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United States v. Perez-Silvan

United States Court of Appeals, Ninth Circuit

June 28, 2017

United States of America, Plaintiff-Appellee,
v.
Miguel Perez-Silvan, Defendant-Appellant. United States of America, Plaintiff-Appellee,
v.
Miguel Perez-Silvan, AKA Miguel Perez-Silva, AKA Miguel Silvan-Perez, Defendant-Appellant.

         Submitted May 11, 2017[*] Pasadena, California

         Appeal from the United States District Court for the District of Arizona D.C. No. 4:15-cr-01805-DCB-CRP-1 D.C. No. 4:10-cr-02506-DCB-CRP-1 David C. Bury, Senior District Judge, Presiding

         COUNSEL

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

          Ryan P. Dejoe, 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 a judgment revoking supervised release for a prior illegal reentry conviction.

         The panel held that even if the defendant's appeal from the judgment revoking supervised release had been timely, he waived his ability to contest the revocation by neglecting to brief the merits.

         The panel held that the district court did not err by applying a 16-level crime-of-violence enhancement to the defendant's illegal reentry sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015) based on his prior aggravated assault conviction under Tennessee Code Annotated § 39-13-102.

         The panel explained that because §§ 39-13-102(a)(1) and (a)(2) carry different penalties, they necessarily contain distinct elements, rather than alternative means of committing aggravated assault, and that § 39-13-102(a) is therefore divisible into two crimes. Looking to the charging documents, the panel observed that the defendant was convicted under § 39-13-102(a)(1), which criminalizes intentional or knowing assault, rather than § 39-13-102(a)(2), which covers reckless assault. The panel therefore concluded that the defendant's claim that his statute of conviction does not qualify as a crime of violence because it can be violated by recklessness necessarily fails. The panel also explained that although an offensive touching under § 39-13-101(a)(3) can satisfy the second element of § 39-13-102(a)(1), an aggravated assault conviction further requires that the offensive touching "[c]ause[] serious bodily injury to another" or "use[] or display[] a deadly weapon, " both of which entail the use of violent force.

         Concurring, Judge Owens applauded the United States Sentencing Commission for reworking § 2L1.2, which has been simplified since the defendant was sentenced; he urged the Commission to continue to simplify the Guidelines to avoid frequent complicated sentencing adventures.

          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 Tennessee state conviction for aggravated assault.

         I

         Miguel Perez-Silvan, a citizen of Mexico, was charged with illegal reentry after deportation in violation of 8 U.S.C. § 1326, enhanced by § 1326(b)(2), on October 14, 2015, when he was found near Quijotoa, Arizona on September 17, 2015, following a previous deportation from the United States on August 19, 2015. On December 8, 2015, Perez-Silvan pled guilty to the indictment without a plea agreement.

         On December 29, 2015, the government filed a motion to revoke Perez-Silvan's supervised release for a prior illegal reentry conviction from 2011. On January 29, 2016, Perez-Silvan appeared with counsel and admitted to violating this supervised release agreement.

         At sentencing on April 11, 2016, the district court found that Perez-Silvan had an offense level of twenty-one for the illegal reentry charge, based in part on a sixteen-level "crime of violence" enhancement under U.S.S.G. §2L1.2 for a prior conviction of aggravated assault. In 2005, Perez-Silvan had pled guilty to an indictment charging that he "did unlawfully and intentionally or knowingly cause bodily injury to Jose Molina, by use of a deadly weapon, in violation of Tennessee Code Annotated § 39-13-102." Applying the offense level of twenty-one and a criminal history of six, the district court concluded that the Guideline range for the illegal reentry violation was 77-96 months; it imposed a sentence of seventy-seven months.

         For the supervised release violation, the district court calculated a Guideline range of 21-24 months, and it imposed a sentence of twenty-one months to run consecutively to the illegal reentry sentence.

         Perez-Silvan filed a timely notice of appeal (No. 16-10177), on April 19, 2016, from the district court's judgment on the illegal reentry conviction. His notice of appeal (No. 16-10205) from the district court's judgment on the supervised release violation, filed on May 12, 2016, was seventeen days late.

         II

         Perez-Silvan acknowledges that under Federal Rule of Appellate Procedure 4(b)(1)(A)(i) his appeal in No. 16-10205 was untimely. Nonetheless, following United States v. Ono, 72 F.3d 101, 103 (9th Cir. 1995), he requests that we issue a limited remand to the district court to determine whether there was "excusable neglect" for his late appeal.

         However, as the government observes, Perez-Silvan has otherwise failed to prosecute the appeal in No. 16-10205. Federal Rule of Appellate Procedure 28(a) requires a party's opening brief to contain "a statement of the issues presented for review, " and an "argument . . . [with] appellant's contentions and the reasons for them." Indeed, "on appeal, arguments not raised by a party in its opening brief are deemed waived." Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999); see also Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) ("We review only issues which are argued specifically and distinctly in a party's opening brief.").

         Perez-Silvan offers no arguments for why the district court's decision to revoke his supervised release was in error, nor does he list it as an issue in his opening brief. By neglecting to brief the merits of the issue, he has not adhered to Rule 28. Thus, there is no need to remand to the district court to determine if Perez-Silvan's failure to file a timely appeal was excusable. Even if his appeal had been timely, Perez-Silvan has waived his ability to contest the revocation of his supervised release. Thus, the appeal in No. 16-10205 must be dismissed. See Ninth Circuit Rule 42-1.

         III

         In No. 16-10177, the illegal reentry conviction, Perez-Silvan contends that the district court erred by imposing a sentencing enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), which provides that a defendant's base offense level should be increased by sixteen "[i]f the defendant previously was deported . . . after . . . a conviction for a felony that is . . . a crime of violence."[1] Perez-Silvan argues that his prior conviction for aggravated assault in ...


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