United States v. Pablo Calvillo-Palacios , 860 F.3d 1285 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10039
Plaintiff-Appellee,
D.C. No.
v. 4:14-cr-01981-
JGZ-LAB-1
PABLO CALVILLO-PALACIOS,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 16-10077
Plaintiff-Appellee,
D.C. No.
v. 4:15-cr-50035-
JGZ-LAB-1
PABLO CALVILLO-PALACIOS,
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Submitted May 11, 2017 *
Pasadena, California
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 UNITED STATES V. CALVILLO-PALACIOS
Filed June 28, 2017
Before: Diarmuid F. O’Scannlain and John B. Owens,
Circuit Judges, and Dana L. Christensen,** Chief District
Judge.
Opinion by Judge O’Scannlain;
Concurrence by Judge Owens
SUMMARY ***
Criminal Law
The panel affirmed a sentence for illegal reentry after
deportation, and dismissed an appeal from the revocation of
supervised release and the revocation sentence.
The defendant contended that the district court erred by
applying a 16-level crime-of-violence enhancement to his
illegal reentry sentence pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) based on his prior conviction for
aggravated assault under Texas Penal Code §§ 22.01 and
22.02. The parties did not dispute that the defendant
committed a simple assault in violation of § 22.01(a)(2),
which became aggravated assault by application of
§ 22.02(a). The panel held that aggravated assault is a crime
of violence under the element prong of § 2L1.2(b)(1)(A)(ii)
The Honorable Dana L. Christensen, United States Chief District
**
Judge for the District of Montana, sitting by designation.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. CALVILLO-PALACIOS 3
because both means of committing aggravated assault—(1)
causing serious bodily injury and (2) using or exhibiting a
deadly weapon—entail the use of violent, physical force.
The panel held that the defendant waived his ability to
contest the supervised release revocation and the revocation
sentence by raising no issue and arguments in this regard in
his opening brief.
Concurring, Judge Owens referred the reader to his
concurrence in United States v. Perez-Silvan, Nos. 16-
10177, 16-10205 (9th Cir. 2017).
COUNSEL
Myrna R. Beards, Law Office of Myrna R. Beards, Tucson,
Arizona, for Defendant-Appellant.
Erica Anderson McCallum, Assistant United States
Attorney; Robert L. Miskell, Appellate Chief; United States
Attorney’s Office, Tucson, Arizona; for Plaintiff-Appellee.
4 UNITED STATES V. CALVILLO-PALACIOS
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether a “crime of violence”
sentencing enhancement to a sentence for illegal reentry
after deportation can be based on a prior Texas state
conviction for aggravated assault.
I
Pablo Calvillo-Palacios, a native and citizen of Mexico,
was indicted in the District of Arizona for illegal reentry
after deportation in violation of 8 U.S.C. § 1326, enhanced
by § 1326(b)(2), on December 3, 2014. He had been found
walking north of the Mexican border near Douglas, Arizona
after having been deported from Laredo, Texas. He pled
guilty to the indictment without a plea agreement.
On March 3, 2015, the United States transferred a motion
(previously filed in the Southern District of Texas) to the
District of Arizona to revoke Calvillo-Palacios’s supervised
release for a previous illegal reentry conviction 1 on the
grounds that he had violated the terms of supervision.
Calvillo-Palacios appeared with counsel and admitted to the
allegations contained in the government’s motion to revoke.
At sentencing, the district court found that Calvillo-
Palacios’s advisory guideline range was 70–87 months’
imprisonment for the illegal reentry violation, based on a
criminal history category of V and a total offense level of
1
On June 15, 2009, Calvillo-Palacios pled guilty in the Southern
District of Texas to illegal reentry in violation of 8 U.S.C. § 1326(b)(2).
He was sentenced to a term of imprisonment of three years followed by
three years of supervised release.
UNITED STATES V. CALVILLO-PALACIOS 5
twenty-one, which was calculated using a base offense level
of eight with a sixteen-level prior conviction enhancement,
and a three-level reduction for acceptance of responsibility.
The sixteen-level sentencing enhancement, was pursuant to
U.S.S.G. § 2L1.2(b)(1)(A)(ii) which applies if a defendant
was deported after, inter alia, “a conviction for a felony that
is . . . a crime of violence.” 2 Calvillo-Palacios’s
enhancement was based on his prior felony aggravated
assault conviction in 2005 in violation of Texas Penal Code
§§ 22.02 and 22.01.
