UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4236
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
FRANCISCO LEODAN DURAN-HERNANDEZ, a/k/a Rey
Tiburcio, a/k/a Leodan Duran-Hernandez, a/k/a
Rey Valdouinos Tiburcio, a/k/a Valdouinos
Tiburcio, a/k/a Edwin Wilfred Torres, a/k/a
Edwin Wilfredo Torres, a/k/a Rey Valdouinos,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Richard L. Voorhees,
District Judge. (5:06-cr-00023)
Submitted: October 17, 2007 Decided: January 10, 2008
Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Kimberly Y. Best, THE BEST LAW FIRM, PLLC, Charlotte, North
Carolina, for Appellant. Gretchen C. F. Shappert, United States
Attorney, Adam Morris, Assistant United States Attorney, Charlotte,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Francisco Leodan Duran-Hernandez pled guilty without a
plea agreement to unlawful reentry into the United States by a
deported alien in violation of 8 U.S.C. § 1326 (2000), and was
sentenced to seventy-one months in prison. Duran-Hernandez appeals
the district court’s judgment, arguing that the district court
erred in determining that his prior Virginia involuntary
manslaughter conviction constituted a “crime of violence” under
U.S. Sentencing Guidelines Manual (“USSG”) § 2L1.2(b)(1)(A)(ii)
(2005), thereby warranting application of a sixteen-level
enhancement to his Guidelines range. Although the Government
concedes that the district court erred and agrees that Duran-
Hernandez should be resentenced, we are “not at liberty to vacate
and remand for resentencing on the Government’s concession of error
alone.” United States v. Rodriguez, 433 F.3d 411, 414 n.6 (4th
Cir. 2006) (citation omitted). Because we find that the district
court did not err in applying the sixteen-level enhancement under
USSG § 2L1.2, we affirm.
“In assessing a challenge to a sentencing court's
application of the Guidelines, we review the [district] court's
factual findings for clear error and its legal conclusions de
novo." United States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006)
(citation omitted). Section 2L1.2(b)(1)(A)(ii) of the Guidelines
directs a sixteen-level enhancement if the defendant was previously
- 2 -
deported from the United States following “a conviction for a
felony that is . . . a crime of violence.” Prior to November 1,
2003, a “crime of violence” was defined as:
(I) . . . an 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; and
(II) includes murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses (including
sexual abuse of a minor), robbery, arson, extortion,
extortionate extension of credit, and burglary of a
dwelling.
USSG § 2L1.2 cmt. n.1(B)(ii) (2002). This definition was amended
in 2003, however, and is now defined as:
[M]urder, manslaughter, kidnapping, aggravated assault,
forcible sex offenses, statutory rape, sexual abuse of a
minor, robbery, arson, extortion, extortionate extension
of credit, burglary of a dwelling, 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.
USSG § 2L1.2 cmt. n.1(B)(iii) (2005).
Although Duran-Hernandez argues that involuntary
manslaughter is not a “crime of violence” because it does not have
“as an element the use . . . of physical force against the person
of another,” § 2L1.2 contains no such requirement. As explicitly
stated by the Sentencing Commission, the definition of “crime of
violence” was amended to:
[C]larif[y] the meaning of the term “crime of violence”
by providing that the term “means any of the following:
. . . .” The previous definition often led to confusion
over whether the specified offenses listed in that
definition, particularly sexual abuse of a minor and
- 3 -
residential burglary, also had to include as an element
of the offense “the use, attempted use, or threatened use
of physical force against the person of another.” The
amended definition makes clear that the enumerated
offenses are always classified as “crimes of violence,”
regardless of whether the prior offense expressly has as
an element the use, attempted use, or threatened use of
physical force against the person of another.
USSG App. C, Vol. II, amend. 658, at 401-02 (Nov. 1, 2003).
Because all that is necessary for an enhancement under § 2L1.2 to
apply is that a prior conviction for manslaughter exist, see United
States v. Payton, 28 F.3d 17, 19 (4th Cir. 1994) (holding that the
Guidelines commentary “that is interpretative or explanatory
controls, so long as it is not clearly inconsistent with the
Guidelines or unconstitutional”), it is irrelevant whether the
conviction was for voluntary or involuntary manslaughter. See id.
(finding that although the note construing “crime of violence”
under USSG § 4B1.2 does not differentiate between involuntary and
voluntary manslaughter, it includes both).
For the foregoing reasons, we affirm the district court’s
judgment. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
- 4 -