                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES COURT OF APPEALS October 28, 2011
                                                                Elisabeth A. Shumaker
                                   TENTH CIRCUIT                    Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                     No. 11-2011
                                               (D.C. No. 2:10-CR-2363-BB-1)
 LAZARO ABRAHAM                                         (D. N. Mex.)
 VILLALOBOS-VARELA,

          Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before BRISCOE, Chief Circuit Judge, TYMKOVICH, Circuit Judge, and
FREUDENTHAL, District Judge **.



      Defendant Lazaro Villalobos-Varela appeals the district court’s sentence of

thirty months imprisonment for re-entry of a removed alien in violation of 8

U.S.C. § 1326(a) and (b). According to Villalobos-Varela, the district court

incorrectly concluded that his Colorado felony menacing conviction was a crime


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      **
         The Honorable Nancy D. Freudenthal, Chief United States District Judge
for the District of Wyoming, sitting by designation.
of violence and subjected him to a 16-Level Enhancement under the United States

Sentencing Guideline Manual (USSG) § 2L1.2. 1 We have jurisdiction pursuant to

28 U.S.C. § 1291 and AFFIRM.

                                          I

                                Factual Background

      Villalobos-Varela, a Mexican citizen, was brought to the United States

when he was three years old and lived continuously in the United States from then

until he was deported in May 2010. ROA. Vol. 2 at 24. The Colorado felony

menacing conviction at issue stems from events in 2006. At that time, Villalobos-

Varela was living in Longmont, Colorado, with his then girlfriend, now wife,

Mayra Canales. Id. Vol. 2 at 17. On or about March 11, 2006, Villalobos-Varela

got into a physical altercation with Ms. Canales. Id. Vol. 2 at 21. In the course of

the altercation, Villalobos-Varela threw her to the ground and choked her. Id.

Officers arrived at the scene and arrested Villalobos-Varela. Id. On August 18,

2006, Villalobos-Varela pled guilty in the District Court of Boulder County to

felony menacing with a deadly weapon in violation of Colo. Rev. Stat. § 18-3-

206. Id. Vol. 2 at 20-21. Villalobos-Varela received six months jail and two years

probation. Id. Vol. 2 at 20. While there is little information in the record




      1
       All USSG citations refer to the 2009 U.S. Sentencing Commission
Guidelines Manual.

                                         -2-
regarding the events of the intervening months, Villalobos-Varela was deported to

Mexico on May 18, 2010. Id. Vol. 2 at 23.

      Approximately a month later, on June 24, 2010, an Agent of the Santa

Teresa, New Mexico Border Patrol encountered Villalobos-Varela in Santa

Teresa. Id. Vol. 1 at 4. The Agent questioned Villalobos-Varela as to his

citizenship and Villalobos-Varela stated that he was a citizen and national of

Mexico, present in the United States without Immigration Documents that would

allow him to be or remain in the United States legally. Id. Villalobos-Varela was

arrested and charged with violation of 8 U.S.C. §§ 1326(a) and (b). Id. Vol. 1 at

7.

                                      Sentencing

      On August 17, 2010, Villalobos-Varela pled guilty to re-entering the United

States after having been deported in violation of 8 U.S.C. § 1326(a) and (b),

without the benefit of a plea agreement. Id. Vol. 2 at 16. The district court set a

date for sentencing, and the probation officer prepared a presentence report. The

probation officer determined that Villalobos-Varela’s base offense level was 8. Id.

Vol. 2 at 16. Applying USSG § 2L1.2(b), the probation officer concluded that the

2006 menacing conviction qualified as a crime of violence, requiring a 16-level

increase to Villalobos-Varela’s base offense level for an adjusted offense level of

24. Id. Villalobos-Varela received a 3 level reduction for acceptance of

responsibility for a total offense level of 21. Id. Vol. 2 at 20. Villalobos-Varela’s

                                          -3-
criminal history was calculated at a category III, for an advisory sentence of 46 to

57 months, with 2 to 3 years of supervised release. Id. Vol. 2 at 26.