Calvillo-Palacios contested the sixteen-level
enhancement, maintaining that the Texas aggravated assault
statute of conviction was overbroad and thus could not
qualify as a crime of violence. The district court rejected his
argument and imposed the sixteen-level enhancement. After
granting a downward variance, it sentenced Calvillo-
Palacios to fifty-four months of imprisonment followed by
three years of supervised release for the illegal reentry
violation.
For the supervised release violation, the district court
revoked Calvillo-Palacios’s supervised release and
sentenced him to an additional twelve months imprisonment,
with six months to run concurrently and six months to run
consecutively to the illegal reentry violation.
Calvillo-Palacios timely appealed.
2
Calvillo-Palacios was sentenced under the 2015 version of the
Sentencing Guidelines, so all references to the Guidelines in this opinion
refer to that version. The Guidelines have since been amended, removing
subsection § 2L1.2(b)(1)(A)(ii), and now base enhancements on the
length of a prior sentence. See U.S.S.G. § 2L1.2(b) (2016).
6 UNITED STATES V. CALVILLO-PALACIOS
II
Calvillo-Palacios contends that the district court erred by
concluding that his conviction for aggravated assault under
Texas Penal Code §§ 22.01 and 22.02 was a crime of
violence for purposes of U.S.S.G. § 2L1.2(b)(1)(A)(ii). 3
A
To determine whether a prior state conviction qualifies
as a crime of violence, we employ the categorical approach
set out by the Supreme Court in Taylor v. United States,
495 U.S. 575, 602 (1990). Thus, we ask whether the statute
of conviction “is categorically a crime of violence by
assessing whether the ‘full range of conduct covered by [the
statute] falls within the meaning of that term.’” United States
v. Grajeda, 581 F.3d 1186, 1189 (9th Cir. 2009) (alteration
in original) (quoting United States v. Juvenile Female,
566 F.3d 943, 946 (9th Cir. 2009)). A statute of conviction
that punishes conduct that is not covered by the federal
definition of a “crime of violence” cannot be a “crime of
violence.” United States v. Benally, 843 F.3d 350, 352 (9th
Cir. 2016).
3
We review Calvillo-Palacios’s sentence for plain error. Although
Calvillo-Palacios objected to the application of the sixteen-level crime
of violence enhancement below, he did so on the basis of a different
theory (arguing that the statute was indivisible and overbroad because it
contained a mental state of recklessness). See United States v. Pimentel-
Flores, 339 F.3d 959, 967 (9th Cir. 2003) (“[W]here a party fails to raise
an objection below, an appellate court may entertain such an objection
‘when plain error has occurred and an injustice might otherwise result.’”
(quoting United States v. Flores-Payon, 942 F.2d 556, 558 (9th Cir.
1991))). Nonetheless, whether a prior conviction qualifies as a crime of
violence under U.S.S.G. § 2L1.2(b) is reviewed de novo. United States
v. Guzman-Mata, 579 F.3d 1065, 1068 (9th Cir. 2009).
UNITED STATES V. CALVILLO-PALACIOS 7
If the statute does not qualify as a categorical “crime of
violence,” we ask whether it is “a so-called ‘divisible
statute.’” Descamps v. United States, 133 S. Ct. 2276, 2281
(2014). A statute is “divisible” if it lists “multiple alternative
elements” as opposed to “various factual means of
committing a single element.” Mathis v. United States,
136 S. Ct. 2243, 2249 (2016).
Where a statute is divisible, we apply the “modified
categorical approach” under which we “consult a limited
class of documents, such as indictments and jury
instructions, to determine which alternative element formed
the basis of the defendant’s prior conviction.” Descamps,
133 S. Ct. at 2281. Then we “do what the categorical
approach demands: compare the elements of the crime of
conviction (including the alternative element used in the
case) with the elements of the generic crime.” Id.
B
In relevant part, Texas Penal Code § 22.02, which
defines aggravated assault, provides that:
(a) A person commits an offense if the
person commits assault as defined in
§ 22.01 and the person:
(1) causes serious bodily injury to
another, including the person’s
spouse; or
(2) uses or exhibits a deadly weapon
during the commission of the assault.
