United States v. Reyes Perez-Astudillo

640 F. App'x 856
CourtCourt of Appeals for the Eleventh Circuit
DecidedJanuary 14, 2016
Docket15-12803
StatusUnpublished

This text of 640 F. App'x 856 (United States v. Reyes Perez-Astudillo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Reyes Perez-Astudillo, 640 F. App'x 856 (11th Cir. 2016).

Opinion

PER CURIAM:

Reyes Perez-Astudillo appeals his 24-month sentence, imposed at the low-end of the advisory guideline range, after pleading guilty to one count of illegal reentry of a previously deported alien, in violation of 8 U.S.C. §§ 1326(a) and (b)(1). On appeal, Perez-Astudillo argues that: (1) the district court plainly erred in applying the 12-level enhancement for a felony “crime of violence” pursuant to § 2L1.2(b)(1)(A)(ii); and (2) the district court imposed a procedurally and substantively unreasonable sentence. After careful review, we affirm.

When an appellant challenges the court’s application of a sentence enhancement for the first time on appeal, we review for plain error. United States v. Bonilla, 579 F.3d 1233, 1238 (11th Cir. *858 2009). To show plain error, the defendant must show (1) an error, (2) that is plain, and (3) that affected his substantial rights. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir.2007). If the defendant satisfies the three conditions, we may exercise our discretion to recognize the error if it “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. For an error to be plain, it must be obvious or clear under the current law at the time of appellate review. Johnson v. United States, 520 U.S. 461, 467-68, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). “An error is not plain unless it is contrary to explicit statutory provisions or to on-point precedent [from us] or the Supreme Court.” United States v. Schultz, 565 F.3d 1353, 1357 (11th Cir.2009).

We review the sentence a district court imposes for “reasonableness,” which “merely asks whether the trial court abused its discretion.” United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir.2008) (quoting Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)). However, we review procedural reasonableness claims for plain error where the defendant did not object on procedural grounds at sentencing. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir.2014).

First, we are unpersuaded by Perez-Astudillo’s claim that the district court plainly erred in applying a 12-level enhancement to his sentence. If, prior to deportation, Perez-Astudillo was convicted of a felony “crime of violence” without receiving criminal history points, the guidelines provide for a 12-level enhancement in offense level. U.S.S.G. § 2L1.2(b)(1)(A)(ii). The Application Notes to § 2L1.2(b)(1) define a “crime of violence” as any of several enumerated offenses (including aggravated assault) or “any offense under federal, state, or local law 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)). Prior convictions .that qualify as crimes of violence for purposes of § 2L1.2 “include the offenses of aiding and abetting, conspiring, and attempting, to commit such offenses.” U.S.S.G. § 2L1.2 comment. (n.5). When determining whether a prior conviction qualifies as a crime of violence, we generally use a categorical approach, considering the offense as defined by the law, rather than considering the facts of the specific violation. United States v. Archer, 531 F.3d 1347, 1350 (11th Cir. 2008).- We are bound by a state’s supreme court precedent when interpreting state law, including its determination of the elements of the statute at issue. Johnson v. United States, 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010).

Under New York penal law, assault in the second degree is committed when: (1) “[w]ith intent to cause serious physical injury to another person, he causes such injury to such person or to a third person; or (2)[w]ith intent to cause physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrument ...” N.Y. Penal Law § 120.05. Criminal attempt is committed when, “with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.” N.Y. Penal Law § 110.00. The New York definition of criminal attempt “was not intended to eliminate the ... requirement that an attempt come very near to the accomplishment of the intended • crime before liability could be imposed.” People v. Mahboubian, 74 N.Y.2d 174, 544 N.Y.S.2d 769, 543 N.E.2d 34, 42 (1989) (quotation omitted). The Model Penal Code’s definition of attempt provides that:

*859 “[a] person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he ... purposely does ... anything that, under the circumstances as he believes them to be, is an act ... constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.”

Model Penal Code § 5.01(l)(c).

In this case, the district court did not plainly err in applying the 12-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). Among other things, Perez-Astudillo has not cited any binding authority or explicit statutory provisions in his brief holding that an attempt under New York law does not fall within the generic definition of attempt under § 2L1.2. Schultz, 565 F.3d at 1357. Instead, both definitions require that Perez-Astudillo perform conduct that was quite significant in order to be convicted of an attempt offense. Mahboubian, 544 N.Y.S.2d 769, 543 N.E.2d at 42; N.Y. Penal Law § 110.00; Model Penal Code § 5.01(1)(c). Thus, because New York Penal law § 120.05(2) includes an element regarding the use, attempted use, or threatened use of physical force against the person of another, Perez-Astudillo’s prior attempt conviction under this law qualifies as a § 2L1.2 “crime of violence.” § 2L1.2, comment. (n.1(B)(iii)), (n.5).

We also find no merit to Perez-Astudillos’s claim that his sentence was unreasonable. In reviewing sentences for reasonableness, we typically perform two steps. Pugh, 515 F.3d at 1190.

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Bluebook (online)
640 F. App'x 856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-reyes-perez-astudillo-ca11-2016.