United States v. Paulino Morales-Alonso

Case: 16-14925 Date Filed: 01/05/2018 Page: 1 of 20 [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 16-14925 ________________________ D.C. Docket No. 1:15-cr-00261-SCJ-LTW-1 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus PAULINO MORALES-ALONSO, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Northern District of Georgia ________________________ (January 5, 2018) Case: 16-14925 Date Filed: 01/05/2018 Page: 2 of 20 Before JULIE CARNES, EDMONDSON, Circuit Judges, and WILLIAMS, * District Judge. JULIE CARNES, Circuit Judge: This appeal requires us to decide whether Georgia aggravated assault as defined by O.C.G.A § 16-5-21(a)(2) is a crime of violence under the operative version of § 2L1.2 of the Sentencing Guidelines. Defendant Paulino Morales- Alonso was convicted in 2016 of illegally reentering the United States, in violation of 8 U.S.C. §§ 1326(a) and (b)(2), after having been deported following a conviction for aggravated assault under O.C.G.A § 16-5-21(a)(2). Based on the aggravated assault conviction, the district court imposed a sentencing enhancement that applies when a defendant has been deported after committing a “crime of violence” as defined by § 2L1.2(b)(1)(A)(ii) of the Guidelines. Defendant appealed the sentence, arguing that his Georgia aggravated assault conviction does not qualify as a crime of violence for purposes of § 2L1.2. We affirm. BACKGROUND Defendant, a Mexican citizen who was in the United States illegally, was convicted in 2012 of committing an aggravated assault in Georgia. At the time of Defendant’s conviction, O.C.G.A. § 16-5-21 defined “aggravated assault” as an “assault” committed: * Honorable Kathleen Williams, United States District Judge for the Southern District of Florida, sitting by designation. 2 Case: 16-14925 Date Filed: 01/05/2018 Page: 3 of 20 (1) With intent to murder, to rape, or to rob; (2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; or (3) [Against a] person or persons without legal justification by discharging a firearm from within a motor vehicle toward a person or persons. O.C.G.A. § 16-5-21(a) (2012).1 For purposes of this statute, an “assault” can be accomplished either by (1) attempting to “commit a violent injury to the person of another” or (2) committing an “act which places another in reasonable apprehension of immediately receiving a violent injury.” O.C.G.A. § 16-5-20(a). Defendant was convicted of violating subsection (a)(2) of Georgia’s aggravated assault statute by assaulting his victim “with a brick, an object which when used offensively against a person is likely to result in serious bodily injury, by throwing it at and striking” the victim. Following his Georgia aggravated assault conviction, Defendant was removed from the United States. A few months after his removal, immigration officials again found Defendant in a Georgia jail after he had been arrested on charges of possessing methamphetamine and marijuana, obstructing a law enforcement officer, and giving a false name. Defendant was convicted on those 1 The Georgia legislature has since amended the statute to add a fourth ...

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