United States v. Eron Yanes-Cruz , 634 F. App'x 247 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11173
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-00319-SCJ-AJB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ERON YANES-CRUZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 11, 2015)
Before HULL, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Eron Yanes-Cruz pled guilty to illegally reentering the United States after
being deported, see 8 U.S.C. § 1326(a)(b)(2), and was sentenced by way of
downward variance to 16 months’ imprisonment. He appeals his sentence, arguing
that his 2010 Georgia battery conviction does not qualify as an “aggravated
felony” for purposes of an 8-level enhancement under U.S.S.G. § 2L.1.2(b)(1)(C),
and that the district court therefore erred when it used that conviction to apply the
enhancement. Mr. Yanes-Cruz also contends that his 16-month sentence—
imposed as a variance below his 18-24 month advisory guideline range—is
excessive, and thus, substantively unreasonable, in light of the factors set forth in
18 U.S.C. § 3553(a).
Upon review of the parties’ brief and record, we conclude that the district
court did not err in either respect. Accordingly, we affirm.
I
Mr. Yanes-Cruz, a citizen of Mexico, was arrested in Gwinnett County,
Georgia in July of 2010 on two counts of aggravated assault, two counts of battery,
two counts of cruelty to children, and one count of second degree criminal damage
to property. 1 He was convicted of battery under Georgia Code Ann. § 16-5-23.1(a)
1
According to the pre-sentence report, Mr. Yanes-Cruz was arrested after an incident
involving Ana Garcia, a woman with whom he had a previous relationship, and Juan Pineda-
Serrano. PSR at 11. Ms. Garcia reported that Mr. Yanes-Cruz confronted her via text message
after seeing Mr. Pineda-Serrano’s truck at her house. Mr. Pineda-Serrano called Mr. Yanes-
Cruz, and an argument ensued. When Mr. Yanes-Cruz arrived at Ms. Garcia’s home, he
smashed in the glass front door, causing Ms. Garcia to sustain cuts to her legs from the flying
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and of second-degree criminal damage to property. In January of 2011, he was
physically removed from the United States based on the reinstatement of a
previously issued order of removal.
In May of 2014, Mr. Yanes-Cruz was arrested in Clayton County, Georgia,
for various traffic offenses. He was subsequently taken to Gwinnett County,
Georgia, on an outstanding probation violation warrant. There, he met with
Immigration and Customs Enforcement officials because his immigration record
revealed that he had been ordered removed from the United States on two prior
occasions and had reentered the United States without permission. He eventually
pled guilty to illegal reentry in violation of 8 U.S.C.§ 1326(a), (b)(2).
Mr. Yanes-Cruz had a base offense level of 8 for illegal reentry pursuant to
U.S.S.G. § 2L.1.2(a), and received an 8-level enhancement under § 2L1.2(b)(1)(C)
because he had previously been deported after being convicted of an “aggravated
felony”—the 2010 Georgia battery conviction. Mr. Yanes-Cruz objected to the
enhancement, arguing that the battery conviction did not meet the definition of an
aggravated felony under § 2L1.2(b)(1)(C). The district court, however, overruled
the objection. Mr. Yanes-Cruz’s total offense level was reduced by 3 levels for
glass. Id. During a physical altercation with Mr. Pineda-Serrano, Mr. Yanes-Cruz drew a semi-
automatic handgun and pointed it at Mr. Pineda-Serrano, who wrestled the handgun away from
Mr. Yanes-Cruz. During the struggle, Mr. Yanes-Cruz struck Mr. Pineda-Serrano with a brick,
causing a laceration to Mr. Pineda-Serrano’s right arm. Id. at 12. The law enforcement officers
who responded to the scene also observed human bite marks on Mr. Pineda-Serrano’s right
shoulder and arm. Id. The entire incident was witnessed by Ms. Garcia’s two young sons. Id.
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acceptance of responsibility, resulting in a total offense level of 13 and a criminal
history category of III, which in turn yielded an advisory guideline range of 18-24
months. See D.E. 47 at 22.
Mr. Yanes-Cruz asked the district court to impose a sentence of time served
by way of a departure or a variance based on the factors set forth in 18 U.S.C.
