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United States v. Albornoz-Albornoz

United States Court of Appeals, Fifth Circuit

November 3, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
RAFAEL ALBORNOZ-ALBORNOZ, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas.

For United States of America, Plaintiff - Appellee: Amy Howell Alaniz, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, McAllen, TX; Andrew R. Gould, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX.

For Rafael Albornoz-Albornoz, Defendant - Appellant: Marjorie A. Meyers, Federal Public Defender, H. Michael Sokolow, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX.

Before REAVLEY, SMITH, and SOUTHWICK, Circuit Judges.

OPINION

Page 1140

PER CURIAM:

Rafael Albornoz-Albornoz appeals his sentence by challenging a sixteen-level enhancement for a crime of violence (" COV" ). He maintains that his past conviction of attempted second-degree burglary does not qualify as a COV under U.S. Sentencing Guidelines Manual (" U.S.S.G.) § 2L1.2(b)(1)(A)(ii) because New York's burglary statute is broader than the generic crime of burg-lary of a dwelling under the sentencing guidelines. Specifically, he reasons that the term " dwelling" under New York law is more expansive than the common definition of that term. We conclude otherwise and affirm.

I.

In 2011, Albornoz-Albornoz was convicted in New York of attempted second-degree burglary. A Colombian citizen, he was deported, but border agents later apprehended him in the United States. He pleaded guilty of illegal reentry under 8 U.S.C. § 1326(a).

The presentence investigation report (" PSR" ) made the following sen-tencing calculations: a base offense level of 8 and a criminal-history category of III, a two-level reduction for acceptance of responsibility, and a sixteen-level enhancement for a felony conviction of a COV. See U.S.S.G. § § 2L1.2, 3E1.1(a). After the government moved for an additional one-level reduction, the final sentencing range was 46-57 months.

Albornoz-Albornoz submitted timely objections to the enhancement, contending that the New York burglary statute was broader than the generic crime of burglary of a dwelling in the guidelines' list of enumerated offenses. The court disagreed and sentenced him to forty-six months.

II.

We review the district court's interpretation and application of the guide-lines de novo.[1] Under U.S.S.G. ยง ...


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