United States v. Duran-Hernandez , 261 F. App'x 567 ( 2008 )


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  •                                UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 07-4236
    UNITED STATES OF AMERICA,
    Plaintiff - Appellee,
    versus
    FRANCISCO LEODAN DURAN-HERNANDEZ, a/k/a Rey
    Tiburcio, a/k/a Leodan Duran-Hernandez, a/k/a
    Rey Valdouinos Tiburcio, a/k/a Valdouinos
    Tiburcio, a/k/a Edwin Wilfred Torres, a/k/a
    Edwin Wilfredo Torres, a/k/a Rey Valdouinos,
    Defendant - Appellant.
    Appeal from the United States District Court for the Western
    District of North Carolina, at Charlotte. Richard L. Voorhees,
    District Judge. (5:06-cr-00023)
    Submitted:    October 17, 2007               Decided:   January 10, 2008
    Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.
    Affirmed by unpublished per curiam opinion.
    Kimberly Y. Best, THE BEST LAW FIRM, PLLC, Charlotte, North
    Carolina, for Appellant. Gretchen C. F. Shappert, United States
    Attorney, Adam Morris, Assistant United States Attorney, Charlotte,
    North Carolina, for Appellee.
    Unpublished opinions are not binding precedent in this circuit.
    PER CURIAM:
    Francisco Leodan Duran-Hernandez pled guilty without a
    plea agreement to unlawful reentry into the United States by a
    deported alien in violation of 
    8 U.S.C. § 1326
     (2000), and was
    sentenced to seventy-one months in prison. Duran-Hernandez appeals
    the district court’s judgment, arguing that the district court
    erred     in     determining     that    his    prior   Virginia      involuntary
    manslaughter conviction constituted a “crime of violence” under
    U.S. Sentencing Guidelines Manual (“USSG”) § 2L1.2(b)(1)(A)(ii)
    (2005),        thereby   warranting     application         of   a   sixteen-level
    enhancement to his Guidelines range.                Although the Government
    concedes that the district court erred and agrees that Duran-
    Hernandez should be resentenced, we are “not at liberty to vacate
    and remand for resentencing on the Government’s concession of error
    alone.”        United States v. Rodriguez, 
    433 F.3d 411
    , 414 n.6 (4th
    Cir. 2006) (citation omitted).           Because we find that the district
    court did not err in applying the sixteen-level enhancement under
    USSG § 2L1.2, we affirm.
    “In   assessing   a   challenge     to   a    sentencing    court's
    application of the Guidelines, we review the [district] court's
    factual findings for clear error and its legal conclusions de
    novo."    United States v. Allen, 
    446 F.3d 522
    , 527 (4th Cir. 2006)
    (citation omitted).        Section 2L1.2(b)(1)(A)(ii) of the Guidelines
    directs a sixteen-level enhancement if the defendant was previously
    - 2 -
    deported from the United States following “a conviction for a
    felony that is . . . a crime of violence.”       Prior to November 1,
    2003, a “crime of violence” was defined as:
    (I) . . . an 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; and
    (II)   includes  murder,   manslaughter, kidnapping,
    aggravated assault, forcible sex offenses (including
    sexual abuse of a minor), robbery, arson, extortion,
    extortionate extension of credit, and burglary of a
    dwelling.
    USSG § 2L1.2 cmt. n.1(B)(ii) (2002).    This definition was amended
    in 2003, however, and is now defined as:
    [M]urder, manslaughter, kidnapping, aggravated assault,
    forcible sex offenses, statutory rape, sexual abuse of a
    minor, robbery, arson, extortion, extortionate extension
    of credit, burglary of a dwelling, or 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.
    USSG § 2L1.2 cmt. n.1(B)(iii) (2005).
    Although   Duran-Hernandez    argues     that     involuntary
    manslaughter is not a “crime of violence” because it does not have
    “as an element the use . . . of physical force against the person
    of another,” § 2L1.2 contains no such requirement.        As explicitly
    stated by the Sentencing Commission, the definition of “crime of
    violence” was amended to:
    [C]larif[y] the meaning of the term “crime of violence”
    by providing that the term “means any of the following:
    . . . .” The previous definition often led to confusion
    over whether the specified offenses listed in that
    definition, particularly sexual abuse of a minor and
    - 3 -
    residential burglary, also had to include as an element
    of the offense “the use, attempted use, or threatened use
    of physical force against the person of another.” The
    amended definition makes clear that the enumerated
    offenses are always classified as “crimes of violence,”
    regardless of whether the prior offense expressly has as
    an element the use, attempted use, or threatened use of
    physical force against the person of another.
    USSG App. C, Vol. II, amend. 658, at 401-02 (Nov. 1, 2003).
    Because all that is necessary for an enhancement under § 2L1.2 to
    apply is that a prior conviction for manslaughter exist, see United
    States v. Payton, 
    28 F.3d 17
    , 19 (4th Cir. 1994) (holding that the
    Guidelines   commentary   “that   is   interpretative   or   explanatory
    controls, so long as it is not clearly inconsistent with the
    Guidelines or unconstitutional”), it is irrelevant whether the
    conviction was for voluntary or involuntary manslaughter.        See 
    id.
    (finding that although the note construing “crime of violence”
    under USSG § 4B1.2 does not differentiate between involuntary and
    voluntary manslaughter, it includes both).
    For the foregoing reasons, we affirm the district court’s
    judgment.    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 -
    

Document Info

Docket Number: 07-4236

Citation Numbers: 261 F. App'x 567

Judges: Gregory, Niemeyer, Per Curiam, Wilkinson

Filed Date: 1/10/2008

Precedential Status: Non-Precedential

Modified Date: 8/7/2023