concluding Venzor-Granillo’s prior conviction constituted an

attempt to commit a theft offense, meriting the imposition of the eight-level

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

IV. Conclusion

      For the foregoing reasons, we affirm Venzor-Granillo’s sentence.




                                        -17-
