United States v. Michael Barillas , 549 F. App'x 204 ( 2014 )

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UNPUBLISHED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 Decided: January 7, 2014
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 conviction, in
violation of 8 U.S.C. § 1326(a), (b) (2012). Barillas argued
that the district court erred when it 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. In
an opinion issued on August 14, 2012, we affirmed Barillas’
sentence. 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
follow, we affirm Barillas’ sentence.
In calculating Barillas’ Guidelines range, the
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. The district
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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, after applying Descamps’ elements-driven
approach, we held that Maryland second degree assault is an
indivisible offense that categorically is not a violent felony
for purposes of the Armed Career Criminal Act (“ACCA”). Royal,
731 F.3d at 341-42. 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), and have applied the categorical approach developed
under the ACCA to the Guidelines, see United States v.
Cabrera-Umanzor, 728 F.3d 347, 353-54 (4th Cir. 2013), we
conclude that the district court erred by holding that Barillas’
Maryland second degree assault conviction qualified as a crime
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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 not challenge the district court’s alternate
finding, so further review of that finding is 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 (2012). Based on the 1994 conviction, then, the
district court did not err in enhancing Barillas’ 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
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