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Defendant’s prior conviction does not qualify as a crime of violence.

In U.S. v. Estrada, Defendant Rudy Estrada pled guilty to illegal re-entry after being deported subsequent to an aggravated felony conviction. He now appeals the 48-month sentence imposed by the district court, arguing that the district court erred in applying a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). This particular enhancement is triggered when, among other things, a defendant has been convicted of a crime of violence prior to his deportation. The district court found that Defendant’s prior conviction was for a crime of violence within the meaning of enhancement.

In August 2004, Defendant, a Mexican citizen, was convicted in a Florida state court of throwing a deadly missile, in violation of Florida statute § 790.19. Subsequently, Defendant was deported to Mexico, but he later illegally reentered the U.S. he later was arrested on state drug charges, and he thereafter pled guilty in the criminal case that is now before us. Prior to sentencing, the probation office prepares a presentence report that calculated a base offense level of 8, a 16-level enhancement for a previous crime of violence, and a 3-level reduction for acceptance of responsibility. Prior to and during his sentencing gearing, Defendant objected to the 16-level crime of violence enhancement. Defendant argued that this prior Florida statute, § 790.19 conviction did not qualify as a crime of violence under § 2L1.2(b)(1)(C). The commentary for this section of the Guidelines defines “crime of violence” as either being one of the enumerated offenses set out therein or any offense “that has as an element the use, attempted use, or threatened use of physical force against the person of another”. Defendant argued that it did not have an element that required the use, attempted use, or threatened use of physical force against another person. Defendant, however, conceded that an 8-level aggravated felony enhancement pursuant to § 2L1.2(b)(1)(C) was appropriate in lieu of the 16-level enhancement.

The court of appeals applies Estrella Case in this saying that Estrella held that a conviction under Florida Statute § 790.19 is not categorically a crime of violence for purposes of application of the 16-level crime-of-violence enhancement under § 2L1.2(b)(1)(A)(ii). Estrella also concluded that § 790.19 is a divisible statute and hence use of the modified categorical test is appropriate. To apply the test here, court of appeals examine any Shepard-approved documents to see whether those documents identify the particular mens rea element upon which the prior conviction of the Defendant in this case rested. Charging Defendant with § 790.19, which information charges that Defendant “wantonly or maliciously” threw a deadly missile at an occupied vehicle. As Defendant nolo contendere plea was to an information charging him in the disjunctive with wantonly or maliciously committing a particular act in violation of § 790.19, Court of appeals is likewise unable to determine on which mens rea element Defendant’s conviction was based. For that reason, the Court of Appeals concured with Defendant’s argument and acceptd the government’s concession that the district court erred in concluding that this prior conviction was for a crime-of-violence offense Court of appeals vacate and remand.

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