United States v. Angelo Fernandez

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 16, 2023
• Docket: 22-10140
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 16 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-10140

Plaintiff-Appellee, D.C. No. 1:21-cr-00142-DAD-BAM-1 v.

ANGELO JOSEPH FERNANDEZ, MEMORANDUM *

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding

Submitted May 12, 2023** San Francisco, California

Before: FRIEDLAND and BENNETT, Circuit Judges, and BENNETT,*** District Judge.

Angelo Joseph Fernandez pleaded guilty to one count of being a felon in

possession of ammunition in violation of 18 U.S.C. § 922(g)(1). At sentencing, the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation. district court concluded that Fernandez’s prior conviction for corporal injury to a

spouse or cohabitant under California Penal Code § 273.5(a) qualified as a crime

of violence under the United States Sentencing Guidelines (“Guidelines” or

“U.S.S.G.”) that subjected Fernandez to a base offense level of twenty under the

Guidelines. The district court adjusted the base offense level because of other

factors and then imposed a 78-month sentence, which Fernandez appeals.

“We review de novo a district court’s decision that a prior conviction is a

crime of violence under the Sentencing Guidelines.” United States v. Velasquez-

Reyes, 427 F.3d 1227, 1229 (9th Cir. 2005) (citation omitted).

The Guidelines provide for a base offense level of twenty when a defendant

has been convicted of a “crime of violence.” U.S.S.G. § 2K2.1(a)(4)(A). As

relevant here, we have held that a crime of violence encompasses only offenses

that require “the intentional use of force” as an element and that section 273.5(a) so

qualifies because “a person cannot be convicted [of violating section 273.5(a)]

without the intentional use of physical force.” United States v. Laurico-Yeno, 590

F.3d 818, 821 (9th Cir. 2010). The intentional-force requirement of

section 273.5(a) is clear from its text, which makes “[a]ny person who willfully

inflicts upon a person [as defined in the statute] corporal injury resulting in a

traumatic condition . . . guilty of a felony.” Id. (quoting Cal. Penal Code

2 § 273.5(a) (2010)) (emphases added). 1 We have reaffirmed that precedent since,

including in the face of arguments that section 273.5(a) is not a crime of violence

because of “California cases speaking to how convictions may be obtained under

various assault-and-battery statutes without showing an intent to harm the victim.”

United States v. Walker, 953 F.3d 577, 579 (9th Cir. 2020). We explained that the

intentional direct application of force onto the victim that section 273.5(a) requires

makes it satisfy the intentional-force requirement of a crime of violence. Id.

Fernandez does not dispute that we have previously held that

section 273.5(a) qualifies as a crime of violence under the Guidelines. Fernandez

instead argues that our precedent did not survive the Supreme Court’s recent

decision in Borden v. United States, 141 S. Ct. 1817 (2021). According to

Fernandez, Borden “held that an offense [does] not qualify as a crime of violence

where the essential elements [can] be satisfied by a mens rea of recklessness”—in

other words, Fernandez contends that if any essential element of an offense can be

satisfied with a mens rea of recklessness, that offense cannot qualify as a crime of

violence under Borden. 2 Because California law recognizes that section 273.5(a)

1 Section 273.5(a) was amended after Laurico-Yeno was decided, but those changes are not relevant here because Fernandez was convicted under the pre- amendment version. 2 Borden involved the meaning of a “violent felony” in the Armed Career Criminal Act, not the meaning of a “crime of violence” in the Guidelines. But the language defining a “violent felony” in that Act is relevantly identical to the language

3 requires only that “the act must be willful,” not “the resulting injury [from the

act],” Fernandez continues, an essential element of section 273.5(a)—that the act

“result[] in a traumatic condition,” Cal. Penal Code § 273.5(a)—can be satisfied

with a mens rea of recklessness and section 273.5(a) therefore cannot be a crime of

violence after Borden. Borden, Fernandez argues, therefore requires us to abandon

our prior precedent holding that section 273.5(a) is a crime of violence and to

vacate Fernandez’s sentence.

We reject Fernandez’s argument. We are bound by prior precedent unless it

is “clearly irreconcilable” with intervening higher authority, Miller v. Gammie, 335

F.3d 889, 900 (9th Cir. 2003) (en banc), and our precedent and Borden are fully

consistent. Borden confirmed that a person who “consciously deploy[s]” force “at

another person” satisfies the use-of-force element that a crime of violence requires,

and emphasized that it is irrelevant whether the person consciously deploying the

force towards another intended the force to make contact with a person or simply

knew that the force would make contact with a person. Borden, 141 S. Ct. 1817,

1826-27 (2021) (reasoning that both a person who “drives his car straight at a

reviled neighbor, desiring to hit him” and a getaway driver who “prefers a clear

defining a “crime of violence” in the Guidelines, so the reasoning from Borden applies with equal force here. See United States v. Crews, 621 F.3d 849, 852 n.4, 856 (9th Cir. 2010) (explaining that precedent interpreting one definition applies to the other because the definitions are nearly identical). We therefore treat Borden as addressing the meaning of a “crime of violence” under the Guidelines.

4 road” but “plows ahead anyway” when he “sees a pedestrian in his path . . .,

knowing the car will run him over” satisfies the use-of-force element).

Moreover, nothing in Borden mandates, as Fernandez argues, that an offense

can qualify as a crime of violence only when every element of that offense requires

a mens rea of purpose or knowledge. The use-of-force element in the Guidelines is

concerned with whether an offense “has as an element” force that is consciously

deployed towards a person—not with whether an offense also requires that a

defendant intend the harm resulting from the consciously deployed force, or intend

every other element that makes up the offense. See id. at 1822 (emphasis added)

(quotation marks omitted). This is precisely what we previously explained in

Walker. Indeed, Fernandez agrees that section 273.5(a) requires as one element

that a defendant consciously deploy force towards the victim. Our precedent

holding that section 273.5(a) is a crime of violence is thus entirely consistent with

Borden.

Because nothing in Borden upsets our prior precedent holding that

section 273.5(a) is a crime of violence, the district court committed no error in the

sentence it imposed.

AFFIRMED.