                    Case: 12-11587         Date Filed: 01/11/2013   Page: 1 of 6

                                                                       [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 12-11587
                                        Non-Argument Calendar
                                      ________________________

                               D.C. Docket No. 9:11-cr-80180-KLR-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                   Plaintiff-Appellee,

                                                  versus

IVAN ANTONIO FLORES,
a.k.a. Ivan Antonio Flores Huertas,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Southern District of Florida
                                 ________________________

                                           (January 11, 2013)

Before CARNES, BARKETT and ANDERSON, Circuit Judges.

PER CURIAM:

         Ivan Antonio Flores appeals his 57-month sentence imposed after pleading
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guilty to one count of illegal reentry into the United States after deportation, in

violation of 8 U.S.C. § 1326(a) and (b)(2). On appeal, Flores argues that the

district court erred in enhancing his offense level by 16 levels because the

government failed to prove that his prior California conviction for assault with a

deadly weapon or force met the requirements of a crime of violence under

U.S.S.G. § 2L1.2(b)(1)(A)(ii). Moreover, the government did not prove when

Flores was released from incarceration for his prior California assault conviction

or when the instant offense commenced. Therefore, Flores asserts, the district

court could not properly determine whether his prior conviction occurred within

15 years of the current offense, and whether it would warrant any criminal history

points.

                                I. Crime of Violence

      We ordinarily review de novo whether a defendant’s prior conviction

qualifies as a crime of violence under the Sentencing Guidelines. United States v.

Rosales-Bruno, 676 F.3d 1017, 1020 (11th Cir. 2012). Where, however, the

defendant fails to object in the district court, we review for plain error. United

States v. Bennett, 472 F.3d 825, 831 (11th Cir. 2006). Under plain error review,

we, at our discretion, may correct an error where (1) an error occurred; (2) the

error was plain; and (3) the error affects substantial rights. Id. When these factors

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are met, we may exercise discretion and correct the error if it seriously affects the

fairness, integrity, or public reputation of judicial proceedings. Id. at 832.

Although Flores objected in the district court to the 16-level enhancement to his

offense level, arguing that the aggravated assault did not occur within 15 years of

his current offense, he did not object to the classification of his aggravated assault

as a “crime of violence.” Id. at 831. As such, plain error review applies.

      Section 2L1.2(b)(1)(A) of the Sentencing Guidelines provides for a 16-level

increase in the offense level if a defendant previously was deported, or unlawfully

remained in the United States, after a conviction for a felony that is a “crime of

violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). “Crime of violence” is defined to

include the federal, state, or local offense of “aggravated assault . . . or any other

offense under federal, state, or local law that has as an element the use, attempted

use, or threatened use of physical force against the person of another.” Id. § 2L1.2

cmt. n.1(B)(iii).

      We take a categorical approach to determine if a prior crime is a crime of

violence under the Guidelines, looking only at the fact of conviction and the

statutory definition of the prior crime. United States v. Palomino Garcia, 606

F.3d 1317, 1328 (11th Cir. 2010). The label a state attaches to an offense is not

conclusive of whether a prior conviction qualifies as an enumerated offense under

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§ 2L1.2, and we must determine if the prior crime is equivalent to the generic

definition of the listed crime of violence. Id. at 1331. In Palomino Garcia, we

held that the generic offense of “aggravated assault” under § 2L1.2 “involves a

criminal assault accompanied by the aggravating factors of either the intent to

cause serious bodily injury to the victim or the use of a deadly weapon.” Id. at

1332.

        The California Penal Code defines the crime of “[a]ssault with deadly

weapon or force likely to produce great bodily injury” in relevant part as follows:

“Any person who commits an assault upon the person of another with a deadly

weapon or instrument other than a firearm” or “[a]ny person who commits an

assault upon the person of another by any means of force likely to produce great

bodily injury.” Cal. Penal Code § 245(a)(1) and (4). “Assault” is defined as “an

unlawful attempt, coupled with a present ability, to commit a violent injury on the

person of another.” Id. § 240.

        The district court did not plainly err in enhancing Flores’s offense level by

16 levels, pursuant to U.S.S.G. § 2L1.2(b)(1)(A), because Flores was previously

convicted of assault with a deadly weapon in California, which is a crime of

violence. Section 245 requires either the use of a deadly weapon or force likely to

produce great bodily injury. Cal. Penal Code § 245(a)(1), (4), and (c). As such,

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the offense would qualify as the general offense of “aggravated assault” under

§ 2L1.2 because it involves “a criminal assault accompanied by the aggravating

factors of either the intent to cause serious bodily injury to the victim or the use of

a deadly weapon.” Palomino Garcia, 606 F.3d at 1328.

                    II. Date of Incarceration and Current Offense

      We review a district court’s interpretation of the Guidelines de novo, but

accept the district court’s factual findings unless they are clearly erroneous.

United States v. Scott, 447 F.3d 1365, 1368 (11th Cir. 2006). “A fact admitted to

during a guilty plea cannot later be contested when it appears in the defendant’s

PSI.” United States v. Martinez, 584 F.3d 1022, 1027 (11th Cir. 2009). Further, if

a defendant fails to object to factual allegations contained in the PSI, he admits

those facts for consideration during sentencing. United States v. Wade, 458 F.3d

1273, 1277 (11th Cir. 2006). A challenge to the PSI “must assert with specificity

and clarity each factual mistake of which defendant complains.” United States v.

Aleman, 832 F.2d 142, 145 (11th Cir. 1987).

      The Sentencing Guidelines provide that a defendant should be assessed

three criminal history points “for each prior sentence of imprisonment exceeding

one year and one month.” U.S.S.G. § 4A1.1(a). Such a sentence must have been

imposed “within fifteen years of the defendant’s commencement of the instant

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offense” to be counted. Id. § 4A1.2(e)(1). We have held that, under 8 U.S.C. §

1326, “the crime of being found in the United States commences when the alien

enters the United States and is not completed until the defendant’s arrest.” Scott,

447 F.3d at 1368 (citation and internal quotations omitted).

      The district court did not err by assessing Flores 3 criminal history points

for his 1993 assault conviction because the conviction occurred within 15 years of

the commencement of the present offense. Flores admitted at his change of plea

hearing that he illegally reentered the United States in 1996, at which time the

present offense commenced. See id.

      Upon review of the record and consideration of the parties’ briefs, we affirm

Flores’s sentence.

      AFFIRMED.




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