         Case: 18-11874   Date Filed: 03/06/2019   Page: 1 of 13


                                                       [DO NOT PUBLISH]

          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                    ________________________

                           No. 18-11874
                       Non-Argument Calendar
                     ________________________

             D.C. Docket No. 2:17-cr-00443-WKW-WC-1

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                versus

LUIS SAMAYOA-CASTILLO,

                                                        Defendant-Appellant.

                     ________________________

                           No. 18-11879
                       Non-Argument Calendar
                     ________________________

             D.C. Docket No. 3:15-cr-00192-WKW-CSC-1

UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                versus

LUIS SAMAYOA-CASTILLO,

                                                        Defendant-Appellant.
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                          ________________________

                  Appeals from the United States District Court
                      for the Middle District of Alabama
                         ________________________

                                 (March 6, 2019)

Before TJOFLAT, MARCUS and JORDAN, Circuit Judges.

PER CURIAM:

      Luis Samayoa-Castillo appeals the sentences imposed in 2018, following his

third conviction for illegal reentry, in violation of 8 U.S.C. § 1326(a) and (b)(2)

(“Illegal Reentry Case”), and the revocation of his supervised release (“Revocation

Case”). On appeal, Samayoa-Castillo argues that: (1) the district court erred in

holding that his prior Massachusetts conviction for assault with a dangerous weapon

(“ADW”) qualified as an “aggravated felony” to support the 20-year statutory

maximum sentence provided in § 1326(b)(2); and (2) his total 60-month sentence is

procedurally and substantively unreasonable. After careful review, we affirm.

      We review questions of statutory interpretation, including whether an offense

qualifies an aggravated felony, de novo. United States v. Maturin, 499 F.3d 1243,

1245 (11th Cir. 2007).     We review the sentence a district court imposes for

“reasonableness,” which “merely asks whether the trial court abused its discretion.”

United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008) (quotation omitted).

Where a defendant fails to clearly articulate an objection on procedural grounds at


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the time of sentencing, he waives the objection and plain error review applies.

United States v. Zinn, 321 F.3d 1084, 1087 (11th Cir. 2003). To establish plain

error, the defendant must show (1) an error, (2) that is plain, and (3) that affected his

substantial rights. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007). If

the defendant satisfies these conditions, we may exercise our discretion to recognize

the error only if it seriously affects the fairness, integrity, or public reputation of

judicial proceedings. Id. We deem arguments not raised by a defendant in his initial

brief to be waived. United States v. Levy, 379 F.3d 1241, 1244 (11th Cir. 2004).

      First, we are unpersuaded by Samayoa-Castillo’s claim that his prior

conviction for assault with a dangerous weapon qualified as an aggravated felony

for purposes of § 1326(b)(2). Any alien who has been deported or removed from

the United States, and thereafter is found in the United States, shall be fined or

imprisoned not more than two years, or both. 8 U.S.C. § 1326(a). Notwithstanding

the provisions of § 1326(a), any alien whose removal was subsequent to a conviction

for commission of a felony shall be fined or imprisoned not more than ten years. Id.

§ 1326(b)(1). Any alien described in (a) whose removal was subsequent to a

conviction for the commission of an aggravated felony shall be fined or imprisoned

not more than 20 years. Id. § 1326(b)(2). An “aggravated felony” includes a crime

of violence, as defined in 18 U.S.C. § 16, or a conviction for illegal reentry by an

alien who was previously deported on the basis of an aggravated felony. Id. §


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1101(a)(43)(F), (O). An alien who has been removed based on a conviction for an

aggravated felony is permanently inadmissible to the United States. See id. §

1182(a)(9)(A)(i).

      A crime of violence, for purposes of the illegal reentry statute, is defined as

“an offense that has as an element the use, attempted use, or threatened use of

physical force against the person or property of another.” 18 U.S.C. § 16(a). The

definition of a crime of violence under § 16(a) is virtually identical to the definition

of a “violent felony” under the ACCA, as both definitions include any felony offense

that “has as an element the use, attempted use, or threatened use of physical force

against” the person of another. Compare 18 U.S.C. § 16(a), with 18 U.S.C. §

924(e)(2)(B)(i); see also Johnson v. United States, 559 U.S. 133, 140 (2010) (noting

that the definition of crime of violence in § 16 is “very similar” to § 924(e)(2)(B)(i)’s

definition of violent felony).

