     Case: 09-50061         Document: 00511082960         Page: 1     Date Filed: 04/16/2010




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

                                                    FILED
                                                                               April 16, 2010

                                           No. 09-50061                        Lyle W. Cayce
                                                                                    Clerk

UNITED STATES OF AMERICA

                                                      Plaintiff - Appellee
v.

NOEL PORTILLO-COVOS, also known as Noel Cobos-Portillo

                                                      Defendant - Appellant




                       Appeal from the United States District Court
                            for the Western District of Texas
                                 USDC No. 3:08-CR-2696


Before JOLLY and DENNIS, Circuit Judges, and BOYLE, District Judge.*
PER CURIAM:**
        Defendant Noel Portillo-Covos pleaded guilty to a single count of illegal
reentry in violation of 8 U.S.C. § 1326. The district court sentenced him to 34
months imprisonment followed by a three-year term of supervised release. This
sentence was at the middle of the advisory Sentencing Guidelines range of 30 to
37 months imprisonment, which the district court calculated by applying an
eight-level enhancement to Portillo-Covos’s base offense level pursuant to

        *
             District Judge, Northern District of Texas, sitting by designation.
        **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50061

U.S.S.G. § 2L1.2(b)(1)(C) because he was previously deported after having been
convicted of an aggravated felony, viz., a 2006 Colorado conviction for “trespass
of an automobile” in violation of Colo. Rev. Stat. § 18-4-502.1 On appeal, Portillo-
Covos argues only that the district court erred in concluding that the trespass
of an automobile offense is an aggravated felony under U.S.S.G § 2L1.2(b)(1)(C).
We agree, and therefore vacate Portillo-Covos’s sentence and remand this case
to the district court for resentencing.
                                  I. BACKGROUND
       Portillo-Covos pleaded guilty without the benefit of a plea agreement to a
single count of illegal reentry, in violation of 8 U.S.C. § 1326. The presentence
report (PSR) applied a base offense level of eight, to which it added an eight-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(C) because the defendant was
previously removed after having committed an aggravated felony. Specifically,
the PSR found that the defendant had been removed for a 2006 conviction in
Colorado state court for violating that state’s “trespass of an automobile” offense,
Colo. Rev. Stat. § 18-4-502.         The PSR concluded that this offense was an
“aggravated felony” under the Guidelines. Using this enhancement and an
adjustment for acceptance of responsibility, the PSR calculated a total offense
level of 13, which, considered with his criminal history category of V, yielded an
advisory Guidelines range of 30 to 37 months imprisonment.2 Portillo-Covos
objected to the PSR’s application of the aggravated felony enhancement, which
the district court overruled. The district court sentenced Portillo-Covos to 34




       1
        “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.
       2
        Absent the eight-level enhancement, Portillo-Covos’s total offense level would have
been only 5, yielding an advisory Guidelines range of 6 to 12 months imprisonment.

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                                       No. 09-50061

months imprisonment and a three-year term of supervised release. Portillo-
Covos timely appealed.
                            II. STANDARD OF REVIEW
       “We review the district court’s interpretation and application of the
Sentencing Guidelines de novo, and its factual determinations for clear error.”
United States v. Jimenez, 509 F.3d 682, 693 (5th Cir. 2007). When sentencing
a defendant, the district court “must first calculate the Guidelines range and
consider the appropriateness of a sentence within that sentencing range to fulfill
its duty to consider the Sentencing Guidelines as advisory and as a frame of
reference.” United States v. Tzep-Mejia, 461 F.3d 522, 525 (5th Cir. 2006). “This
first step ordinarily requires that the defendant court determine a properly
calculated Guideline sentence.           If the district court makes an error in an
application of the Guidelines, we vacate the resulting sentence without reaching
the sentence’s ultimate reasonableness.” Id. at 526.
                                   III. DISCUSSION
       The Guidelines call for an eight-level increase to the base offense level “[i]f
the defendant previously deported, or unlawfully remained in the United States,
after . . . a conviction for an aggravated felony.” U.S.S.G. § 2L1.2(b)(1)(C).
“Aggravated felony” for purposes of the enhancement is defined by reference to
the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43). See U.S.S.G. §
2L1.2, comment. (n.3(A)). As relevant to this case, § 1101(a)(43) defines an
“aggravated felony” to mean “a crime of violence (as defined in section 16 of Title
18, but not including a purely political offense) for which the term of
imprisonment is at least one year.” 8 U.S.C. § 1101(a)(43)(F).3 Section 16, Title



       3
         Section 1101(a)(43)(G) also defines an aggravated felony as “a theft offense (including
receipt of stolen property) or burglary offense for which the term of imprisonment is at least
one year.” The Government concedes that the Colorado trespass of an automobile offense is
neither a “theft offense” nor a “burglary offense.”

