                            ON REHEARING

                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-5141


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MICHAEL ALEXANDER BARILLAS, a/k/a Jose Fermin Vasquez,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:10-cr-00753-AW-1)


Submitted:   November 26, 2013             Decided:     January 7, 2014


Before WILKINSON and    NIEMEYER,   Circuit   Judges,    and   HAMILTON,
Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Elita C. Amato, LAW OFFICE OF ELITA C. AMATO, Arlington,
Virginia, for Appellant.     Rod J. Rosenstein, United States
Attorney, Paul Nitze, Special Assistant United States Attorney,
Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Michael       Alexander     Barillas          appealed      the    sentence

imposed following his guilty plea to unauthorized reentry of a

deported     alien     after     an    aggravated          felony     conviction,    in

violation of 8 U.S.C. § 1326(a), (b) (2012).                          Barillas argued

that   the   district      court   erred       when   it    enhanced     his   sentence

based on a prior conviction for Maryland second degree assault,

which the district court found to be a crime of violence, and by

concluding that he did not qualify for a downward departure.                         In

an    opinion     issued   on   August    14,    2012,      we    affirmed     Barillas’

sentence.       Before the mandate issued, however, Barillas filed a

petition for rehearing and rehearing en banc concerning only the

sentence enhancement.           While the rehearing petition was pending,

this court issued United States v. Royal, 731 F.3d 333 (4th Cir.

2013).     Because Royal constitutes an intervening change in law,

we granted Barillas’ petition for panel rehearing, but denied

his    petition     for    rehearing     en    banc.        For    the   reasons    that

follow, we affirm Barillas’ sentence.

             In     calculating        Barillas’       Guidelines         range,     the

district court increased his offense level under U.S. Sentencing

Guidelines Manual § 2L1.2(b)(1)(A) (2010).                       This provision calls

for a sixteen-level enhancement if the defendant was deported

after he was convicted of a crime of violence.                           The district



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court found that Barillas’ prior Maryland second degree assault

conviction qualified as a crime of violence.

              After we issued our August 14, 2012 opinion, in which

we     concluded      that        the    district       court    properly        found    that

Barillas’ Maryland second degree assault conviction qualified as

a    crime   of      violence,       the   Supreme       Court       decided    Descamps      v.

United States, 133 S. Ct. 2276, 2283-86 (2013), reiterating the

elements-driven           approach         to     determining          whether     a      prior

conviction constitutes a violent felony for sentencing purposes.

More     recently,          after        applying        Descamps’        elements-driven

approach,       we   held     that      Maryland       second    degree    assault       is   an

indivisible offense that categorically is not a violent felony

for purposes of the Armed Career Criminal Act (“ACCA”).                                  Royal,

731 F.3d at 341-42.               Because we have consistently held that the

definition of a violent felony under the ACCA and the definition

of a crime of violence under the Guidelines are nearly identical

and materially indistinguishable, see United States v. King, 673

F.3d 274, 279 n.3 (4th Cir.), cert. denied, 133 S. Ct. 216

(2012),      and     have    applied       the       categorical      approach     developed

under     the      ACCA     to     the     Guidelines,         see     United    States       v.

Cabrera-Umanzor,            728    F.3d    347,       353-54     (4th    Cir.     2013),      we

conclude that the district court erred by holding that Barillas’

Maryland second degree assault conviction qualified as a crime



                                                 3
of    violence      for     purposes       of        applying       the    sixteen-level

enhancement.

            However, the district court found in the alternative

that Barillas qualified for the sixteen-level enhancement under

§ 2L1.2(b)(1)(A) based on his 1994 California drug conviction.

Barillas     does    not     challenge         the    district      court’s       alternate

finding,    so    further     review      of       that   finding    is    waived.       See

United States v. Hudson, 673 F.3d 263, 268 (4th Cir.) (issues

not raised in opening brief are waived), cert. denied, 133 S.

Ct.   207   (2012).         Based    on    the        1994   conviction,         then,   the

district    court    did     not    err    in        enhancing   Barillas’         sentence

pursuant to USSG § 2L1.2(b)(1)(A).

            We therefore affirm Barillas’ sentence.                             We dispense

with oral argument because the facts and legal contentions are

adequately       presented    in    the    materials         before       the    court   and

argument would not aid the decisional process.



                                                                                   AFFIRMED




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