Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Calvillo-Palacios

United States Court of Appeals, Ninth Circuit

June 28, 2017

United States of America, Plaintiff-Appellee,
v.
Pablo Calvillo-Palacios, Defendant-Appellant. United States of America, Plaintiff-Appellee,
v.
Pablo Calvillo-Palacios, Defendant-Appellant.

          Submitted May 11, 2017 [*] Pasadena, California

         Appeal 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, Presiding

          Myrna R. Beards, Law Office of Myrna R. Beards, Tucson, Arizona, for Defendant-Appellant.

          Erica 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.

         SUMMARY [***]

         Criminal Law

         The panel affirmed a sentence for illegal reentry after deportation, and dismissed an appeal from the revocation of supervised release and the revocation sentence.

         The 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.

         The 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 opening brief.

         Concurring, Judge Owens referred the reader to his concurrence in United States v. Perez-Silvan, Nos. 16-10177, 16-10205 (9th Cir. 2017).

          OPINION

          O'SCANNLAIN, Circuit Judge:

         We must 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.

         I

         Pablo 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.

         On 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[1] 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.

         At 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 violence."[2] 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.

         Calvillo-Palacios 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.

         For the 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.

         Calvillo-Palacios timely appealed.

         II

         Calvillo-Palacios 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).[3]

         A

         To 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.