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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11874
Non-Argument Calendar
________________________
D.C. Docket No. 2:17-cr-00443-WKW-WC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS SAMAYOA-CASTILLO,
Defendant-Appellant.
________________________
No. 18-11879
Non-Argument Calendar
________________________
D.C. Docket No. 3:15-cr-00192-WKW-CSC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUIS SAMAYOA-CASTILLO,
Defendant-Appellant.
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________________________
Appeals from the United States District Court
for the Middle District of Alabama
________________________
(March 6, 2019)
Before TJOFLAT, MARCUS and JORDAN, Circuit Judges.
PER CURIAM:
Luis Samayoa-Castillo appeals the sentences imposed in 2018, following his
third conviction for illegal reentry, in violation of
8 U.S.C. § 1326(a) and (b)(2)
(“Illegal Reentry Case”), and the revocation of his supervised release (“Revocation
Case”). On appeal, Samayoa-Castillo argues that: (1) the district court erred in
holding that his prior Massachusetts conviction for assault with a dangerous weapon
(“ADW”) qualified as an “aggravated felony” to support the 20-year statutory
maximum sentence provided in § 1326(b)(2); and (2) his total 60-month sentence is
procedurally and substantively unreasonable. After careful review, we affirm.
We review questions of statutory interpretation, including whether an offense
qualifies an aggravated felony, de novo. United States v. Maturin,
499 F.3d 1243,
1245 (11th Cir. 2007). We review the sentence a district court imposes for
“reasonableness,” which “merely asks whether the trial court abused its discretion.”
United States v. Pugh,
515 F.3d 1179, 1189 (11th Cir. 2008) (quotation omitted).
Where a defendant fails to clearly articulate an objection on procedural grounds at
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the time of sentencing, he waives the objection and plain error review applies.
United States v. Zinn,
321 F.3d 1084, 1087 (11th Cir. 2003). To establish plain
error, the defendant must show (1) an error, (2) that is plain, and (3) that affected his
substantial rights. United States v. Turner,
474 F.3d 1265, 1276 (11th Cir. 2007). If
the defendant satisfies these conditions, we may exercise our discretion to recognize
the error only if it seriously affects the fairness, integrity, or public reputation of
judicial proceedings.
Id. We deem arguments not raised by a defendant in his initial
brief to be waived. United States v. Levy,
379 F.3d 1241, 1244 (11th Cir. 2004).
First, we are unpersuaded by Samayoa-Castillo’s claim that his prior
conviction for assault with a dangerous weapon qualified as an aggravated felony
for purposes of § 1326(b)(2). Any alien who has been deported or removed from
the United States, and thereafter is found in the United States, shall be fined or
imprisoned not more than two years, or both.
8 U.S.C. § 1326(a). Notwithstanding
the provisions of § 1326(a), any alien whose removal was subsequent to a conviction
for commission of a felony shall be fined or imprisoned not more than ten years. Id.
§ 1326(b)(1). Any alien described in (a) whose removal was subsequent to a
conviction for the commission of an aggravated felony shall be fined or imprisoned
not more than 20 years. Id. § 1326(b)(2). An “aggravated felony” includes a crime
of violence, as defined in
18 U.S.C. § 16, or a conviction for illegal reentry by an
alien who was previously deported on the basis of an aggravated felony.
Id. §
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1101(a)(43)(F), (O). An alien who has been removed based on a conviction for an
aggravated felony is permanently inadmissible to the United States. See id. §
1182(a)(9)(A)(i).
A crime of violence, for purposes of the illegal reentry statute, is defined 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.”
18 U.S.C. § 16(a). The
definition of a crime of violence under § 16(a) is virtually identical to the definition
of a “violent felony” under the ACCA, as both definitions include any felony offense
that “has as an element the use, attempted use, or threatened use of physical force
against” the person of another. Compare
18 U.S.C. § 16(a), with
18 U.S.C. §
924(e)(2)(B)(i); see also Johnson v. United States,
559 U.S. 133, 140 (2010) (noting
that the definition of crime of violence in § 16 is “very similar” to § 924(e)(2)(B)(i)’s
definition of violent felony).
In Massachusetts, a crime punishable by death or imprisonment in the state
prison is a felony and all other crimes are misdemeanors. M.G.L.A. ch. 274, § 1.
