PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-4926
JOSE ADAN SAVILLON-MATUTE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, District Judge.
(1:09-cr-00196-JFM-1)
Argued: December 8, 2010
Decided: February 18, 2011
Before SHEDD, DAVIS, and KEENAN, Circuit Judges.
Affirmed by published opinion. Judge Shedd wrote the opin-
ion, in which Judge Davis and Judge Keenan joined.
COUNSEL
ARGUED: Meghan Suzanne Skelton, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for
Appellant. Rachel Miller Yasser, OFFICE OF THE UNITED
STATES ATTORNEY, Baltimore, Maryland, for Appellee.
ON BRIEF: James Wyda, Federal Public Defender, Balti-
2 UNITED STATES v. SAVILLON-MATUTE
more, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Baltimore, Maryland, for Appellee.
OPINION
SHEDD, Circuit Judge:
Jose Adan Savillon-Matute appeals his criminal sentence,
contending that the district court violated Shepard v. United
States, 544 U.S. 13 (2005) in calculating his advisory sentenc-
ing range. Because the alleged error in calculating the guide-
line range is harmless, we affirm.
I.
A federal grand jury in the District of Maryland indicted
Savillon-Matute on one count of illegal reentry into the
United States after having been convicted of an aggravated
felony, in violation of 8 U.S.C. §§ 1326(a) & (b)(2). Savillon-
Matute pled guilty to the indictment, with the parties agreeing
to strike as surplusage the clause "after having been convicted
of an aggravated felony."1
Before sentencing, the probation office prepared a Presen-
tence Report (PSR). The PSR calculated Savillon-Matute’s
base offense level under the United States Sentencing Guide-
lines as 8 but added an 8-level enhancement because he previ-
ously had been convicted of second-degree assault in
Maryland, which the PSR concluded is an "aggravated fel-
ony" under U.S.S.G. § 2L1.2(b)(1)(C). Including a 3-level
reduction for acceptance of responsibility, the PSR set
Savillon-Matute’s total offense level as 13 and, with a crimi-
1
The Government and Savillon-Matute agreed that, under Almendarez-
Torres v. United States, 523 U.S. 224 (1998), the Government did not
have to charge the prior conviction in the indictment.
UNITED STATES v. SAVILLON-MATUTE 3
nal history of I, calculated a recommended guideline range of
12 to 18 months imprisonment.
At sentencing, the Government argued that Savillon-
Matute’s second-degree assault conviction was for a "crime of
violence" under United States v. Diaz-Ibarra, 522 F.3d 343
(4th Cir. 2008), and that, under U.S.S.G. § 2L1.2(b)(1)(A)(ii),
the PSR should have increased Savillon-Matute’s offense
level by 16, not 8.2 As a result, the Government argued that
his total offense level was 21 and his guideline range was 37
to 46 months imprisonment. The Government noted that the
probation officer agreed. To support its position, the Govern-
ment proffered the charging documents and the plea colloquy
from Savillon-Matute’s earlier prosecution in Maryland. The
charging documents show that Savillon-Matute was charged
in six counts with sexually abusing and assaulting his girl-
friend’s seven-year old daughter on four occasions. The plea
colloquy explained that Savillon-Matute pled guilty only to
Count Six of the criminal information, which charged that he
"did unlawfully assault [ZB] in the second degree." (J.A. at
47). Savillon-Matute’s plea was made pursuant to North Car-
olina v. Alford, 400 U.S. 25 (1970), which authorizes a defen-
dant to waive trial and consent to punishment without
admitting guilt to the charge.
In response, Savillon-Matute argued that he was not subject
to either enhancement. Instead, he argued that under Shepard,
because Maryland’s second-degree assault statute does not
necessarily include the use, attempted use, or threatened use
of physical force, it does not categorically qualify as an aggra-
vated felony or a crime of violence under the Sentencing
Guidelines. Moreover, Savillon-Matute argued that, in apply-
ing Shepard’s "modified categorical approach," the district
court could not consider the charging documents or the plea
2
In Diaz-Ibarra, we held that, under the Application Notes to § 2L1.2,
sexual abuse of a minor constitutes a crime of violence triggering the 16-
level enhancement.
4 UNITED STATES v. SAVILLON-MATUTE
colloquy because an Alford plea does not contain an admis-
sion of facts.3
The district court ultimately sentenced Savillon-Matute to
36 months imprisonment. The court agreed with Savillon-
Matute that second-degree assault is not categorically a crime
of violence and that it could not consider the plea colloquy
because Savillon-Matute entered an Alford plea. The court did
determine, however, that it could take judicial notice of the
fact — made clear in the charging documents — that
Savillon-Matute’s victim was a minor and that he used physi-
cal force against her. Accordingly, the court upheld the impo-
sition of the 8-level "aggravated felony" enhancement
proposed in the PSR.
