May 11, 2017[*] Pasadena, California
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,
R. Beards, Law Office of Myrna R. Beards, Tucson, Arizona,
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.
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.
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.
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 §
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.
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.
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 Tennessee state
conviction for aggravated assault.
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.
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.
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.
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
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.
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.
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.").
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.
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
argues that his prior conviction for aggravated assault in