United States v. Martel Valencia-Cortez

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 13 2020 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50246 Plaintiff-Appellee, D.C. No. 3:16-cr-00730-H-1

v.

MEMORANDUM*

MARTEL VALENCIA-CORTEZ,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Marilyn L. Huff, District Judge, Presiding

Submitted August 5, 2020** Before: SCHROEDER, HAWKINS, and LEE, Circuit Judges.

Martel Valencia-Cortez appeals from the district court’s judgment and challenges the 78-month sentence imposed upon remand following his jury-trial conviction for assault on a federal officer, in violation of 18 U.S.C. § 111, and bringing in aliens for financial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii).

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

**

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Valencia-Cortez first contends that the district court erred in treating his assault offense as a felony under U.S.S.G. § 2A2.2 because a rock is not a deadly or dangerous weapon for purposes of 18 U.S.C. § 111(b). We disagree. Otherwise “innocuous” objects can be deadly or dangerous if they are used in a manner that is capable of causing death or serious injury. See United States v. Anchrum, 590 F.3d 795, 801-02 (9th Cir. 2009). The evidence supports the jury’s determination that the rock in this case was used in a manner that threatened serious injury to the federal officer. Accordingly, the district court properly treated Valencia-Cortez’s offense as a felonious assault under U.S.S.G. § 2A2.2. Contrary to Valencia- Cortez’s argument, Bond v. United States, 572 U.S. 844 (2014), is not “clearly irreconcilable” with our precedent interpreting § 111(b). See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).

Valencia-Cortez next contends that the district court erred by imposing an official victim enhancement under U.S.S.G. § 3A1.2(b). The district court did not abuse its discretion in imposing the enhancement because the record showed that Valencia-Cortez’s assault against the federal agent was motivated by his desire to evade arrest. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir. 2017) (en banc) (stating standard of review); United States v. Rivera-Alonzo, 584 F.3d 829, 836 (9th Cir. 2009) (official victim enhancement warranted where “a

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defendant knows that the victim is a federal officer and then assaults the officer in an attempt to get away or evade capture”).1 Valencia-Cortez’s argument that the district court procedurally erred and violated Federal Rule of Criminal Procedure 32 by failing to provide a fuller explanation for the enhancement is unavailing. The court’s reasons for the enhancement can be inferred from the presentence report (“PSR”) and the record. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). Moreover, Valencia-Cortez did not object to any facts in the PSR, including the facts asserted in support of the official victim enhancement. See United States v. Carter, 219 F.3d 863, 866 (9th Cir. 2000) (in the absence of objections to factual statements made in the PSR, Rule 32 does not require specific fact-finding in support of a sentencing enhancement).

AFFIRMED.

1 We do not decide whether Valencia-Cortez is correct that the 6-level enhancement had to be supported by clear and convincing evidence because the evidence here was sufficient to support the enhancement under a preponderance or clear and convincing evidentiary standard.

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