United States v. Walter Ajiatas-Mazariegos

FILED
NOT FOR PUBLICATION OCT 31 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10558
Plaintiff - Appellee, D.C. No. 2:11-cr-01269-SRB-1
v.
MEMORANDUM*
WALTER ADILIO AJIATAS-
MAZARIEGOS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Gerald E. Rosen, District Judge, Presiding
Argued and Submitted October 15, 2012
San Francisco, California
Before: SCHROEDER and BEA, Circuit Judges, and RESTANI, Judge.**
Walter Ajiatas-Mazariegos appeals the 42-month sentence he received after
pleading guilty to illegal reentry in violation of 8 U.S.C. § 1326(a). The district
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
court rejected the plea agreement, which would have resulted in a sentence at the
low end of the applicable sentencing guideline range, and the defendant chose not
to withdraw his plea.
His principle argument on appeal is that the district court should not have
applied an 8-level enhancement for his prior misdemeanor conviction for assault
on a federal officer. See 18 U.S.C. § 111(a). He contends the conviction was not
for a “crime of violence.” 18 U.S.C. § 16(a). United States v. Chapman, 528 F.3d
1215, 1219–20 (9th Cir. 2008), however, holds that a violation of section 111(a)
requires an assault, making it categorically a “crime of violence.”
Appellant contends on appeal that Chapman was decided after his section
111(a) conviction and that therefore at the time of the conviction the law was
unclear. He argues that as a result the government cannot rely on the categorical
approach. When he objected to the enhancement in the district court, however, the
government responded with an Addendum to the Presentence Report (“PSR”) that
described the facts contained in the underlying plea agreement to show that he
engaged in a forcible assault that would support a “crime of violence” finding
under the modified categorical approach.
While Appellant now contends that the government should have provided
the actual underlying plea agreement pursuant to Shepard v. United States, 544
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U.S. 13, 26 (2005), he made no objection in the district court either to the
Addendum or to excerpts of the plea agreement cited therein. The district court’s
application of the enhancement was not plainly erroneous because it relied on the
PSR’s description of the plea agreement, a document that is acceptable for
modified categorical approach analysis under Shepard. See United States v.
Castillo-Marin, 684 F.3d 914, 920 n.3 (9th Cir. 2007); United States v. Gonzales-
Apanicio, 663 F.3d 419, 433 (9th Cir. 2011).
Appellant also contends the district court abused its discretion in rejecting
the plea agreement and sentencing above the guideline range. The district court
explained it was doing so because the PSR understated the Appellant’s criminal
history. There was no abuse of discretion because of Appellant’s lengthy criminal
history and substantial sentences. See In re Ellis, 356 F.3d 1198, 1209 (9th Cir.
2004) (en banc) (holding that a district court may reject a plea agreement when it
“was not in the best interest of society given [the defendant’s] criminal history”);
United States v. Connelly, 156 F.3d 978 (9th Cir. 1998) (“serious” uncounted
criminal conduct justifies departure from guideline range).
AFFIRMED.
3