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United States v. Castillo

United States Court of Appeals, Tenth Circuit

December 15, 2015

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
WILBER ERNESTO CASTILLO, a/k/a Wilber Henriquez, a/k/a Wilber Ernesto Henriquez, a/k/a Wilber Ernesto Henriquez-Segundo, Defendant - Appellant

Page 343

Appeal from the United States District Court for the District of Utah. (D.C. No. 2:14-CR-00288-TS-1).

Scott Keith Wilson, Assistant Federal Public Defender (Kathryn N. Nester, Federal Public Defender with him on the briefs), Salt Lake City, Utah, for Defendant-Appellant.

Elizabethanne C. Stevens, Assistant United States Attorney (Carlie Christensen, United States Attorney, District of Utah, with her on the brief), Salt Lake City, Utah, for Plaintiff-Appellee.

Before MATHESON, EBEL, and McHUGH, Circuit Judges.

OPINION

Page 344

McHUGH, Circuit Judge.

I. INTRODUCTION

Wilber Ernesto Castillo, a citizen of El Salvador, appeals his sentence for violating 8 U.S.C. § 1326, which prohibits reentry into the United States by a previously removed alien. Mr. Castillo argues his sentence was miscalculated because the district court incorrectly considered a previous California robbery conviction to be a " crime of violence" for purposes of a sentencing enhancement under § 2L1.2 of the United States Sentencing Guidelines (Guidelines). Mr. Castillo asks this court to vacate his sentence and remand for resentencing. Because we conclude the district court correctly considered Mr. Castillo's California robbery conviction to be a crime of violence, we affirm.

II. BACKGROUND

In 2004, Mr. Castillo was convicted in California state court for second-degree robbery, a violation of California Penal Code section 211. He was removed from the United States in 2007. In July 2009, Mr. Castillo reentered the United States without inspection. Mr. Castillo was convicted in 2011 for shoplifting and in 2014 for disorderly conduct. After his 2014 arrest, agents from Immigration and Customs Enforcement interviewed Mr. Castillo. Based on his admissions that he had been removed from the United States and then reentered without inspection, the government charged Mr. Castillo with a violation of 8 U.S.C. § 1326, which criminalizes reentry by previously removed aliens.

Prior to trial, the Government filed notice that, if Mr. Castillo was convicted of illegal reentry, it would seek enhancement of that sentence based on Mr. Castillo's California robbery conviction. Mr. Castillo consented to initiation of a presentence investigation and disclosure of the report prior to entering a guilty plea or proceeding to trial. The report indicated the base offense level for illegal reentry was eight but designated Mr. Castillo's California robbery conviction as a crime of violence, which increased his offense level to twenty-four. After adjusting downward for Mr. Castillo's acceptance of responsibility, the report calculated a total offense level of twenty-one, resulting in a Guidelines sentencing range of 46-57 months' imprisonment. Mr. Castillo then pled guilty but objected to the sixteen-level enhancement of his offense level, arguing that his California robbery conviction was not a crime

Page 345

of violence. The district court ruled Mr. Castillo's prior conviction was a crime of violence and the sixteen-level enhancement and total offense level of twenty-one were therefore correct. Nevertheless, the district court sentenced Mr. Castillo to only ...


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