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United States v. Espinoza

United States District Court, D. Nevada

May 30, 2019

United States of America, Plaintiff
v.
Edgar Espinoza, Defendant

          ORDER OVERRULING OBJECTION TO THE PSR [ECF NO. 26]

         Defendant Edgar Espinoza pled guilty to one count of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). In its Presentence Investigation Report (PSR), the U.S. Probation Office calculated Espinoza's base-offense level as 20 based on its determination that his prior conviction for Nevada third-degree arson, NRS 20.020, constitutes a crime of violence.[1]Espinoza objects to that calculation, arguing that Nevada arson is broader than the generic definition of arson-and thus not categorically a crime of violence-because a defendant can be convicted of Nevada arson as an aider and abettor. This argument is premised on his assertion that the U.S. Sentencing Commission impermissibly expanded the crime-of-violence definition by including accomplice liability in that definition's commentary rather than its text. But because aiding and abetting is a theory of criminal liability inherent in all Nevada crimes rather than a separate offense, I find that the relevant commentary is consistent with the crime-of-violence definition and is thus authoritative. So, I overrule Espinoza's objection.

         Discussion

         The guideline for firearm offenses incorporates the crime-of-violence definition used in the career-offender guideline, [2] which, under the current 2018 edition, includes a prior felony conviction that:

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).[3]

         The first portion of this definition is commonly known as the “force” or “element” clause, while the second part is the “enumerated offenses” clause. Prior to 2016, the Sentencing Manual also included a third catchall provision known as the “residual clause.”[4] But after the U.S. Supreme Court held in United States v. Johnson that an identically worded residual clause in the Armed Career Criminal Act was void for vagueness, [5] the Sentencing Commission removed the clause from subsequent editions.[6]

         To determine whether a prior state or federal felony conviction is a crime of violence, courts must apply the categorical approach and (in the context of the enumerated-offense clause) compare that crime's elements to the elements of one of the listed generic offenses.[7] “In other words, [courts must] ignore the facts of the case and simply ‘line up the crime's elements alongside those of the generic offense and see if they match.'”[8] “If the crime of conviction falls within the generic federal definition-meaning it does not punish a broader range of conduct than the generic offense-the conviction qualifies as a crime of violence.”[9] Conversely, a prior offense is overbroad if it “criminalizes any conduct not covered by the generic offense . . . .”[10]

         Espinoza argues that Nevada third-degree arson is overbroad because the statute criminalizes not only the “willful and malicious” burning of property covered by generic arson[11]but also explicitly extends liability to a person who aids and abets those acts.[12] Although accomplice liability is not built into the generic definition of arson, Espinoza acknowledges that Application Note 1 to the career-offender guideline states that the crime-of-violence definition “includes the offenses of aiding and abetting, conspiring, and attempt[] . . . .”[13] Nonetheless, Espinoza contends that this commentary is not controlling in this context. His argument is premised on Stinson v. United States, in which the Supreme Court held that the Guidelines' commentary-which, unlike its text, is not reviewed by Congress-“is akin to an agency's interpretation of its own legislative rules.”[14] Accordingly, “commentary . . . that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.”[15]

         Espinoza cites to three post-Johnson circuit-court cases that have applied this framework to determine Application Note 1's effect on the crime-of-violence definition once stripped of its residual clause.[16] Each case addressed whether a defendant's prior offense was a categorical match for a generic offense listed only in that commentary-e.g., robbery-rather than in the enumerated-offenses clause under the guideline's text.[17] Each court reasoned that, without its residual clause, the career-offender guideline “sets forth a limited universe of specific offenses that qualify as a ‘crime of violence.'”[18] In other words, these courts appear to conclude that Application Note 1 “solely interprets the guideline's residual clause by providing examples of what generic felonies would ‘involve[] conduct that presents a serious potential risk of physical injury to another.”'[19] So, without this clause, this commentary is not interpreting either the force or enumerated-offenses clause but rather adding to the guideline's limited universe of crimes of violence-a result that these courts held is inconsistent with the guideline's text under Stinson.[20]