      Villalobos-Varela’s counsel filed formal objections to the PSR claiming,

among other things, that the 2006 Colorado menacing conviction should not be

considered a crime of violence under the Guidelines because a person can be

convicted of felony menacing in Colorado without the use of physical force and

without the victim feeling or being in danger. Id. Vol. 1 at 8-20. Villalobos-

Varela argued that under the categorical approach, menacing is not a crime of

violence under USSG. § 2L1.2(b)(1)(A)(ii).

      At sentencing, the district court rejected Villalobos-Varela’s arguments that

Colorado felony menacing is not a crime of violence. In determining the

appropriate sentence, the district court applied the factors set forth in 18 U.S.C. §

3553 and ruled that the appropriate sentence was 30 months, with 2 years of

supervised release. Id. Vol. 3 at 18.

                                          II

                                 Standard of Review

      “Whether a prior offense constitutes a ‘crime of violence’ under § 2L1.2

presents a question of statutory interpretation, and we review the district court's

conclusion de novo.” United States v. Zuniga-Soto, 527 F.3d 1110, 1116-1117

(10th Cir. 2008)(citation omitted). “In interpreting the Guidelines, we look at the

language in the guideline itself, as well as at the interpretative and explanatory

                                          -4-
commentary to the guideline provided by the Sentencing Commission.” United

States v. McConnell, 605 F.3d 822, 824 (10th Cir. 2010)(citations and internal

quotation marks omitted). “Commentary to the Guidelines is authoritative unless

it violates the Constitution or a federal statute, or is inconsistent with, or a plainly

erroneous reading of, that guideline.” Id. (citations and internal quotation marks

omitted).

                                        Analysis

      Section 2L1.2 of the Guidelines applies to defendants who have been

convicted of unlawfully entering or remaining in the United States. The

Guidelines establish a base offense level of eight, but § 2L1.2(b)(1)(A) requires a

district court to impose a sixteen-level enhancement if the defendant has been

previously convicted of “a crime of violence.” Application Note 1(B)(iii) defines

“crime of violence” 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.

      To determine whether Villalobos-Varela’s Colorado felony menacing

conviction qualifies as a crime of violence, we apply the categorical approach set

forth in Taylor v. United States, 495 U.S. 575, 602 (1990). “As the Supreme

Court recently explained, under the categorical approach ‘we consider the offense


                                           -5-
generically, that is to say, we examine it in terms of how the law defines the

offense and not in terms of how an individual offender might have committed it

on a particular occasion.’” United States v. Rooks, 556 F.3d 1145, 1147 (10th Cir.

2009)(quoting, Begay v. United States, 553 U.S. 137, 141 (2008)). “The

categorical approach looks only to the statutory definition of the offense and the

fact of conviction.” Rooks, 556 F.3d at 1147. 2

      Villalobos-Varela was convicted for a felony under Colorado’s menacing

statute which provides:

      (1) A person commits the crime of menacing if, by any threat or
      physical action, he or she knowingly places or attempts to place
      another person in fear of imminent serious bodily injury. Menacing is
      a class 3 misdemeanor, but, it is a class 5 felony if committed:

             (a) By the use of a deadly weapon or any article used or
                 fashioned in a manner to cause a person to
                 reasonably believe that the article is a deadly
                 weapon; or

             (b) By the person representing verbally or otherwise that
                he or she is armed with a deadly weapon.

Colo. Rev. Stat. § 18-3-206.




      2
         In some circumstances, criminal statutes contain separate subsections,
each of which can be charged separately and violation of one section would
qualify as a crime of violence, but violation of another would not. In these cases,
a court may consider a limited set of documents to determine under which
subsection the defendant was convicted. This approach is known as a modified
categorical approach. However, we believe, and both parties agree, that the
modified categorical approach is not applicable in this case.

                                         -6-
      This court previously concluded Colorado felony menacing is categorically

a violent felony for purposes of the Armed Career Criminal Act (“ACCA”).

United States v. Herron, 432 F.3d 1127, 1138 (10th Cir. 2005). 3 More recently,

this court, relying on its holding in Herron, determined that Colorado felony

menacing is categorically a crime of violence under USSG § 4B1.2(a). United

States v. Armijo, 651 F.3d 1226, 1233 (10th Cir. 2011). In Armijo, the Court

noted that the term “crime of violence” under § 2L1.2 is identical, in pertinent

part, to the definition of crime of violence set out in § 4B1.2(a)(1). Id. at 1233, n.

