United States v. Ramon Silva

608 F.3d 663, 2010 U.S. App. LEXIS 12059, 2010 WL 2357870
CourtCourt of Appeals for the Tenth Circuit
DecidedJune 14, 2010
Docket09-2035
StatusPublished
Cited by66 cases

This text of 608 F.3d 663 (United States v. Ramon Silva) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth 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. Ramon Silva, 608 F.3d 663, 2010 U.S. App. LEXIS 12059, 2010 WL 2357870 (10th Cir. 2010).

Opinions

BRISCOE, Chief Judge.

Defendant-Appellant Jacob Ramon Silva appeals the district court’s determination that his prior New Mexico convictions for burglary under N.M Stat. § 30-16-3(B) and aggravated assault under N.M. Stat. § 30-3-2(A) qualify as violent felonies under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”). Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.

I

A grand jury empaneled by the United States District Court for the District of New Mexico issued an indictment against Silva, charging him with possession of a firearm and ammunition after conviction of a felony in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Silva entered a plea of guilty pursuant to a written plea agreement.

A United States Probation Officer prepared a presentence report (“PSR”) that recommended Silva should receive the ACCA’s 15-year mandatory minimum sentence enhancement because he had three prior convictions that qualified as violent felonies under the ACCA. Those three qualifying convictions were a 1998 New Mexico conviction for robbery, a 1999 New Mexico conviction for burglary, and a 2006 New Mexico conviction for aggravated assault.

Silva filed written objections to the PSR, specifically contending that the latter two convictions were not violent felonies under the ACCA. Silva argued that the burglary conviction was not a violent felony because it was not burglary of a “structure” under the ACCA’s generic definition of burglary that the Supreme Court enunciated in Taylor v. United States, 495 U.S. 575, 599, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Silva also argued that the aggravated assault conviction was not a violent felony because one way of committing the offense “requires no specific intent of the defendant;” rather, “the defendant can be convicted of reckless conduct if his menacing conduct caused the victim to believe that her bodily integrity or personal safety was to be intruded upon in a rude, insolent or angry manner.” ROA Vol. 1 at 37.

The district court rejected Silva’s arguments and sentenced him to 15 years’ imprisonment, the minimum sentence required by the ACCA.

II

The ACCA imposes a mandatory minimum term of 15 years’ imprisonment [665]*665for an individual convicted of being a felon in possession of a firearm if that individual has three prior convictions for a “violent felony or a serious drug offense, or both, committed on occasions different from one another....” 18 U.S.C. § 924(e)(1). A “violent felony” under the ACCA is any crime punishable by a term of imprisonment exceeding one year that also

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another....

Id. § 924(e)(2)(B). Whether a defendant’s prior conviction qualifies as a violent felony under the ACCA is a question of law that we review de novo. United States v. Scoville, 561 F.3d 1174, 1176 (10th Cir.2009).

Burglary

“[A] person has been convicted of burglary for purposes of a § 924(e) enhancement if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor, 495 U.S. at 599, 110 S.Ct. 2143. In determining whether a defendant’s prior conviction meets this generic definition of burglary, we employ a categorical approach that “look[s] only to the fact of conviction and the statutory definition of the prior offense.” Id. at 602, 110 S.Ct. 2143. If the statutory definition of the prior conviction “substantially corresponds to ‘generic’ burglary,” our inquiry is at an end. Id. If the statutory definition of the prior conviction proscribes a range of conduct that is broader than generic burglary, we then employ a modified-categorical approach that “go[es] beyond the mere fact of conviction” and determines whether “the charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant.” Id. In cases not tried before a jury, we look to a “bench-trial judge’s formal rulings of law and findings of fact....” Shepard v. United States, 544 U.S. 13, 20, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). In “pleaded cases” we look to “the statement of factual basis for the charge, shown by a transcript of plea colloquy or by a written plea agreement presented to the court, or by a record of comparable findings of fact adopted by the defendant upon entering the plea.” Id. (internal citation omitted).

Silva’s 1999 New Mexico burglary conviction was pursuant to N.M. Stat. § 30-16-3(B). Under that statute:

Burglary consists of the unauthorized entry of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, with the intent to commit any felony or theft therein.
A. Any person who, without authorization, enters a dwelling house with intent to commit any felony or theft therein is guilty of a third degree felony.
B. Any person who, without authorization enters any vehicle, watercraft, aircraft or other structure, movable or immovable, with intent to commit any felony or theft therein is guilty of a fourth degree felony.

N.M. Stat. § 30-16-3. New Mexico courts have interpreted the phrase “other structure” in subsection B “to require an enclosure similar to a vehicle, watercraft, aircraft, or dwelling.” State v. Foulenfont, 119 N.M. 788, 895 P.2d 1329, 1332 (1995). Because N.M. Stat. § 30-16-3(B) contains a “non-generic” definition of burglary, United States v. King, 422 F.3d 1055, 1058 (10th Cir.2005), we will employ a modified-[666]*666categorical approach and examine Silva’s charging document, plea agreement, and plea colloquy to determine “the character of [Silva’s] admitted burglary,” Shepard, 544 U.S. at 16, 125 S.Ct. 1254.

Silva’s 1999 burglary conviction stemmed from a- three-count indictment that a New Mexico grand jury returned against him on June 17, 1999. The first count alleged:

That on or about the 3rd day of December, 1998, in Bernalillo County, New Mexico, the above-named defendant entered a structure, a shed,

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Cite This Page — Counsel Stack

Bluebook (online)
608 F.3d 663, 2010 U.S. App. LEXIS 12059, 2010 WL 2357870, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-ramon-silva-ca10-2010.