United States v. Perez-Silvan

• Decision Date: 11 May 2017
• Docket Number: No. 16-10205,No. 16-10177,16-10177
• Citation: 861 F.3d 935
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Miguel PEREZ–SILVAN, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Miguel Perez–Silvan, AKA Miguel Perez–Silva, AKA Miguel Silvan–Perez, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

861 F.3d 935

UNITED STATES of America, Plaintiff–Appellee,

v.Miguel PEREZ–SILVAN, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Miguel Perez–Silvan, AKA Miguel Perez–Silva, AKA Miguel Silvan–Perez, Defendant–Appellant.

No. 16-10177

No. 16-10205

United States Court of Appeals, Ninth Circuit.

Submitted May 11, 2017^* , Pasadena, California

Myrna R. Beards, Law Office of Myrna R. Beards, Tucson, Arizona, for Defendant–Appellant.

Ryan P. Dejoe, Assistant United States Attorney; Robert L. Miskell, Appellate Chief; United States Attorney's Office, Tucson, Arizona; for Plaintiff–Appellee.

Before: Diarmuid F. O'Scannlain and John B. Owens, Circuit Judges, and Dana L. Christensen,^** Chief District Judge.

Concurrence by Judge Owens

OPINION

O'SCANNLAIN, Circuit Judge:

We must decide whether a "crime of violence" sentencing enhancement to a sentence for illegal reentry after deportation can be based on a prior Tennessee state conviction for aggravated assault.

I

Miguel Perez–Silvan, a citizen of Mexico, was charged with illegal reentry after deportation in violation of 8 U.S.C. § 1326, enhanced by § 1326(b)(2), on October 14, 2015, when he was found near Quijotoa, Arizona on September 17, 2015, following a previous deportation from the United States on August 19, 2015. On December 8, 2015, Perez–Silvan pled guilty to the indictment without a plea agreement.

On December 29, 2015, the government filed a motion to revoke Perez–Silvan's supervised release for a prior illegal reentry conviction from 2011. On January 29, 2016, Perez–Silvan appeared with counsel and admitted to violating this supervised release agreement.

At sentencing on April 11, 2016, the district court found that Perez–Silvan had an offense level of twenty-one for the illegal reentry charge, based in part on a sixteen-level "crime of violence" enhancement under U.S.S.G. § 2L1.2 for a prior conviction of aggravated assault. In 2005, Perez–Silvan had pled guilty to an indictment charging that he "did unlawfully and intentionally or knowingly cause bodily injury to Jose Molina, by use of a deadly weapon, in violation of Tennessee Code Annotated § 39–13–102." Applying the offense level of twenty-one and a criminal history of six, the district court concluded that the Guideline range for the illegal reentry violation was 77–96 months; it imposed a sentence of seventy-seven months.

For the supervised release violation, the district court calculated a Guideline range of 21–24 months, and it imposed a sentence of twenty-one months to run consecutively to the illegal reentry sentence.

Perez–Silvan filed a timely notice of appeal (No. 16–10177), on April 19, 2016, from the district court's judgment on the illegal reentry conviction. His notice of appeal (No. 16–10205) from the district court's judgment on the supervised release violation, filed on May 12, 2016, was seventeen days late.

II

Perez–Silvan acknowledges that under Federal Rule of Appellate Procedure 4(b)(1)(A)(i) his appeal in No. 16–10205 was untimely. Nonetheless, following United States v. Ono , 72 F.3d 101, 103 (9th Cir. 1995), he requests that we issue a limited remand to the district court to determine whether there was "excusable neglect" for his late appeal.

However, as the government observes, Perez–Silvan has otherwise failed to prosecute the appeal in No. 16–10205. Federal Rule of Appellate Procedure 28(a) requires a party's opening brief to contain "a statement of the issues presented for review," and an "argument ... [with] appellant's contentions and the reasons for them." Indeed, "on appeal, arguments not raised by a party in its opening brief are deemed waived." Smith v. Marsh , 194 F.3d 1045, 1052 (9th Cir. 1999) ; see also Greenwood v. FAA , 28 F.3d 971, 977 (9th Cir. 1994) ("We review only issues which are argued specifically and distinctly in a party's opening brief.").

Perez–Silvan offers no arguments for why the district court's decision to revoke his supervised release was in error, nor does he list it as an issue in his opening brief. By neglecting to brief the merits of the issue, he has not adhered to Rule 28. Thus, there is no need to remand to the district court to determine if Perez–Silvan's failure to file a timely appeal was excusable. Even if his appeal had been timely, Perez–Silvan has waived his ability to contest the revocation of his supervised release. Thus, the appeal in No. 16–10205 must be dismissed. See Ninth Circuit Rule 42–1.

