SHEDD, Circuit Judge:
Jose Adan Savillon-Matute appeals his criminal sentence, contending that the district court violated Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161
A federal grand jury in the District of Maryland indicted Savillon-Matute on one count of illegal reentry into the United States after having been convicted of an aggravated felony, in violation of 8 U.S.C. § 1326(a) & (b)(2). Savillon-Matute pled guilty to the indictment, with the parties agreeing to strike as surplusage the clause "after having been convicted of an aggravated felony."
Before sentencing, the probation office prepared a Presentence Report (PSR). The PSR calculated Savillon-Matute's base offense level under the United States Sentencing Guidelines as 8 but added an 8-level enhancement because he previously had been convicted of second-degree assault in Maryland, which the PSR concluded is an "aggravated felony" under U.S.S.G. § 2L1.2(b)(1)(C). Including a 3-level reduction for acceptance of responsibility, the PSR set Savillon-Matute's total offense level as 13 and, with a criminal history of I, calculated a recommended guideline range of 12 to 18 months imprisonment.
At sentencing, the Government argued that Savillon-Matute's second-degree assault conviction was for a "crime of violence" under United States v. Diaz-Ibarra, 522 F.3d 343 (4th Cir.2008), and that, under U.S.S.G. § 2L1.2(b)(1)(A)(ii), the PSR should have increased Savillon-Matute's offense level by 16, not 8.
In response, Savillon-Matute argued that he was not subject to either enhancement. Instead, he argued that under Shepard, because Maryland's second-degree assault statute does not necessarily include the use, attempted use, or threatened use of physical force, it does not categorically qualify as an aggravated felony or a crime of violence under the Sentencing Guidelines. Moreover, Savillon-Matute argued that, in applying Shepard's "modified categorical approach," the district court could not consider the charging documents or the plea colloquy because an Alford plea does not contain an admission
The district court ultimately sentenced Savillon-Matute to 36 months imprisonment. The court agreed with Savillon-Matute that second-degree assault is not categorically a crime of violence and that it could not consider the plea colloquy because Savillon-Matute entered an Alford plea. The court did determine, however, that it could take judicial notice of the fact—made clear in the charging documents—that Savillon-Matute's victim was a minor and that he used physical force against her. Accordingly, the court upheld the imposition of the 8-level "aggravated felony" enhancement proposed in the PSR.
In sentencing Savillon-Matute, the district court also made clear that a 36-month sentence was necessary under 18 U.S.C. § 3553(a) to deter him and to punish his continued flouting of American law. The court noted it "may be the first time" it had to "go upward" under § 3553(a) because "there comes a point when enough is enough," that the offense is "very serious," and that Savillon-Matute "came back twice" after being deported. (J.A. at 84). The court noted "[i]f I slap him on the wrist, the very incentives that made him come before" would lead him to come back again and that, accordingly, for "all of these reasons under 3553, I find it 3 years." (J.A. at 85). When questioned by defense counsel whether the court was applying the 16-level enhancement or just the 8-level enhancement, the court specified that it was "tak[ing] judicial notice that she was a minor" for purposes of § 3553(a). (J.A. at 87). In conclusion, the court noted again that Savillon-Matute had continued to flout the law and that it was necessary to "go[ ] up a lot" because "a three year sentence is absolutely the appropriate sentence in this case."
On appeal, Savillon-Matute argues that the district court committed reversible error in calculating his guideline range.
Procedural errors may include "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range." Gall, 552 U.S. at 51, 128 S.Ct. 586.
Savillon-Matute contends that the district court committed procedural error in applying the 8-level enhancement because the court should not have looked to the charging documents to determine that his second-degree assault conviction arose from his sexual abuse of a minor. Ultimately, instead of wading into the morass
This approach originates from two bases: (1) that "procedural errors at sentencing. . . are routinely subject to harmlessness review," Puckett v. United States, ___ U.S. ___, 129 S.Ct. 1423, 1432, 173 L.Ed.2d 266 (2009), and (2) that we commonly assume, without deciding, an error in performing harmless error inquiry, see,
Applying this two-step inquiry leads us to conclude that Savillon-Matute's sentence should be affirmed. Although the district court did not specifically state that it would give the same sentence absent the 8-level enhancement, there is no requirement that it do so, see Keene, 470 F.3d at 1349, and the district court explained throughout sentencing that it "absolutely" believed a 36-month sentence is appropriate. This consistent indication shows that it would have reached the same result even if it had decided the guidelines issue the other way and satisfies the first requirement of the "assumed error harmlessness inquiry." Turning to the second requirement, we "initially give [Savillon-Matute] the benefit of the doubt and assume" that the guideline range was 4-10 months
For the foregoing reasons, we affirm Jose Adan Savillon-Matute's sentence of 36 months imprisonment.
AFFIRMED.