Appeal from the United States District Court for the Southern District of Texas.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Eileen K. Wilson, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX.
For OSCAR CECILIO RAMOS CERON, Defendant - Appellant: Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, Assistant Federal Public Defender, Margaret Christina Ling, Assistant Federal Public Defender, Scott Andrew Martin, Assistant Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX.
Before KING, JOLLY, and COSTA, Circuit Judges.
Oscar Cecilio Ramos Ceron pleaded guilty to reentry of a deported alien. The district court applied a 16-level Sentencing Guidelines enhancement, categorizing his prior Florida conviction of aggravated battery as a " crime of violence." Ramos Ceron appeals, arguing that Florida aggravated battery is not a crime of violence, and that collateral estoppel should have precluded the government from asserting the crime of violence enhancement because a judge presiding over his earlier reentry case declined to apply it.
The calculation of Ramos Ceron's offense level in his presentence report (PSR) included a 16-level crime of violence enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), based on his 2008 Florida conviction of aggravated battery under Fla. Stat. § 784.045(1)(a)(1). Ramos Ceron's charging document for the Florida conviction stated that he committed
an aggravated battery upon Jorge Alfredo Talavera by actually and intentionally touching or striking the person of Jorge Alfredo Talavera, against said person's will, by touching Jorge Alfredo Talavera about the face and/or back and/or body, and did thereby knowingly or intentionally cause great bodily harm and/or permanent disfigurement, to wit: lacerations requiring stitches, in violation of s. 784.045(1)(a)(1), Fla. Stat.
Based on a resulting offense level of 22 and a criminal history category of III, Ramos Ceron's Guidelines range was 51 to 63 months. Ramos Ceron objected to the enhancement, arguing that his Florida aggravated battery conviction did not qualify
as a crime of violence. A footnote in the objection he filed noted that a different judge presiding over his earlier illegal reentry case had granted this objection and instead applied only the 4-level enhancement for " any felony."
In this case, however, the district court overruled the objection to the crime of violence enhancement, adopted the PSR, and imposed a 63-month sentence at the high end of the Guidelines range. The district court also stated that in the absence of the crime of violence enhancement it would have imposed the same sentence by applying an upward variance.
Ramos Ceron appeals, arguing that the crime of violence enhancement is not applicable, that the district court should have applied collateral estoppel, and that the error was not harmless ...