         Espinoza argues that, in the absence of clear guidance from the Ninth Circuit on this issue, [21] the same reasoning applies here, and Application Note 1's inclusion of accomplice liability likewise seeks to impermissibly expand the crime-of-violence definition. But even if these cases were correctly decided-a question I need not and do not reach-they are distinguishable from the portion of Application Note 1 at issue in this case. Each decision addressed portions of that commentary that attempted to extend the crime-of-violence definition to a substantive crime not included in the guideline's text at the time: robbery, possession of a sawed-off shotgun, and possession of a machine gun.[22] By contrast, the categorical analysis here hinges on whether the generic definition of arson-which is included in the guideline's text- encompasses a prior federal or state arson conviction that can result from a defendant aiding and abetting the crime's commission and not committing the actus reus himself.

         Unlike the crimes addressed in Espinoza's authorities, aiding and abetting is not a separate offense but rather a theory of criminal liability.[23] Nevada, like all states, has abolished the common-law distinction “between an aider or abettor to a crime and an actual perpetrator of a crime. Both are equally culpable.”[24] Accomplice liability is inherent in all criminal offenses.[25]It is not a distinct charge that the State of Nevada must allege in an indictment.[26] Nor does a judgment in a criminal prosecution distinguish whether the defendant was an actual perpetrator or an aider or abettor. And because both state and federal prosecutors commonly allege alternative theories of liability under the same charge-i.e., perpetration of the crime, accomplice liability, co-conspirator liability-it is often impossible to discern what theory a jury relied on in reaching a guilty verdict.[27] So, although Nevada's third-degree arson statute builds in an aiding-and-abetting provision, it is not substantively different from all other Nevada crimes. Indeed, as the government points out, if Espinoza's argument is pursued to its logical end, then no state or federal conviction could categorically match the generic offenses under the enumerated-offenses clause because every conviction could have resulted from an aiding-and-abetting theory and therefore be overbroad.[28]

         Espinoza does not squarely address the unique nature of accomplice liability but rather cites to cases involving conspiracy and attempt, which are also addressed in the same portion of Application Note 1 that raises aiding and abetting. In United States v. Rollins, one of the post-Johnson cases addressed above, the en banc Seventh Circuit overruled a prior decision in which the court had held that conspiracy to commit Indiana robbery was a crime of violence.[29] But conspiracy to commit a crime is a substantive offense independent of whether any of the conspirators ultimately committed the intended offense.[30] And a conspiracy charge is different than the co-conspirator theory of liability, which, like aiding and abetting, creates a means of finding a defendant culpable of a crime for which he did not commit the actus reus.[31] So, the Seventh Circuit's conclusion that conspiracy to commit robbery is no longer a crime of violence does not address the more apposite question, for instance, of whether a robbery conviction resulting from co-conspirator or accomplice liability is a categorical match for generic robbery.[32]

         I am similarly unpersuaded by Espinoza's citation to United States v. Winstead, in which the D.C. Circuit held that the same portion of Application Note 1 impermissibly seeks to expand the separate Guidelines definition for a “controlled substances offense” to attempt crimes.[33]Unlike aiding and abetting and co-conspirator liability, an attempt to commit a crime is a separate substantive offense that entails its own elements and penalties rather than a theory of liability.[34] Although I do not reach the question of whether an attempt to commit any crime in the enumerated-offenses clause constitutes a crime of violence, Winstead has no bearing on accomplice liability.

         Because aiding and abetting is a theory of criminal liability inherent in all Nevada crimes rather than a separate offense, there is no inconsistency between the text of the crime-of-violence definition and Application Note 1's interpretation that the generic offenses enumerated in that definition include convictions resulting from aiding and abetting. That commentary is therefore authoritative under Stinson, so I find that Espinoza's Nevada arson conviction is a crime of violence and overrule his objection to the PSR. I will address his request for a variance, which the government partially supports, [35] at the sentencing hearing.

         Conclusion

         Accordingly, IT IS HEREBY ORDERED that Espinoza's objection to the Presentence Investigation ...


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