The Massachusetts assault-with-a-dangerous-weapon statute provides, in part, that:
(a) Whoever, by means of a dangerous weapon, commits an assault
upon a person sixty years or older, shall be punished by imprisonment
in the state prison for not more than five years or by a fine of not more
than one thousand dollars or imprisonment in jail for not more than two
and one-half years . . . .
(b) Whoever, by means of a dangerous weapon, commits an assault
upon another shall be punished by imprisonment in the state prison for
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not more than five years or by a fine of not more than one thousand
dollars or imprisonment in jail for not more than two and one-half years.
Id. ch. 265, § 15B. The Massachusetts common law recognizes two theories of
assault: attempted battery and threatened battery. Commonwealth v. Porro,
939
N.E.2d 1157, 1163 (Mass. 2010). The Massachusetts Supreme Judicial Court has
defined battery as “harmful and offensive touching[],” Commonwealth v. Burke,
457 N.E.2d 622, 624 (Mass. 1983), and assault as “either an attempt to use physical
force on another, or as a threat of use of physical force.” Commonwealth v. Gorassi,
733 N.E.2d 106, 110 (Mass. 2000). “The crime of [ADW] adds one additional
element, namely, that the assault was perpetrated by means of a dangerous weapon.”
Commonwealth v. Melton,
763 N.E.2d 1092, 1096 (Mass. 2002).
While our Court has not resolved whether a conviction for Massachusetts
ADW constitutes a crime of violence under
18 U.S.C. § 16(a), the First Circuit has
held that a prior Massachusetts ADW conviction qualifies as a predicate violent
felony under the ACCA. See United States v. Am,
564 F.3d 25, 33 (1st Cir. 2009);
United States v. Whindleton,
797 F.3d 105, 112-13 (1st Cir. 2015). In Am, the First
Circuit rejected a defendant’s argument that his prior conviction for assault with a
knife did not qualify as a predicate offense under the ACCA because the
Massachusetts ADW statute lacked an express element requiring force.
564 F.3d at
33. The First Circuit held that, “[b]y its terms, the Massachusetts [ADW] statute . .
. which criminalizes an assault upon another by means of a dangerous weapon has
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as an element the use, attempted use, or threatened use of physical force as required
by ACCA.”
Id. (quotations omitted); see also Whindleton,
797 F.3d 105, 112-13
(1st Cir. 2015) (holding that a defendant’s prior conviction under the Massachusetts
ADW statute qualified as a violent felony for purposes of the ACCA).
For starters, although Samayoa-Castillo was initially charged with assault and
battery with a dangerous weapon (“ABDW”), M.G.L.A. ch. 265, § 15A, the record
shows that he was ultimately convicted of the amended charge of ADW, M.G.L.A.
ch. 265, § 15B, which has different elements and case law. On appeal, Samayoa-
Castillo continues to refer to his prior conviction as a conviction under
Massachusetts’s ABDW statute. This means that Samayoa-Castillo has arguably
waived any argument challenging the application of the 20-year statutory maximum
term of imprisonment under § 1326 by arguing on appeal that his prior
Massachusetts ABDW is not a qualifying aggravated felony conviction, instead of
making an argument concerning ADW. See Levy, 379 F.3d at 1244.
But, in any event, even if we were to consider the merits of his claim, it would
fail. The United States Court of Appeals for the First Circuit, which includes
Massachusetts, has squarely held that a Massachusetts ADW conviction constitutes
a crime of violence under § 16(a), and we are persuaded by these decisions. See
18
U.S.C. § 16(a); Whindleton, 797 F.3d at 112-13; Am,
564 F.3d at 33. Moreover, to
the extent Samayoa-Castillo says the ADW statute does not require the intentional
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use of force needed to qualify as a crime of violence, the First Circuit has disagreed,
holding that the ADW statute requires the defendant to have acted intentionally. Am,
564 F.3d at 33-34. Thus, applying persuasive First Circuit precedent, we conclude
that the district court correctly held that Samayoa-Castillo’s 1995 Massachusetts
ADW conviction constitutes an aggravated felony for purposes of § 1326.