And, Texas Penal Code § 22.01 defines simple assault
such that:
8 UNITED STATES V. CALVILLO-PALACIOS
(a) A person commits an offense if the
person:
(1) intentionally, knowingly, or
recklessly causes bodily injury to
another, including the person’s
spouse;
(2) intentionally or knowingly threatens
another with imminent bodily injury,
including the person’s spouse; or
(3) intentionally or knowingly causes
physical contact with another when
the persons knows or should
reasonably believe that the other will
regard the contact as offensive or
provocative.
The Texas Court of Criminal Appeals has held that
§ 22.02(a) provides two “means of committing aggravated
bodily assault.” Landrian v. State, 268 S.W.3d 532, 538
(Tex. Crim. App. 2008) (emphasis added). In contrast,
§ 22.01(a) lists “three separate and distinct assaultive
crimes.” Id. at 536; see also Marinos v. State, 186 S.W.3d
167, 174–75 (Tex. App. 2006). Thus, as the parties agree,
under Mathis, 136 S. Ct. at 2256, § 22.01(a) is divisible, but
§ 22.02(a) is indivisible.
Turning to the charging documents for Calvillo-
Palacios’s aggravated assault conviction, the indictment
alleged that he “intentionally and knowingly threaten[ed]
[the victim] with imminent bodily injury . . . and did use and
exhibit a deadly weapon to-wit: a FIREARM AND A
KNIFE, during the commission of the assault.” Thus, there
UNITED STATES V. CALVILLO-PALACIOS 9
is no dispute that Calvillo-Palacios committed a simple
assault in violation of § 22.01(a)(2) (“intentionally or
knowingly threaten[ing] another with imminent bodily
injury”), which became aggravated assault by application of
§ 22.02(a).
C
While the parties do not debate the contours of Calvillo-
Palacios’s statute of conviction, they do contest whether
§ 22.02(a) qualifies as a crime of violence. 4 Under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii), a conviction is a crime of violence “if
it either (1) constitutes one of the crimes listed in the
‘enumerated offense’ prong of the definition, or (2) ‘has an
element the use, attempted use, or threatened use of physical
force against the person of another’ under the definition’s
second clause, referred to as the ‘element’ prong or test.”
Grajeda, 581 F.3d at 1189–90 (quoting U.S.S.G. § 2L1.2
cmt. n.1(B)(iii)).
1
Calvillo-Palacios argues that by its plain language the
Texas statute fails the element prong because it does not
require “the use, attempted use, or threatened use of physical
force against the person of another.” § 2L1.2 cmt. n.1(B)(iii).
4
At the outset, we reject the government’s contention that Calvillo-
Palacios conceded that his aggravated assault conviction was a crime of
violence. Calvillo-Palacios vigorously contested the application of the
sixteen-level crime of violence sentencing enhancement (albeit on
different grounds) in district court, and when he acknowledged that an
eight-level enhancement might apply, it is not clear what the basis for
this concession was. Further, this court is “not bound by a party’s
concession as to the meaning of the law.” United States v. Ogles,
440 F.3d 1095, 1099 (9th Cir. 2006) (en banc).
10 UNITED STATES V. CALVILLO-PALACIOS
Texas Penal Code § 22.01(a)(2) penalizes “intentionally or
knowingly threatening another with imminent bodily
injury,” and Texas Penal Code § 22.02(a)(1) penalizes the
causation of “serious bodily injury,” but neither provision
says anything explicitly about the use of force. (emphasis
added). Calvillo-Palacios maintains that the terms “bodily
injury” and “physical force” are “not synonymous or
interchangeable” and thus his statute of conviction cannot
qualify as a crime of violence.
While Calvillo-Palacios’s argument might be persuasive
in other circuits, 5 we have already rejected it, repeatedly
holding that threat and assault statutes necessarily involve
the use of violent, physical force. Thus, in a case remarkably
similar to this one, United States v. Juvenile Female,
566 F.3d at 947–48, we concluded that 18 U.S.C. § 111(b),
which provided a harsher penalty for “assault involving a
deadly or dangerous weapon or resulting in bodily injury,”
was a crime of violence under 18 U.S.C. § 16(a). 6 Id. at 947
(quoting United States v. Vallery, 437 F.3d 626, 630 (7th Cir.