4.

      While Armijo was decided after the briefing in this case was complete,

Villalobos-Varela argues that Armijo does not control the outcome of this appeal.

Villalobos-Varela argues that Armijo failed to address his issues that Colorado’s

felony menacing does not necessarily entail “physical force” and that Colorado

felony menacing does not constitute a crime of violence because it can be

committed by a “threat” that need not be communicated to the victim.

      The phrase “physical force” under the ACCA “means violent force - that is,

force capable of causing physical pain or injury to another person.” Johnson v.



      3
        “Given the similarity in language between the ACCA and USSG, we have
occasionally looked to precedent under one provision for guidance under another
in determining whether a conviction qualifies as a violent felony.” United States.
v. Ramon Silva, 608 F.3d 663, 671 (10th Cir. 2010)(citation and quotation marks
omitted).

                                         -7-
United States, ---U.S.---, 130 St. Ct. 1265, 1271, 176 L.Ed.2d 1 (2010) (emphasis

in original). We conclude that Colorado felony menacing satisfies this

requirement. In Armijo, this court specifically found that Colorado felony

menacing requires as an element the use or threatened use of physical force, even

if the deadly weapon is a poison or pathogen. Id. at 1233. In Armijo, this court

joined the Ninth and Eighth Circuits in rejecting arguments to the contrary. Id. at

1232 (citing United States v. Melchor-Meceno, 620 F.3d 1180, 1185-86 (9th Cir.

2010)(“One cannot knowingly place another in fear of being poisoned [under

Colorado law] without threatening to force the poison on the victim); United

States v. Forrest, 611 F.3d 908, 910-911 (8th Cir. 2010)(“A threat that creates a

fear ‘of imminent serious bodily injury’ is a threat of physical force.”)).

Therefore, Villalobos-Varela’s argument that Colorado felony menacing does not

require physical force, was discussed and rejected in Armijo. This court has

determined that Colorado felony menacing does entail the use or threatened use of

physical force.

      Villalobos-Varela also argues that Colorado felony menacing does not

require the victim to be aware of the threat or in fear of injury. See People v.

Saltray, 969 P.2d 729, 732 (Colo. App. 1998)(threat against victim was

communicated to third party, not the victim, the court found the proper focus of

whether defendant has committed crime of menacing is intent and conduct of

defendant, not the victim). Villalobos-Varela argues that the definition of threat

                                          -8-
requires some communication of the threat to the victim. Thus, if a victim is

unaware of any danger, there has been no communication and without

communication, there can be no threat.

      We are not persuaded by Villalobos-Varela’s argument that the victim must

actually perceive the threat to qualify as a crime of violence under § 2L1.2. This

determination is consistent with the interpretation of the term “threat” in other

areas of federal law. See United States v. Martin, 163 F.3d 1212, 1216 (10th Cir.

1998)(finding that threats under 18 U.S.C. § 115 are not required to be made

directly to the proposed victim); United States v. Crews, 781 F.2d 826, 829, 832

(10th Cir. 1986)(holding threats made against President to psychiatric nurse

violated 18 U.S.C. § 871).

      None of Villalobos-Varela’s arguments casts any doubt on this court’s

reasoning in Herron and Armijo that led to the conclusions that Colorado felony

menacing is a violent felony for purposes of the ACCA and a violent crime under

§ 4B1.2(a). Because the relevant language of § 4B1.2(a)(1) is identical to the

relevant language in the term “crime of violence” for § 2L1.2(b)(1), we conclude

that Armijo and Herron compel the determination that Colorado felony menacing

is a crime of violence for purposes of § 2L1.2(b). Accordingly, the district court

correctly determined that Villalobos-Varela’s 2006 Colorado felony menacing

conviction was categorically a crime of violence and correctly applied the 16-

level enhancement to his offense level.

                                          -9-
                                III

The judgment of the district court is AFFIRMED.



                                      Entered for the Court



                                      Nancy D. Freudenthal
                                      Chief District Court Judge




                               -10-