In sentencing Savillon-Matute, the district court also made
clear that a 36-month sentence was necessary under 18 U.S.C.
§ 3553(a) to deter him and to punish his continued flouting of
American law. The court noted it "may be the first time" it
had to "go upward" under § 3553(a) because "there comes a
point when enough is enough," that the offense is "very seri-
ous," and that Savillon-Matute "came back twice" after being
deported. (J.A. at 84). The court noted "[i]f I slap him on the
wrist, the very incentives that made him come before" would
lead him to come back again and that, accordingly, for "all of
these reasons under 3553, I find it 3 years." (J.A. at 85). When
questioned by defense counsel whether the court was applying
the 16-level enhancement or just the 8-level enhancement, the
court specified that it was "tak[ing] judicial notice that she
was a minor" for purposes of § 3553(a). (J.A. at 87). In con-
clusion, the court noted again that Savillon-Matute had con-
tinued to flout the law and that it was necessary to "go[ ] up
3
We have since held that, consistent with Shepard, a district court may
not use the transcript from an Alford plea hearing to enhance a sentence
under the Armed Career Criminal Act. See United States v. Alston, 611
F.3d 219 (4th Cir. 2010).
UNITED STATES v. SAVILLON-MATUTE 5
a lot" because "a three year sentence is absolutely the appro-
priate sentence in this case."4 (J.A. at 88).
II.
On appeal, Savillon-Matute argues that the district court
committed reversible error in calculating his guideline range.5
In reviewing any sentence, "whether inside, just outside, or
significantly outside the Guidelines range," we apply a "defer-
ential abuse-of-discretion standard." Gall v. United States,
552 U.S. 38, 41 (2007). We first "ensure that the district court
committed no significant procedural error." Id. at 51. "If, and
only if, we find the sentence procedurally reasonable can we
‘consider the substantive reasonableness of the sentence
imposed under an abuse-of-discretion standard.’" United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (quoting
Gall, 552 U.S. at 51).
Procedural errors may include "failing to calculate (or
improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the § 3553(a)
4
On the judgment sheet, the district court noted that it adopted the advi-
sory guidelines range of 12 to 18 months from the PSR and that its sen-
tence is "above the advisory guideline range." (S.J.A. at 110).
5
In his brief, Savillon-Matute also contended that his sentence is above
the two-year statutory maximum sentence authorized by 18 U.S.C.
§ 1326(a). At oral argument, however, Savillon-Matute conceded that his
sentence is not above the statutory maximum. This concession is correct;
because Savillon-Matute’s conviction under Maryland’s second degree
assault statute constitutes a "felony" conviction, his statutory maximum
sentence is at least ten years pursuant to § 1326(b)(1). See United States
v. Harcum, 587 F.3d 219, 221 n.4 (4th Cir. 2009) (noting that second
degree assault is a misdemeanor under Maryland law but carries a "poten-
tial term of imprisonment of up to ten years"); United States v. Cordova-
Arevalo, 456 F.3d 1229, 1232 (10th Cir. 2006) (holding that term "felony"
in § 1326(b)(1) is defined as "an offense punishable by a maximum term
of imprisonment of more than one year"); Black’s Law Dictionary 633
(7th Ed. 1999) (defining felony as "serious crime usually punishable by
imprisonment for more than one year or by death").
6 UNITED STATES v. SAVILLON-MATUTE
factors, selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sen-
tence—including an explanation for any deviation from the
Guidelines range." Gall, 552 U.S. at 51.
Savillon-Matute contends that the district court committed
procedural error in applying the 8-level enhancement because
the court should not have looked to the charging documents
to determine that his second-degree assault conviction arose
from his sexual abuse of a minor. Ultimately, instead of wad-
ing into the morass6 of how to apply Shepard in the particular
circumstances of this case, we may simply assume that an
error occurred because the alleged error is harmless. See
United States v. Keene, 470 F.3d 1347 (11th Cir. 2006). In
Keene, the Eleventh Circuit found that it was "unnecessary"
to determine whether guideline error occurred when "a deci-
sion either way will not affect the outcome of [the] case."
