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United States v. Morales-Alonso

United States Court of Appeals, Eleventh Circuit

January 5, 2018

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
PAULINO MORALES-ALONSO, Defendant-Appellant.

         Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:15-cr-00261-SCJ-LTW-1

          Before JULIE CARNES, EDMONDSON, Circuit Judges, and WILLIAMS, [*] District Judge.

          JULIE CARNES, Circuit Judge:

         This appeal requires us to decide whether Georgia aggravated assault as defined by O.C.G.A § 16-5-21(a)(2) is a crime of violence under the operative version of § 2L1.2 of the Sentencing Guidelines. Defendant Paulino Morales-Alonso was convicted in 2016 of illegally reentering the United States, in violation of 8 U.S.C. §§ 1326(a) and (b)(2), after having been deported following a conviction for aggravated assault under O.C.G.A § 16-5-21(a)(2). Based on the aggravated assault conviction, the district court imposed a sentencing enhancement that applies when a defendant has been deported after committing a "crime of violence" as defined by § 2L1.2(b)(1)(A)(ii) of the Guidelines. Defendant appealed the sentence, arguing that his Georgia aggravated assault conviction does not qualify as a crime of violence for purposes of § 2L1.2. We affirm.

         BACKGROUND

         Defendant, a Mexican citizen who was in the United States illegally, was convicted in 2012 of committing an aggravated assault in Georgia. At the time of Defendant's conviction, O.C.G.A. § 16-5-21 defined "aggravated assault" as an "assault" committed:

(1) With intent to murder, to rape, or to rob;
(2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; or
(3) [Against a] person or persons without legal justification by discharging a firearm from within a motor vehicle toward a person or persons.

O.C.G.A. § 16-5-21(a) (2012).[1] For purposes of this statute, an "assault" can be accomplished either by (1) attempting to "commit a violent injury to the person of another" or (2) committing an "act which places another in reasonable apprehension of immediately receiving a violent injury." O.C.G.A. § 16-5-20(a). Defendant was convicted of violating subsection (a)(2) of Georgia's aggravated assault statute by assaulting his victim "with a brick, an object which when used offensively against a person is likely to result in serious bodily injury, by throwing it at and striking" the victim.

         Following his Georgia aggravated assault conviction, Defendant was removed from the United States. A few months after his removal, immigration officials again found Defendant in a Georgia jail after he had been arrested on charges of possessing methamphetamine and marijuana, obstructing a law enforcement officer, and giving a false name. Defendant was convicted on those charges and, while incarcerated, he was charged federally with illegal reentry in violation of 8 U.S.C. §§ 1326(a) and (b)(2). Defendant pled guilty and was convicted on the illegal reentry charge on June 14, 2016.

         Pursuant to § 2L1.2(a) of the 2015 Sentencing Guidelines, the Pre-Sentence Report ("PSR") assigned Defendant a base offense level of 8. Citing Defendant's prior Georgia conviction for aggravated assault, the PSR applied a 16-level enhancement under § 2L1.2(b)(1)(A)(ii) of the Guidelines. At the time of Defendant's sentencing, that provision required such an enhancement when a defendant previously was deported after being convicted of a felony "crime of violence." U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2015).[2] The PSR determined that Defendant's Georgia aggravated assault conviction qualified as a crime of violence, and that the enhancement was thus warranted. After applying the enhancement and subtracting 3 levels for acceptance of responsibility, the PSR set Defendant's total offense level at 21 and his criminal history category at VI, yielding an advisory guideline range of 77 to 96 months.

          Defendant objected to the 16-level enhancement, arguing that his Georgia aggravated assault conviction does not qualify as a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii). The district court rejected Defendant's argument and applied the enhancement, but the court did vary down from the calculated offense level to an offense level of 19, which yielded a sentencing range of 63 to 78 months. After giving Defendant credit for one month that he spent in ICE custody, the court imposed a sentence of 63 months.

         DISCUSSION

         I. Standard of Review

         The only issue on appeal is whether Defendant's Georgia aggravated assault conviction under O.C.G.A. § 16-5-21(a)(2) qualifies as a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii), and thus warrants an enhancement under that provision. We review the district court's ruling on that issue de novo. See United States v. Garcia-Martinez, 845 F.3d 1126, 1129 (11th Cir. 2017).

         II. Section 2L1.2's Crime of Violence Enhancement

         The operative version of § 2L1.2(b)(1)(A)(ii) requires a 16-level enhancement if a defendant who is convicted of illegal reentry "previously was deported" after being convicted of a felony that is a "crime of violence." U.S.S.G. § 2L1.2(b)(1)(A)(ii). The commentary[3] to ...


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