USA v. Hector Antunes-Rivera

Filing

Opinion issued by court as to Appellant Hector Antunes-Rivera. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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Date Filed: 08/10/2016

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13967
Non-Argument Calendar
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D.C. Docket No. 0:15-cr-60089-BB-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HECTOR ANTUNES-RIVERA,
a.k.a. Angel Cordova,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 10, 2016)

Before TJOFLAT, JILL PRYOR and BLACK, Circuit Judges.
PER CURIAM:

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Hector Antunes-Rivera appeals his 41-month sentence for illegal reentry of a
previously deported alien, in violation of 8 U.S.C. § 1326(a). He raises two issues
on appeal, which we address in turn. After review, 1 we affirm Antunes-Rivera’s
sentence.
I. DISCUSSION
A. Application of sentencing enhancement
Antunes-Rivera first argues the district court incorrectly imposed a 16-level
enhancement for a prior Florida conviction that did not qualify as a crime of
violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Specifically, he contends Florida’s
resisting-with-violence statute, Fla. Stat. § 843.01, criminalizes behavior such as
wiggling and struggling, which does not meet the definition of “use of physical
force” as defined in Johnson v. United States , 559 U.S. 133 (2010), and that
pursuant to Descamps v. United States, 133 S. Ct. 2276 (2013), and Moncrieffe v.
Holder, 133 S. Ct. 1678 (2013), we are required to assume that his conviction
rested upon nothing more than wiggling and struggling. He also asserts our
precedent in United States v. Romo-Villalobos, 674 F.3d 1246 (11th Cir. 2012), is
in conflict with Supreme Court precedent in Leocal v. Ashcroft, 543 U.S. 1 (2004).

