Case: 09-40448     Document: 00511066962          Page: 1    Date Filed: 03/31/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           March 31, 2010

                                       No. 09-40448                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee
v.

DAVID ESPINOZA GUTIERREZ,

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 5:08-CR-1289-1


Before DAVIS, WIENER, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        David Espinoza Gutierrez appeals from a conviction for being found
illegally in the United States after deportation. He alleges that the district court
erred in applying a sentence enhancement. We AFFIRM.
        Gutierrez, a citizen of Mexico, was removed from the United States on
April 12, 2007. He was found by the Border Patrol in Laredo, Texas, on July 25,
2008. He pled guilty to reentering the United States unlawfully.



        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                   No. 09-40448

      At sentencing, the district court relied on the presentence investigation
report and enhanced Gutierrez’s sentence sixteen levels pursuant to U.S.S.G. §
2L1.2(b)(1)(A). The enhancement was based on Gutierrez’s 2006 California
conviction for “inflict[ing] corporal injury on spouse,” which the district court
determined was a crime of violence under Section 2L1.2. Gutierrez received an
adjusted offense level of twenty-four, which was reduced by two levels for
acceptance of responsibility. With a total offense level of twenty-two and a
criminal history category of IV, Gutierrez received a Guidelines imprisonment
range of sixty-three to seventy-eight months. He was sentenced to sixty-three
months of imprisonment.
      On appeal, Gutierrez argues that the California offense is not a crime of
violence. His argument focuses on whether one of the elements of the prior
offense is “the use, attempted use, or threatened use of physical force.” U.S.S.G.
§ 2L1.2 cmt. 1(B)(iii). Gutierrez’s prior conviction was in 2006 for the California
offense of “Willful infliction of corporal injury.”
      The relevant California statutory language is this:
      (a) Any person who willfully inflicts upon a person who is his or her
      spouse, former spouse, cohabitant, former cohabitant, or the mother
      or father of his or her child, corporal injury resulting in a traumatic
      condition, is guilty of a felony, and upon conviction thereof shall be
      punished by imprisonment in the state prison for two, three, or four
      years, or in a county jail for not more than one year, or by a fine of
      up to six thousand dollars ($6,000) or by both that fine and
      imprisonment.
Cal. Penal Code § 273.5(a).
      The Ninth Circuit recently held that a violation of California Penal Code
Section 273.5 is a “crime of violence” under U.S.S.G. § 2L1.2. United States v.
Laurico-Yeno, 

, 820 (9th Cir. 2010). The court concluded that the
statute has as an element the use of physical force because “a defendant can be
convicted under § 273.5 only if he or she intentionally uses ‘physical force


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                                  No. 09-40448

against the person of another.’”     

(quoting U.S.S.G. § 2L1.2 cmt.
1(B)(iii)).
       The appellant in Laurico-Yeno made the same argument as does Gutierrez
here – that the statute does not require the use of force because it can be violated
with the “least touching.” 

The Ninth Circuit rejected this argument,
finding that “Section 273.5 does not penalize minimal, non-violent touchings. It
penalizes the intentional use of force that results in a traumatic condition.” 

the same conclusion. Gutierrez has not presented, and we
cannot discern, any plausible set of facts that could actually lead to a conviction
under Section 273.5 without the use of violent or destructive force.
       The district court properly characterized the California offense as a crime
of violence. AFFIRMED.




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