      In Massachusetts, a crime punishable by death or imprisonment in the state

prison is a felony and all other crimes are misdemeanors. M.G.L.A. ch. 274, § 1.

The Massachusetts assault-with-a-dangerous-weapon statute provides, in part, that:

      (a) Whoever, by means of a dangerous weapon, commits an assault
      upon a person sixty years or older, shall be punished by imprisonment
      in the state prison for not more than five years or by a fine of not more
      than one thousand dollars or imprisonment in jail for not more than two
      and one-half years . . . .

      (b) Whoever, by means of a dangerous weapon, commits an assault
      upon another shall be punished by imprisonment in the state prison for
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      not more than five years or by a fine of not more than one thousand
      dollars or imprisonment in jail for not more than two and one-half years.

Id. ch. 265, § 15B. The Massachusetts common law recognizes two theories of

assault: attempted battery and threatened battery. Commonwealth v. Porro, 939

N.E.2d 1157, 1163 (Mass. 2010). The Massachusetts Supreme Judicial Court has

defined battery as “harmful and offensive touching[],” Commonwealth v. Burke,

457 N.E.2d 622, 624 (Mass. 1983), and assault as “either an attempt to use physical

force on another, or as a threat of use of physical force.” Commonwealth v. Gorassi,

733 N.E.2d 106, 110 (Mass. 2000). “The crime of [ADW] adds one additional

element, namely, that the assault was perpetrated by means of a dangerous weapon.”

Commonwealth v. Melton, 763 N.E.2d 1092, 1096 (Mass. 2002).

      While our Court has not resolved whether a conviction for Massachusetts

ADW constitutes a crime of violence under 18 U.S.C. § 16(a), the First Circuit has

held that a prior Massachusetts ADW conviction qualifies as a predicate violent

felony under the ACCA. See United States v. Am, 564 F.3d 25, 33 (1st Cir. 2009);

United States v. Whindleton, 797 F.3d 105, 112-13 (1st Cir. 2015). In Am, the First

Circuit rejected a defendant’s argument that his prior conviction for assault with a

knife did not qualify as a predicate offense under the ACCA because the

Massachusetts ADW statute lacked an express element requiring force. 564 F.3d at

33. The First Circuit held that, “[b]y its terms, the Massachusetts [ADW] statute . .

. which criminalizes an assault upon another by means of a dangerous weapon has
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as an element the use, attempted use, or threatened use of physical force as required

by ACCA.” Id. (quotations omitted); see also Whindleton, 797 F.3d 105, 112-13

(1st Cir. 2015) (holding that a defendant’s prior conviction under the Massachusetts

ADW statute qualified as a violent felony for purposes of the ACCA).

      For starters, although Samayoa-Castillo was initially charged with assault and

battery with a dangerous weapon (“ABDW”), M.G.L.A. ch. 265, § 15A, the record

shows that he was ultimately convicted of the amended charge of ADW, M.G.L.A.

ch. 265, § 15B, which has different elements and case law. On appeal, Samayoa-

Castillo continues to refer to his prior conviction as a conviction under

Massachusetts’s ABDW statute. This means that Samayoa-Castillo has arguably

waived any argument challenging the application of the 20-year statutory maximum

term of imprisonment under § 1326 by arguing on appeal that his prior

Massachusetts ABDW is not a qualifying aggravated felony conviction, instead of

making an argument concerning ADW. See Levy, 379 F.3d at 1244.

      But, in any event, even if we were to consider the merits of his claim, it would

fail. The United States Court of Appeals for the First Circuit, which includes

Massachusetts, has squarely held that a Massachusetts ADW conviction constitutes

a crime of violence under § 16(a), and we are persuaded by these decisions. See 18

U.S.C. § 16(a); Whindleton, 797 F.3d at 112-13; Am, 564 F.3d at 33. Moreover, to

the extent Samayoa-Castillo says the ADW statute does not require the intentional


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use of force needed to qualify as a crime of violence, the First Circuit has disagreed,

holding that the ADW statute requires the defendant to have acted intentionally. Am,

564 F.3d at 33-34. Thus, applying persuasive First Circuit precedent, we conclude

that the district court correctly held that Samayoa-Castillo’s 1995 Massachusetts

ADW conviction constitutes an aggravated felony for purposes of § 1326.

