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United States v. Vigil

United States Court of Appeals, Fifth Circuit

December 16, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee
v.
OSCAR ARNULFO VIGIL, Defendant-Appellant

Page 332

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

For United States of America, Plaintiff - Appellee: Eileen K. Wilson, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX.

For Oscar Arnulfo Vigil, Defendant - Appellant: Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX.

Before STEWART, Chief Judge, and OWEN, Circuit Judges, and MORGAN, District Judge.[*].

OPINION

Page 333

MORGAN, District Judge:

Defendant-Appellant Oscar Arnulfo Vigil (" Vigil" ) was convicted of illegal re-entry after deportation and sentenced to 41 months in prison. The district court applied a 16-level " crime of violence" enhancement based on a prior state-court conviction for sexual battery. The sole issue on appeal is whether the district court erred by imposing the enhancement. We AFFIRM.

I.

On January 2, 2013, Vigil was indicted for illegal re-entry into the United States.[1] He pleaded guilty on February 26, 2013. There was no plea agreement.

In preparation for sentencing, the district court ordered a pre-sentence report (" PSR" ). The PSR calculated a base offense level of 8. The PSR then applied a 16-level enhancement, finding that a previous conviction for sexual battery under Louisiana Revised Statute § 14.43.1 constituted a " crime of violence" pursuant to United States Sentencing Guidelines Manual 2L1.2(b)(1)(A)(ii) (" U.S.S.G." ). After a 2-level reduction for acceptance of responsibility, Vigil's total offense level was 22. Combined with a Criminal History Category of II, the PSR calculated a Guidelines range of 46 to 57 months imprisonment. Vigil objected (1) that the Government had not presented competent evidence to support the 16-level enhancement, and (2) even if properly supported, the Louisiana conviction was not a " crime of violence."

The district court applied the 16-level enhancement required by the Guidelines when there has been a prior conviction for a crime of violence. After granting the Government's motion for an additional 1-point reduction for acceptance of responsibility, the district court calculated a Guidelines range of 41 to 51 months imprisonment and sentenced Vigil to 41 months. Vigil now appeals his sentence, arguing the district court misapplied the Guidelines because his prior conviction for sexual battery is not a " crime of violence."

II.

We review a district court's application of the Guidelines de novo,[2] including whether a prior conviction constitutes a crime of violence.[3] A defendant convicted of illegal re-entry into the United States is subject to a 16-level enhancement if he was convicted of a " crime of violence" prior to his removal or deportation.[4] The comments to U.S.S.G. ยง 2L1.2(b)(1) define " crime of violence" as one of ...


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