Servin-Acosta v. USA, No. 07-2228 (10th Cir.)(July 30, 2008)

HARTZ, McWilliams, Holmes

In Servin-Acosta v. USA, the Defendant challenged his sentence calculation for illegal reentry on two grounds: 1) that the government had failed to submit sufficient evidence to prove a prior California conviction for robbery and that in any event, 2) the robbery conviction was not a “crime of violence” such as to warrant a 16-level increase under the federal sentencing guidelines.

The Tenth Circuit first found that the evidence submitted by the government – a minute order from the California state court; a 1993 Form I-213, which led to the defendant’s deportation and the 2007 Form I-213 prepared following Mr. Servin-Acosta’s unlawful reentry into US – constituted sufficient evidence of his prior conviction.

The Court disagreed with the government’s position however, that the defendant’s California robbery conviction was a “crime of violence” under USSG § 2L1.2.  While the definition of “crime of violence” under the federal sentencing guidelines includes robbery, the Tenth Circuit agreed with the defendant that the California robbery statute – which punishes “the use of force to effect an escape after a taking has occurred” - was broader in scope than the undefined offense of robbery under the guidelines, which the Court noted therefore encompasses only “generic” robbery.  The Court reiterated its rejection of “the notion that whether a state conviction was for an enumerated but undefined crime ‘depends on how it is characterized under state law’,” citing US.v. Vazques-Flores, 265 F.3d 1122 (10th Cir. 2001), and restated its position that when interpreting the sentencing guidelines, the Court will adopt a uniform generic definition of the undefined offense at issue.

Read opinion here:

Comments

Add New Search

Write comment
Name:
Email:	do not notifynotify
Website:
Title:
UBBCode:	-color-aquablackbluefuchsiagraygreenlimemaroonnavyolivepurpleredsilvertealwhiteyellow -size-tinysmallmediumlargehuge
	Please input the anti-spam code that you can read in the image.

Powered by !JoomlaComment 3.12

Copyright (C) 2007 Alain Georgette / Copyright (C) 2006 Frantisek Hliva. All rights reserved.