US v. Leonel Rosas-Rosas, No. 13-4194 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4194 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LEONEL ROSAS-ROSAS, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Peter J. Messitte, Senior District Judge. (8:12-cr-00425-PJM-1) Submitted: October 25, 2013 Decided: December 2, 2013 Before DIAZ, WYNN, and THACKER, Circuit Judges. Vacated and remanded by unpublished per curiam opinion. James Wyda, Federal Public Defender, LaKeytria W. Felder, Assistant Federal Public Defender, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Leah Jo Bressack, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Leonel Rosas-Rosas appeals the twenty-four-month sentence imposed by the district court following his guilty plea to illegally re-entering the United States after being deported, in violation argues that of 8 the U.S.C. § 1326(a). district court On appeal, procedurally Rosas-Rosas erred when it enhanced his sentence based on a prior conviction of Maryland second-degree assault, which the district court found to be a crime of violence. We vacate and remand for resentencing in light of our recent decision in United States v. Royal, 731 F.3d 333 (4th Cir. Oct. 1, 2013). This court reviews a criminal sentence under an abuseof-discretion standard. (2007). Gall v. United States, 552 U.S. 38, 51 We must first ensure that the district court did not commit any significant procedural error. Id. "An error in the calculation of the applicable Guidelines range, whether an error of fact or of law . . . makes a sentence procedurally unreasonable standard." even under our deferential abuse-of-discretion United States v. Diaz-Ibarra, 522 F.3d 343, 347 (4th Cir. 2008) (internal quotation marks omitted). We review de novo the issue of whether a prior conviction constitutes a crime of violence for purposes of a sentencing enhancement under the Guidelines. Id. Under U.S. Sentencing Guidelines Manual ( U.S.S.G. ) § 2L1.2(b)(1)(A)(11), 2 the base offense level of a defendant convicted of violating 18 U.S.C. § 1326(a) should be increased by sixteen levels if he has a prior conviction for a felony that is . . . a crime of violence. A crime of violence, as used here, is defined to include 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. U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Rosas-Rosas has second-degree assault. a prior conviction Maryland The relevant statute provides that [a] person may not commit an assault. § 3-203(a). for Md. Code Ann., Crim. Law Following this court's approach in United States v. Taylor, 659 F.3d 339 (4th Cir. 2011), the district court applied the modified-categorical approach to find that Rosas-Rosas s Maryland second-degree assault conviction was for a crime of violence. Accordingly, it applied the sixteen-level enhancement. After Supreme 2276, Court 2283-86 the district decided (2013), court Descamps which v. sentenced United reiterated Rosas-Rosas, States, the 133 S. the Ct. elements-centric approach for determining whether a prior conviction constitutes a crime of violence for sentencing purposes. More recently, we held in Royal, 731 F.3d at 340-42, that Maryland second-degree 3 assault is categorically not a crime of violence for purposes of the Armed Career Criminal Act ( ACCA ). We Guidelines have are consistently substantively held that identical the with ACCA regard and to the their definitions of a violent offense. See, e.g., United States v. King, 673 F.3d 274, 279 n.3 (4th Cir), cert. denied, 133 S. Ct. 216 (2012). We have also applied the categorical developed under the ACCA to the Guidelines. approach See, e.g., United States v. Cabrera-Umanzor, 728 F.3d 347, 353-54 (4th Cir. 2013). Thus, we conclude that the district court committed procedural error when it applied the sixteen-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). Accordingly, we vacate the district court s judgment and remand motion to for resentencing. accelerate case We deny processing as and moot Rosas-Rosas s dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. VACATED & REMANDED 4

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