Today, the Ninth Circuit published two decisions under the prior version of section 2L1.2 and its +16 crime of violence enhancement (which no longer exists).
Briefly:
In United States v. Perez-Silvan, --- F.3d ---, No. 16-10177 (9th Cir. 2017), the Court affirmed a 16-level crime-of-violence enhancement to the
defendant’s illegal reentry sentence pursuant to the old version of U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) based on his prior aggravated
assault conviction under Tennessee Code Annotated § 39-
13-102.
The Court determined the Tennessee statute was divisible -- because the subdivisions "carry different penalties, they necessarily contain distinct
elements." Applying the modified categorical approach, the Court held the defendant's conviction qualified as a predicate crime of violence.
The Court also dismissed the defendant's appeal from his supervised release violation, because the notice of appeal was untimely and he failed to brief any issues about the violation sentence.
Judge Owens concurred "to urge the
Commission to simplify the Guidelines" and "spare judges, lawyers, and defendants from the wasteland of
Descamps."
In United States v. Calvillo-Palacios, --- F.3d ---, No. 16-10039 (9th Cir. 2017), the Court affirmed a 16-level crime-of-violence enhancement to the defendant’s illegal reentry sentence pursuant to the old version of U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on his prior aggravated assault conviction under under
Texas Penal Code §§ 22.01 and 22.02.
The opinion contains a lengthy discussion about bodily injury and physical force that might also be relevant in other contexts. According to the Court, "we have . . repeatedly [held] that threat and assault statutes necessarily involve
the use of violent, physical force."
