United States of America v. Francisco Osuna Armenta

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
The Honorable Jeremy Fogel, United States District Judge for the**
Northern District of California, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANCISCO OSUNA ARMENTA,
Defendant-Appellant.
No. 10-30343
Dist. Ct. No. 10-CR-00041-JLQ
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Justin L. Quackenbush, District Judge, Presiding
Argued and Submitted August 1, 2011
Seattle, Washington
Before: NOONAN and M. SMITH, Circuit Judges, and FOGEL, District
Judge**
Defendant-Appellant Francisco Osuna Armenta (“Armenta”) appeals the
sentence imposed by a district court following his plea of guilty to one count of
illegal reentry of an alien in violation of 8 U.S.C. § 1326. He challenges the
FILED
NOV 04 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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court’s imposition of a sixteen level enhancement based upon its characterization
of his prior state law conviction of unlawful imprisonment under Revised Code of
Washington (“RCW”) § 9A.40.040 as a “crime of violence” within the meaning of
United States Sentencing Guideline (“U.S.S.G.”) § 2L1.2(b)(1)(A)(ii). “We
review de novo whether a prior conviction constitutes a crime of violence under
U.S.S.G. § 2L1.2.” United States v. Espinoza-Morales, 621 F.3d 1141, 1144 (9th
Cir. 2010).
Armenta argues that the district court erred in applying the modified
categorical approach because RCW § 9A.40.040 lacks an element of the
Guidelines crime of violence. He acknowledges that this argument is foreclosed
by our recent decision in United States v. Aguila-Montes De Oca, --- F.3d ----, No.
05-50170, 2011 WL 3506442 (9th Cir. Aug. 11, 2011), in which we held that the
modified categorical approach applies in both “broad element” and “missing
element” cases, but he contends alternatively that Aguila-Montes De Oca was
decided incorrectly or that it is not inconsistent with his position on appeal. We
disagree.
“Under the modified categorical approach, we determine, in light of the facts
in the judicially noticeable documents, (1) what facts the conviction necessarily
rested on (that is, what facts the trier of fact was actually required to find); and (2)

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Restraint may be accomplished by additional means, not relevant here,1
when the victim is a minor or incompetent. RCW § 9A.40.010(1)(b).
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whether these facts satisfy the elements of the generic offense.” Aguila-Montes
De Oca, 2011 WL 3506442, at *21. “An offense qualifies as a ‘crime of violence’
under U.S.S.G. § 2L1.2(b)(1)(A)(ii) if it either (1) has as an element the use,
attempted use, or threatened use of physical force against the person of another . . .
or (2) constitutes one of the crimes listed in the enumerated offense prong of the
definition.” Espinoza-Morales, 621 F.3d at 1145 (internal quotation marks and
citation omitted). RCW § 9A.40.040 does not constitute one of the enumerated
crimes; thus it qualifies as a crime of violence only if it “has as an element the use,
attempted use, or threatened use of physical force against the person of another.”
See id. (internal quotation marks and citation omitted).
Pursuant to RCW § 9A.40.040, a person is guilty of unlawful imprisonment
if he or she “knowingly restrains another person.” RCW § 9A.40.040(1). Under
Washington law, “restraint” may be accomplished by “physical force, intimidation,
or deception.” RCW § 9A.40.010(1)(a). In connection with his plea of guilty to1
the unlawful imprisonment charge, Armenta agreed expressly that the sentencing
court could review the police reports and statement of probable cause to establish
the factual basis for his plea; accordingly, we may consider those documents in
applying the modified categorical approach. See United States v. Almazan-

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Becerra, 537 F.3d 1094, 1100 (9th Cir. 2008) (district court’s consideration of
police reports contained in the state court file was proper because defendant had
stipulated that the reports formed the factual basis of his guilty plea) ; United
States v. Espinoza-Cano, 456 F.3d 1126, 1131-32 (9th Cir. 2006) (same). The
police reports disclose that Armenta’s wife left him after a history of domestic
violence; that Armenta accosted her in a parking lot, threatened her, grabbed her
sleeve, and pulled her into a van; and that while they were inside the van Armenta
continued threatening to beat her and telling her that she had to stay with him.
Armenta argues that it is unclear from this record whether his conviction of
unlawful imprisonment rested upon his use of physical force in pulling the victim
into the van or upon his verbal intimidation of her. His argument assumes that if
the conviction rested solely upon intimidation, it would not satisfy the Guideline
elements of a crime of violence. This assumption is unwarranted, given that an
offense qualifies as a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) if it
has as an element “the use, attempted use, or threatened use of physical force
against the person of another.” See Espinoza-Morales, 621 F.3d at 1145 (emphasis
added). The record establishes plainly that Armenta intimidated his estranged wife
by threatening to beat her. Thus even if his actual use of physical force were
ignored, his threatened use of physical force would be sufficient to qualify the

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conviction as involving a crime of violence. Moreover, the government argues
persuasively that absent Armenta’s initial use of force to pull her into the van, the
victim would not have been imprisoned at all. We agree that under these
circumstances Armenta’s conviction necessarily rested on facts satisfying the
element of physical force.
AFFIRMED.

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