Submitted May 11, 2017 [*] Pasadena, California
from the United States District Court for the District of
Arizona, D.C. Nos. 4:14-cr-01981-JGZ-LAB-1,
4:15-cr-50035-JGZ-LAB-1 Jennifer G. Zipps, District Judge,
R. Beards, Law Office of Myrna R. Beards, Tucson, Arizona,
Anderson McCallum, Assistant United States Attorney; Robert
L. Miskell, Appellate Chief; United States Attorney's
Office, Tucson, Arizona; for Plaintiff-Appellee.
Before: Diarmuid F. O'Scannlain and John B. Owens,
Circuit Judges, and Dana L. Christensen, [**] Chief District Judge.
panel affirmed a sentence for illegal reentry after
deportation, and dismissed an appeal from the revocation of
supervised release and the revocation sentence.
defendant contended that the district court erred by applying
a 16-level crime-of-violence enhancement to his illegal
reentry sentence pursuant to U.S.S.G. §
2L1.2(b)(1)(A)(ii) based on his prior conviction for
aggravated assault under Texas Penal Code §§ 22.01
and 22.02. The parties did not dispute that the defendant
committed a simple assault in violation of §
22.01(a)(2), which became aggravated assault by application
of § 22.02(a). The panel held that aggravated assault is
a crime of violence under the element prong of §
2L1.2(b)(1)(A)(ii) because both means of committing
aggravated assault-(1) causing serious bodily injury and (2)
using or exhibiting a deadly weapon-entail the use of
violent, physical force.
panel held that the defendant waived his ability to contest
the supervised release revocation and the revocation sentence
by raising no issue and arguments in this regard in his
Judge Owens referred the reader to his concurrence in
United States v. Perez-Silvan, Nos. 16-10177,
16-10205 (9th Cir. 2017).
O'SCANNLAIN, Circuit Judge:
decide whether a "crime of violence" sentencing
enhancement to a sentence for illegal reentry after
deportation can be based on a prior Texas state conviction
for aggravated assault.
Calvillo-Palacios, a native and citizen of Mexico, was
indicted in the District of Arizona for illegal reentry after
deportation in violation of 8 U.S.C. § 1326, enhanced by
§ 1326(b)(2), on December 3, 2014. He had been found
walking north of the Mexican border near Douglas, Arizona
after having been deported from Laredo, Texas. He pled guilty
to the indictment without a plea agreement.
March 3, 2015, the United States transferred a motion
(previously filed in the Southern District of Texas) to the
District of Arizona to revoke Calvillo-Palacios's
supervised release for a previous illegal reentry
conviction on the grounds that he had
violated the terms of supervision. Calvillo-Palacios appeared
with counsel and admitted to the allegations contained in the
government's motion to revoke.
sentencing, the district court found that
Calvillo-Palacios's advisory guideline range was 70-87
months' imprisonment for the illegal reentry violation,
based on a criminal history category of V and a total offense
level of twenty-one, which was calculated using a base
offense level of eight with a sixteen-level prior conviction
enhancement, and a three-level reduction for acceptance of
responsibility. The sixteen-level sentencing enhancement, was
pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) which applies
if a defendant was deported after, inter alia,
"a conviction for a felony that is . . . a crime of
Calvillo-Palacios's enhancement was based on his prior
felony aggravated assault conviction in 2005 in violation of
Texas Penal Code §§ 22.02 and 22.01.
contested the sixteen-level enhancement, maintaining that the
Texas aggravated assault statute of conviction was overbroad
and thus could not qualify as a crime of violence. The
district court rejected his argument and imposed the
sixteen-level enhancement. After granting a downward
variance, it sentenced Calvillo-Palacios to fifty-four months
of imprisonment followed by three years of supervised release
for the illegal reentry violation.
supervised release violation, the district court revoked
Calvillo-Palacios's supervised release and sentenced him
to an additional twelve months imprisonment, with six months
to run concurrently and six months to run consecutively to
the illegal reentry violation.
contends that the district court erred by concluding that his
conviction for aggravated assault under Texas Penal Code
§§ 22.01 and 22.02 was a crime of violence for
purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii).
determine whether a prior state conviction qualifies as a
crime of violence, we employ the categorical approach set out
by the Supreme Court in Taylor v. United States, 495
U.S. 575, 602 (1990). Thus, we ask whether the statute of
conviction "is categorically a crime of violence by
assessing whether the 'full range of conduct covered by
[the statute] falls within the meaning of that
term.'" United States v. Grajeda, 581 F.3d
1186, 1189 (9th Cir. 2009) (alteration in original) (quoting
United States v. Juvenile Female, 566 F.3d 943, 946
(9th Cir. 2009)). A statute of conviction that punishes
conduct that is not covered by ...