US v. Moises Baranda-Cueva, No. 10-4235 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4235 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MOISES BARANDA-CUEVAS, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 enhancement under § 2L1.2(b)(1)(A)(ii) procedurally of violence U.S. Sentencing (2009), unreasonable. warranting and no sixteen-level Guidelines that Finding a his Manual sentence reversible is 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 physical force against the person of another. cmt. n.1(B)(iii). To decide 2 whether a use of USSG § 2L1.2 prior conviction 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). look only to the fact Under this approach, the court may of conviction definition of the prior offense. and the statutory Taylor, 495 U.S. at 602. In a limited class of cases, however, where the definition of the underlying conduct, crime a definition. encompasses sentencing court both may violent look and beyond Kirksey, 138 F.3d at 124. non-violent the statutory 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 3 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 another, USSG crime of violence of physical § 2L1.2 cmt. force against n.1(B)(iii), supporting the and the person qualifies sixteen-level as of a enhancement. Thus, Baranda-Cuevas s first ground for appeal lacks merit. Baranda-Cuevas also contends that the district court imposed a procedurally address each of his unreasonable arguments sentence for a variant by failing sentence. to In determining the procedural reasonableness of a sentence, this court considers, inter alia, whether the district court analyzed the arguments presented by the explained the selected sentence. U.S. 38, 51 (2007) parties and sufficiently Gall v. United States, 552 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, extensive, still while the explanation individualized. may United be less States v. Johnson, 587 F.3d 625, 639 (4th Cir. 2009), cert. denied, 130 S. Ct. 2128 (2010). However, that explanation must be sufficient 4 to allow for appellate meaningful court rationale. need Carter, marks omitted). appellate not 564 review such guess the district F.3d at at 329-30 that (internal the court s quotation 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 sentence the of advisory forty-six Guidelines range. Guidelines months range the and bottom for of imposing the a advisory 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. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5

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