United States v. Quijivix-Xicara

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4340
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ADOLFO QUIJIVIX-XICARA, a/k/a Adolfo Xicara,
a/k/a Adolfo Quijivix, a/k/a Antonio
Masariegos, a/k/a Mariano Riscajche-Lopez,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:06-cr-00044)
Submitted: September 28, 2007 Decided: November 14, 2007
Before TRAXLER and GREGORY, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Cecilia Oseguera, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA,
INC., Charlotte, North Carolina, for Appellant. Gretchen C. F.
Shappert, United States Attorney, Kenneth M. Smith, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Adolfo Quijivix-Xicara pled guilty to illegal reentry of
a deported alien felon, in violation of 8 U.S.C. § 1326(a), (b)(2)
(2000), and the district court sentenced him to a fifty-two-month
term of imprisonment. Quijivix-Xicara appeals his sentence,
challenging the district court’s enhancement of his base offense
level by sixteen levels after finding that his prior third degree
assault conviction under Or. Rev. Stat. § 163.165(1)(h) (2003)
qualified as a crime of violence, see U.S. Sentencing Guidelines
Manual § 2L1.2(b)(1)(A)(ii) & cmt. n.1(B)(iii) (2005). Finding no
reversible error, we affirm.
Quijivix-Xicara asserts on appeal that his prior Oregon
third degree assault conviction does not qualify as a crime of
violence under the guidelines because the statute does not have as
an element the use, attempted use, or threatened use of physical
force against another. “In assessing a challenge to a sentencing
court’s application of the Guidelines, we review the court’s
factual findings for clear error and its legal conclusions de
novo.” United States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006).
Our review of the record leads us to conclude that third degree
assault under § 163.165(1)(h) qualifies as a crime of violence
under the guidelines. See Taylor v. United States, 495 U.S. 575,
602 (1990) (discussing categorical approach); State v. Capwell, 627
P.2d 905, 907 n.3 (Or. Ct. App. 1981) (“The term ‘physical injury’
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[in the criminal assault statute, regardless of degree,] recognizes
that the cause of such an injury is some form of external violence
that produces a harmful effect upon the body”).
Accordingly, we affirm. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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