       We also reject Samayoa-Castillo’s claim that his sentence is unreasonable. In

reviewing sentences for reasonableness, we perform two steps. Pugh, 515 F.3d at

1190. First, we “‘ensure that the district court committed no significant procedural

error, such as 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.’” Id. (quoting Gall v. United States, 552 U.S. 38, 51 (2007)).1 If

a district court selects a sentence based on a fact for which no record evidence exists,

that finding is clearly erroneous, and the sentence is procedurally unreasonable.

United States v. Barner, 572 F.3d 1239, 1251 (11th Cir. 2009). However, the district


1
        The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to protect
the public; (5) the need to provide the defendant with educational or vocational training or medical
care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the pertinent
policy statements of the Sentencing Commission; (9) the need to avoid unwanted sentencing
disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a).
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court need not explicitly say that it considered the § 3553(a) factors, as long as the

court’s comments show it considered the factors when imposing sentence. United

States v. Dorman, 488 F.3d 936, 944 (11th Cir. 2007).

      Where the district court procedurally errs, “a remand is appropriate unless the

reviewing court concludes, on the record as a whole, that the error was harmless,

i.e., that the error did not affect the district court’s selection of the sentence

imposed.” Williams v. United States, 503 U.S. 193, 203 (1992) (addressing proper

standard of review when district court misapplies the Guidelines). Therefore, where

the district court relies on both proper and improper factors in making a sentencing

decision, “we may affirm so long as the record reflects that the improper factors did

not affect or influence the district court’s conclusion.” United States v. Kendrick,

22 F.3d 1066, 1069 (11th Cir. 1994).

      If we conclude that the district court did not procedurally err, we consider the

“substantive reasonableness of the sentence imposed under an abuse-of-discretion

standard,” based on the “totality of the circumstances.” Pugh, 515 F.3d at 1190

(quotation omitted). “[W]e will not second guess the weight (or lack thereof) that

the [court] accorded to a given [§ 3553(a)] factor . . . as long as the sentence

ultimately imposed is reasonable in light of all the circumstances presented.” United

States v. Snipes, 611 F.3d 855, 872 (11th Cir. 2010) (quotation, alteration and

emphasis omitted). However, a court may abuse its discretion if it (1) fails to


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consider relevant factors that are due significant weight, (2) gives an improper or

irrelevant factor significant weight, or (3) commits a clear error of judgment by

balancing a proper factor unreasonably. United States v. Irey, 612 F.3d 1160, 1189

(11th Cir. 2010) (en banc). Also, a court’s unjustified reliance on any one § 3553(a)

factor may be a symptom of an unreasonable sentence. United States v. Crisp, 454

F.3d 1285, 1292 (11th Cir. 2006). A sentence imposed well below the statutory

maximum is an indicator of a reasonable sentence. See United States v. Gonzalez,

550 F.3d 1319, 1324 (11th Cir. 2008).

       “If, after correctly calculating the guidelines range, a district court decides

that a sentence outside that range is appropriate, it must consider the extent of the

deviation and ensure that the justification is sufficiently compelling to support the

degree of the variance.” United States v. Williams, 526 F.3d 1312, 1322 (11th Cir.

2008) (quotations omitted). If the district court imposes a sentence outside the

guidelines range, “[we] may consider the deviation, but must give due deference to

the district court’s decision that the § 3553(a) factors, on a whole, justify the extent

of the variance.” Id. (quotations omitted). A district court is “free to consider any

information relevant to [a defendant’s] background, character, and conduct in

imposing an upward variance.” United States v. Tome, 611 F.3d 1371, 1379 (11th

Cir. 2010) (quotations omitted). The party challenging a sentence has the burden of




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showing that the sentence is unreasonable. United States v. Barrington, 648 F.3d

1178, 1204 (11th Cir. 2011).

      “Under 18 U.S.C. § 3583(e), a district court may, upon finding by a

preponderance of the evidence that a defendant has violated a condition of

supervised release, revoke the term of supervised release and impose a term of

imprisonment after considering certain factors in 18 U.S.C. § 3553(a).” United

States v. Sweeting, 437 F.3d 1105, 1107 (11th Cir. 2006) (per curiam). If a district

court revokes a term of supervision, it may require the defendant to serve in prison

all or part of the term of release that is statutorily authorized for the offense that

resulted in the term of release. 18 U.S.C. § 3583(e)(3). A prison term of up to two

years may be imposed if the underlying offense is a Class C felony. Id. Violations

of 8 U.S.C. § 1326(a), (b)(2) are Class C felonies. See id. § 3559(a)(3); 8 U.S.C. §

1326(a), (b)(2).

