United States v. Santillana ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 9, 2003
Charles R. Fulbruge III
Clerk
No. 03-30349
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PEDRO SANTILLANA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 02-CR-238-3-S
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Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Pedro Santillana appeals his career-offender sentence
following a guilty-plea conviction for marijuana-trafficking
crimes. He contends that a Texas aggravated-assault conviction
used to establish his career-offender status was not a “crime of
violence” due to the facts that he was only 17 at the time of
the prior felony, the crime involved only a BB gun, no one was
harmed, and he received only probation. The underlying facts
need not be considered because the guidelines define “crime of
*
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that this opinion should not be published and is not precedent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. 03-30349
-2-
violence” specifically to include “aggravated assault.” See
U.S.S.G. § 4B1.2, comment. (n.1); United States v. Guerra, 962
F.2d 484, 485-86 & n.4 (5th Cir. 1992) (relying on application
note defining “crime of violence”).
Santillana expressly declares that he is not appealing the
district court’s discretionary refusal to depart downward from
career-offender status pursuant to U.S.S.G. § 4A1.3. His
remaining argument on appeal is thus reduced to a meritless
recharacterization of his unsuccessful first argument. The
judgment of the district court is AFFIRMED.