By Mikhail Petrov
On July 23, 2015, in the criminal case of United States v. Parral-Dominguez, the Fourth Circuit issued a published opinion vacating the sentence of foreign national Edgar Parral-Dominguez (“Dominguez”) and remanding the case back to the district court. This case examined whether Edgar Parral-Dominguez, a Mexican citizen, was properly subject to a sentencing guidelines enhancement. After Dominguez plead guilty to illegally reentering the country, the district court applied the enhancement because, in its view, Dominguez’s previous conviction in North Carolina for discharging a firearm into an occupied building is a requisite “crime of violence.” The Fourth Circuit found this decision was in error.
In 2000, at the age of 14, Edgar Parral-Dominguez left Mexico with his father and entered the United States. Although his father went back, Dominguez remained. On New Year’s Day, a firearm was discharged toward a woman’s residence in Winston-Salem, North Carolina. A year later, Dominguez was arrested and charged for the incident. He was convicted for an aggravated felony–discharging a firearm into a building under N.C.G.S.A. § 14-34.1(a) (“the State Offense”).
During his post-arrest processing, state authorities found that Dominguez was unlawfully present in the country. Thus, after he plead guilty to the State Offense he was deported to Mexico. Within months, however, Dominguez returned to North Carolina, and settled in Wilmington.
Three years after his deportation, Dominguez was arrested with more than an ounce of cocaine. He was convicted for trafficking and state authorities again discovered that Dominguez was previously deported and was unlawfully present in the country. In December 2013, a federal grand jury sitting in the Eastern District of North Carolina indicted Dominguez under 8 U.S.C. §§ 1326(a) for illegally reentering the United States after being convicted of an aggravated felony.
Before Dominguez’s sentencing, U.S. Probation prepared a presentence investigation report (PSR), which found that Dominguez was a Category IV criminal, that his base offense level was eight, and that he earned a three-point reduction for accepting responsibility. The PSR then proposed a sixteen-level enhancement to Dominguez’s offense level for having been previously convicted of a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Applying this enhancement, the PSR calculated an offense level of twenty one, resulting in fifty-seven to seventy-one months of imprisonment. Dominguez argued that, as a matter of law, the State Offense did not constitute the requisite crime of violence under § 2L1.2(b)(1)(A)(ii).
The district court overruled Dominguez’s objection after concluding that the occupant of a building would feel threatened by the physical force when a defendant shoots at the building. The court then imposed a sixty-five month sentence. The day after sentencing, the district court issued a nine-page memorandum opinion which argued, without binding precedent, that Dominguez’s offense was a crime of violence as anyone would be inherently threatened if their building was shot at. Dominguez appealed.
The Rule of the Case
This appeal centers on whether the state offense of discharging a firearm into an occupied building under N.C.G.S.A. § 14-34.1(a) constitutes a crime of violence for federal sentencing purposes under U.S.S.G. § 2L1.2. The Fourth Circuit first compared the contours of a “crime of violence” under § 2L1.2 with the breadth of conduct proscribed by N.C.G.S.A. § 14-34.1(a). The court applied the so called “categorical approach” set forth in Taylor v. United States, 495 U.S. 575 (1990) (finding that the elements of a statute, not the actual conduct, dictate its interpretation for sentencing purposes). Under the Taylor approach, the court considers only the elements of the statute of conviction rather than the defendant’s conduct underlying the offense.
Reasoning of the Fourth Circuit
Section 2L1.2 states that a 16-level enhancement applies if “the defendant previously was deported . . . after . . . a conviction for a felony that is . . . a crime of violence.” Although the text of § 2L1.2 does not expressly define the phrase “crime of violence,” the application note clarifies that the phrase contemplates any offense under federal, state, or local law that has, as an element, the use, attempted use, or threatened use of physical force against a person. The so-called “use-of-force clause” was the sole basis with which the Government argued that the State Offense is a crime of violence under § 2L1.2. Still, the use of force clause is limited because first, the plain language of the clause does not encompass acts involving the use of force against property. Second, unlike other sections of the Guidelines, the use-of-force clause does not include “acts that merely pose a risk of harm to another person.”
Although not listed as an element in the statute, the Supreme Court of North Carolina has read a knowledge element into the State Offense which requires the defendant to have had “reasonable grounds to believe that the building might be occupied by one or more persons.” Thus, the State Offense does not require that an offender use, attempt to use, or threaten to use force against another person. Instead, the crime is complete when a person (1) intentionally (2) discharges a firearm (3) toward an occupied building (4) when the shooter knows or has reasonable grounds to believe that the building might be occupied. Therefore, the State Offense cannot be construed as a crime of violence under § 2L1.2’s use-of-force clause and the district court committed procedural error by concluding that Dominguez’s offense under the State Offense is a crime of violence.
Finally, the Fourth Circuit reasoned that the error was not harmless. While in many cases, a judge is unequivocal about what effect any Guidelines miscalculation would have on the ultimate sentence, no such words exist here. It is not clear that Dominguez’s sentencing was unaffected by the court’s error. The Fourth Circuit, looking at the amount of time devoted to calculating the sentence, reasoned that the Guidelines played a large role in the sixty-five month sentence.
The Fourth Circuit vacated and remanded Dominguez’s sixty-five month sentence. The court held that the State Offense is not a crime of violence, and thus that the district court committed procedural error. Additionally, the procedural error was not harmless. The dissent by Circuit Judge Wilkinson argues that the decision should be upheld because the State Offense is not a crime against property, but a crime against people who occupy the property and is therefore a crime of violence.