We also reject Samayoa-Castillo’s claim that his sentence is unreasonable. In
reviewing sentences for reasonableness, we perform two steps. Pugh,
515 F.3d at
1190. First, we “‘ensure that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately explain
the chosen sentence -- including an explanation for any deviation from the
Guidelines range.’” Id. (quoting Gall v. United States,
552 U.S. 38, 51 (2007)).1 If
a district court selects a sentence based on a fact for which no record evidence exists,
that finding is clearly erroneous, and the sentence is procedurally unreasonable.
United States v. Barner,
572 F.3d 1239, 1251 (11th Cir. 2009). However, the district
1
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to protect
the public; (5) the need to provide the defendant with educational or vocational training or medical
care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent
policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing
disparities; and (10) the need to provide restitution to victims.
18 U.S.C. § 3553(a).
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court need not explicitly say that it considered the § 3553(a) factors, as long as the
court’s comments show it considered the factors when imposing sentence. United
States v. Dorman,
488 F.3d 936, 944 (11th Cir. 2007).
Where the district court procedurally errs, “a remand is appropriate unless the
reviewing court concludes, on the record as a whole, that the error was harmless,
i.e., that the error did not affect the district court’s selection of the sentence
imposed.” Williams v. United States,
503 U.S. 193, 203 (1992) (addressing proper
standard of review when district court misapplies the Guidelines). Therefore, where
the district court relies on both proper and improper factors in making a sentencing
decision, “we may affirm so long as the record reflects that the improper factors did
not affect or influence the district court’s conclusion.” United States v. Kendrick,
22 F.3d 1066, 1069 (11th Cir. 1994).
If we conclude that the district court did not procedurally err, we consider the
“substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard,” based on the “totality of the circumstances.” Pugh,
515 F.3d at 1190
(quotation omitted). “[W]e will not second guess the weight (or lack thereof) that
the [court] accorded to a given [§ 3553(a)] factor . . . as long as the sentence
ultimately imposed is reasonable in light of all the circumstances presented.” United
States v. Snipes,
611 F.3d 855, 872 (11th Cir. 2010) (quotation, alteration and
emphasis omitted). However, a court may abuse its discretion if it (1) fails to
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consider relevant factors that are due significant weight, (2) gives an improper or
irrelevant factor significant weight, or (3) commits a clear error of judgment by
balancing a proper factor unreasonably. United States v. Irey,
612 F.3d 1160, 1189
(11th Cir. 2010) (en banc). Also, a court’s unjustified reliance on any one § 3553(a)
factor may be a symptom of an unreasonable sentence. United States v. Crisp,
454
F.3d 1285, 1292 (11th Cir. 2006). A sentence imposed well below the statutory
maximum is an indicator of a reasonable sentence. See United States v. Gonzalez,
550 F.3d 1319, 1324 (11th Cir. 2008).
“If, after correctly calculating the guidelines range, a district court decides
that a sentence outside that range is appropriate, it must consider the extent of the
deviation and ensure that the justification is sufficiently compelling to support the
degree of the variance.” United States v. Williams,
526 F.3d 1312, 1322 (11th Cir.
2008) (quotations omitted). If the district court imposes a sentence outside the
guidelines range, “[we] may consider the deviation, but must give due deference to
the district court’s decision that the § 3553(a) factors, on a whole, justify the extent
of the variance.” Id. (quotations omitted). A district court is “free to consider any
information relevant to [a defendant’s] background, character, and conduct in
imposing an upward variance.” United States v. Tome,
611 F.3d 1371, 1379 (11th
Cir. 2010) (quotations omitted). The party challenging a sentence has the burden of
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showing that the sentence is unreasonable. United States v. Barrington,
648 F.3d
1178, 1204 (11th Cir. 2011).
“Under
18 U.S.C. § 3583(e), a district court may, upon finding by a
preponderance of the evidence that a defendant has violated a condition of
supervised release, revoke the term of supervised release and impose a term of
imprisonment after considering certain factors in
18 U.S.C. § 3553(a).” United
States v. Sweeting,
437 F.3d 1105, 1107 (11th Cir. 2006) (per curiam). If a district
court revokes a term of supervision, it may require the defendant to serve in prison
all or part of the term of release that is statutorily authorized for the offense that
resulted in the term of release.
18 U.S.C. § 3583(e)(3). A prison term of up to two
years may be imposed if the underlying offense is a Class C felony.
Id. Violations
of
8 U.S.C. § 1326(a), (b)(2) are Class C felonies. See
id. § 3559(a)(3);
8 U.S.C. §
1326(a), (b)(2).
