United States v. Salido-Rosas
2011 U.S. App. LEXIS 24298
| 8th Cir. | 2011Background
- Salido-Rosas, an alien, pled guilty to 8 U.S.C. §1326(a) and (b)(1) for unlawfully reentering after deportation.
- District court enhanced his sentence under §2L1.2(b)(1)(E) based on four assault and battery convictions under Omaha Municipal Code §20-61 deemed crimes of violence.
- PSR set base offense level 8; enhancement yielded level 10, with criminal history category V, giving a 21–27 month guideline range.
- District court adopted PSR facts and held §20-61 convictions were crimes of violence under either a categorical or modified approach, then sentenced Salido-Rosas to 24 months.
- Salido-Rosas objected, arguing the district court erred in applying the enhancement, leading to this appeal on the proper application of the crime-of-violence enhancement.
- Convictions under §20-61(a), (b), or (c) were evidenced by charging documents, police reports, and plea discussions; the court applied the enhancement accordingly.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is §20-61 a crime of violence for §2L1.2(b)(1)(E)? | Salido-Rosas argues the statute is overinclusive and cannot support the enhancement. | The government contends §20-61 qualifies as a crime of violence under the categorical approach. | Yes; §20-61 qualifies as a crime of violence. |
| If overinclusive, should modified categorical analysis be used? | Salido-Rosas contends the court misapplied the approach. | The government maintains the charging documents show a qualifying conviction under §20-61. | Applicable; the statute is overinclusive but the charging documents show a qualifying conviction. |
| Was the district court allowed to rely on facts beyond the conviction to determine violence? | Salido-Rosas argues improper consideration of extra-record facts. | The government asserts proper consideration under Shepard and related authorities. | Harmless error; proper analysis supports the enhancement. |
Key Cases Cited
- Johnson v. United States, 130 S. Ct. 1265 (2010) (definition of physical force for 'crime of violence')
- Taylor v. United States, 495 U.S. 575 (1990) (categorical approach for crimes of violence)
- Shepard v. United States, 544 U.S. 13 (2005) (limitations of using charging documents for modified approach)
- United States v. Sonnenberg, 556 F.3d 667 (8th Cir. 2009) (application of categorical vs. modified approach)
- Benitez-De Los Santos, 650 F.3d 1157 (8th Cir. 2011) (modified categorical approach when statute is overinclusive)