2006)). We explained that a defendant charged with “assault
resulting in bodily injury, necessarily must have committed
5
Calvillo-Palacios is correct that other circuits have found that
statutes which criminalize causation of bodily injury are not crimes of
violence because someone could be injured without the use of physical
force—poisoning is a prototypical example. See, e.g., Whyte v. Lynch,
807 F.3d 463, 467–72 (1st Cir. 2015); United States v. Torres-Miguel,
701 F.3d 165, 167–71 (4th Cir. 2012); United States v. Villegas-
Hernandez, 468 F.3d 874, 879–82 (5th Cir. 2006); United States v.
Perez-Vargas, 414 F.3d 1282, 1285–87 (10th Cir. 2005); Chrzanoski v.
Ashcroft, 327 F.3d 188, 192–96 (2d Cir. 2003).
6
18 U.S.C. § 16(a) defines a “crime of violence” as “an offense that
has an element the use, attempted use, or threatened use of physical force
against the person or property of another”—an almost identical
definition to the one provided in U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).
UNITED STATES V. CALVILLO-PALACIOS 11
an act of force in causing the injury.” Id. at 948 (emphasis
added).
Similarly, in United States v. Villavicencio-Burruel,
608 F.3d 556, 561–63 (9th Cir. 2010), we concluded that
California Penal Code § 422, which criminalized “willfully
threaten[ing] to commit a crime which will result in death or
great bodily injury to another person,” was categorically a
crime of violence under § 2L1.2(b)(1)(A)(ii). In United
States v. Melchor-Meceno, 620 F.3d 1180, 1184 (9th Cir.
2010), we held that Colorado Revised Statutes § 18-3-206,
which penalized “knowingly plac[ing] or attempt[ing] to
place another person in fear of imminent serious bodily
injury” by “any threat or physical action,” was a crime of
violence “under the element prong of U.S.S.G. § 2L1.2.” We
observed that “[i]t is impossible to conceive of a situation
involving fear of imminent serious bodily injury without a
threat of force.” Id. at 1185. Likewise, in United States v.
Cabrera-Perez, 751 F.3d 1000, 1007 (9th Cir. 2014), we
determined that Arizona Revised Statutes § 13-1203(A)(2),
was a crime of violence under 18 U.S.C. § 16(a). We
reasoned that “[i]ntentionally placing another person in
reasonable apprehension of imminent physical injury,” “has
as an element ‘the use, attempted use, or threatened use of
physical force against the person or property of another.’”
Id. (quoting 18 U.S.C. § 16(a)). Most recently, in Arellano
Hernandez v. Lynch, 831 F.3d 1127, 1130–32 (9th Cir.
2016), we reaffirmed that California Penal Code § 422 is a
crime of violence, explicitly rejecting the reasoning of the
Fourth and Fifth Circuits to the contrary. 7
7
Indeed, our holdings in Arellano Hernandez and Villavicencio-
Burruel are in direct conflict with the Fourth Circuit’s holding in Torres-
12 UNITED STATES V. CALVILLO-PALACIOS
Even more importantly, Arellano Hernandez noted the
Supreme Court’s reasoning in United States v. Castleman,
134 S. Ct. 1405 (2014), which disposes of the idea that one
could knowingly or intentionally cause bodily injury without
the use of some type of physical force. 8 831 F.3d at 1131.
Castleman explicitly rejected the poison hypothetical
frequently employed by other circuits—the notion that one
could cause bodily harm without using physical force by
administering poison. See 134 S. Ct. at 1415. According to
the Court, “‘use of force’ . . . is the act of employing poison
knowingly as a device to cause physical harm.” Id. It “does
not matter,” that “the harm occurs indirectly, rather than
directly (as with a kick or punch).” Id. “‘[B]odily injury’
must result from ‘physical force.’” Id. at 1414.
Although the Supreme Court reserved the question of
whether bodily injury requires violent, physical force of the
type required by U.S.S.G. § 2L1.2, Castleman, 134 S. Ct. at
1413, our court has already addressed the issue—in the
context of assault statutes, bodily injury entails the use of
Miguel, 701 F.3d at 167–71, which concluded that California Penal Code
§ 422 is not a crime of violence.
8
Castleman dealt with the common law definition of physical force,
which can be satisfied by a mere touching. Id. at 1413. In Johnson v.
