USA v. Cecilio Shilon-Mendez

Filing

UNPUBLISHED OPINION FILED. [16-40297 Affirmed ] Judge: TMR , Judge: PRO , Judge: LHS Mandate pull date is 05/18/2017 for Appellant Cecilio Shilon-Mendez [16-40297]

Case: 16-40297

Document: 00513970591

Page: 1

Date Filed: 04/27/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-40297

United States Court of Appeals
Fifth Circuit

FILED
April 27, 2017

UNITED STATES OF AMERICA,

Lyle W. Cayce
Clerk

Plaintiff - Appellee
v.
CECILIO SHILON-MENDEZ,
Defendant - Appellant

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:15-CR-993-1
Before REAVLEY, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Cecilio Shilon-Mendez appeals the district court’s 16-point sentence
enhancement of his illegal reentry offense based on a prior Florida conviction.
He contends that his prior offense of resisting an officer with violence is not a
crime of violence under U. S. Sentencing Guidelines § 2L1.2. We hold that the
district court properly classified Shilon-Mendez’s prior offense and affirm.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

Case: 16-40297

Document: 00513970591

Page: 2

Date Filed: 04/27/2017

No. 16-40297
Section 2L1.2 provides that anyone convicted of illegal reentry may be
subject to a 16-level sentencing enhancement if he had, prior to his deportation,
been convicted of a “crime of violence.” § 2L1.2(b)(1)(A)(ii). The Guidelines
define “crime of violence” as one of several enumerated offenses 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.” § 2L1.2, cmt. n.1(B)(iii)). We generally determine whether a prior
conviction is a crime of violence according to the categorical approach, which
looks to the elements of the offense instead of the underlying facts of the
conviction. United States v. Rodriguez, 711 F.3d 541, 549, 553 (5th Cir. 2013)
(en banc); Taylor v. United States, 495 U.S. 575 (1990).
The Florida statute at issue provides that: “Whoever knowingly and
willfully resists, obstructs, or opposes any officer . . . in the lawful execution of
any legal duty, by offering or doing violence to the person of such officer . . . is
guilty of a felony of the third degree . . . .” Fla. Stat. § 843.01. It is undisputed
that this offense is not enumerated in § 2L1.2, so the issue is whether it
satisfies the “physical force” clause. This court has already concluded that it
does in United States v. Ramos-Bonilla, 558 F. App’x 440 (5th Cir. 2014).
However, Shilon-Mendez takes issue with Ramos-Bonilla because, without
independent analysis, the court adopted the reasoning of our decision in United
States v. Alonzo-Garcia, 542 F. App’x 412 (5th Cir. 2013), which analyzed the
meaning of “violence” in a Florida aggravated assault statute. There, as in the
instant case, the term “violence” was not defined in the statute. Thus, the
Alonzo-Garcia court properly defined “violence” according to its plain meaning.
While Alonzo-Garcia pertained to a different Florida offense, the court’s
analysis of whether the term “violence” requires the use of physical force is still
applicable to the instant case. Alonzo-Garcia relied on Black’s Law Dictionary
and Webster’s Collegiate Dictionary to conclude that violence includes the use
2

Case: 16-40297

Document: 00513970591

Page: 3

Date Filed: 04/27/2017

No. 16-40297
of physical force. Id. at 416. Moreover, the Alonzo-Garcia court notes that the
Supreme Court also used dictionary definitions when concluding in Johnson v.
United States that “[e]ven by itself, the word ‘violent’ in [the ACCA] connotes
a substantial degree of force.” 559 U.S. 133, 140 (2010). There the Supreme
Court interpreted “violent” in the context of the Armed Career Criminal Act’s
definition of “violent felonies,” which is very similar to § 2L1.2’s physical force
clause. As such, we follow Ramos-Bonilla’s holding that a prior conviction
under Florida’s resisting an officer with violence statute is a crime of violence
under § 2L1.2.
Additionally, as to Shilon-Mendez’s assertion that § 843.01 does not meet
§ 2L1.2’s “intentional” requirement, we disagree. The Eleventh Circuit in U.S.
Romo-Villalobos, 674 F.3d 1246 (2012) which also held § 843.01 to be a crime
of violence, aptly explained that “Florida case law instructs that general intent
crimes – of which § 843.01 is one – typically require some form of ‘intent’ and
are distinguishable from ‘accidental’ or ‘strict liability’ crimes. Id. at 1251.
Accordingly, § 843.01 is not precluded from § 2L1.2’s “intentional”
requirement.
AFFIRMED.

3