United States v. Garcia-Vasquez

430 F. App'x 540
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 10, 2011
DocketNo. 09-3678
StatusPublished

This text of 430 F. App'x 540 (United States v. Garcia-Vasquez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Garcia-Vasquez, 430 F. App'x 540 (7th Cir. 2011).

Opinion

ORDER

Juan Carlos Garcia-Vasquez, who had been removed from the United States previously, pleaded guilty to being in the country again without authorization. The district court sentenced him to 36 months in prison. Garcia-Vasquez argues on ap[541]*541peal that the court mistakenly concluded that his prior Illinois conviction for unlawful restraint was an aggravated felony under the Sentencing Guidelines, resulting in an incorrect guidelines range. We affirm.

Garcia-Vasquez, a Mexican citizen, was removed from the United States at least once in the late 1990s, again in February 2007, and yet again in November 2007 before police in Will County, Illinois, took him into custody in March 2009. Garcia-Vasquez admitted to Immigration and Customs Enforcement officials that he had returned to the United States without applying for readmission. He pleaded guilty to one count of illegal re-entry. See 8 U.S.C. § 1326(a).

This appeal centers on the classification of Garcia-Vasquez’s Illinois felony conviction in 1997 for unlawful restraint, 720 ILCS 5/10-3, after he forcibly prevented a woman from leaving his car. The woman entered the car to talk to Garcia-Vasquez, who had been causing a disturbance in front of her home. Garcia-Vasquez then began to drive away, and as the woman tided to get out of the car, he grabbed her hand to keep her from escaping. At sentencing, both parties disagreed with the probation officer’s characterization of the offense as a “crime of violence” triggering a 16-level increase in his offense level. See U.S.S.G. § 2L1.2(b)(l)(A)(ii). Because the Illinois unlawful restraint statute does not have, as an element, “the use, attempted use, or threatened use of physical force” against another person, see id. § 2L1.2 cmt. n.l(B)(iii); United States v. Wallace, 326 F.3d 881, 886 (7th Cir.2003), the government conceded that Garcia-Vasquez’s offense was not a crime of violence under the guideline and that the 16-level increase did not apply. But the government argued that unlawful restraint was an aggravated felony warranting an 8-level increase, see U.S.S.G. § 2L1.2(b)(l)(C), while Garcia-Vasquez argued that the offense fell into the category of “any other felony,” meriting only a 4-level increase, see id. § 2L1.2(b)(l)(D). The district court sided with the government’s characterization of the offense as an aggravated felony because it involved “a substantial risk of the use of force.” Based on a total offense level of 13 and Garcia-Vasquez’s category-VI criminal history,. the court calculated a guidelines range of 33 to 41 months’ imprisonment and sentenced him to 36 months.

Garcia-Vasquez maintains on appeal that unlawful restraint fits in the category of “any other felony,” see U.S.S.G. § 2L1.2(b)(l)(D), and contends that his total offense level should be 10 rather than 13 — the result of a base offense level of 8, a 4-level' increase for his unlawful-restraint conviction, and a 2-level reduction for acceptance of responsibility, see id. §§ 2L1.2(a), 3El.l(a). These figures, in his view, dictate a guidelines range of 24 to 30 months.

Under Illinois law, “A person commits the offense of unlawful restraint when he or she knowingly without legal authority detains another.” 720 ILCS 5/10-3(a). Determining whether a prior conviction for unlawful restraint is an “aggravated felony” requires a journey through a few sentencing provisions. The . sentencing guidelines for illegal re-entry define “aggravated felony” by reference to 8 U.S.C. § 1101(a)(43), which in turn lists several types of offenses that fall within the meaning of “aggravated felony,” including — as is relevant here — a “crime of violence” as defined by 18 U.S.C. § 16 “for which the term of imprisonment [is] at least one year.” See 8 U.S.C. § 1101(a)(43)(F); U.S.S.G. § 2L1.2 cmt. n.3(A). Section 16, in turn, defines a crime of violence as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
[542]*542(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.

18 U.S.C. § 16. Section 16(a) does not apply here because physical force is not an element of unlawful restraint. See 720 ILCS 5/10 — 3(a); People v. Lissade, 403 Ill.App.3d 609, 343 Ill.Dec. 813, 935 N.E.2d 1041, 1044 (2010); People v. Bowen, 241 Ill.App.3d 608, 182 Ill.Dec. 43, 609 N.E.2d 346, 361 (1993). The issue, then, is whether unlawful restraint is a crime of violence under § 16(b) and, therefore, an aggravated felony under § 2L1.2(b)(l)©.

Section 16(b) covers violent, active crime that typically presents a substantial risk that force will be used against another person during its commission. See Leocal v. Ashcroft, 543 U.S. 1, 10-11, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). It is not coextensive with the “residual clause” of 18 U.S.C. § 924(e)(2)(B)(ii), which also defines violent felonies and covers “conduct that presents a serious potential risk of physical injury to another.” The residual clause addresses the risk of injury, while § 16(b) focuses on the use of force and does not encompass all offenses that create a substantial risk of injury. See Leocal 543 U.S. at 10-11, 125 S.Ct. 377; Jimenez-Gonzalez v. Mukasey, 548 F.3d 557, 562 (7th Cir.2008). But the statutes’ resemblance allows analysis of an offense under one of them to serve as persuasive authority for analysis of the offense under the other. See Jimenez-Gonzalez, 548 F.3d at 562 (observing that § 16(b) and residual clause contained similar language, and that Supreme Court applied similar logic in Leocal (a § 16(b) case) and Begay v. United States, 553 U.S. 137,128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) (a residual clause case)); United States v. Brown, 629 F.3d 290, 296 n. 4 (2d Cir.2011) (whether offense was crime of violence under § 16(b) was instructive in deciding whether offense was violent felony under residual clause); United States v. Daye, 571 F.3d 225, 232-34 (2d Cir.2009) (same); Ramirez v.

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Related

Leocal v. Ashcroft
543 U.S. 1 (Supreme Court, 2004)
Begay v. United States
553 U.S. 137 (Supreme Court, 2008)
Chambers v. United States
555 U.S. 122 (Supreme Court, 2009)
United States v. Brown
629 F.3d 290 (Second Circuit, 2011)
Ramirez v. Mukasey
520 F.3d 47 (First Circuit, 2008)
United States v. Capler
636 F.3d 321 (Seventh Circuit, 2011)
United States v. Tyrone Wallace
326 F.3d 881 (Seventh Circuit, 2003)
United States v. Franco-Fernandez
511 F.3d 768 (Seventh Circuit, 2008)
United States v. Daye
571 F.3d 225 (Second Circuit, 2009)
Jimenez-Gonzalez v. Mukasey
548 F.3d 557 (Seventh Circuit, 2008)
United States v. Billups
536 F.3d 574 (Seventh Circuit, 2008)
People v. Bowen
609 N.E.2d 346 (Appellate Court of Illinois, 1993)
People v. Lissade
935 N.E.2d 1041 (Appellate Court of Illinois, 2010)
Sykes v. United States
180 L. Ed. 2d 60 (Supreme Court, 2011)

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Bluebook (online)
430 F. App'x 540, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-garcia-vasquez-ca7-2011.