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18 in turn defines a “crime of violence” as “(a) an offense that has an element the
use, attempted use, or threatened use of physical force against the person or
property of another, or (b) any 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 committing the offense.” 18 U.S.C. § 16. The parties
dispute only whether the Colorado offense is a “crime of violence” under § 16(b).
      This court applies a “categorical approach” to determine whether a
conviction qualifies as an crime of violence under § 16(b). See United States v.
Medina-Anicacio, 325 F.3d 638, 644-45 (5th Cir. 2003); United States v. Diaz-
Diaz, 327 F.3d 410, 413 (5th Cir. 2003); United States v. Chapa-Garza, 243 F.3d
921, 924-27 (5th Cir. 2001). Under the categorical approach, “the particular facts
of the defendant’s prior conviction do not matter, e.g., whether the defendant
actually did use force against the person or property of another to commit the
offense.”   Chapa-Garza, 243 F.3d at 924. Rather, the categorical approach
involves a two-step analysis. First, the court determines whether a particular
defined offense, in the abstract, is a crime of violence under § 16(b). Second, the
offense, in the abstract, must present the substantial likelihood that the offender
will intentionally employ force against the person or property of another in order
to effectuate the commission of the offense. Diaz-Diaz, 327 F.3d at 413; Chapa-
Garza, 243 F.3d at 924, 927.
      Because the Colorado statute of conviction criminalizes alternative
methods of commission (i.e., criminal trespass of a dwelling, in addition to
criminal trespass of a motor vehicle), the court “may look to charging papers to
see which of the various statutory alternatives are involved in the particular
case.” United States v. Calderon-Pena, 383 F.3d 254, 258 (5th Cir. 2004) (en
banc). The charging papers in this case show that Portillo-Covos was convicted
of criminal trespass of an automobile with the intent to commit a felony therein.



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       We hold that the the Colorado trespass of an automobile offense is not a
crime of violence under § 16(b). As the Supreme Court has held, section 16(b)
covers only “offenses that naturally involve a person acting in disregard that
physical force might be used against another in committing a crime.” Leocal v.
Ashcroft, 543 U.S. 1, 10 (2004). An offender may, in an ordinary case, commit
the trespass of an automobile offense without any likelihood of employing
intentional force against the person or property of another. To commit the
offense, the defendant does not need to enter the motor vehicle unlawfully, or
even with knowledge that it belongs to someone else. Rather, as to trespass of
a motor vehicle, “a conviction . . . requires only proof that a person entered a
motor vehicle . . . with intent to commit a crime therein.” People v. Anderson,
991 P.2d 319, 321 (Colo. Ct. App. 1999).4 The Colorado statute does not require
that the defendant use any force to enter the vehicle. In People v. Banuelos, 577
P.2d 305 (Colo. Ct. App. 1977), the Colorado Court of Appeals affirmed a
conviction for trespass of an automobile where the defendant only entered “into
the bed of an open pickup truck.” Id. at 307. Thus, under Colorado law, entering
into the open bed of the motor vehicle satisfies the “entry” requirement of the
statute. Of course, it is possible that a person may unlawfully enter another’s
motor vehicle using intentional force (e.g., breaking a window to gain entry into
a locked vehicle), or that an injury may occur to a person (e.g., if the perpetrator
gains entry by carjacking the occupant), but the commission of the offense does
not necessarily present a risk of force. See Leocal, 543 U.S. at 10 (“The reckless
disregard in § 16 relates not to the general conduct or to the possibility that
harm will result from a person’s conduct, but to the risk that the use of physical




      4
         Thus, as used in the statute, the phrase “knowingly and unlawfully enters” applies
only to the trespass of a dwelling. See Anderson, 991 P.2d at 321.

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                                        No. 09-50061

force against another might be required to commit the crime.”).5 Accordingly,
Colorado’s offense of trespass of an automobile is not a crime of violence under
§ 16(b).
                                   IV. CONCLUSION
       Because the district court erred in treating Colorado’s trespass of an
automobile offense as an aggravated felony for purposes of U.S.S.G. §
2L1.2(b)(1)(C), resulting in an improperly calculated Guidelines range, we
VACATE Portillo-Covos’s sentence and REMAND this case to the district court
for resentencing.




       5
         The Government relies heavily on United States v. Delgado-Enriquez, 188 F.3d 592
(5th Cir. 1999), in which we held that Colo. Rev. Stat. § 18-4-502, as it relates to dwellings, is
a crime of violence under § 16(b). Delgado-Enriquez is inapplicable for two reasons. First,
that case dealt with a different portion of the statute of conviction and the unlawful entry into
a dwelling poses a substantially higher risk that physical force will be used than unlawful
entry into a motor vehicle. See James v. United States, 550 U.S. 192, 203 (2007) (discussing
the risk of violence inherent in burglary of a dwelling offenses). Second, Delgado-Enriquez
relied, at least in part, on now-overruled precedent, namely our case law holding that
unauthorized use of a motor vehicle was a crime of violence. See Delgado-Enriquez, 188 F.3d
at 595 (citing United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir. 1999), overruled by
United States v. Armendariz-Moreno, 571 F.3d 490 (5th Cir. 2009)).

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