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United States v. Zuniga-Soto

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Before HENRY, Chief Judge, McWILLIAMS, Senior Circuit Judge, and HOLMES, Circuit Judge.

Monico Zuniga-Soto pleaded guilty to illegally re-entering the United States in violation of 8 U.S.C. § 1326 and now appeals his sentence. He argues that the district court erred in applying a sixteen-level enhancement to his Guidelines calculation because it incorrectly determined that his prior conviction for assaulting a public servant in violation of section 22.01 of the Texas Penal Code qualified as a “crime of violence” under U.S.S.G. § 2L1.2. Section 2L1.2 defines that term to include any felony under state or federal law that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2(b)(1)(A)(ii); id. at cmt. n.1(B)(iii) (emphasis added). Mr. Zuniga-Soto maintains that his prior conviction was not a crime of violence for two reasons: (1) the statute allows convictions for reckless conduct and thus does not require the “use” — i.e., active, intentional employment — of physical force, as required by developing caselaw; and (2) the statute requires proof of causation of injury, but not proof of the use, attempted, or threatened use of physical force and, for that reason also, does not satisfy § 2L1.2′s use of physical force requirement.

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