741 Fed.Appx. 973 (5th Cir. 2018), 15-20606, United States v. Quinonez-Saa
|Citation:||741 Fed.Appx. 973|
|Opinion Judge:||PER CURIAM|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee v. Victor Hugo QUINONEZ-SAA, also known as Victor Hugo Quinonez Saa, also known as Mario Walter Quinones, Defendant-Appellant|
|Attorney:||Amy Howell Alaniz, Assistant U.S. Attorney, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorneys Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee Victor Hugo Quinonez-Saa, Pro Se|
|Judge Panel:||Before DAVIS, HAYNES, and DUNCAN, Circuit Judges.|
|Case Date:||July 11, 2018|
|Court:||United States Courts of Appeals, Court of Appeals for the Fifth Circuit|
Please Refer Federal Rule of Appellate Procedure Rule 32.1. See also U.S.Ct. of App. 5th Cir. Rules 28.7 and 47.5.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 4:15-CR-309
Amy Howell Alaniz, Assistant U.S. Attorney, Carmen Castillo Mitchell, Assistant U.S. Attorney, U.S. Attorneys Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee
Victor Hugo Quinonez-Saa, Pro Se
Before DAVIS, HAYNES, and DUNCAN, Circuit Judges.
PER CURIAM [*]
Victor Hugo Quinonez-Saa appeals his sentence resulting from a guilty plea for being illegally in the United States after being deported subsequent to an aggravated felony conviction. Quinonez-Saa claims the district court plainly erred in concluding that his first-degree murder conviction was a "crime of violence" under § 2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines ("U.S.S.G"). Because any error was not plain, we AFFIRM.
Quinonez-Saa pleaded guilty to one count of being illegally in the United States after being deported subsequent to an aggravated felony conviction, in violation of 8 U.S.C. § 1326(a) and (b)(2). The 2014 Sentencing Guidelines in effect at the time added sixteen points to a defendants base offense level if he illegally reentered or stayed in the United States after having previously committed a felony "crime of violence." See U.S.S.G. § 2L1.2(b)(1)(A)(ii). The Probation Office concluded that Quinonez-Saas prior state conviction for first-degree murder was a "crime of violence," and so it recommended increasing his offense level from 8 to 24.
Based on Quinonez-Saas offense level and criminal history, the Sentencing Guidelines called for 46 to 57 months in prison.1 See U.S.S.G., ch. 5, pt. A. The district court sentenced Quinonez-Saa to 42 months, which included credit for four months he already spent in custody. Quinonez-Saa did not object to the Probation Offices use of the "crime of violence" enhancement in calculating his Sentencing Guidelines range in its Presentence Investigation Report, or to the district courts application of the enhancement at sentencing. Quinonez-Saa now appeals his sentence, challenging the crime of violence enhancement.
II. Standard of Review
Quinonez-Saa concedes, and the record confirms, that his appeal is subject to plain error review because he did not raise this issue in the district court. See United States v. Garcia-Perez, 779 F.3d 278, 281-82 (5th Cir. 2015). To establish plain error, a defendant "must show (1) an error (2) that was clear or obvious (3) that affected his substantial rights." See United States v. Avalos-Martinez, 700 F.3d 148, 153 (5th Cir. 2012) (per curiam). To determine "whether an error is clear or obvious, we look to the state of the law at the time of appeal, and we must decide whether controlling circuit or Supreme Court precedent has reached the issue in question, or whether the legal question would be subject to reasonable dispute. " United States v. Scott, 821 F.3d 562, 570-71 (5th Cir. 2016) (quoting United States v. Fields, 777 F.3d 799, 802 (5th Cir. 2015) ). If the defendant establishes plain error, this court "ha[s] the discretion to correct the error if it seriously affects the fairness, integrity or public reputation of judicial proceedings. " Avalos-Martinez, 700 F.3d at 153 (quoting Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) ); see also
Rosales-Mireles v. United States, __ U.S. __, 138 S.Ct. 1897, 1911-12, 201 L.Ed.2d 376 (2018) (discussing plain error review and focusing on the discretionary fourth prong).
Quinonez-Saa argues the district court erred in classifying his Texas murder conviction as a "crime of violence." Under § 2L1.2(b)(1)(A)(ii), a conviction is a "crime of violence" if it is (1) one of the sections "enumerated offenses," or (2) "an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. "2 United States v. Hernandez-Montes, 831 F.3d 284, 288 (5th Cir. 2016) (quoting U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) ). For the first test, we start by determining the "generic, contemporary meaning" of the relevant, enumerated offense. Id. (quoting United States v. Herrera-Alvarez, 753 F.3d 132, 137 (5th Cir. 2014) ). In doing so, we "look[ ] to various sources— such as...
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