United States v. Javier Velasquez-Reyes, A.K.A. Javier Alvarado-Hernandez, 427 F.3d 1227 (9th Cir. 2005). · Go Syfert
United States v. Javier Velasquez-Reyes, A.K.A. Javier Alvarado-Hernandez, 427 F.3d 1227 (9th Cir. 2005). Cases Citing This Book View Copy Cite
137 citation events (137 in the last 25 years) across 11 distinct courts.
Treatment trajectory · 2006 → 2026 · click a year to view as-of
2006 2016 2026
Cited for
At page 1229 Reviewing prior conviction as crime of violence under sentencing guidelines65 citing casesrejecting contention that the government is required to plead prior convictions in the indictment and prove them to a jury unless the defendant admits the prior convictions8 citing courts put it this way · 60 listed here
  • United States v. Rodriguez-Guzman, 506 F.3d 738 (9th Cir. 2007).published 6 cites
    A state’s definition of [the crime] must be compared with the generic definition of that crime to determine if the defendant’s conviction is a crime of violence pursuant to the Sentencing Guidelines.” Velasquez-Reyes, 427 F.3d at 1229-30 (…
  • United States v. Daniel Vega, No. 22-30049 (9th Cir. July 31, 2023).unpublished
    “We review de novo a district court’s decision [whether] a prior conviction is a crime of violence under the Sentencing Guidelines.” United States v. Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir. 2005).
  • United States v. Angelo Fernandez, No. 22-10140 (9th Cir. May 16, 2023).unpublished
    “We review de novo a district court’s decision that a prior conviction is a crime of violence under the Sentencing Guidelines.” United States v. Velasquez- Reyes, 427 F.3d 1227, 1229 (9th Cir. 2005) (citation omitted).
  • United States v. Edgar Espinoza, 816 F. App'x 82 (9th Cir. 2020).unpublished 3 cites
    We have defined generic arson as “a willful and malicious burning of property.” See Velasquez-Reyes, 427 F.3d at 1230 (citation and internal quotation marks omitted).
  • United States v. Hugo Rivera-Muniz, 854 F.3d 1047 (9th Cir. 2017).published
    Moreover, “we do not look to the specific conduct that was the basis of a defendant’s state convictions.” United States v. Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir. 2005). 4 The statute at issue here, California Penal Code section 192…
  • United States v. Carlos Mendoza-Padilla, 833 F.3d 1156 (9th Cir. 2016).published
    United States v. Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir. 2005).
  • United States v. Alvarez-Jimenez, 151 F. Supp. 3d 1119 (S.D. Cal. 2015).published
    United - States Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir. 2005).
  • United States v. Jose Moreno-Tobar, 452 F. App'x 763 (9th Cir. 2011).unpublished
    “Under this approach the state statute of conviction is ‘compared with the generic definition of that crime to determine if the defendant’s conviction is a crime of violence pursuant to the Sentencing Guidelines.’” Id. (quoting United Stat…
  • United States v. Esparza-Herrera, 557 F.3d 1019 (9th Cir. 2009).published 3 cites
    Under this approach the state statute of conviction is “compared with the generic definition of that crime to determine if the defen- dant’s conviction is a crime of violence pursuant to the Sen- tencing Guidelines.” United States v. Velas…
  • United States v. Sanchez-Castro, 286 F. App'x 1001 (9th Cir. 2008).unpublished
    We rejected this argument in United States v. Velasquez-Reyes, 427 F.3d 1227, 1229 (9th Cir.2005), and we reject it again. 1 Sanchez-Castro also claims to have been denied his right to allocution.
Show 50 more citing cases
At page 1230 Defining the generic mens rea for arson16 citing cases“a willful and malicious burning of property.”4 citing courts quote it
  • Roy v. United States, No. 3:19-cv-01154 (D. Conn. Mar. 14, 2024). 2 cites
    See also United States v. Misleveck, 735 F.3d 983, 988 (7th Cir. 2013) (“Our interpretation of generic arson as embracing the intentional or malicious burning of any property, regardless of value or amount of damage, coincides with the int…
  • United States v. Edgar Espinoza, 816 F. App'x 82 (9th Cir. 2020).unpublished 3 cites
    We have defined generic arson as “a willful and malicious burning of property.” See Velasquez-Reyes, 427 F.3d at 1230 (citation and internal quotation marks omitted).
  • United States v. Buck, No. 16-8103 (10th Cir. Nov. 21, 2017).unpublished 2 cites
    United States v. Velasquez-Reyes, 427 F.3d 1227, 1230-31 (9th Cir. 2005) (quotation marks omitted); see also United States v. Hathaway, 949 F.2d 609, 610 (2d Cir. 1991).
  • United States v. Mitchell, 218 F. Supp. 3d 360 (M.D. Pa. 2016).published 2 cites
    See Brown v. Caraway, 719 F.3d 583, 590 (7th Cir. 2013); United States v. Velez-Alderete, 569 F.3d 541, 545-46 (5th Cir. 2009); United States v. Whaley, 552 F.3d 904, 906-07 (8th Cir. 2009); United States v. Velasquez-Reyes, 427 F.3d 1227,…