United States, 559 U.S. 133, 140 (2010), the Court held that in the
context of 18 U.S.C. § 16 (and thus U.S.S.G. § 2L1.2) “‘physical force’
means violent force—that is, force capable of causing physical pain or
injury to another person,” more than an offensive touch. In Castleman
the Court explicitly declined to reach the question of whether “the
causation of bodily injury necessarily entails violent force.” 134 S. Ct. at
1413. Castleman soundly rejects the idea, however, that bodily injury
can occur without some type of physical force. Id. at 1414. And taken
together, Castleman and Johnson might appear to suggest that bodily
injury entails violent force.
UNITED STATES V. CALVILLO-PALACIOS 13
violent, physical force as Juvenile Female, Villavicencio-
Burruel, Melchor-Meceno, Cabrera-Perez, and Arellano
Hernandez demonstrate. 9
2
Calvillo-Palacios next argues that Texas law defines
bodily injury in such a way that it does not require the
violent, physical force necessitated by Johnson, 559 U.S. at
9
Calvillo-Palacios’s reliance on the Supreme Court’s opinion in
Leocal v. Ashcroft, 543 U.S. 1 (2004), is not to the contrary. While
Leocal made it plain that merely causing “serious bodily injury” is not
enough to make an act a crime of violence, it reached this conclusion on
the basis of mens rea. Id. at 9–11. The Court held that accidental or
negligent behavior is not sufficient to violate 18 U.S.C. § 16(a) (and thus
U.S.S.G. § 2L1.2). Id. at 9–10. There is no question that the Calvillo-
Palacios’s statute of conviction, Texas Penal Code § 22.01(a)(2), applies
only to intentional or knowing behavior.
Notably, outside the context of knowing or intentional behavior, we
have found that statutes which penalize the causation of bodily injury do
not qualify as crimes of violence. See United States v. Hernandez-
Castellanos, 287 F.3d 876, 879–81 (9th Cir. 2002) (determining that
Arizona statute which criminalized “recklessly endangering another
person with substantial risk of imminent death or physical injury” did
not require “a risk that physical force will be used against another” under
18 U.S.C. 16(b)); see also United States v. Lopez-Patino, 391 F.3d 1034,
1037–38 (9th Cir. 2004) (per curiam) (concluding that Arizona statute
which penalized “caus[ing] a child . . . to suffer physical injury or abuse”
was overbroad for purposes of U.S.S.G. § 2L1.2(b)(1)(A) but finding
under the modified categorical approach that intentional or knowing
conduct in violation of the statute was a crime of violence).
While one could read Hernandez-Castellanos and Lopez-Patino as
supporting the proposition that bodily injury can be caused without the
use of violent, physical force, the endangerment and child abuse statutes
at issue in those cases are distinct from the threat and assault statutes at
issue in Juvenile Female, Villavicencio-Burruel, Melchor-Meceno,
Cabrera-Perez, Arellano Hernandez, and this case.
14 UNITED STATES V. CALVILLO-PALACIOS
140. Texas Penal Code § 1.07(a)(8) defines “[b]odily injury”
as “physical pain, illness, or any impairment of physical
condition.” Calvillo-Palacios maintains that the last
definition, “impairment of physical condition,” could occur
without violent, physical force.
Yet, even assuming that Calvillo-Palacios is correct, he
ignores the fact that he was convicted not merely of simple
assault in violation of Texas Penal Code § 22.01(a)(2) but
also of aggravated assault in violation of Texas Penal Code
§ 22.02(a).
Section 22.02(a)(1) requires an assault that “causes
serious bodily injury to another.” (emphasis added). Texas
Penal Code § 1.07(a)(46) defines “[s]erious bodily injury”
as “bodily injury that creates a substantial risk of death or
that causes death, serious permanent disfigurement, or
protracted loss or impairment of the function of any bodily
member or organ.” Obviously, such injury is significantly
greater than mere “impairment of physical condition.” Since
under Johnson, 559 U.S. at 143, a simple slap can qualify as
violent, physical force, there is no question that a simple
assault which is aggravated by means of serious bodily
injury under § 22.02(a)(1) is a crime of violence.
3
Calvillo-Palacios also contends that an aggravated
assault committed by “use or exhibition of a deadly weapon”
under § 22.02(a)(2) is not a crime of violence. However, we
have repeatedly found that threats involving deadly weapons
qualify as crimes of violence.