1

“We review de novo whether a prior conviction qualifies as a ‘crime of violence’ under
the Sentencing Guidelines.” United States v. Lockley, 632 F.3d 1238, 1240 (11th Cir. 2011).
We review the reasonableness of a sentence under a deferential abuse-of-discretion standard.
United States v. Irey, 612 F.3d 1160, 1188-89 (11th Cir. 2010) (en banc).
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Under the Sentencing Guidelines, § 2L1.2 sets a base offense level of eight
for a defendant convicted of unlawful reentry into the United States. U.S.S.G.
§ 2L1.2(a). A defendant will receive a 16-level enhancement if he was previously
deported following a conviction for a felony that is a crime of violence. U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). For the purposes of this enhancement, the Guidelines define
a crime of violence as:
any of the following offenses under federal, state, or local law:
Murder, manslaughter, kidnapping, aggravated assault, forcible sex
offenses . . . statutory rape, sexual abuse of a minor, robbery, arson,
extortion, extortionate extension of credit, burglary of a dwelling, or
any other offense under federal, state, or local law that has as an
element the use, attempted use, or threatened use of physical force
against the person of another.
Id. § 2L1.2, comment. n.1(B)(iii). The Florida statute under which AntunesRivera was convicted provides that “[w]hoever knowingly and willfully resists,
obstructs, or opposes any officer . . . by offering or doing violence to the person of
such officer . . . is guilty of a felony of the third degree.” Fla. Stat. § 843.01.
In Romo-Villalobos, using the categorical approach, we held that a
conviction under § 843.01, for resisting an officer with violence, was a “crime of
violence” for purposes of § 2L1.2(b)(1)(A)(ii) because Florida courts have held
that violence is a necessary element of § 843.01. 674 F.3d at 1248-51. In so
holding, we rejected the defendant’s argument that Florida courts have held that
the element of violence in § 843.01 can be satisfied by de minimis force, such as
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wiggling or struggling. Id. at 1249. We also rejected the defendant’s argument
that §843.01, a general intent crime, can be violated with mere reckless conduct.
Id. at 1250-51.
The district court did not err in imposing the 16-level enhancement.
Antunes-Rivera’s argument that § 843.01 is not a crime of violence under § 2L1.2
is foreclosed by Romo-Villalobos, and we are bound by that opinion until it is
overruled or undermined to the point of abrogation by the Supreme Court or this
Court sitting en banc. See Romo-Villalobos, 674 F.3d at 1248-51; United States v.
Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (stating we must follow the holding
of a prior panel of this Court “unless and until it is overruled or undermined to the
point of abrogation by the Supreme Court or by this [C]ourt sitting en banc”).
Descamps and Moncrieffe did not undermine Romo-Villalobos to the point
of abrogation, as this Court did not fail to assume that the defendant’s conviction
rested upon the least act criminalized. See Moncrieffe, 133 S. Ct. at 1682, 1684
(holding, in the context of determining whether a state conviction qualified as an
“aggravated felony” under the Immigration and Naturalization Act, that, if a statute
criminalizes several acts, a court must assume “that the conviction rested upon
nothing more than the least of the acts criminalized, and then determine whether
even those acts are encompassed by the generic offense” (quotations and
alterations omitted)); Descamps, 133 S. Ct. at 2281 (holding, under the categorical
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approach, the prior conviction qualifies as a predicate offense only if the statute’s
elements are the same as, or narrower than, those of the generic offense). Rather,
this Court rejected the defendant’s argument that § 843.01 criminalized wiggling
or struggling. Romo-Villalobos, 674 F.3d at 1249. Moreover, this Court
reaffirmed that § 843.01 categorically qualified as a violent felony after Descamps
and Moncrieffe were decided. See United States v. Hill, 799 F.3d 1318, 1322 (11th
Cir. 2015) (holding a Florida conviction for resisting an officer with violence under
§ 843.01 was categorically a violent felony under the ACCA’s elements clause);
see also United States v. Palomino-Garcia, 606 F.3d 1317, 1328 (11th Cir. 2010)
(recognizing we have employed ACCA’s categorical approach in cases that
interpret guideline enhancements).
Antunes-Rivera’s argument that Romo-Villalobos is in conflict with Leocal
also lacks merit. See Leocal, 543 U.S. at 3-4, 9, 11 (concluding Florida’s drunk
driving statute did not meet the definition of “crime of violence” under 18 U.S.C.
§ 16 because an individual could be convicted under the statute for negligent or
accidental conduct, and a crime of violence must involve “active employment” of
physical force). Antunes-Rivera was convicted of “unlawfully, knowingly, and
willfully resist[ing], obstruct[ing] or oppos[ing]” an officer in the lawful executing
of a legal duty by offering or doing violence to the officer in the lawful execution
of a legal duty by offering or doing violence to the officer, and this Court expressly
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held that intentional or knowing action may satisfy the “use of physical force”
requirement under § 2L1.2’s definition of a “crime of violence.” Palomino
Garcia, 606 F.3d at 1336 (determining, in light of Leocal, that a conviction
predicated on a mens rea of recklessness did not satisfy the “use of physical force”
requirement under § 2L1.2’s definition of a “crime of violence”).
Accordingly, the district court did not err in imposing a 16-level
enhancement because Antunes-Rivera’s resisting-with-violence conviction is a
crime of violence for purposes of § 2L1.2, and we affirm on this issue.
B. Substantive reasonableness
Second, Antunes-Rivera argues the district imposed a substantively
unreasonable sentence because his sentence was greater than necessary to achieve
the purposes of sentencing, and the district court failed to adequately explain why a
sentence even more below the advisory guideline range would not accomplish the
goals of sentencing.
Antunes-Rivera has failed to satisfy his burden of showing that the district
court imposed an unreasonable sentence in light of both the record and the factors
in § 3553(a). United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006)
(stating a party who challenges a sentence “bears the burden of establishing that
the sentence is unreasonable in the light of both the record and the factors in
section 3553(a)” (quotations and alteration omitted)). His 41-month sentence is
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below the advisory guideline range, and well below the statutory maximum
sentence of 20 years. See United States v. Gonzalez, 550 F.3d 1319, 1324 (11th
Cir. 2008) (using the fact a sentence is well below the statutory maximum is an
indicator of reasonableness). Moreover, his combined state and federal sentence—
a total of 52 months and 25 days—is also within the advisory guideline range, and
well below the statutory maximum sentence. Antunes-Rivera’s history and
characteristics, as well as the district court’s stated need to promote respect for the
law, serve as an adequate deterrent, and reflect the seriousness of the crime,
support a finding that the district court did not commit a clear error of judgment in
weighing the § 3553(a) factors. See United States v. Irey, 612 F.3d 1160, 1189
(11th Cir. 2010) (en banc) (explaining a court abuses it discretion when it (1) fails
to consider relevant factors that were due significant weight, (2) gives an improper
or irrelevant factor significant weight, or (3) commits a clear error of judgment by
balancing the proper factors unreasonably). Further, the district court did not give
an improper or irrelevant factor significant weight when it considered the nature of
the offense, noting that Antunes-Rivera violated both state and federal law and
should be sentenced as such. See 18 U.S.C. 3553(a)(1).
II. CONCLUSION
Accordingly, we affirm Antunes-Rivera’s sentence.
AFFIRMED.
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