US v. Felipe Quiterio-Zavaleta, No. 14-4138 (4th Cir. 2014)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4138 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. FELIPE QUITERIO-ZAVALETA, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas D. Schroeder, District Judge. (1:11-cr-00384-TDS-1) Submitted: November 26, 2014 Decided: December 9, 2014 Before MOTZ, AGEE, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN, Winston-Salem, North Carolina, for Appellant. Ripley Rand, United States Attorney, Randall S. Galyon, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Felipe Quiterio-Zavaleta, a native and citizen of Mexico, pled guilty pursuant to a plea agreement to one count of illegal reentry of an aggravated § 1326(a), (b)(2) (2012). Manual (PSR) (USSG) felon a violation of 8 U.S.C. Pursuant to U.S. Sentencing Guidelines § 2L1.2(b)(1)(A) applied in (2011), sixteen-level the presentence enhancement due to report Quiterio- Zavaleta’s 1998 conviction in North Carolina of felony assault with a firearm on a law enforcement officer. The district court adopted the PSR and the resulting advisory sentencing range of seventy-seven to ninety-six months. The court determined that a sentence of seventy-seven months was appropriate and then granted the government’s motion for a 45% downward departure pursuant to USSG § 5K1.1, which yielded a sentence of forty-two months. The court then granted the parties’ motion to run the federal sentence concurrently with Quiterio-Zavaleta’s recent state sentence, and reduced his sentence in the instant case to fifteen months in order to achieve this result. Quiterio-Zavaleta appeals. His attorney has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), in which he asserts that there are no meritorious issues for appeal but argues that the district court erred in determining that the felony assault constituted a with a “crime firearm of on a law violence” 2 enforcement pursuant to officer USSG § 2L1.2(b)(1)(A). Quiterio-Zavaleta has filed a pro se supplemental brief arguing that his federal sentence should run concurrently with his state sentence and that his fifteen-month sentence is in the maximum range. response brief. The government has filed a We Finding no error, we affirm. review characterization of de novo the Quiterio-Zavaleta’s district prior court’s conviction as a crime of violence for the purpose of enhancing his sentence. See United States v. Gomez, 690 F.3d 194, 197 (4th Cir. 2012). Counsel argues that the district court erred in enhancing Quiterio-Zavaleta’s sentence because the assault element of his prior offense “show” or is defined “appearance” of by common force law and and can violence encompass that does a not require physical contact. See State v. Roberts, 155 S.E.2d 303, 305 that (N.C. defined as 1967) “an (noting overt act or assault an in attempt, North or the Carolina is unequivocal appearance of an attempt, with force and violence, to do some immediate physical injury to the person of another, which show of force or menace of violence must be sufficient to put a person of reasonable firmness in fear of immediate bodily harm”) (internal quotation marks and citations omitted). Accordingly, he contends, it does not qualify categorically as a crime of violence. See United States v. Donnell, 661 F.3d 890, 893 (4th Cir. 2011) (utilizing categorical approach to determine whether 3 a conviction qualifies Guidelines). as a crime of violence under the We disagree. We conclude that Quiterio-Zavaleta’s prior conviction in North Carolina for felony assault with a firearm on a law enforcement officer categorically qualifies as a crime of violence and was thus properly used to enhance his sentence. Accordingly, counsel’s challenge to the sentencing enhancement is unavailing. raised in Finally, our review discloses that the issues Quiterio-Zavaleta’s pro se supplemental brief are without merit. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. therefore affirm the district court’s judgment. This We court requires that counsel inform Quiterio-Zavaleta, in writing, of the right to petition further review. filed, but frivolous, the Court of the United States for If Quiterio-Zavaleta requests that a petition be counsel then Supreme believes counsel may withdraw from representation. that move such in a this petition court for would be leave to Counsel’s motion must state that a copy thereof was served on Quiterio-Zavaleta. Finally, we dispense with oral argument because the facts and legal contentions are 4 adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 5