III

In No. 16–10177, the illegal reentry conviction, Perez–Silvan contends that the district court erred by imposing a sentencing enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), which provides that a defendant's base offense level should be increased by sixteen "[i]f the defendant previously was deported ... after ... a conviction for a felony that is ... a crime of violence."¹ Perez–Silvan argues that his prior conviction for aggravated assault in violation of Tennessee Code Annotated § 39–13–102 was not a crime of violence for purposes of this provision.²

A

Under U.S.S.G. § 2L1.2(b)(1)(A)(ii), a conviction is a crime of violence "if it either (1) constitutes one of the crimes listed in the ‘enumerated offense’ prong of the definition, or (2) ‘has an element the use, attempted use, or threatened use of physical force against the person of another’ under the definition's second clause, referred to as the ‘element’ prong or test." United States v. Grajeda , 581 F.3d 1186, 1189–90 (9th Cir. 2009) (quoting U.S.S.G. § 2L1.2 cmt. n.1(B)(iii)).

To determine whether a prior state conviction qualifies as a crime of violence under either prong, we employ the categorical approach set out by the Supreme Court in Taylor v. United States , 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Thus, we ask whether the statute of conviction "is categorically a crime of violence by assessing whether the ‘full range of conduct covered by [the statute] falls within the meaning of that term.’ " Grajeda , 581 F.3d at 1189 (alteration in original) (quoting United States v. Juvenile Female , 566 F.3d 943, 946 (9th Cir. 2009) ). A statute of conviction that punishes conduct that is not covered by the federal definition of a "crime of violence" cannot be a "crime of violence." United States v. Benally , 843 F.3d 350, 352 (9th Cir. 2016).

If the statute does not qualify as a categorical crime of violence, we ask whether it is "a so-called ‘divisible statute.’ " Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). A statute is divisible if it lists "multiple alternative elements" as opposed to "various factual means of committing a single element." Mathis v. United States , –––U.S. ––––, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016).

Where a statute is divisible, we apply the "modified categorical approach" under which we "consult a limited class of documents, such as indictments and jury instructions, to determine which alternative element formed the basis of the defendant's prior conviction." Descamps , 133 S.Ct. at 2281. Then we "do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime." Id.

B

At the time of Perez–Silvan's conviction, Tennessee Code Annotated § 39–13–102 provided in relevant part:

(a) A person commits aggravated assault who:

(1) Intentionally or knowingly commits an assault as defined in § 39–13–101 and:

(A) Causes serious bodily injury to another; or

(B) Uses or displays a deadly weapon; or

(2) Recklessly commits an assault as defined in § 39–13–101(a)(1) and:

(A) Causes serious bodily injury to another; or

(B) Uses or displays a deadly weapon.

And Tennessee Code Annotated § 39–13–101 provided in relevant part:

(a) A person commits assault who:

(1) Intentionally, knowingly or recklessly causes bodily injury to another;

(2) Intentionally or knowingly causes another to reasonably fear imminent bodily injury; or

(3) Intentionally or knowingly causes physical contact with another and a reasonable person would regard the contact as extremely offensive or provocative.

C

With respect to the elements prong, Perez–Silvan maintains that his conviction for aggravated assault in violation of Tennessee Code Annotated § 39–13–102(a) does not have "as an element the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).

First, Perez–Silvan argues that Tennessee Code Annotated § 39–13–102(a) is indivisible and overbroad. Following our decisions in United States v. Garcia–Jimenez , 807 F.3d 1079, 1087 (9th Cir. 2015), and Fernandez–Ruiz v. Gonzales , 466 F.3d 1121, 1132 (9th Cir. 2006) (en banc), Perez–Silvan contends that because § 39–13–102(a) covers reckless behavior, his aggravated assault conviction cannot be a crime of violence.

a

Perez–Silvan bases his indivisibility argument on Tennessee caselaw. In State v. Hammonds , 30 S.W.3d 294, 298 (Tenn. 2000), the Tennessee Supreme Court described aggravated assault under § 39–13–102(a) as "consist[ing] of three elements: (1) mens rea ; (2) commission of an assault as defined in 39–13–101; and (3) (a) serious bodily injury or (b) use or display of a deadly weapon." The issue in Hammonds was whether an aggravated assault indictment which did not specify the type of simple assault committed in violation of Tennessee Code Annotated § 39–13–101 (element two) could be sufficient. Id. The Tennessee Supreme Court concluded that it was not necessary for the indictment to specify the type of simple assault committed because each of the three ways to commit assault under § 39–13–101 were merely different "means" of fulfilling the second element of aggravated assault. Id. at 300. Under Tennessee law, "an indictment need not allege the specific theory or means by which the State intends to prove each element of an offense." Id.

Because Hammonds refers to various "means" of committing the second element of...