US v. Michael Barillas, No. 11-5141 (4th Cir. 2014)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on August 14, 2012.
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ON REHEARING UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-5141 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL ALEXANDER BARILLAS, a/k/a Jose Fermin Vasquez, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Greenbelt. Alexander Williams, Jr., District Judge. (8:10-cr-00753-AW-1) Submitted: November 26, 2013 Before WILKINSON and Senior Circuit Judge. NIEMEYER, Decided: Circuit Judges, January 7, 2014 and HAMILTON, Affirmed by unpublished per curiam opinion. Elita C. Amato, LAW OFFICE OF ELITA C. AMATO, Arlington, Virginia, for Appellant. Rod J. Rosenstein, United States Attorney, Paul Nitze, Special Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael Alexander Barillas appealed the sentence imposed following his guilty plea to unauthorized reentry of a deported alien after an aggravated felony violation of 8 U.S.C. § 1326(a), (b) (2012). that the district court erred when it conviction, in Barillas argued enhanced his sentence based on a prior conviction for Maryland second degree assault, which the district court found to be a crime of violence, and by concluding that he did not qualify for a downward departure. an opinion sentence. issued on August 14, 2012, we affirmed In Barillas Before the mandate issued, however, Barillas filed a petition for rehearing and rehearing en banc concerning only the sentence enhancement. While the rehearing petition was pending, this court issued United States v. Royal, 731 F.3d 333 (4th Cir. 2013). Because Royal constitutes an intervening change in law, we granted Barillas petition for panel rehearing, but denied his petition for rehearing en banc. For the reasons that Guidelines range, the follow, we affirm Barillas sentence. In calculating Barillas district court increased his offense level under U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A) (2010). This provision calls for a sixteen-level enhancement if the defendant was deported after he was convicted of a crime of violence. 2 The district court found that Barillas prior Maryland second degree assault conviction qualified as a crime of violence. After we issued our August 14, 2012 opinion, in which we concluded that the district court properly found that Barillas Maryland second degree assault conviction qualified as a crime of violence, the Supreme Court decided Descamps v. United States, 133 S. Ct. 2276, 2283-86 (2013), reiterating the elements-driven approach to determining whether a prior conviction constitutes a violent felony for sentencing purposes. More recently, approach, we after held that applying Maryland Descamps second elements-driven degree assault is an indivisible offense that categorically is not a violent felony for purposes of the Armed Career Criminal Act ( ACCA ). 731 F.3d at 341-42. Royal, Because we have consistently held that the definition of a violent felony under the ACCA and the definition of a crime of violence under the Guidelines are nearly identical and materially indistinguishable, see United States v. King, 673 F.3d 274, 279 n.3 (4th Cir.), cert. denied, 133 S. Ct. 216 (2012), under and the have applied ACCA to Cabrera-Umanzor, 728 the F.3d the categorical Guidelines, 347, 353-54 see approach United (4th Cir. developed States v. 2013), we conclude that the district court erred by holding that Barillas Maryland second degree assault conviction qualified as a crime 3 of violence for purposes of applying the sixteen-level enhancement. However, the district court found in the alternative that Barillas qualified for the sixteen-level enhancement under § 2L1.2(b)(1)(A) based on his 1994 California drug conviction. Barillas does finding, so not challenge further review the of district that court s finding is alternate waived. See United States v. Hudson, 673 F.3d 263, 268 (4th Cir.) (issues not raised in opening brief are waived), cert. denied, 133 S. Ct. 207 district (2012). court Based on the not err in did 1994 conviction, enhancing then, Barillas the sentence pursuant to USSG § 2L1.2(b)(1)(A). We therefore affirm Barillas sentence. 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 4
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