Appeal from the United States District Court for the Middle District of Florida.
For United States of America, Plaintiff - Appellee: Cherie Krigsman, Arthur Lee Bentley III, U.S. Attorney's Office, Tampa, FL; Jesus M. Casas, U.S. Attorney's Office, Fort Myers, FL.
For Rudy Estrada, Defendant - Appellant: Mara Allison Guagliardo, Federal Public Defender's Office, Tampa, FL; Rosemary Cakmis, Donna Lee Elm, Federal Public Defender's Office, Orlando, FL.
Before HULL, ROSENBAUM, and JULIE CARNES, Circuit Judges.
Defendant Rudy Estrada pled guilty to illegal re-entry after being deported subsequent to an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(2). He now appeals the 48-month sentence imposed by the district court, arguing that the district court erred in applying a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).
This particular enhancement is triggered when, among other things, a defendant has been convicted of a crime of violence prior to his deportation. The district court found that Defendant's prior conviction for a violation of Florida Statute § 790.19 was a conviction for a crime of violence within the meaning of the enhancement. The government acknowledges that, since the district court's imposition of sentence, this Court has issued an opinion that vindicates Defendant's earlier claim of error. Accordingly, the government
concedes that the 16-level enhancement was erroneously applied based on this particular conviction. After our own review, we agree and remand for resentencing.
In August 2004, Defendant, a Mexican citizen, was convicted in a Florida state court of throwing a deadly missile, in violation of Florida Statute § 790.19. Subsequently, Defendant was deported to Mexico, but he later illegally reentered the United States. Defendant's illegal reentry into the United States was discovered after his arrest on state drug charges, and he thereafter pled guilty in the criminal case that is now before us.
Prior to sentencing, the probation office prepared a presentence report (" PSR" ) that calculated a base offense level of 8, a 16-level enhancement for a previous crime of violence, and a 3-level reduction for acceptance of responsibility, pursuant to U.S.S.G. § 2L1.2(a), § 2L1.2(b)(1)(A)(ii), and § 3E1.1(a) and (b), respectively. These calculations yielded a total offense level of 21. Defendant has a lengthy criminal record that includes felony convictions for burglary, grand theft, battery, and drug trafficking. As a result of his numerous convictions, Defendant was assessed 17 criminal history points, placing him in the highest criminal history category of the Guidelines: Category VI. Based on a total offense level of 21 and a criminal history category of VI, the PSR calculated a guideline range of 77-96 months' imprisonment.
Prior to and during his sentencing hearing, Defendant objected to the 16-level crime of violence enhancement. Defendant argued that his prior Florida § 790.19 conviction did not qualify as a crime of violence within the meaning of § 2L1.2(b)(1)(A)(ii). The commentary for this section of the Guidelines defines " crime of violence" as either being one of the enumerated offenses set out therein or any offense " 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, comment. (n.1(B)(iii)). The prior Florida conviction at issue was not one of the enumerated offenses set out in the application note and Defendant argued that it did not have an element that required the use, attempted use, or threatened use of physical force ...