United States v. Martel Valencia-Cortez

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 13 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50246
Plaintiff-Appellee, D.C. No. 3:16-cr-00730-H-1
v.
MEMORANDUM*
MARTEL VALENCIA-CORTEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Marilyn L. Huff, District Judge, Presiding
Submitted August 5, 2020**
Before: SCHROEDER, HAWKINS, and LEE, Circuit Judges.
Martel Valencia-Cortez appeals from the district court’s judgment and
challenges the 78-month sentence imposed upon remand following his jury-trial
conviction for assault on a federal officer, in violation of 18 U.S.C. § 111, and
bringing in aliens for financial gain, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Valencia-Cortez first contends that the district court erred in treating his
assault offense as a felony under U.S.S.G. § 2A2.2 because a rock is not a deadly
or dangerous weapon for purposes of 18 U.S.C. § 111(b). We disagree. Otherwise
“innocuous” objects can be deadly or dangerous if they are used in a manner that is
capable of causing death or serious injury. See United States v. Anchrum, 590 F.3d
795, 801-02 (9th Cir. 2009). The evidence supports the jury’s determination that
the rock in this case was used in a manner that threatened serious injury to the
federal officer. Accordingly, the district court properly treated Valencia-Cortez’s
offense as a felonious assault under U.S.S.G. § 2A2.2. Contrary to Valencia-
Cortez’s argument, Bond v. United States, 572 U.S. 844 (2014), is not “clearly
irreconcilable” with our precedent interpreting § 111(b). See Miller v. Gammie,
335 F.3d 889, 900 (9th Cir. 2003) (en banc).
Valencia-Cortez next contends that the district court erred by imposing an
official victim enhancement under U.S.S.G. § 3A1.2(b). The district court did not
abuse its discretion in imposing the enhancement because the record showed that
Valencia-Cortez’s assault against the federal agent was motivated by his desire to
evade arrest. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir.
2017) (en banc) (stating standard of review); United States v. Rivera-Alonzo, 584
F.3d 829, 836 (9th Cir. 2009) (official victim enhancement warranted where “a
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defendant knows that the victim is a federal officer and then assaults the officer in
an attempt to get away or evade capture”).1 Valencia-Cortez’s argument that the
district court procedurally erred and violated Federal Rule of Criminal Procedure
32 by failing to provide a fuller explanation for the enhancement is unavailing.
The court’s reasons for the enhancement can be inferred from the presentence
report (“PSR”) and the record. See United States v. Carty, 520 F.3d 984, 992 (9th
Cir. 2008) (en banc). Moreover, Valencia-Cortez did not object to any facts in the
PSR, including the facts asserted in support of the official victim enhancement.
See United States v. Carter, 219 F.3d 863, 866 (9th Cir. 2000) (in the absence of
objections to factual statements made in the PSR, Rule 32 does not require specific
fact-finding in support of a sentencing enhancement).
AFFIRMED.
1
We do not decide whether Valencia-Cortez is correct that the 6-level
enhancement had to be supported by clear and convincing evidence because the
evidence here was sufficient to support the enhancement under a preponderance or
clear and convincing evidentiary standard.
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