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United States v. Carrasco-Tercero

United States Court of Appeals, Fifth Circuit

March 13, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
VALENTIN CARRASCO-TERCERO, also known as Gerardo Santacruz, Defendant-Appellant

Page 193

Appeal from the United States District Court for the Western District of Texas.

For United States of America, Plaintiff - Appellee: Joseph H. Gay Jr., Mara Asya Blatt, U.S. Attorney's Office, San Antonio, TX.

For Valentin Carrasco-Tercero, also known as: Gerardo Santacruz, Defendant - Appellant: M. Carolyn Fuentes, Federal Public Defender's Office, San Antonio, TX; Donna F. Coltharp, Federal Public Defender's Office, Del Rio, TX.

Before JONES, SMITH, and OWEN, Circuit Judges.

OPINION

Page 194

PRISCILLA R. OWEN, Circuit Judge:

Valentin Carrasco-Tercero appeals the sentence imposed by the district court for unlawfully reentering the United States, in violation of 8 U.S.C. § 1326(a) and (b)(1), contending that his prior New Mexico conviction for aggravated assault with a deadly weapon was not a crime of violence within the meaning of § 2L1.2 of the federal Sentencing Guidelines. We affirm.

I

Carrasco-Tercero pled guilty to the crime of illegally reentering the United States following deportation in violation of 8 U.S.C. § 1326(a) and (b)(1). The Probation Office prepared a presentence report (PSR) that recommended a total offense level of 17 and a criminal history category of II. This offense level included the application of a 12-level enhancement pursuant to United States Sentencing Guidelines Manual (U.S.S.G.) § 2L1.2(b)(1)(A)(ii), which applies to a defendant who was previously deported or unlawfully remained in the United States after a " conviction for a felony that is... a crime of violence." [1] The PSR applied this enhancement based upon Carrasco-Tercero's 1985 New Mexico conviction for aggravated assault.

Carrasco-Tercero filed a written objection to the application of the crime of violence enhancement and reiterated his objection at sentencing. He contended that the New Mexico statute defining aggravated assault criminalized conduct that was outside of the scope of the generic crime of aggravated assault and did not contain as an element the use, attempted use, or threatened use of physical force. The district court overruled his objection and adopted the findings and recommendations of the PSR. The recommended Sentencing Guidelines range was 27 to 33 months of imprisonment, and the district court sentenced Carrasco-Tercero to serve 27 months. The district court did not impose a term of supervised release. Carrasco-Tercero contends on appeal that the district court miscalculated the applicable Guidelines range by applying the § 2L1.2(b)(1)(A)(ii) crime of violence enhancement.

Page 195

II

" We review de novo whether a prior conviction constitutes a crime of violence within the meaning of the Guidelines." [2] The Guidelines define a crime of violence as (1) any offense in a list of enumerated offenses which includes " aggravated assault," or (2) " any other offense... that has as an element the use, attempted use, or threatened use of physical force against the person of another." [3] Carrasco-Tercero's conviction qualifies as a crime of violence if it meets either of these definitions.[4] Because we conclude that Carrasco-Tercero's conviction qualifies as a crime of violence under the " has as ...


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