North Carolina Lawyers Weekly
U.S. v. Avila (Lawyers Weekly No. 14-01-1053, 17 pp.) (Agee, J.) No. 13-4606, Nov. 4, 2014; USDC at Statesville, N.C. (Voorhees, J.) 4th Cir.
Holding: The 4th Circuit upholds a 37-month sentence on defendant’s guilty plea to illegal reentry, enhanced by eight levels based on defendant’s prior California conviction for first-degree burglary and considering his long history, from 1990, of illegally entering the U.S. from Mexico and engaging in criminal activity while here.
Defendant asserts the district court erred in classifying his first-degree burglary conviction under Cal. Penal Code §§ 459 and 460(a) as an aggravated felony justifying an eight-level enhancement under USSG § 2L1.2(b)(1)(C).
We employ a categorical approach to assess whether the burglary conviction is an aggravated felony, focusing on the elements of the statute of conviction rather than the conduct underlying the offense. We conclude the California first-degree burglary qualifies as a crime of violence under the residual clause in 18 U.S.C. § 16(b). Given the inherent risks associated with burglary of a dwelling, courts have come to the conclusion that first-degree burglary under California law is indeed a crime of violence under 18 U.S.C. § 16(b). We agree.
The district court correctly applied the eight-level enhancement when it calculated defendant’s sentence.
Contrary to defendant’s assertion about the procedural inadequacy of the district court’s sentencing colloquy, the court’s explanation of its sentence was more than sufficient to preclude a finding of error. The district court explained that it had considered defendant’s history and characteristics, and, taken together, these indicated a concern for the safety of the public as the driving reason for the sentence.
Judgment affirmed.
