United States v. Hermenegildo Avalos-Martinez
2012 U.S. App. LEXIS 19921
| 5th Cir. | 2012Background
- Avalos-Martinez pleaded guilty to illegally reentering the United States after deportation, a violation of 8 U.S.C. § 1326.
- He is a Mexican citizen who was deported in July 2006 and allegedly reentered sometime in 2008 (apprehended by federal agents by December 30, 2010).
- The indictment contained no specific date for the illegal reentry; the complaint alleged reentry in 2008.
- The PSR disclosed prior Texas convictions for assaulting a public servant and for attempting to take a weapon from a peace officer, with corresponding prison/probation sentences.
- District court adopted a total offense level of 21 and a criminal history category of V, yielding a guidelines range of 70–87 months and imposing a 72-month sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the 16-level crime-of-violence enhancement applies | Avalos-Martinez contends the weapon-taking offense lacks a force-against-person element | Avalos-Martinez argues force may extend to property interactions, undermining the element | The enhancement applies; force against a person is the element |
| Whether criminal-history points from old probation sentences were miscounted | Government concedes the 10-year rule was misapplied | Avalos-Martinez challenges counting those sentences | The prior probation sentences were not imprisonments over one year and one day; error to count points |
| Whether the sentencing error warranted correction under plain error review | N/A (Gov. concedes error; issue is whether correction is appropriate) | N/A | Court declined to exercise discretion to correct the error given the degree of overstatement and circumstances |
| Overall impact on sentence given guideline misapplication | Sentence fell above correct range after error | N/A | Affirmed district court’s judgment despite the error; no remedy applied |
Key Cases Cited
- United States v. Hernandez-Galvan, 632 F.3d 192 (5th Cir. 2011) (applies categorical approach to determining crime-of-violence)
- United States v. Dominguez, 479 F.3d 345 (5th Cir. 2007) (categorical analysis for crime-of-violence)
- United States v. Arviso-Mata, 442 F.3d 382 (5th Cir. 2006) (plain-error review for miscounted prior sentences)
- United States v. Mudekunye, 646 F.3d 281 (5th Cir. 2011) (overbreadth of guideline misapplication affecting substantial rights)
- United States v. Davis, 602 F.3d 643 (5th Cir. 2010) (consideration of discretion to correct sentencing errors)
- Puckett v. United States, 556 U.S. 129 (U.S. 2009) (plain-error standard and correction considerations)
- United States v. Ellis, 564 F.3d 370 (5th Cir. 2009) (when not every error necessitates correction)
- Chadwick v. Texas, 277 S.W.3d 99 (Tex. App.—Austin 2009) (illustrates force-directed conduct against officer)
- Hernandez v. Texas, 903 S.W.2d 109 (Tex. App.—Fort Worth 1995) (case interpreting Texas weapon-officer statute)
- Jackson v. State, 993 S.W.2d 162 (Tex. App.—Eastland 1992) (elements of taking officer’s weapon)