Sandra Day O’Connor sat on this panel also. The opinion was written by Judge Pryor. In U.S. v. Garcia-Sandobal, the defendant, citizen of Honduras, entered the United States illegally and committed a variety of crimes. After he was deported in 1998, he reentered illegally, and committed more crimes, including a conviction for disorderly intoxication for which he was sentenced to 50 days in jail. In 2010 he was indicted in federal court located in Florida with the federal crime of being found in the United States after having been previously removed under 8 U.S.C. section 1326.
Section 1326(b)(2) provides for a maximum prison sentence of 20 years if the defendant was removed following a conviction of an aggravated battery. The indictment alleged Garcia’s three prior aggravated felonies imposed before his removal including 1996 convictions for battery on a law enforcement officer and obstructing an officer with violence. At Garcia’s guilty plea he announced that he was preserving the right to challenge the classification of the prior sentences as aggravated convictions. As expected, the pre-sentence investigation report recommended a 16 point enhancement base on the 1996 conviction for obstructing an officer with violence.
Garcia’s claim that the federal district court erred when it accepted his guilty plea was waived by his guilty plea.
The Eleventh Circuit rejected the argument because he waived the issue by pleading guilty to an indictment charging him with having a prior aggravate felony conviction. The indictment alleged that he was deported and that the enhanced sentencing provision of 1326(b) applied to his case. Though Garcia announced at his plea that he objected to the characterization of the prior conviction as an aggravated felony, he plead guilty to that very charge, meaning he agreed that he had been removed following his conviction for an aggravated felony. By pleading guilty to the indictment he was admitting to having been deported following his conviction to an aggravated felony.
U.S. v. Romo-Villalobos, 674 F. 3d (11th Cir. 2012 ) foreclosed his argument that obstructing an officer with violence was not a violent crime.
His claim that the conviction for obstructing an officer with violence was not a crime of violence to warrant the 16 level enhancement was foreclosed by precedent U.S. v. Romo-Villalobos, 674 F. 3d (11th Cir. 2012 )
Disorderly intoxication conviction counts for criminal history score.
Garcia challenged the two-point criminal history score increase for his disorderly intoxication conviction arguing it is similar to “public intoxication,” an offense that the guidelines do not count toward the criminal history score. The guidelines provide that misdemeanors and petty offenses are counted except that certain enumerated offenses are never counted and others are counted if the sentence is a term of imprisonment of at least 30 days or probation for at least 30 days Garcia claimed the district court erred when it found his conviction was similar to “disorderly conduct or disturbing the peace” which resulted in a higher criminal history score. ” Applying the five factors given in section 4A1.2 for determining whether an unlisted conviction is similar to an enumerated offense, the Eleventh Circuit found that Garcia’s conviction for “disorderly intoxication” is more akin to a disorderly conduct conviction than a public intoxication conviction.
In case you missed it, kindly read my previous post:
The crime of intentional flight from a police car is a violent felony under the ACCA enhancement clause, January 4, 2013