US v. Quijivix-Xicara

Filing 920071114

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4340 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus ADOLFO QUIJIVIX-XICARA, a/k/a Adolfo Xicara, a/k/a Adolfo Quijivix, a/k/a Antonio Masariegos, a/k/a Mariano Riscajche-Lopez, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, District Judge. (3:06-cr-00044) Submitted: September 28, 2007 Decided: November 14, 2007 Before TRAXLER and GREGORY, Circuit Judges, and WILKINS, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Cecilia Oseguera, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant. Gretchen C. F. Shappert, United States Attorney, Kenneth M. Smith, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Adolfo Quijivix-Xicara pled guilty to illegal reentry of a deported alien felon, in violation of 8 U.S.C. 1326(a), (b)(2) (2000), and the district court sentenced him to a fifty-two-month term of imprisonment. Quijivix-Xicara appeals his sentence, challenging the district court's enhancement of his base offense level by sixteen levels after finding that his prior third degree assault conviction under Or. Rev. Stat. 163.165(1)(h) (2003) qualified as a crime of violence, see U.S. Sentencing Guidelines Manual 2L1.2(b)(1)(A)(ii) & cmt. n.1(B)(iii) (2005). reversible error, we affirm. Quijivix-Xicara asserts on appeal that his prior Oregon third degree assault conviction does not qualify as a crime of violence under the guidelines because the statute does not have as an element the use, attempted use, or threatened use of physical force against another. "In assessing a challenge to a sentencing Finding no court's application of the Guidelines, we review the court's factual findings for clear error and its legal conclusions de novo." United States v. Allen, 446 F.3d 522, 527 (4th Cir. 2006). Our review of the record leads us to conclude that third degree assault under 163.165(1)(h) qualifies as a crime of violence under the guidelines. See Taylor v. United States, 495 U.S. 575, 602 (1990) (discussing categorical approach); State v. Capwell, 627 P.2d 905, 907 n.3 (Or. Ct. App. 1981) ("The term `physical injury' - 2 - [in the criminal assault statute, regardless of degree,] recognizes that the cause of such an injury is some form of external violence that produces a harmful effect upon the body"). Accordingly, we affirm. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED - 3 -

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