United States v. Andino-Valenzulea , 314 F. App'x 700 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 13, 2009
No. 08-30418
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
LUIS ANDINO-VALENZULEA, also known as Luis Andino-Valenzuela, also
known as Luis Andino, also known as Marcel Borfirio, also known as Porfilio
Trujullio-Jardin
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:07-CR-376-1
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Luis Andino-Valenzulea pled guilty to violating 8 U.S.C. § 1326 by illegally
reentering the United States following deportation. After enhancing Andino-
Valenzulea’s offense level by 16 levels because of his prior conviction for
aggravated battery under Georgia law, the district court sentenced Andino-
Valenzulea to 46 months of imprisonment.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 08-30418
On appeal he contends that his Georgia conviction was not for a crime of
violence within the meaning of U.S.S.G. § 2L1.2(b)(1)(A) because it was neither
for an offense enumerated in that Guideline nor for an offense that has as an
element the use, attempted use, or threatened use of physical force against the
person of another. Andino-Valenzulea asserts that the relevant Georgia statute
requires that the perpetrator achieve certain harmful results but not necessarily
through the use of force. See Ga. Code Ann. § 16-5-24(a). Additionally, Andino-
Valenzulea disputes the government’s contention that aggravated battery under
Georgia law is sufficiently similar to the enumerated offense of aggravated
assault as to constitute a crime of violence.
As Andino-Valenzulea did not object to the enhancement in the district
court, we review for plain error. See United States v. Dupre, 117 F.3d 810, 817
(5th Cir. 1997). The determination of whether the district court plainly erred in
enhancing a sentence depends on “how this court and other courts interpreted
[the Guideline]” at the time of sentencing. United States v. Garcia-Rodriguez,
415 F.3d 452, 455 (5th Cir. 2005).
We have not previously decided whether a sentence may be enhanced on
account of a prior conviction of aggravated battery under Georgia law or whether
the Georgia crime of aggravated battery is sufficiently similar to the enumerated
offense of aggravated assault as to constitute a crime of violence. Nor have the
parties pointed us to any decisions of this court that compel a particular result
in this case, such as decisions construing similar statutes of other states.
Accordingly, given that the law of this circuit was uncertain at the time of
Andino-Valenzulea’s sentencing, any error in enhancing Andino-Valenzulea’s
sentence could not have been plain. Id. at 455-56.
AFFIRMED.
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