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United States v. Avila

United States Court of Appeals, Fourth Circuit

November 4, 2014

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
MARIO VASQUEZ AVILA, a/k/a Mario Sanchez, a/k/a Mario Vasquez, Defendant - Appellant

Argued: September 19, 2014.

Page 1101

Appeal from the United States District Court for the Western District of North Carolina, at Statesville. (5:12-cr-00022-RLV-DSC-1). Richard L. Voorhees, District Judge.

ARGUED:

Michael E. Archenbronn, Winston-Salem, North Carolina, for Appellant.

William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

ON BRIEF:

Anne M. Tompkins, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

Before KING, SHEDD, and AGEE, Circuit Judges.

OPINION

Page 1102

AGEE, Circuit Judge:

Mario Vasquez Avila (" Avila" ) appeals the thirty-seven month sentence he received after pleading guilty to illegal reentry in violation of 8 U.S.C. § 1326(a). On appeal, Avila does not challenge his conviction, but argues the district court committed reversible error at sentencing by concluding that his prior conviction for first-degree burglary under California Penal Code § § 459 and 460(a) qualified for an eight-level sentencing enhancement. Avila further argues that the district court's explanation of its chosen sentence was insufficient. For the reasons that follow, we affirm the judgment of the district court.

I.

Avila, a native and citizen of Mexico, has a long history of illegally entering the United States and engaging in criminal activity while here. First unlawfully entering the United States in 1990, Avila was arrested for shoplifting and voluntarily returned to Mexico. After reentering again, Avila was arrested on multiple charges in California and ultimately convicted of assault and sentenced to one year in prison in 1993. At the conclusion of his sentence, he was removed to Mexico.

Reentering the United States almost immediately, Avila was arrested in 1994 in San Diego, California, and charged with three counts of first-degree robbery, one count of first-degree burglary, one count of assault with a deadly weapon, and one count of assault with a firearm. Upon a guilty plea to first-degree burglary, Avila was sentenced to twelve years in prison. Immigration officials again removed Avila to Mexico upon his release.

Avila again illegally returned to the United States and was twice arrested and convicted in North Carolina for driving while impaired, ultimately receiving prison sentences of thirty days and six months. Avila spent additional time in jail after a conviction for malicious conduct by a prisoner. For reasons not explained in the record, immigration officials were apparently unaware of Avila's presence in the North Carolina penal system.

Following his release from confinement in North Carolina, Avila assaulted a woman and a police officer, and made several threats against the officer's family. Avila was subsequently charged with two counts of simple assault and one count of communicating a threat in North Carolina state court.

This time immigration authorities did learn of Avila's pending ...


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