United States v. Jose Martinez-Flores

FILED

NOT FOR PUBLICATION AUG 17 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-50406

Plaintiff - Appellee, D.C. No. 3:11-cr-00918-JAH-

v.

MEMORANDUM *

JOSE ANTONIO MARTINEZ-FLORES,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding

Argued and Submitted August 9, 2012 Pasadena, California

Before: REINHARDT, SILVERMAN, and WARDLAW, Circuit Judges.

Jose Antonio Martinez-Flores appeals the sentence imposed by the district

court following his guilty plea to being a deported alien found in the United States

in violation of 8 U.S.C. § 1326(a). We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Martinez-Flores argues that the district court erred in determining that his

2007 conviction for felony false imprisonment, Cal. Penal Code §§ 236/237,

constituted a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A). For…

dissenting:

The majority holds that felony false imprisonment by violence under California *753 Penal Code §§ 286, 287 is categorically a “crime of violence” under § 2L1.2(b)(l)(A)(ii) of the United States Sentencing Guidelines (“U.S.S.G.”). To be a crime of violence under the Guidelines, that offense must have “as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2 cmt. n. l(B)(iii). We have interpreted “physical force” to mean “violent force — that is, force capable of causing physical pain or injury to another person.” United States v. Villavicencio-Burruel, 608 F.3d 556, 561-62 (9th Cir.2010) (internal quotation marks and citation omitted) (emphasis added).

False imprisonment by violence, as interpreted by the California courts, does not categorically have as an element the use, attempted use, or threatened use of violent force. “Violence” for purposes of false imprisonment is defined as “the exercise of physical force used to restrain over and above the force reasonably necessary to effect such restraint.” People v. Babich, 14 Cal.App.4th 801 , 18 Cal.Rptr.2d 60, 63 (1993). In People v. White, No. E031297,…

MEMORANDUM *

Jose Antonio Martinez-Flores appeals the sentence imposed by the district court following his guilty plea to being a deported alien found in the United States in violation of 8 U.S.C. § 1326 (a). We affirm.

Martinez-Flores argues that the district court erred in determining that his 2007 conviction for felony false imprisonment, CaLPenal Code §§ 236/237, constituted a “crime of violence” under U.S.S.G. § 2L1.2(b)(l)(A). For the purposes of § 2L1.2, the term “crime of violence” means “any ... offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2, cmt. n. l(B)(iii). The requisite degree of physical force is “force capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133 , 130 S.Ct. 1265, 1271 , 176 L.Ed.2d 1 (2010).

As the government correctly concedes, California felony false imprisonment is not a crime of violence under the categorical approach, because it may be committed by means of “fraud” or “deceit.” Cal.Penal Code § 237. However, Martinez-Flores’s prior conviction qualifies as a crime of violence…