United States v. Carillo-Pineda , 238 F. App'x 912 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4626
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GUILLERMO CARILLO-PINEDA, a/k/a Martin
Carillo-Cuevas,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Chief
District Judge. (CR-03-227-MU)
Submitted: March 30, 2007 Decided: July 17, 2007
Before MICHAEL, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Harold Cogdell, Jr., LAW OFFICES OF HAROLD COGDELL, JR., P.C.,
Charlotte, North Carolina, for Appellant. Anna Mills Wagoner,
United States Attorney, C. Nicks Williams, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Guillermo Carillo-Pineda pled guilty to illegal reentry
by a previously deported alien, in violation of 8 U.S.C. § 1326(b)
(2000), and was sentenced to forty-one months in prison. Carillo-
Pineda now appeals. His attorney has filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), raising one claim
but stating that there are no meritorious grounds for appeal.
Carillo-Pineda was advised of his right to file a pro se
supplemental brief, but did not file such a brief. We affirm.
Carillo-Pineda’s guilty plea was knowingly and
voluntarily entered. Further, the record discloses compliance with
Fed. R. Crim. P. 11. There was a factual basis for the plea, and
Carillo-Pineda readily admitted his guilt. We therefore affirm the
conviction.
Carillo-Pineda’s probation officer assigned a base
offense level of 8, see U.S. Sentencing Guidelines Manual § 2L1.1
(2003). Sixteen levels were added because Carillo-Pineda was
deported after a conviction of a crime of violence. See USSG
§ 2L1.2(b)(1)(A)(ii). Three levels were subtracted for acceptance
of responsibility. See USSG § 3E1.1. His total offense level was
21, his criminal history category was II, and his advisory
guideline range was 41-51 months. The district court sentenced him
to forty-one months in prison.
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Carillo-Pineda contends for the first time on appeal that
his prior conviction in Texas for retaliation does not constitute
a crime of violence as contemplated by USSG § 2L1.2(b)(1)(A)(ii).
Because he did not raise this claim below, our review is for plain
error. See United States v. Olano, 507 U.S. 725, 731-32 (1993).
To establish plain error, Carillo-Pineda must show that an error
occurred, that it was plain, and that it affected his substantial
rights. If Carillo-Pineda establishes plain error, we may
recognize it or not, in our discretion. See id. at 732.
To determine if a crime is a crime of violence, a court
generally looks only to the fact of the conviction and the
statutory definition of the offense. Taylor v. United States, 495
U.S. 575, 602 (1990). In cases where a predicate felony might be
committed with or without the use, attempted use, or threatened use
of force, a court must look to various approved sources to
determine if the prior offense qualifies for an enhancement.
Shepard v. United States, 544 U.S. 12, 20 (2005).1
1
Because there are no cases from this circuit addressing
“crime of violence” under USSG § 2L1.2(b)(1)(A)(ii), we refer to
cases interpreting the Armed Career Criminal Act, 18 U.S.C.
§ 924(e) (2000), which provides for a sentencing enhancement for a
prior conviction that was a “violent felony.” “Violent felony”
under the ACCA and “crime of violence” under § 2L1.2(b)(1)(A)(ii)
include certain specific crimes as well as any felony that “has as
an element the use, attempted use, or threatened use of physical
force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(I);
USSG § 2L1.2 cmt. n.1(B)(iii).
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In Texas, retaliation does not necessarily involve the
use of force against the person,2 and the district court therefore
had to look beyond the fact of conviction and the relevant statute
to decide if the enhancement was warranted. The district court
applied the enhancement based on the description of the offense in
the presentence report. That description appears to have been
taken from a police report, a non-approved Shepard source. We
decline to recognize this error, however, because Carillo-Pineda
“cannot show prejudice from a finding of fact, made in
contravention of the Sixth Amendment, . . . [that] would
nevertheless have been found by the court in the absence of the
error.” See United States v. Allen, 446 F.3d 522, 531 (4th Cir.
2006). Had the district court relied on the indictment--an
approved Shepard source--it would have found that the retaliation
conviction constituted a crime of violence justifying the
enhancement under USSG § 2L1.2(b)(1)(A)(ii).3
In accordance with Anders, we have reviewed the entire
record for any meritorious issues and have found none.
Accordingly, we affirm. This court requires counsel to inform his
client, in writing, of his right to petition the Supreme Court of
2
See Tex. Penal Code Ann. § 36.06.
3
The indictment charged that Carillo-Pineda “did . . .
intentionally and knowingly harm or threaten to harm Concepcion
Rodriguez by an unlawful act, to wit: killing Concepcion Rodriguez,
in retaliation for or on account of . . . [her status] as a person
who reported a crime.”
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the United States for further review. If the client requests that
a petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy of the motion was served on the client. We dispense with oral
argument because the facts and legal contentions are adequately set
forth in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
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