§ 3553(a). The district court stated that, based on the § 3553(a) factors, it had to
consider not only the nature and circumstances of the offense, but also the
deterrence impact of the sentence. Id. at 40. The court also stated that it could not
overlook the fact that Mr. Yanes-Cruz had illegally reentered the United States on
three separate occasions. Id. The district court further stated that, although it did
not believe Mr. Yanes-Cruz was entitled to credit for time served while in the
custody of Gwinnett County officials, it did agree that crediting him for time
served in ICE custody was appropriate. Id. at 40–41. Consequently, the court
varied downward and sentenced Mr. Yanes-Cruz to 16 months’ imprisonment. Id.
at 41, 44.
II
We review de novo a district court’s determination that a prior conviction
qualifies as an aggravated felony for purposes of an enhancement under
§ 2L1.2(b)(1)(C). See United States v. Ayala-Gomez, 255 F.3d 1314, 1316 (11th
Cir. 2001).
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A
In relevant part § 2L1.2(b)(1)(C) states that, “[i]f the defendant previously
was deported, . . . after . . . a conviction for an aggravated felony, [the offense
level] increase[s] by 8 levels.” The commentary defines an “aggravated felony”
by using the definition set forth in 8 U.S.C. § 1101(a)(43) of the Immigration and
Nationality Act. See U.S.S.G. § 2L1.2, cmt. (n.3(A)). The INA includes in its
definition of “aggravated felony” a “crime of violence” as defined in 18 U.S.C.
§ 16. See 8 U.S.C. § 1101(a)(43)(F). A “crime of violence,” in turn, is defined in
§ 16 as “an offense that has as an element the use, attempted use, or threatened use
of physical force against the person or property of another.”
To determine whether a conviction qualifies as a “crime of violence” under
§ 16 (and therefore an “an aggravated felony” under § 2L1.2), we analyze the
statute of conviction under the categorical approach. United States v. Estrella, 758
F.3d 1239, 1244 (11th Cir. 2014). “Under this approach, we look no further than
the statute and judgment of conviction, and compare only the elements of the
statute forming the basis of the defendant’s conviction and the generic definition of
a crime of violence.” Id. (internal quotation marks and citations omitted). We
apply § 2L1.2 “if the statute on its face ‘requires the government to establish,
beyond a reasonable doubt and without exception,’ an element involving the use,
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attempted use, or threatened use of physical force against a person for every charge
brought under the statute.” Id. (quoting Donawa v. U.S. Attorney Gen., 735 F.3d
1275, 1281 (11th Cir. 2013)). “[T]he categorical approach focuses on whether in
every case a conviction under the statute necessarily involves proof of the
element.” Id. (internal quotation marks and citation omitted) (emphasis in
original).
In Georgia, “[a] person commits the offense of battery [by] intentionally
caus[ing] substantial physical harm or visible bodily harm to another.” O.G.C.A.
§ 16-5-23.1(a). Visible bodily harm is defined as “bodily harm capable of being
perceived by a person other than the victim and may include, but is not limited to,
substantially blackened eyes, substantially swollen lips or other facial or body
parts, or substantial bruises to body parts.” Id. § 16-5-23.1(b).
In Hernandez v. U.S. Attorney Gen., 513 F.3d 1336 (11th Cir. 2008), we
analyzed whether Georgia’s simple battery statute, Ga. Code. Ann. § 16-5-
23(a)(2), which makes it a crime to “intentionally cause[ ] physical harm to
another,” constitutes a crime of violence under § 18 U.S.C. 16(a). We explained
that a conviction under § 16-5-23(a)(2) “require[s] more than simple physical
contact with the victim; it require[s] intentionally causing physical harm to the
victim through physical contact.” Hernandez, 513 F.3d at 1338. (emphasis in
original). We held that § 16-5-23(a)(2) constitutes a crime of violence because
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Georgia courts have interpreted the language of the statute to require “actual
physical contact that inflicts pain or injury.” Id. at 1340.
