Case: 13-40052 Document: 00512562514 Page: 1 Date Filed: 03/17/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-40052 March 17, 2014
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
JOSE EFRAIN RAMOS-BONILLA, also known as Ifrain Ramos,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:12-CR-645-1
Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Jose Efrain Ramos-Bonilla, a native and citizen of El Salvador, pleaded
guilty to illegal reentry following deportation, in violation of 8 U.S.C. § 1326(a)
and (b). He challenges his 24-month, below-Guidelines-sentencing-range
sentence on two grounds. First, he contends the district court committed
reversible error when it applied a 16-level, crime-of-violence enhancement
under advisory Sentencing Guideline § 2L1.2(b)(1)(A)(ii) (unlawfully entering
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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No. 13-40052
or remaining in the United States), for Ramos’ 2011 felony conviction for
resisting an officer with violence, under Florida Statutes § 843.01. Second, he
contends the court incorrectly convicted, sentenced, and entered judgment
against him under 8 U.S.C. § 1326(b)(2) (aggravated felony; 20-year statutory
maximum), instead of 8 U.S.C. § 1326(b)(1) (ten-year statutory maximum).
At sentencing, Ramos objected to his prior conviction’s being classified
as a “crime of violence”, claiming the offense did not require the use of physical
force, as required by Guideline § 2L1.2 cmt. (1)(B)(iii) (defining “crime of
violence” as, inter alia, an offense “that has as an element the use, attempted
use, or threatened use of physical force against the person of another”). As
part of his theory, Ramos asserted that, if his conviction was not a crime of
violence, it could not be an aggravated felony under 8 U.S.C. § 1101(a)(43)
(defining “aggravated felony”).
The district court overruled Ramos’ objection to the 16-level
enhancement, granted his request for a downward departure on the ground
that the offense level overstated the seriousness of his prior conviction, and
imposed a below-Guidelines-sentencing-range, 24-month sentence. Ramos
again objected to the 16-level enhancement.
“We review de novo whether a prior conviction qualifies as a crime of
violence within the meaning of the Guidelines.” United States v. Rodriguez,
711 F.3d 541, 548 (5th Cir.), cert. denied, 134 S. Ct. 512 (2013). But, for
unpreserved error, our court reviews only for plain error. Under that standard,
defendant must show a plain (clear or obvious) forfeited error that affected his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If
he shows such reversible plain error, we have the discretion to correct the
error, but should do so only if it seriously affects the fairness, integrity, or
public reputation of the proceedings. See id.
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No. 13-40052
Though not binding precedent, a recent, unpublished opinion by our
court, United States v. Alonzo-Garcia, is both instructive and persuasive. 542
F. App’x 412 (5th Cir. 2013). In Alonzo-Garcia, defendant maintained his prior
Florida conviction for aggravated assault did not qualify as a crime of violence.
Id. at 413. Our court held the phrase “a threat ‘to do violence’”, as used in
Florida’s statutory definition of assault, meant “a threat to use physical force”
and therefore qualified as a crime of violence. Id. at 416–17.
Defendant in Alonzo-Garcia also contended the district court used an
incorrect statutory maximum (20 years under § 1326(b)(2)) in computing his
sentence. Id. at 413. Although that defendant objected at sentencing that his
conviction did not qualify as an aggravated felony (which would fall under
§ 1326(b)(2) (20-year maximum sentence)), he did so only in the context of the
16-level enhancement. Id. at 417–18. Our court, therefore, reviewed only for
plain error. Id. at 418. Assuming arguendo the error was plain and affected
defendant’s substantial rights, our court declined to exercise its discretion to
correct the assumed error because it did not “seriously affect[] the fairness,
integrity, or public reputation of judicial proceedings”. Id. at 418–19. Instead,
our court remanded for reformation of the judgment. Id. at 419.
As noted, Alonzo-Garcia is persuasive for both issues in this appeal. For
the first, as had been done in Alonzo-Garcia, Ramos contended a Florida
statute requiring “violence” did not have “as an element the use, attempted
use, or threatened use of physical force against the person of another”.
U.S.S.G. § 2L1.2 cmt. (1)(B)(iii).
We adopt the reasoning of Alonzo-Garcia. Analyzing the plain meaning
of the term “violence” as used in Florida Statutes § 843.01, the crime of
resisting a police officer with violence requires the use, attempted use, or
threatened use of physical force against that officer.
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No. 13-40052
For the second issue, as had been done in Alonzo-Garcia, Ramos
contends his sentence should be vacated because he was sentenced under the
incorrect statutory maximum. Along that line, the Government concedes the
district court incorrectly sentenced Ramos under § 1326(b)(2), rather than
§ 1326(b)(1), but requests the court only reform the sentence, rather than
vacate it.
As had been done in Alonzo-Garcia, Ramos objected to the classification
of his prior felony as an aggravated felony only in the context of the offense-
level enhancement for a crime of violence. Therefore, this second issue is
reviewed only for plain error. Under plain-error review, and as done in Alonzo-
Garcia, even assuming arguendo the error affects Ramos’ substantial rights,
he cannot show it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Accordingly, we decline to exercise our discretion to
correct the error, except to have the judgment reformed on remand.
AFFIRMED in part, and REMANDED in part for the district court to
reform the judgment to reflect conviction and sentencing under 8 U.S.C.
§ 1326(b)(1).
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