United States v. Jose Cobo-Raymundo ( 2012 )

FILED
NOT FOR PUBLICATION AUG 20 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10239
Plaintiff - Appellee, D.C. No. 4:10-cr-03542-DCB-
BPV-1
v.
JOSE COBO-RAYMUNDO, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted July 19, 2012**
San Francisco, California
Before: PAEZ and BYBEE, Circuit Judges, and VANCE,*** Chief District Judge.
Jose Cobo-Raymundo appeals his sentence of 51 months’ imprisonment
following his conviction under 8 U.S.C. § 1326(a) and (b)(2). We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Sarah S. Vance, Chief District Judge of the Eastern
District of Louisiana, sitting by designation.
Cobo-Raymundo challenges the district court’s conclusion that his prior
conviction for unlawful wounding under Virginia Code § 18.2-51 qualified as a
“crime of violence” under the definition at U.S. Sentencing Guidelines Manual §
2L1.2(b)(1)(A)(ii). He also challenges the district court’s decision not to reduce
sua sponte his total offense level when calculating his sentencing Guidelines range.
Because Cobo-Raymundo did not raise these issues before the district court, we
review for plain error. United States v. Ayala-Nicanor, 659 F.3d 744, 746-47 (9th
Cir. 2011); United States v. Ross, 511 F.3d 1233, 1235 (9th Cir. 2008). We may
reverse for plain error when the appellant shows that “(1) there was error; (2) the
error committed was plain; (3) the error affected substantial rights; and (4) the
error seriously affected the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Gonzalez-Aparicio, 663 F.3d 419, 428 (9th Cir.
2011).
We note first that the district court simply accepted the conclusion of the
unchallenged pre-sentence report that Cobo-Raymundo’s prior conviction was a
crime of violence, and did not conduct its own analysis. Although Cobo-
Raymundo does not challenge this aspect of the proceeding below, this was plainly
erroneous. See United States v. Castillo-Marin, 684 F.3d 914, 921 (9th Cir. 2012).
However, the error did not affect his substantial rights because no prejudice
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ensued. See id. at 918-19. As we explain below, “unlawful wounding” under
Virginia Code § 18.2-51 is categorically a crime of violence and therefore the
district court properly applied the “crime of violence” sentencing enhancement in
determining Cobo-Raymundo’s advisory sentencing Guidelines range.
Unlawful wounding is not one of the listed offenses that categorically
qualify as a “crime of violence” under comment n.1(B)(iii) to U.S. Sentencing
Guidelines Manual § 2L1.2. However, because the Virginia statute’s elements are
necessarily encompassed by the “crime of violence” definition in U.S. Sentencing
Guidelines Manual § 2L1.2, unlawful wounding as defined by Virginia Code §
18.2-51 is categorically a crime of violence. See Penuliar v. Mukasey, 528 F.3d
603, 608 (9th Cir. 2008). To be convicted under § 18.2-51, a person necessarily
must have shot, stabbed, cut, wounded, or otherwise caused bodily injury to
another person, which means that the offense “has as an element the use . . . of
physical force against the person of another.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iii).
Moreover, § 18.2-51 clearly requires the intentional use of physical force, because
it contains as an element “the intent to maim, disfigure, disable, or kill.” See
Ayala-Nicanor, 659 F.3d at 749; Hampton v. Commonwealth, 542 S.E.2d 41, 45-
46 (Va. Ct. App. 2001). Finally, a violation of § 18.2-51 results in physical injury
to another, because the actus reus element of the statute is satisfied by shooting,
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stabbing, cutting, wounding, or causing bodily injury to another person. See
Ayala-Nicanor, 659 F.3d at 749. Cobo-Raymundo points to no case in which the
Virginia state courts did in fact apply § 18.2-51 to conduct outside the federal
definition. See id. at 748.
In addition, the district court did not plainly err when it declined to reduce
sua sponte Cobo-Raymundo’s offense level by one level for his assisting the
government by timely notifying it of his intention to plead guilty. United States v.
Johnson, 581 F.3d 994, 1003-04 (9th Cir. 2009).
AFFIRMED.
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