United States v. Jose Montoya-Echeverria

United States Court of Appeals
For the Eighth Circuit
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No. 14-1884
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Jose Carlos Montoya-Echeverria,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the Northern District of Iowa - Sioux City
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Submitted: October 6, 2014
Filed: April 13, 2015
[Unpublished]
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Before LOKEN, BEAM, and COLLOTON, Circuit Judges.
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PER CURIAM.
Jose Montoya-Echeverria pleaded guilty to unlawful reentry to the United
States after a previous removal, in violation of 8 U.S.C. § 1326(a)(1). The district
court1 sentenced him to 41 months in prison. Montoya-Echeverria appeals his
sentence, and we affirm.
In calculating the advisory sentencing guideline range for Montoya-
Echeverria’s offense, the district court applied a sixteen-level specific offense
characteristic because the defendant previously was deported after a conviction for
a crime of violence. See USSG § 2L1.2(b)(1)(A). The court determined that
Montoya-Echeverria’s convictions for domestic abuse assault under Iowa Code
§ 708.2A(2)(c) and first degree harassment under Iowa Code § 708.7(2) qualified as
crimes of violence. As a result, the court determined an advisory guideline range of
41 to 51 months’ imprisonment, and sentenced the defendant to 41 months.
The court explained, alternatively, that even if there were no sixteen-level
increase for removal after a crime of violence, the court would have imposed the same
sentence based on the facts that led to Montoya-Echeverria’s prior convictions for
domestic abuse assault and first degree harassment. In that incident, Montoya-
Echeverria went to the home of a woman with whom he shares a child and questioned
her about her boyfriend. When she refused to answer, he began to choke her, then
displayed a firearm, forced it into her mouth, and asked whether she was ready to die.
When she did not respond, he removed the gun and departed.
Montoya-Echeverria argues on appeal that there was procedural error in
calculating the advisory guideline range because his convictions for domestic abuse
assault and first degree harassment were not crimes of violence. Even assuming for
the sake of analysis that his argument has merit, the district court was clear that it
would have imposed the same sentence based on 18 U.S.C. § 3553(a), regardless of
the guideline calculation and USSG § 2L1.2. Any error in calculating the advisory
1
The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa.
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range was therefore harmless. United States v. Sayles, 674 F.3d 1069, 1072 (8th Cir.
2012); United States v. Henson, 550 F.3d 739, 741 (8th Cir. 2008).
The judgment of the district court is affirmed.
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