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United States v. Barcenas-Yanez

United States Court of Appeals, Fourth Circuit

June 21, 2016

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
MARTIN BARCENAS-YANEZ, a/k/a Juan Yanaee Cruz, a/k/a Ricardo Rocha-Gusman, Defendant-Appellant.

          Argued: May 11, 2016

         Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., District Judge. (3:14-cr-00005-RJC-1)

         ARGUED:

          Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North Carolina, for Appellant.

          Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

         ON BRIEF:

          Ross Hall Richardson, Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant.

          Jill Westmoreland Rose, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

          Before MOTZ and FLOYD, Circuit Judges, and DAVIS, Senior Circuit Judge.

          DAVIS, Senior Circuit Judge.

         Having pled guilty to illegally reentering the United States in violation of 8 U.S.C. § 1326, Appellant Martin Barcenas-Yanez appeals the 60-month sentence imposed by the district court. The length of the sentence was driven in significant part by the district court's conclusion that Barcenas-Yanez's 1997 aggravated assault conviction under Texas Penal Code § 22.02(a) constituted a predicate "crime of violence" under the reentry sentencing guideline, U.S.S.G. § 2L1.2(b)(1)(A). We hold, to the contrary, that a conviction under § 22.02(a) is not categorically a crime of violence. We therefore vacate the judgment and remand for resentencing.

         Barcenas-Yanez, a native and citizen of Mexico, illegally entered the United States during the early 1990s and spent the majority of the decade living and working in Texas. While in Texas, Barcenas-Yanez was convicted of several state offenses including, of relevance to the present appeal, aggravated assault with a deadly weapon in violation of Texas Penal Code § 22.02(a)(2), stemming from a bar fight.

         Under the terms of the Texas statute relevant to this appeal, Barcenas-Yanez committed the Texas offense of aggravated assault in that he committed "simple assault" when he "intentionally, knowingly, or recklessly cause[d] bodily injury to another, " Tex. Penal Code § 22.01(a)(1), and that simple assault offense was elevated to aggravated assault because, during the assault, he "use[d] or exhibit[ed] a deadly weapon." § 22.02(a)(2).[1] After serving three years in state prison, Barcenas-Yanez was deported to Mexico. As early as 2003, however, he illegally reentered the United States, making his way to North Carolina.

         In 2006, Barcenas-Yanez was convicted of driving under the influence and assault in a North Carolina state court. In December 2013, while Barcenas-Yanez was serving a term of probation, the Department of Homeland Security discovered his presence in North Carolina. A grand jury returned the instant indictment charging him with knowingly and unlawfully reentering the United States while under a preexisting order of deportation in violation of 8 U.S.C. § 1326(a) and (b)(2).

         In due course, Barcenas-Yanez pled guilty as charged in the indictment. In preparation for sentencing, a probation officer prepared a Presentence Investigation Report ("PSR"), which concluded that, because Barcenas-Yanez "was previously deported after being convicted of a crime of violence, Aggravated Assault with a Deadly Weapon, " his offense level should be increased by 16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A). With ...


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