United States v. Santillana

82 F. App'x 402

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 8, 2003
• Docket: 03-30349
• Status: Unpublished

Opinion

PER CURIAM: *

Pedro Santillana appeals his career-offender sentence following a guilty-plea conviction for marijuana-trafficking crimes. He contends that a Texas aggravated-assault conviction used to establish his career-offender status was not a “crime of violence” due to the facts that he was only 17 at the time of the prior felony, the crime involved only a BB gun, no one was harmed, and he received only probation. The underlying facts need not be considered because the guidelines define “crime of violence” specifically to include “aggravated assault.” See U.S.S.G. § 4B1.2, comment, (n.l); United States v. Guerra, 962 F.2d 484, 485-86 & n. 4 (5th Cir.1992) (relying on application note defining “crime of violence”).

Santillana expressly declares that he is not appealing the district court’s discretionary refusal to depart downward from career-offender status • pursuant to U.S.S.G. § 4A1.3. His remaining argument on appeal is thus reduced to a meritless recharacterization of his unsuccessful first argument. The judgment of the district court is AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.