Here, Samayoa-Castillo has not shown that his total 60-month sentence -- in
which the district court imposed 36 months’ imprisonment in the Illegal Reentry
Case, followed by 24 months’ imprisonment in the Revocation Case -- is either
procedurally or substantively unreasonable. As for procedural reasonableness, it
appears that the district court relied on an unrevised version of the presentence
investigation report in the Revocation Case, and incorrectly said that Samayoa-
Castillo’s advisory guideline range at his original sentencing proceeding in 2016 was
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27 to 33 months’ imprisonment, even though the correct guideline range was 15 to
21 months’ imprisonment. Accordingly, when the district court noted in 2018 that
it was now imposing a 24-month sentence in the Revocation Case because it had
given Samayoa-Castillo “a significant variance downward when [at the original
2016 sentencing hearing, it] complied with [the parties’] request for a one year and
one day sentence in the [Revocation] [C]ase when the guidelines were 27 to 33
months,” it relied on the incorrect guideline range. See Barner,
572 F.3d at 1251.
However, the district court’s reliance on the incorrect guideline range was
harmless. See Williams,
503 U.S. at 203. The record shows that the district court
imposed a 24-month sentence in the 2018 Revocation Case because it concluded that
another below-guideline sentence was unwarranted. The district court, bothered by
Samayoa-Castillo’s record of illegal reentry after removal, explained that it had
imposed a lighter sentence in 2016, following his second conviction for illegal
reentry, because he had previously served a sentence of 100 months’ imprisonment
after his first illegal reentry conviction in 2002 and it “thought that . . . giv[ing] a
lighter sentence after having served a 100-month sentence would be sufficient
incentive for [Samayoa-Castillo] not to reenter the country illegally.” These
comments reveal that the district court did not base the 24-month sentence on the
extent of the downward variance that it erroneously believed Samayoa-Castillo
received in 2016. Rather, the district court calculated the 2018 sentence based on its
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findings that Samayoa-Castillo remained undeterred from entering the country
illegally, despite having served both long and short sentences on his prior illegal
reentry convictions, and that an upward variance upon the revocation of his
supervised release was necessary to adequately address his record of non-
compliance. See Kendrick,
22 F.3d at 1069.
Nor can we say that Samayoa-Castillo’s 24-month sentence in the Revocation
Case is otherwise procedurally unreasonable. As the record reveals, the district court
considered the relevant § 3553(a) factors and adequately explained that a
consecutive sentence was necessary to deter Samayoa-Castillo from further criminal
conduct since he had violated his supervised release despite receiving a lenient
sentence in 2016. See
18 U.S.C. §§ 3553(a)(2), 3583(e); Dorman,
488 F.3d at 944;
Sweeting,
437 F.3d at 1107.
Samayoa-Castillo’s sentence is also substantively reasonable. Samayoa-
Castillo failed to demonstrate that the district court either ignored the § 3553(a)
factors or committed a clear error of judgment in weighing the relevant § 3553(a)
factors. See Irey,
612 F.3d at 1189. The district court listened to the parties’
arguments and acknowledged Samayoa-Castillo’s family-based motivations for
wanting to return to the United States. The district court explained that it had
considered the seriousness of the offense, Samayoa-Castillo’s criminal history, and
the need for the sentence imposed to promote deterrence, especially since the
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sentences imposed following his prior illegal reentry convictions failed to adequately
deter him from reentering the country illegally. See
id. § 3553(a)(1), (a)(2)(A)-(B).
Further, it was entirely within the district court’s discretion to place emphasis on
Samayoa-Castillo’s criminal history, illegal reentry convictions, and supervised
release violations and find that Samayoa-Castillo’s mitigating evidence was
insufficient to impose concurrent sentences. See Snipes,
611 F.3d at 872. Moreover,
Samayoa-Castillo’s 36-month sentence in the Illegal Reentry Case was also well
below the statutory maximum penalty of 20 years’ imprisonment under
18 U.S.C. §
1326(b)(2), suggesting substantive reasonableness. See
18 U.S.C. § 1326(b)(2);
Gonzalez,
550 F.3d at 1324. Accordingly, Samayoa-Castillo has not shown that his
total 60-month sentence is procedurally or substantively unreasonable.
AFFIRMED.
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