      Here, Samayoa-Castillo has not shown that his total 60-month sentence -- in

which the district court imposed 36 months’ imprisonment in the Illegal Reentry

Case, followed by 24 months’ imprisonment in the Revocation Case -- is either

procedurally or substantively unreasonable. As for procedural reasonableness, it

appears that the district court relied on an unrevised version of the presentence

investigation report in the Revocation Case, and incorrectly said that Samayoa-

Castillo’s advisory guideline range at his original sentencing proceeding in 2016 was


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27 to 33 months’ imprisonment, even though the correct guideline range was 15 to

21 months’ imprisonment. Accordingly, when the district court noted in 2018 that

it was now imposing a 24-month sentence in the Revocation Case because it had

given Samayoa-Castillo “a significant variance downward when [at the original

2016 sentencing hearing, it] complied with [the parties’] request for a one year and

one day sentence in the [Revocation] [C]ase when the guidelines were 27 to 33

months,” it relied on the incorrect guideline range. See Barner, 572 F.3d at 1251.

      However, the district court’s reliance on the incorrect guideline range was

harmless. See Williams, 503 U.S. at 203. The record shows that the district court

imposed a 24-month sentence in the 2018 Revocation Case because it concluded that

another below-guideline sentence was unwarranted. The district court, bothered by

Samayoa-Castillo’s record of illegal reentry after removal, explained that it had

imposed a lighter sentence in 2016, following his second conviction for illegal

reentry, because he had previously served a sentence of 100 months’ imprisonment

after his first illegal reentry conviction in 2002 and it “thought that . . . giv[ing] a

lighter sentence after having served a 100-month sentence would be sufficient

incentive for [Samayoa-Castillo] not to reenter the country illegally.”          These

comments reveal that the district court did not base the 24-month sentence on the

extent of the downward variance that it erroneously believed Samayoa-Castillo

received in 2016. Rather, the district court calculated the 2018 sentence based on its


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findings that Samayoa-Castillo remained undeterred from entering the country

illegally, despite having served both long and short sentences on his prior illegal

reentry convictions, and that an upward variance upon the revocation of his

supervised release was necessary to adequately address his record of non-

compliance. See Kendrick, 22 F.3d at 1069.

      Nor can we say that Samayoa-Castillo’s 24-month sentence in the Revocation

Case is otherwise procedurally unreasonable. As the record reveals, the district court

considered the relevant § 3553(a) factors and adequately explained that a

consecutive sentence was necessary to deter Samayoa-Castillo from further criminal

conduct since he had violated his supervised release despite receiving a lenient

sentence in 2016. See 18 U.S.C. §§ 3553(a)(2), 3583(e); Dorman, 488 F.3d at 944;

Sweeting, 437 F.3d at 1107.

      Samayoa-Castillo’s sentence is also substantively reasonable. Samayoa-

Castillo failed to demonstrate that the district court either ignored the § 3553(a)

factors or committed a clear error of judgment in weighing the relevant § 3553(a)

factors. See Irey, 612 F.3d at 1189. The district court listened to the parties’

arguments and acknowledged Samayoa-Castillo’s family-based motivations for

wanting to return to the United States. The district court explained that it had

considered the seriousness of the offense, Samayoa-Castillo’s criminal history, and

the need for the sentence imposed to promote deterrence, especially since the


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sentences imposed following his prior illegal reentry convictions failed to adequately

deter him from reentering the country illegally. See id. § 3553(a)(1), (a)(2)(A)-(B).

Further, it was entirely within the district court’s discretion to place emphasis on

Samayoa-Castillo’s criminal history, illegal reentry convictions, and supervised

release violations and find that Samayoa-Castillo’s mitigating evidence was

insufficient to impose concurrent sentences. See Snipes, 611 F.3d at 872. Moreover,

Samayoa-Castillo’s 36-month sentence in the Illegal Reentry Case was also well

below the statutory maximum penalty of 20 years’ imprisonment under 18 U.S.C. §

1326(b)(2), suggesting substantive reasonableness. See 18 U.S.C. § 1326(b)(2);

Gonzalez, 550 F.3d at 1324. Accordingly, Samayoa-Castillo has not shown that his

total 60-month sentence is procedurally or substantively unreasonable.

      AFFIRMED.




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