  • United States v. Webb, 217 F. Supp. 3d 381 (D. Mass. 2016).published 2 cites
    (willful and malicious” burning of property)
  • United States v. Delgado-Montoya, 663 F. App'x 719 (10th Cir. 2016).unpublished
    Generic arson is defined as “a willful and malicious burning of property.” United States v. Velasquez-Reyes, 427 F.3d 1227,1230 (9th Cir. 2006).
  • United States v. James Misleveck, 735 F.3d 983 (7th Cir. 2013).published
    Our interpretation of generic arson as embracing the intentional or malicious burning of any property, regardless of value or amount of damage, coincides with the interpretation that has been adopted by the Fifth, Eighth, and Ninth Circuit…
  • United States v. Ashford Spencer, 724 F.3d 1133 (9th Cir. 2013).published
    Similarly, we have described the modern, generic definition of arson as “willful and malicious burning of property.” United States v. Velasquez-Reyes, 427 F.3d 1227, 1230 (9th Cir.2005) (internal quotation marks omitted); see also United S…
  • Royce Brown v. John F. Caraway, 719 F.3d 583 (7th Cir. 2013).published
    See United States v. Velez-Alderete, 569 F.3d 541, 544 (5th Cir.2009); United States v. Whaley, 552 F.3d 904, 907 (8th Cir.2009); United States v. Velasquez-Reyes, 427 F.3d 1227, 1230 (9th Cir.2005).
  • United States v. Jesus Navia-Perez, 496 F. App'x 739 (9th Cir. 2012).unpublished
    (concluding that arson under Washington state law, which requires an explosion to have been “knowingly and maliciously” set, was a crime of violence because although generic arson requires a “willful and malicious burnin…)
Show 6 more citing cases
  • United States v. Catalino Pineda, 472 F. App'x 557 (9th Cir. 2012).unpublished
    (interpreting U.S.S.G. § 2L1.2 cmt. l(B)(iii) (2001))
  • United States v. Knight, 606 F.3d 171 (4th Cir. 2010).published 3 cites
    (explaining that “[t]he modern generic definition of arson includes a ‘willful and malicious burning’ of property,” and noting the “ ‘interstate consensus’ that the burning of personal property constitutes arson)
  • United States v. Whaley, 552 F.3d 904 (8th Cir. 2009).published 3 cites
    While damage limitations may render some acts of malicious burning non-criminal or non-felonious in certain jurisdictions, we agree with the Ninth Circuit that the limits applied by some States "do not disrupt the ‘interstate consensus 1 t…
  • United States v. Perez-Tapia, 241 F. App'x 416 (9th Cir. 2007).unpublished
    Generic arson is defined as “a willful and malicious burning of property.” United States v. Velasquez-Reyes, 427 F.3d 1227, 1230 (9th Cir.2005).
  • United States v. Taylor, No. 24-6464 (9th Cir. July 8, 2026).unpublished
    See United States v. Door, 917 F.3d 1146, 1151-52 (9th Cir. 2019).2 Under the enumerated offenses clause, we look to the federal generic definition of arson, see id. at 1151, which requires “a willful and malicious burning of property,” Un…
  • United States v. Antonio-Cruz, 262 F. App'x 825 (9th Cir. 2008).unpublished
At page 1228 Applying prior conviction facts under Sixth Amendment6 citing casesrejecting contention that prior convictions must be proved to a jury if not admitted by the defendant and reaffirming that Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998), has not been overruled2 citing courts put it this way
At page 1231 Federal statute guidance on arson definition and personal property3 citing casesstating that “the federal statute lends guidance to the meaning of the term ‘arson’ as used in the Sentencing Guidelines” and that the federal statute “extends to personal property2 citing courts put it this way
  • United States v. Whaley, 552 F.3d 904 (8th Cir. 2009).published 3 cites
    While damage limitations may render some acts of malicious burning non-criminal or non-felonious in certain jurisdictions, we agree with the Ninth Circuit that the limits applied by some States "do not disrupt the ‘interstate consensus 1 t…
  • United States v. Velez-Alderete, No. 08-20557 (5th Cir. June 25, 2009).published
  • United States v. Velez-Alderete, 569 F.3d 541 (5th Cir. 2009).published
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Javier VELASQUEZ-REYES, A.K.A. Javier Alvarado-Hernandez, Defendant-Appellant
04-30292.
Court of Appeals for the Ninth Circuit.
Nov 8, 2005.
Published opinion
427 F.3d 1227
2005 U.S. App. LEXIS 24026
2005 WL 2979234
Anne Walstrom and Kurt Rowland, Federal Defenders of Eastern Washington and Idaho, Yakima, WA, for the defendant-appellant., James P. Hagarty, Assistant United States Attorney, Yakima, WA, for the plaintiff-appellee.
Schroeder, Alarcón, Leavy.
Cited by 97 opinions  |  Published
ALARCÓN, Circuit Judge.