We explained in Hernandez why United States v. Griffith, 455 F.3d 1339
(11th Cir. 2006), is relevant in the § 16(a) context:
Although not an immigration case, Griffith is relevant here because a
“crime of domestic violence” for purposes of 18 U.S.C § 922(g)(9) is
defined to include an offense, . . . that “. . . has, as an element, the use
or attempted use of physical force.” . . . This is essentially the same
definition of a “crime of violence” as in 18 U.S.C. § 16(a)[.] In
Griffith, this Court discussed whether physical contact necessarily
involves physical force and held that “[a] person cannot make
physical contact—particularly of an insulting or provoking nature—
with another without exerting some level of physical force.” . . . In
so holding, the Griffith Court expressly declined to insert the
requirement of “violent” force before the words ‘physical force’ in the
statutory definition of ‘crime of violence’ and concluded that the
simple physical contact made illegal by § 16–5–23(a)(1) satisfied the
‘use of physical force’ definition of a “crime of violence” in §
921(a)(33)(A).
513 F.3d at 1340.
Logic dictates that the Georgia battery statute at issue here, § 16-5-23.1(a),
which makes it a crime to “intentionally cause substantial physical harm or visible
bodily harm,” has as an element the use of physical force. This conclusion is
supported by Hernandez and Griffith. As the government points out, if the simple
battery statute at issue in Hernandez, which requires intentionally causing physical
harm, satisfies § 16(a)’s definition of a “crime of violence,” then the statute at
issue in this case, which requires “substantial physical harm” or “visible bodily
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harm . . . capable of being perceived by a person other than the victim,” also
satisfies § 16(a), as it necessarily requires a greater quantum of harm. Cf. United
States v. Lockley, 632 F.3d 1238, 1245 (11th Cir. 2011) (finding it “inconceivable
that an act which causes the victim to fear death or great bodily harm would not
involve the use of physical force”).
B
Mr. Yanes-Cruz contends that the precedential scope of Hernandez and
Griffith have been eroded by two Supreme Court cases: Johnson v. United States,
559 U.S. 133 (2010), and United States v. Castleman, 134 S. Ct. 1405 (2014). We
disagree.
In Johnson, the Supreme Court held that Florida’s battery statute, which
includes as an element “actually and intentionally touching another person,” “no
matter how slight,” does not constitute a “violent felony” under the Armed Career
Criminal Act, 18 U.S.C § 924(e), because it does not have “as an element the use .
. . of physical force against the person of another.” See 559 U.S. at 138–40. 2 The
2
The Armed Career Criminal Act defines “violent felony” as a crime that “has as an
element the use, attempted use, or threatened use of physical force against the person of
another[.]” 18 U.S.C. § 924(e)(2)(B)(i). This is virtually identical to the definition of “crime of
violence” set forth in 18 U.S.C. § 16(a) and U.S.S.G. § 4B1.2(a)(1). “We have explained that
‘[c]onsidering whether a crime is a ‘violent felony’ under the ACCA is similar to considering
whether a conviction qualifies as a ‘crime of violence’ under U.S.S.G. § 4B1.2(a) because the
definitions for both terms are virtually identical.’” United States v. Alexander, 609 F.3d 1250,
1253 (11th Cir. 2010). See also Johnson, 559 U.S. at 140 (noting that the statutory definition of
“violent felony” under § 924(e)(2)(B)(i) is very similar to the statutory definition of “crime of
violence” under § 16(a)).
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Court explained that, in the “context of a statutory definition of ‘violent felony,’
the phrase ‘physical force’ means violent force—that is, force capable of causing
physical pain or injury to another person.” Id. at 140 (emphasis original). This
suggests “a degree of power that would not be satisfied by the merest touching.”
Id. at 139. See also United States v. Diaz-Calderone, 716 F.3d 1345, 1349 (11th
Cir. 2013) (explaining that “in Johnson, the Supreme Court held that even a slight
touching, such as an unwanted tap on the shoulder, could satisfy the elements of
Florida simple battery, and that therefore Florida simple battery did not require the
use of physical force[ ]”).
Unlike the simple battery statute at issue in Johnson, which someone can
violate by merely touching another person, the Georgia statute at issue here
requires “substantial physical harm or visible bodily harm.” Such harm simply
cannot be caused without the application of physical force—i.e., force capable of
causing physical pain or injury to another person. Johnson, therefore, does not
help Mr. Yanes-Cruz.
