United States v. Pablo Calvillo-Palacios
860 F.3d 1285
9th Cir.2017Background
- Defendant Pablo Calvillo-Palacios, a Mexican national, pled guilty to illegal reentry under 8 U.S.C. § 1326; the district court applied a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on a 2005 Texas aggravated assault conviction.
- The Texas conviction was under Tex. Penal Code §§ 22.01 (assault) and 22.02 (aggravated assault), with the indictment alleging a threat of imminent bodily injury and use/exhibition of a firearm and knife.
- The enhancement was premised on § 22.02(a) qualifying as a “crime of violence” because it (a) causes serious bodily injury or (b) uses/exhibits a deadly weapon.
- Calvillo-Palacios argued the Texas statutes are overbroad and do not require the violent, physical force needed for a § 2L1.2 enhancement (i.e., the element prong).
- The district court upheld the enhancement and sentenced him to 54 months for reentry and revoked supervised release; Calvillo-Palacios appealed the enhancement and failed to properly brief the supervised-release challenge.
- The Ninth Circuit affirmed the § 2L1.2 enhancement and dismissed the supervised-release appeal as waived.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Texas Penal Code § 22.02(a) (aggravated assault) is a "crime of violence" under U.S.S.G. § 2L1.2(b)(1)(A)(ii) | Calvillo-Palacios: § 22.02/§ 22.01 are overbroad because "bodily injury" and "impairment of physical condition" can occur without the use of violent physical force (e.g., poisoning) | Government: § 22.02(a) (serious bodily injury or use/exhibition of deadly weapon) necessarily involves the use, attempted use, or threatened use of violent physical force | Court: § 22.02(a) is a crime of violence under the element prong; both means (serious bodily injury; use/exhibit of deadly weapon) require violent physical force |
| Whether the supervised-release revocation sentence was properly appealed | Calvillo-Palacios raised revocation on appeal | Government: waiver due to appellant’s failure to brief the issue | Court: Appeal of supervised-release revocation dismissed for waiver |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (categorical approach for prior convictions)
- Descamps v. United States, 570 U.S. 254 (divisible statutes and modified categorical approach)
- Mathis v. United States, 136 S. Ct. 2243 (distinguishing elements from means)
- Johnson v. United States, 559 U.S. 133 (physical force means violent force)
- United States v. Castleman, 134 S. Ct. 1405 (causing bodily injury entails use of physical force)
- United States v. Juvenile Female, 566 F.3d 943 (9th Cir.) (assault causing bodily injury is crime of violence)
- United States v. Villavicencio-Burruel, 608 F.3d 556 (9th Cir.) (threat statutes as crimes of violence)
- Arellano Hernandez v. Lynch, 831 F.3d 1127 (9th Cir.) (California § 422 is a crime of violence)