United States v. Cedillo-Espinoza

Full title: UNITED STATES OF AMERICA PLAINTIFF v. RAMIRO CEDILLO-ESPINOZA DEFENDANT

Court: UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS WESTERN DIVISION

Date published: Oct 30, 2014

Case No. 4:14-cr-00093-01 KGB (E.D. Ark. Oct. 30, 2014)

Opinion

Case No. 4:14-cr-00093-01 KGB

10-30-2014

UNITED STATES OF AMERICA PLAINTIFF v. RAMIRO CEDILLO-ESPINOZA DEFENDANT

Kristine G. Baker United States District Judge

ORDER

Before the Court is defendant Ramiro Cedillo-Espinoza's motion objecting to classification as a career offender (Dkt. No. 14), to which the government has responded (Dkt. No. 15). The government has charged Mr. Cedillo-Espinoza with violating 18 U.S.C. § 1791 for possessing a prohibited object in prison. Specifically, the government has charged Mr. Cedillo-Espinoza with possessing "a weapon made from a five-inch piece of metal sharpened to a point at one end" (Dkt. No. 15). Mr. Cedillo-Espinoza argues that, were he to enter a plea of guilty or otherwise be convicted of this charge, the Court should not classify him as a "career offender" for sentencing purposes under USSG § 4B1.1(a).

USSG § 4B1.1(a) states:

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

The parties agree that the first and third elements set out in USSG § 4B1.1 are not at issue. The parties dispute whether the instant offense of conviction here—possessing a prohibited object in prison—is a "crime of violence."

The term "crime of violence" is defined in USSG § 4B1.2(a):

The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or



(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

A violation of 18 U.S.C. § 1791(a)(2) involves neither "the use, attempted use, or threatened use of physical force against the person of another" nor "burglary of a dwelling, arson, [] extortion, [or the] use of explosives." Therefore, the Court must decide if possession of a prohibited object in prison qualifies under the "residual clause" of § 4B1.2(a)(2) for "involv[ing] conduct that presents a serious risk of physical injury to another." USSG § 4B1.2(a)(2).

To qualify as a crime of violence under the residual clause, an offense "must (1) 'present a serious potential risk of physical injury to another,' and (2) be 'roughly similar, in kind as well as degree of risk posed,' to the offenses listed in § 4B1.2(a)(2)." U.S. v. Watson, 650 F.3d 1084, 1092 (8th Cir. 2011) (quoting United States v. Boyce, 633 F.3d 708, 711 (8th Cir. 2011)). An offense is "roughly similar" to the offenses listed in § 4B1.2(a)(2) "if it typically involves 'purposeful, violent, and aggressive conduct.'" Boyce, 633 F.3d at 711.

In United States v. Boyce, the Eighth Circuit interpreted the residual clause in 18 U.S.C. § 924(e)(2)(B), which is identical to that in § 4B1.2(a)(2). 633 F.3d at 711. The Eighth Circuit in Boyce held that an inmate had committed a "crime of violence" by "possessing a homemade weapon which resembled an ice pick and was over eight inches long" in prison. Id. at 709. In reaching this conclusion, the court first determined that "possession of a weapon in a correctional facility does present a serious potential risk of physical injury to another." Id. Next, the Boyce court held that "[p]ossession of a dangerous weapon in a correctional facility is purposeful, violent, and aggressive, and is therefore similar, in kind as well as degree of risk posed, to the offenses listed in § 924(e)," which, again, are identical to those offenses listed in § 4B1.2(a)(2). Id. at 712.

Mr. Cedillo-Espinoza notes that some circuits have split over whether a conviction for possession of a prohibited object in prison qualifies as a "crime of violence" and asks this Court to follow the Third Circuit's approach. The Third Circuit determined that such a conviction is not a "crime of violence." The Eighth Circuit in reaching its conclusion in Boyce explicitly rejected the Third Circuit's approach, stating:

The circuit courts which have considered whether possession of a weapon in prison qualifies as a violent felony after Begay have reached different conclusions. The Third Circuit . . . decided that although possession of a weapon in prison does pose a serious potential risk of physical injury, it is a passive crime centering around mere possession and does not involve purposeful, violent, and aggressive conduct. Id. at 519. The Fifth and the Tenth Circuits have reached the opposite conclusion, reasoning that a prisoner's possession of a dangerous weapon is an active, purposeful act associated with a likelihood of future violent confrontation. . . . We continue to believe that the better reasoned approach to the issue is the one taken by the Fifth and Tenth Circuits. Possession of a dangerous weapon in a correctional facility involves purposeful conduct.

Id. at 711-12 (citations omitted). From the court's reasoning and language in Boyce, this Court concludes that the Eighth Circuit has already determined its position in the circuit split that Mr. Cedillo-Espinoza highlights. See id.; see also U.S. v. Mobley, 687 F.3d 625, 629-31 (4th Cir. 2012) (noting that "[t]he Third Circuit . . . has been the only court of appeals to adopt [its] position . . . . Three other of our sister circuits, the Fifth, Eighth, and Tenth, have addressed the same issue and reached a different conclusion." (citing Boyce, 633 F.3d 708)).

In this case, the government has charged Mr. Cedillo-Espinoza with knowingly possessing a prohibited object, a weapon, in prison under 18 U.S.C. § 1791(a)(2). The Court finds that Mr. Cedillo-Espinoza's possession in prison of a prohibited object "present[s] a serious potential risk of physical injury to another." Watson, 650 F.3d at 1092. The Court also finds that this offense is "roughly similar" to the offenses listed in § 4B1.2(a)(2), as it involves "purposeful, violent, and aggressive conduct." Id. Therefore, the instant offense of conviction qualifies as a "crime of violence" under the residual clause of § 4B1.2(a)(2), and if Mr. Cedillo-Espinoza enters a plea of guilty or is otherwise convicted of his charge, the Court will classify him as a "career offender" under § 4B1.1(a). The Court denies Mr. Cedillo-Espinoza's motion.

SO ORDERED this 30th day of October, 2014.

/s/_________

Kristine G. Baker

United States District Judge