In Castleman, 134 S. Ct. at 1413, the Supreme Court held that the Tennessee
offense of “intentionally or knowingly caus[ing] bodily injury” to another qualifies
as a “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9). In
making this determination, the Court concluded that “‘physical force’ is satisfied,
for purposes of § 922(g)(9), by the degree of force that supports a common-law
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battery conviction[, i.e., offensive touching].” Id. at 1413. Thus, Castleman
actually supports the reasoning in Hernandez and Griffith by holding, albeit in a
different context, that the physical force element applicable to § 922(g)(9) is
satisfied by a common-law battery conviction, which generally does not require
violent force. 3
Based on Hernandez and Griffith, we hold that battery under Ga. Code Ann.
§ 16-5-23.1(a) qualifies as a “crime of violence” for purposes of 18 U.S.C. § 16.
Therefore, we conclude that the district court did not err by enhancing Mr. Yanes-
Cruz’s sentence pursuant to § 2L1.2(b)(1)(C) based on his conviction under § 16-
5-23.1(a).
III
Mr. Yanes-Cruz also argues that his sentence is unreasonably harsh in light
of the record and the § 3553(a) factors.
We review the substantive reasonableness of a sentence under the deferential
abuse-of-discretion standard of review. United States v. Irey, 612 F.3d 1160, 1165
(11th Cir. 2010) (en banc). “The party challenging the sentence bears the burden
of showing it is unreasonable in light of the record and the § 3553(a) factors.”
United States v. Turner, 626 F.3d 566, 573 (11th Cir. 2010).
3
Under § 922(g)(9), a “misdemeanor crime of violence” is defined as “an offense that . . .
has, as an element, the use or attempted use of physical force[.]” Castleman, 134 S. Ct. at 1409
(quoting 18 U.S.C. § 921(a)(33)(A)(ii)).
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We will not vacate a sentence as substantively unreasonable unless we are
left with a definite and firm conviction that the district court clearly erred in
weighing the § 3553(a) factors and imposed a sentence outside the range of
reasonable sentences. Irey, 612 F.3d at 1190 (internal quotation marks and citation
omitted). Although a district court is required to evaluate all of the § 3553(a)
factors, it is permitted to assign different weight to each of the relevant factors.
See United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009). And a district
court is not required to discuss all of the § 3553(a) factors. See, e.g., United States
v. Robles, 408 F.3d 1324, 1328 (11th Cir. 2005) (“[W]e would not expect the
district court in every case to conduct an accounting of every § 3553(a) factor[.]”);
United States v. Eggersdorf, 126 F.3d 1318, 1322 (11th Cir. 1997) (holding that a
district court does not commit “reversible error by failing to articulate specifically
the applicability—if any—of each of the section 3553(a) factors, as long as the
record demonstrates that the pertinent factors were taken into account by the
district court[ ]”).
Mr. Yanes-Cruz has failed to carry his burden of showing that his 16-month
sentence—imposed below the advisory guideline range—is substantively
unreasonable. After hearing from both parties—including Mr. Yanes-Cruz’s
statements in mitigation and letters from his family—the district court noted that,
based on the § 3553(a) factors, it had to consider not only the nature and
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circumstances of the offense, but other factors as well. See D.E. 47 at 40. In
addition, the court took into account that Mr. Yanes-Cruz had illegally reentered
the country on three occasions. See D.E. 47 at 40. Although Mr. Yanes-Cruz
argues that the § 3553(a) factors support a substantially lower sentence, the district
court was permitted to attach greater weight to the need for deterrence. Shaw, 560
F.3d at 1237. In sum, the district court did not abuse its discretion in sentencing
Mr. Yanes-Cruz’s to 16-months’ imprisonment.
V
We affirm Mr. Yanes-Cruz’s sentence. In so doing, we hold that Ga. Code
Ann. § 16-5-23.1(a) qualifies as a “crime of violence” for purposes of 18 U.S.C. §
16, and therefore, constitutes an “aggravated felony” under U.S.S.G. §
2L.1.2(b)(1)(C).
AFFIRMED.
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