UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4235
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MOISES BARANDA-CUEVAS,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:09-cr-00438-WDQ-1)
Submitted: February 23, 2011 Decided: March 18, 2011
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Paresh S. Patel, Greenbelt,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Thiruvendran Vignarajah, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Moises Baranda-Cuevas appeals the forty-six-month
sentence imposed after he pled guilty to unlawfully reentering
the United States after being deported subsequent to a felony
conviction, in violation of 8 U.S.C. § 1326(a), (b)(1) (2006).
On appeal, Baranda-Cuevas argues that the district court erred
by using the modified categorical approach to conclude that he
committed a crime of violence warranting a sixteen-level
enhancement under U.S. Sentencing Guidelines Manual
§ 2L1.2(b)(1)(A)(ii) (2009), and that his sentence is
procedurally unreasonable. Finding no reversible error, we
affirm.
Baranda-Cuevas first challenges the district court’s
use of the modified categorical approach in determining that his
Maryland second-degree assault conviction qualified as a crime
of violence. This court reviews de novo whether a prior
conviction qualifies as a “crime of violence” for purposes of a
sentencing enhancement. See United States v. Jenkins, ___ F.3d
___, ___, 2011 WL 285800, at *1 (4th Cir. Jan. 31, 2011). In
addition to certain enumerated offenses not relevant here, a
“crime of violence” for purposes of USSG § 2L1.2(b)(1)(A)(ii) is
“any other 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). To decide whether a prior conviction
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constitutes a crime of violence, the sentencing court normally
should employ a “categorical approach.” Taylor v. United
States, 495 U.S. 575, 600 (1990); see Shepard v. United States,
544 U.S. 13, 20-21 (2005); United States v. Kirksey, 138 F.3d
120, 124-25 (4th Cir. 1998). Under this approach, the court may
“look only to the fact of conviction and the statutory
definition of the prior offense.” Taylor, 495 U.S. at 602. In
a limited class of cases, however, where the definition of the
underlying crime encompasses both violent and non-violent
conduct, a sentencing court may look beyond the statutory
definition. Kirksey, 138 F.3d at 124. In such cases, “the
modified categorical approach . . . permits a court to determine
which statutory phrase was the basis for the conviction by
consulting the trial record—including charging documents, plea
agreements, [and] transcripts of plea colloquies . . . .”
Johnson v. United States, 130 S. Ct. 1265, 1273 (2010) (internal
quotation marks omitted); see United States v. Harcum, 587 F.3d
219, 223 (4th Cir. 2009).
With these standards in mind, we have reviewed the
record in this case and conclude, contrary to Baranda-Cuevas’s
assertion on appeal, that the district court did not err in
using the modified categorical approach. See United States v.
Alston, 611 F.3d 219, 223 (4th Cir. 2010) (recognizing that,
“under Maryland law, second-degree assault encompasses several
distinct crimes, some of which qualify as violent felonies and
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others of which do not”); Harcum, 587 F.3d at 224. Moreover,
the information contained in the charging document demonstrates
that the second-degree assault for which Baranda-Cuevas was
convicted in Maryland “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), and qualifies as a
crime of violence supporting the sixteen-level enhancement.
Thus, Baranda-Cuevas’s first ground for appeal lacks merit.
Baranda-Cuevas also contends that the district court
imposed a procedurally unreasonable sentence by failing to
address each of his arguments for a variant sentence. In
determining the procedural reasonableness of a sentence, this
court considers, inter alia, whether the district court analyzed
the arguments presented by the parties and sufficiently
explained the selected sentence. Gall v. United States, 552
U.S. 38, 51 (2007) “Regardless of whether the district court
imposes an above, below, or within-Guidelines sentence, it must
place on the record an individualized assessment based on the
particular facts of the case before it.” United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation
marks omitted). Where, as here, the district court imposes a
within-Guidelines sentence, the explanation may be “less
extensive, while still individualized.” United States v.
Johnson, 587 F.3d 625, 639 (4th Cir. 2009), cert. denied, 130 S.
Ct. 2128 (2010). However, that explanation must be sufficient
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to allow for “meaningful appellate review” such that the
appellate court need “not guess at the district court’s
rationale.” Carter, 564 F.3d at 329-30 (internal quotation
marks omitted). Because Baranda-Cuevas preserved this claim,
our review is for an abuse of discretion. See United States v.
Lynn, 592 F.3d 572, 578 (4th Cir. 2010) (stating standard).
Our review of the record leads us to conclude that the
district court adequately explained its reasons for declining to
vary from the advisory Guidelines range and for imposing a
sentence of forty-six months’ — the bottom of the advisory
Guidelines range. See Lynn, 592 F.3d at 576 (“In explaining a
sentencing decision, a court need not robotically tick through
§ 3553(a)’s every subsection, particularly when imposing a
within-Guidelines sentence”) (internal quotation marks omitted).
Thus, the district court did not abuse its discretion in
sentencing Baranda-Cuevas.
Accordingly, we affirm the judgment of the district
court. 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
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