Defendant Javier Velasquez-Reyes appeals from the order sentencing him to 48 months of imprisonment on the ground that the district court erred in imposing a 16-level enhancement to his sentence based on a prior conviction for second degree arson under Washington law. He contends that second degree arson is not a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). We affirm the imposition of the 16-level enhancement because we conclude that second degree arson under Washington law is categorically a crime of violence. Mr. Velasquez-Reyes was sentenced under the mandatory provisions of the Sentencing Guidelines. Accordingly, we remand in accordance with United States v. Ameline, 409 F.3d 1073 (9th Cir.2005) (en banc).

I

Mr. Velasquez-Reyes pled guilty to reentering the United States illegally after[*1229] having been deported. At sentencing, he received a 16-level enhancement based on his prior conviction under Washington law for second degree arson. This prior conviction was not alleged in the indictment.

Mr. Velasquez-Reyes contends that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) overruled Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) and requires the Government to plead prior convictions in the indictment and prove them beyond a reasonable doubt to the jury unless the defendant admits the prior convictions. This argument is foreclosed by the law of this circuit. In United States v. Pacheco-Zepeda, 234 F.3d 411, 415 (9th Cir.2000), we rejected an identical contention. We held in PachecoZepeda, that Apprendi did not overrule Almendarez-Torres. Id. at 414-15. We reaffirmed our holding in Pacheco-Zepeda in United States v. Brown, 417 F.3d 1077, 1078-79 (9th Cir.2005), following the Supreme Court’s decision in United States v. Booker, — U.S.-, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In his opening brief, Mr. Velasquez-Reyes recognized that this argument has been precluded by the law of this circuit and Supreme Court precedent. He acknowledges that he raised this issue “in order to preserve it for en banc or Supreme Court review.”

II

Mr. Velasquez-Reyes also argues that the district court erred in determining that his conviction for second degree arson under Washington law was a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). He asserts that “[t]he Washington arson statute is overbroad, because it criminalizes conduct that would not be a crime under federal law.” Appellants’ Opening Br. at 18. We review de novo a district court’s decision that a prior conviction is a crime of violence under the Sentencing Guidelines. See United States v. Rivera-Sanchez, 247 F.3d 905, 907 (9th Cir.2001).

Section 2L1.2(b)(1)(A)(ii) provides for a 16-level enhancement if the defendant has a prior conviction for a crime of violence. A crime of violence is defined under the Application Notes to § 2L1.2(b)(1)(A)(ii) as:

murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or 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. 1(B)(iii) (2001) (emphasis added). The fact that arson is specifically enumerated as a crime of violence in § 2L1.2(b)(1)(A)(ii) indicates that it is a crime of violence. United States v. Bonilla-Montenegro, 331 F.3d 1047, 1051 (9th Cir.2003). To determine whether a conviction for second degree arson under Washington law comes within the Sentencing Guidelines definition of arson, we must use the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See United States v. Fish, 368 F.3d 1200, 1202 (9th Cir.2004).

Under the categorical approach, we do not look to the specific conduct that was the basis of a defendant’s state convictions. Instead, we consider the statutory definition of the crime. Fish, 368 F.3d at 1202. A state’s definition of arson must be compared with the generic definition of that crime to determine if the defendant’s conviction is a crime of violence pursuant to the Sentencing Guidelines. Taylor, 495 U.S. at 602, 110 S.Ct. 2143; see United States v. Anderson, 989 F.2d 310, 312 (9th[*1230] Cir.1993) (“[W]e must look to the ‘generic’ definitions of burglary, arson, or extortion—the meanings likely ascribed to these words by the federal legislators who adopted the statute.”); United States v. Hathaway, 949 F.2d 609, 610 (2d Cir.1991) (“[I]f [the state’s] definition of third degree arson substantially corresponds to a modern generic definition of arson, then appellant’s conviction may be counted as ‘arson’ for purposes of the federal sentencing statute.”).