For example, in Camacho-Cruz v. Holder, 621 F.3d 941
(9th Cir. 2010), we explained that “[a]ssault with a deadly
weapon . . . necessarily entails the threatened use of force
UNITED STATES V. CALVILLO-PALACIOS 15
against the person of another.” Id. at 943 (emphasis added).
Thus, we held that Nevada Revised Statutes § 200.471,
which prohibits “intentionally placing another person in
reasonable apprehension of immediate bodily harm” and
adds a penalty enhancement “[i]f the assault is made with the
use of a deadly weapon or the present ability to use a deadly
weapon,” is categorically a crime of violence under
18 U.S.C. § 16(a). Id. at 942–43.
Camacho-Cruz soundly rejected the idea that one must
actually harm someone with a deadly weapon in order for
there to be violent, physical force:
[T]he defendant, by using a deadly weapon,
intentionally create[s] in another person a
reasonable fear of immediate bodily harm.
Contrary to Petitioner’s assertions, whether
the defendant actually intends to harm the
victim or whether any harm does, in fact,
result is irrelevant. Section 16(a) does not
require an actual application of force or an
injury to the victim. Rather, the threatened
use of force is sufficient for a crime to
constitute a crime of violence.
Id. at 943; see also Juvenile Female, 566 F.3d at 947–48
(holding that a “threat to inflict injury upon the person of
another,” which involves “a deadly or dangerous weapon,”
under 18 U.S.C. § 111(b) “always ‘threaten[s] [the] use of
physical force’” (quoting United States v. Chapman,
528 F.3d 1215, 1219–20 (9th Cir. 2008); 18 U.S.C.
§ 16(a))).
While Calvillo-Palacios further attempts to distinguish
§ 22.02(a)(2) by pointing out that it penalizes “using or
exhibiting a deadly weapon,” he misconstrues Texas law.
16 UNITED STATES V. CALVILLO-PALACIOS
Calvillo-Palacios maintains that “exhibit” is broader than
“use.” But, interpreting § 22.02(a)(2), the Texas Court of
Appeals has remarked that while one “can use a deadly
weapon without exhibiting it,” “it is doubtful one can exhibit
a deadly weapon during the commission of a felony without
using it.” Campbell v. State, 128 S.W.3d 662, 672 (Tex. App.
2004) (quoting Patterson v. State, 769 S.W.2d 938, 941
(Tex. Crim. App. 1989) (en banc)), overruled on other
grounds by Brumbalow v. State, 432 S.W.3d 348 (Tex. App.
2014). Thus, Calvillo-Palacios’s attempt to differentiate
between “use” and “exhibit” fails.
There is no question that the second means of
committing an aggravated assault under § 22.02(a)—using
or exhibiting a deadly weapon—constitutes a crime of
violence.
D
Thus, although § 22.02(a) is indivisible, both means of
committing an aggravated assault under this subsection—
(1) causing serious bodily injury or (2) using or exhibiting a
deadly weapon—entail the use of violent, physical force.
Aggravated assault under Texas Penal Code § 22.02(a) is a
crime of violence for purposes of U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). 10
III
Although Calvillo-Palacios also appealed the district
court’s revocation of his supervised release and the sentence
10
Because we hold that Texas Penal Code § 22.02(a) is a crime of
violence under the element prong, there is no need to address the
government’s argument that it is also a crime of violence under the
enumerated offense prong.
UNITED STATES V. CALVILLO-PALACIOS 17
imposed for violating the terms of this release (No. 16-
10077), he raised no issue and no arguments in his opening
brief in this regard. Federal Rule of Appellate Procedure
28(a) requires a party’s opening brief to contain “a statement
of the issues presented for review,” and an “argument . . .
[with] appellant’s contentions and the reasons for them.”
Thus, Calvillo-Palacios has waived his ability to contest the
district court’s revocation of his supervised release, see
Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We
review only issues which are argued specifically and
distinctly in a party’s opening brief.”), and the appeal must
be dismissed. See Ninth Circuit Rule 42-1.
IV
No. 16-10039 is AFFIRMED and No. 16-10077 is
DISMISSED.
OWENS, Circuit Judge, concurring:
I fully join Judge O’Scannlain’s opinion. I refer the
reader to my concurrence in United States v. Perez-Silvan,
Nos. 16-10177, 16-10205 (9th Cir. 2017).