[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-13976 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 6, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 6:10-cr-00027-PCF-DAB-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Appellee,
versus
JOEL ALEXANDER ESCOBAR-PINEDA,
a.k.a. Alan Torres,
a.k.a. Joel Alexander Escobar,
a.k.a. John Doe,
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 6, 2011)
Before EDMONDSON, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Joel Alexander Escobar-Pineda appeals his 46-month sentence for illegal
reentry into the United States following deportation for an aggravated felony, in
violation of 8 U.S.C. §§ 1326(a) and (b)(2). Escobar-Pineda contends that the
district court erred by applying a 16-level enhancement for deportation following
conviction for a crime of violence. After review, we affirm.
I.
In 1995 Escobar-Pineda was convicted of the felony offense of aggravated
assault with a deadly weapon, in violation of Fla. Stat. § 784.021(1)(a). The
district court concluded that conviction qualified as a “crime of violence” under
the Sentencing Guidelines and applied a 16-level enhancement. See U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). Escabar-Pineda argues that was error. “We review de novo
whether a defendant’s prior conviction qualifies as a ‘crime of violence’ under the
Sentencing Guidelines.” United States v. Palomino Garcia, 606 F.3d 1317, 1326
(11th Cir. 2010) (quotation marks omitted).
The Sentencing Guidelines impose a 16-level enhancement if an alien “was
deported, or unlawfully remained in the United States, after . . . a conviction for a
felony that is . . . a crime of violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii) (Nov. 2009).
A “crime of violence” is defined as any of the following offenses under federal,
state, or local law:
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murder, manslaughter, kidnapping, aggravated assault, forcible sex
offenses (including where consent to the conduct is not given or is not
legally valid, such as where consent to the conduct is involuntary,
incompetent, or coerced), statutory rape, sexual abuse of a minor,
robbery, arson, extortion, extortionate extension of credit, burglary of a
dwelling, or 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.
Id. § 2L1.2, cmt. n.1(B)(iii) (emphasis added); see also United States v. Searcy,
418 F.3d 1193, 1195 n.3 (11th Cir. 2005) (“We treat the commentary in the
Sentencing Guidelines Manual as authoritative.”). The definition “is disjunctive
and we have held that a felony conviction qualifies as a crime of violence under
§ 2L1.2 if either (1) the defendant was convicted of one of the enumerated
offenses; or (2) the use, attempted use, or threatened use of physical force was an
element of the offense.” Palomino Garcia, 606 F.3d at 1326.
To determine whether a prior conviction qualifies as an enumerated offense,
we use the “categorical approach.” Id. at 1330–31 (explaining that “the label a
state attaches to an offense is not conclusive of whether a prior conviction
qualifies as an enumerated offense under § 2L1.2"). Under that approach, “we
consider the offense generically, that is to say, we examine it in terms of how the
law defines the offense and not in terms of how an individual offender might have
committed it on a particular occasion.” Begay v. United States, 553 U.S. 137, 141,
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128 S. Ct. 1581, 1584 (2008) (citing Taylor v. United States, 495 U.S. 575, 602,
110 S. Ct. 2143, 2160 (1990)); see also Palomino Garcia, 606 F.3d at 1331. In
Palomino Garcia, we held that “the generic offense of ‘aggravated assault’ under
§ 2L1.2 of the Guidelines involves a criminal assault accompanied by the
aggravating factors of either the intent to cause serious bodily injury to the victim
or the use of a deadly weapon.” 606 F.3d at 1332.
The Florida statute under which Escobar-Pineda was convicted provides
that “[a]n ‘aggravated assault’ is an assault . . . [w]ith a deadly weapon without
intent to kill.” Fla. Stat. § 784.021(1)(a). “Assault” is defined as “an intentional,
unlawful threat by word or act to do violence to the person of another, coupled
with an apparent ability to do so, and doing some act which creates a well-founded
fear in such other person that such violence is imminent.” Id. § 784.011(1).
Because Fla. Stat. § 784.021(1)(a) requires the use of a deadly weapon, it
“prohibits behavior that is . . . within the generic, contemporary meaning of
aggravated assault as it is used in U.S.S.G. § 2L1.2.” Palomino Garcia, 606 F.3d
at 1333 (quoting United States v. Fierro-Reyna, 466 F.3d 324, 329–30 (5th Cir.
2006)). For that reason, Escobar-Pineda’s prior conviction under Fla. Stat.
§ 784.021(1)(a) qualifies as a “crime of violence” under § 2L1.2(b)(1)(A)(ii). The
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district court did not err in applying the 16-level enhancement.1
AFFIRMED.
1
Escobar-Pineda also challenges the reasonableness of his sentence. He argues only that
the district court procedurally erred by applying the § 2L1.2(b)(1)(A)(ii) enhancement. For the
reasons explained above, the enhancement was proper and no procedural error occurred.
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