Keene, 470 F.3d at 1348. Applying this "assumed error harm-
6
It is somewhat unclear how viable Shepard remains as a limitation to
application of the guidelines. See United States v. Dean, 604 F.3d 169 (4th
Cir. 2010). In Dean, we held that Shepard’s "Sixth Amendment-based lim-
itations on the kind of sources a sentencing judge may consult were not
implicated" by a career offender guideline because the resulting sentenc-
ing range was "well below the statutory maximum." Id. at 173-74. Like-
wise, as in Dean, even with the 8-level enhancement, Savillon-Matute’s
sentence of 36 months imprisonment is well below the statutory maxi-
mum. See 18 U.S.C. § 1326(b) (establishing a ten-year statutory maximum
for persons convicted of illegal reentry after a felony conviction). Dean
further expressed, however, that a court still must address the "statutory"
argument from Shepard—that a district court should not look to outside
documents and turn sentencing into a new "mini-trial[ ]." Dean, 604 F.3d
at 174, 176. Dean noted this statutory argument did not "come into play"
in situations, present in that case, "when the question does not bear upon
the character of the acts for which the defendant was tried." Id. at 176.
Unlike Dean, which dealt with the date of an arrest, a "discrete and objec-
tive fact[ ]," this case would require us to make a "qualitative assess-
ment[ ] of the sort at issue in Shepard," that is, the character of the acts
underlying Savillon-Matute’s prior conviction. Id. at 175. Because we
assume Shepard error in reviewing Savillon-Matute’s sentence, we need
not address how Shepard would continue to apply in such a case.
UNITED STATES v. SAVILLON-MATUTE 7
lessness inquiry" requires (1) "knowledge that the district
court would have reached the same result even if it had
decided the guidelines issue the other way," and (2) "a deter-
mination that the sentence would be reasonable even if the
guidelines issue had been decided in the defendant’s favor
. . . ." 470 F.3d at 1349. "Put a little differently, it would make
no sense to set aside [a] reasonable sentence and send the case
back to the district court since it has already told us that it
would impose exactly the same sentence, a sentence we
would be compelled to affirm." Keene, 470 F.3d at 1350; see
also United States v. Alvarado Perez, 609 F.3d 609, 619 (4th
Cir. 2010) (Shedd, J. concurring).
This approach originates from two bases: (1) that "proce-
dural errors at sentencing . . . are routinely subject to harm-
lessness review," Puckett v. United States, 129 S.Ct. 1423,
1432 (2009), and (2) that we commonly assume, without
deciding, an error in performing harmless error inquiry, see,
e.g., United States v. Lighty, 616 F.3d 321, 371 (4th Cir.
2010) (noting that the court "assumed[ ] a few harmless
errors"); United States v. Johnson, 587 F.3d 625, 637 (4th Cir.
2009) ("Martin raises several potential errors that the district
court made in admitting the 1980 conviction, but we need not
address them. Assuming that the district court erred in admit-
ting the conviction, that error was harmless."); United States
v. Basham, 561 F.3d 302, 329 (4th Cir. 2009) (noting that
admission of certain evidence "even if erroneous, . . . was
harmless").
Applying this two-step inquiry leads us to conclude that
Savillon-Matute’s sentence should be affirmed. Although the
district court did not specifically state that it would give the
same sentence absent the 8-level enhancement, there is no
requirement that it do so, see Keene, 470 F.3d at 1349, and the
district court explained throughout sentencing that it "abso-
lutely" believed a 36-month sentence is appropriate. This con-
sistent indication shows that it would have reached the same
result even if it had decided the guidelines issue the other way
8 UNITED STATES v. SAVILLON-MATUTE
and satisfies the first requirement of the "assumed error harm-
lessness inquiry." Turning to the second requirement, we "ini-
tially give [Savillon-Matute] the benefit of the doubt and
assume" that the guideline range was 4-10 months7 and "pro-
ceed to decide the question of whether a variance from that
range" to 36 months is reasonable. Alvarado Perez, 609 F.3d
at 622. Based on our deferential standard of review and the
lengthy statement of reasons from the district court, we
believe the answer is clear. The court, as recounted, explained
its sentence in some detail, noting the need to deter Savillon-
Matute, the seriousness of the offense, and the fact that he
sexually assaulted a minor.8 As the court amply explained,
absent a stern sentence the "very incentives that made him
come before will make him" return again. (J.A. at 85).
Accordingly, we affirm Savillon-Matute’s sentence without
reaching the merits of the claimed guideline error.
III.
For the foregoing reasons, we affirm Jose Adan Savillon-
Matute’s sentence of 36 months imprisonment.
AFFIRMED
7
If the 8-level enhancement is improper, Savillon-Matute is still subject
to a 4-level enhancement for a prior felony conviction, yielding a total
offense level of 9 and a guideline range of 4-10 months. See U.S.S.G.
§ 2L1.2, app. note 2 (defining "felony" as an offense "punishable by
imprisonment for a term exceeding one year").
8
Even assuming Shepard limited the district court’s ability to consider
certain materials in enhancing Savillon-Matute’s sentence, we see no limi-
tation on the district court’s consideration of such materials in crafting its
sentence under § 3553(a).