United States v. Angelo Fernandez

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 16 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 22-10140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. 5