Wash. Rev.Code § 9A.48.030 (1991), provides:

Arson in the second degree
(1) A person is guilty of arson in the second degree if he knowingly and maliciously causes a fire or explosion which damages a building, or any structure or erection appurtenant to or joining any building, or any wharf, dock, machine, engine, automobile, or other motor vehicle, watercraft, aircraft, bridge, or trestle, or hay, grain, crop, or timber, whether cut or standing or any range land, or pasture land, or any fence, or any lumber, shingle, or other timber products, or any property.

The modern generic definition of arson includes a “willful and malicious burning” of property. Hathaway, 949 F.2d at 610; see United States v. Doe, 136 F.3d 631, 634 (9th Cir.1998) (describing the common law definition of arson as the “willful and malicious burning of a building”). Mr. Velasquez-Reyes argues that 18 U.S.C. § 81, the federal statute that defines arson committed within special maritime and territorial jurisdiction, requires proof that the defendant acted “willfully and maliciously,” while the Washington statute identifies the mens rea as “knowing and malicious.” [1]

Although the Washington statute identifies the requisite mens rea as “knowing and malicious,” we are unable to discern any meaningful distinction between “knowing” and “willful” in this context. “To be a willful act, the setting of the fire must be a conscious, intentional act done knowingly and according to a purpose, as distinguished from a fire that was started by accident or defendant’s involuntary act.” Doe, 136 F.3d at 635. (citation omitted). Thus, the common law definition of “willful” encompasses “knowing.” Id. Mr. Velasquez-Reyes has failed to demonstrate how a person could act “knowingly and maliciously” but not “willfully and maliciously.”

Ill

Mr. Velasquez-Reyes also argues that the Washington statute does not come within the generic definition of arson because it criminalizes setting fire to personal property, such as timber, crops, cars, and other forms of personal property. We disagree. A majority of state arson statutes, and the federal arson statute, extend beyond dwellings or buildings to include various types of personal property. [2] Although some of these statutes add a limita[*1231] tion that the personal property be burned for insurance proceeds, e.g., 18 Pa. Cons. Stat. Ann. § 3301 (West 2005), or set a minimum damage limitation, e.g., Vt. Stat. Ann. tit. 13, § 504 (2005), these limits do not disrupt the “interstate consensus” that the burning of personal property constitutes arson. See Anderson, 989 F.2d at 312 (considering whether there was an interstate consensus regarding the definition of extortion).

Furthermore, to the extent there is some inconsistency among the states regarding whether burning personal property constitutes arson, the federal statute lends guidance to the meaning of the term “arson” as used in the Sentencing Guidelines. See id. (relying on a federal statute to determine federal common law because of the absence of a national consensus regarding the definition of extortion). The federal arson statute extends to personal property—it includes, inter alia, machinery, building materials, supplies, and military and naval stores—and does not have an insurance proceeds limitation or minimum damage limit. 18 U.S.C. § 81. Washington’s inclusion of the burning of personal property, without a minimum damage limit, is consistent with the modern generic definition of arson.

Conclusion

We hold that Mr. Velasquez-Reyes’s Washington state conviction for second degree arson is categorically a crime of violence. Accordingly, the district court did not err in its interpretation of the Sentencing Guidelines.

Mr. Velasquez-Reyes was sentenced under the mandatory provisions of the Sentencing Guidelines. In United States v. Moreno-Hernandez, 419 F.3d 906 (9th Cir.2005), we held that defendants are entitled to limited remands in cases involving non-constitutional Booker error. Id. at 916. The record does not reflect whether Mr. Velasquez-Reyes would have received a different sentence had the district court known that the Sentencing Guidelines were advisory. Therefore, we must remand this matter to the district court for a determination whether “the sentence imposed would have been materially different had the district court known that the sentencing guidelines were advisory.” Ameline, 409 F.3d at 1074; Moreno-Hernandez, 419 F.3d 906.

AFFIRMED IN PART; REMANDED IN PART.

1

. Section 81 provides as follows:

Whoever within the special maritime and territorial jurisdiction of the United States, willfully and maliciously sets fire to or burns, or attempts to set fire to or bum any building, structure or vessel, any machinery or building materials or supplies, military or naval stores, munitions of war, or any structural aids or appliances for navigation or shipping, ... shall be imprisoned for not more than 25 years, fined the greater of the fine under this title or the cost of repairing or replacing any property that is damaged or destroyed, or both.
If the building be a dwelling or if the life of any person be placed in jeopardy, he shall be fined under this title or imprisoned for any terms of years or for life, or both.