United States v. Aurelio Basulto-Reina
421 F. App'x 349
| 5th Cir. | 2011Background
- Basulto-Reina pleaded guilty to unlawful presence following deportation under 8 U.S.C. § 1326(a) and (b).
- District court applied a 16-level enhancement under § 2L1.2(b)(1)(A)(ii) because Basulto-Reina was deported after a felony COV conviction.
- The underlying Georgia felony was aggravated battery (Ga. Code Ann. § 16-5-24(a)) involving disfigurement.
- After a three-level reduction for acceptance of responsibility, total offense level was 21; criminal history I; guideline range 37–46 months, but sentenced to 24 months.
- Basulto-Reina contends Georgia aggravated battery is not a crime of violence under the guidelines; district court review is de novo on COV status.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Georgia aggravated battery satisfy COV under § 2L1.2 as use of force? | Basulto-Reina argues no force required (Lopez-Hernandez). | Government contends aggravated battery includes force and fits COV. | Yes; aggravated battery involves the use of force and is a COV. |
| What is the governing standard for COV classification in this appeal? | Basulto-Reina argues for a strict statutory reading without force element. | Government relies on Taylor/Moreno-Florean framework and the force element. | De novo review confirms COV status based on force element in Georgia aggravated battery. |
Key Cases Cited
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (realistic probability standard for applying statute beyond generic COV)
- Taylor v. United States, 495 U.S. 575 (1990) (categorical approach to determine offense as COV)
- United States v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004) (definition of use of force requires intentional availing of force)
- United States v. Moreno-Florean, 542 F.3d 445 (5th Cir. 2008) (applies categorical approach to COV analysis)
- Hernandez-Galvan, 632 F.3d 192 (5th Cir. 2011) (treats simple physical force as sufficient for COV)
- Hammonds v. State, 587 S.E.2d 161 (Ga. Ct. App. 2003) (simple battery requires intentional physical harm)
- Williams v. State, 546 S.E.2d 74 (Ga. Ct. App. 2001) (battery classifications reflect severity by harm level)
- J.A.T. v. State, 212 S.E.2d 879 (Ga. Ct. App. 1975) (conducting battery through a dog's action involves force)