United States v. Calvillo-Palacios, No. 16-10039 (9th Cir. 2017)
Annotate this CaseThe Ninth Circuit affirmed defendant's 54 month sentence after he pleaded guilty to illegal reentry after deportation. The panel held that the district court did not err by concluding that defendant's conviction for aggravated assault under Texas Penal Code 22.01 and 22.02 was a crime of violence for purposes of USSG 2L1.2(b)(1)(A)(ii), because both means of committing aggravated assault entailed the use of violent, physical force. Finally, defendant waived his ability to contest the district court's revocation of his supervised release and the appeal must be dismissed.
Court Description: Criminal Law. The panel affirmed a sentence for illegal reentry after deportation, and dismissed an appeal from the revocation of supervised release and the revocation sentence. The defendant contended that the district court erred by applying a 16-level crime-of-violence enhancement to his illegal reentry sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on his prior conviction for aggravated assault under Texas Penal Code §§ 22.01 and 22.02. The parties did not dispute that the defendant committed a simple assault in violation of § 22.01(a)(2), which became aggravated assault by application of § 22.02(a). The panel held that aggravated assault is a crime of violence under the element prong of § 2L1.2(b)(1)(A)(ii) UNITED STATES V. CALVILLO-PALACIOS 3 because both means of committing aggravated assault—(1) causing serious bodily injury and (2) using or exhibiting a deadly weapon—entail the use of violent, physical force. The panel held that the defendant waived his ability to contest the supervised release revocation and the revocation sentence by raising no issue and arguments in this regard in his opening brief. Concurring, Judge Owens referred the reader to his concurrence in United States v. Perez-Silvan, Nos. 16- 10177, 16-10205 (9th Cir. 2017).
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