United States v. Rudy Diaz , 546 F. App'x 281 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4068
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RUDY GEOVANNY LEMUS DIAZ,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:12-cr-00335-PJM-1)
Submitted: August 9, 2013 Decided: November 21, 2013
Before TRAXLER, Chief Judge, and NIEMEYER and SHEDD, Circuit
Judges.
Vacated and remanded by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Baltimore, Maryland; Paresh
S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Baltimore, Maryland; Adam K. Ake, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant Rudy Geovanny Lemus Diaz pled guilty to
unauthorized reentry of a deported alien after an aggravated
felony conviction, in violation of 8 U.S.C. § 1326(a). The
district court sentenced Diaz to twenty-four months’
imprisonment. Diaz timely appealed. The district court
increased Diaz’s offense level under U.S. Sentencing Guidelines
Manual § 2L1.2(b)(1)(A). This provision calls for a sixteen-
level enhancement if the defendant was deported after he was
convicted of a crime of violence. The district court found that
Diaz’s prior Maryland second-degree assault conviction qualified
as a crime of violence using the modified categorical approach.
Diaz challenges this conclusion on appeal.
After the parties submitted their briefs in this case, we
decided United States v. Royal, 731 F.3d 333 (4th Cir. 2013),
which holds that Maryland’s second-degree assault statute is
indivisible and, under Descamps v. United States, 133 S. Ct.
2276 (2013), not amenable to a modified categorical analysis in
determining whether a conviction under that statute qualified as
a “crime of violence.” Accordingly, we vacate and remand for
reconsideration in light of Royal.
VACATED AND REMANDED
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