                Case: 12-10760       Date Filed: 01/02/2013       Page: 1 of 6

                                                                       [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 12-10760
                               ________________________

                         D.C. Docket No.9:11-cr-80160-KLR-1

UNITED STATES OF AMERICA,

                                                                         Plaintiff - Appellee,

                                            versus

JAIME ZAVALA-MUNOZ,
a.k.a. Jesus Valentin Leal,

                                                                     Defendant - Appellant.
                               ________________________

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

                                      (January 2, 2013)

Before CARNES and COX, Circuit Judges, and RESTANI, * Judge.

PER CURIAM:

                                               I.



       *
         Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by
designation.
                 Case: 12-10760       Date Filed: 01/02/2013        Page: 2 of 6

       Jaime Zavala-Munoz pleaded guilty to one count of illegally re-entering the

United States after having been deported in violation of 8 U.S.C. § 1326(a) and

(b)(1). The Presentence Investigation Report calculated a base offense level of 8

under United States Sentencing Guidelines § 2L1.2 (Nov. 2011). 1 The PSR then

applied a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because

Zavala-Munoz was previously deported after having been convicted of a felony

that is a “crime of violence”—false imprisonment in violation of Florida law. 2 The

application of that enhancement resulted in an offense level of 24. After applying

a 3-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1, the

PSR calculated an adjusted offense level of 21. Combined with Zavala-Munoz’s

criminal history category of II, the PSR calculated a guidelines range of 41 to 51

months imprisonment. The district court sentenced Zavala-Munoz within that

guidelines range to 46 months imprisonment followed by 3 years of supervised

release.

       Zavala-Munoz did not argue at sentencing that the 16-level enhancement of

U.S.S.G. § 2L1.2(b)(1)(A)(ii) should not apply. On appeal, however, he contends



       1
        The defendant did not file any objections to the Presentence Investigation Report and
conceded at the sentencing hearing that the guidelines calculations in the report were “correct.”
       2
         Under Florida law, false imprisonment is a third-degree felony. Fla. Stat. § 787.02
(2000). A defendant commits false imprisonment if he “forcibly, by threat, or secretly
confin[es], abduct[s], imprison[s], or restrain[s] another person without lawful authority and
against her or his will.” Id.
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that the district court erred by applying that enhancement because his prior

conviction for false imprisonment was not a conviction for a “crime of violence.”

       Because Zavala-Munoz challenges the applicability of U.S.S.G. §

2L1.2(b)(1)(A)(ii) for the first time on appeal, we review only for plain error.

United States v. Pantle, 637 F.3d 1172, 1174 (11th Cir. 2011); United States v.

Gonzalez, 550 F.3d 1319, 1322 (11th Cir. 2008). Under that standard of review

before we will reverse, “[t]here must be an ‘error’ that is ‘plain’ and that ‘affects

substantial rights.’” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770,

1776 (1993) (brackets omitted).

                                               II.

       U.S.S.G. § 2L1.2(b)(1)(A)(ii) requires the district court to apply a 16-level

enhancement if a defendant being sentenced for illegally re-entering the United

States: (1) was previously deported after a conviction for a felony that is a “crime

of violence;” and (2) he receives criminal history points for that conviction. The

application notes for that subsection list several crimes that are categorically

“crimes of violence.” 3 See U.S.S.G. § 2L1.2 cmt. 1(B)(iii). False imprisonment is

not one of them. See id. However, a “crime of violence” also includes “any other

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


       3
         “Commentary and Application Notes of the Sentencing Guidelines are binding . . .
unless they contradict the plain meaning of the text of the Guidelines.” United States v. Wilks,
464 F.3d 1240, 1245 (11th Cir. 2006) (quotation marks omitted)
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use, or threatened use of physical force against the person of another.” Id.

Physical force means “force capable of causing physical pain or injury to another

person.” Johnson v. United States, — U.S. —, 130 S. Ct. 1265, 1271 (2010).4

       Zavala-Munoz contends that under our decision in United States v. Rosales-

Bruno, 676 F.3d 1017 (11th Cir. 2012), “the Florida offense of false imprisonment

does not qualify as a ‘crime of violence.’” Zavala-Munoz misreads Rosales-

Bruno. In that case, we did not hold that false imprisonment in violation of Florida

law is never a “crime of violence.” Instead, we recognized that “false

imprisonment under Florida law encompasses several distinct crimes, some of

which qualify as crimes of violence and others of which do not.” 676 F.3d at 1022.

       To determine whether a particular conviction for false imprisonment is a

conviction for a “crime of violence,” we follow the “modified categorical

approach.” Id. at 1020. That approach looks beyond the statutory elements of the

crime and considers “whether the particular conviction necessarily rested on a fact

establishing the crime as a violent offense.” Id. (quotation marks omitted). In

making that determination, we can consider undisputed facts contained in the PSR.

Id.; see also Rozier v. United States, — F.3d —, No. 11-13557, 2012 WL

5870123, at *11 (11th Cir. Nov. 21, 2012) (“[W]hen determining whether an

       4
         Although Johnson was interpreting “physical force” within the context of the Armed
Career Criminal Act, we have held that the definition of “physical force” stated by the Supreme
Court in Johnson also applies in the context of U.S.S.G. § 2L1.2(b)(1)(A)(ii). See United States
v. Rosales-Bruno, 676 F.3d 1017, 1021 (11th Cir. 2012).
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offense is a . . . crime of violence. . ., a district court can rely on the facts set forth

in the [PSR] if they are undisputed. . . .”) (parentheses omitted).

       Zavala-Munoz conceded at sentencing that the PSR was “correct.”

According to that report, the facts leading to his conviction for false imprisonment

are as follows:

       On or about September 30, 2000, officers responded to a residence in
       reference to a report of a kidnapping. Officers met with [a woman],
       who stated that [Zavala-Munoz], her former boyfriend, grabbed her by
       the neck and took her daughter, [who was two years old at the time].
       [The woman] said she went outside with her daughter whereupon she
       was confronted by [Zavala-Munoz], who grabbed her by the throat
       and tried to force her into his vehicle. She resisted, and [Zavala-
       Munoz] grabbed [the woman’s] daughter and drove away. [Zavala-
       Munoz] is not the father [of] the child.

       ...

       [The next day,] [o]fficers questioned [Zavala-Munoz], who . . . stated
       he took the child so [the woman] would leave the residence. . . .
       [Zavala-Munoz] admitted he did not have permission to take the child.

Thus, the undisputed facts are that Zavala-Munoz confronted a woman and

grabbed her by the throat and attempted to force her into the car, and when she

resisted, he grabbed the woman’s child and forced her into the car and drove away.

It is not “plain” — there is no binding precedent establishing — that Zavala-

Munoz’s commission of the false imprisonment crime did not involve “the use,

attempted use, or threatened use of physical force,” U.S.S.G. § 2L1.2 cmt.

1(B)(iii), that is, “force capable of causing physical pain or injury to another,”

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Johnson, — U.S. —, 130 S.Ct. at 1271. Therefore, even if the district court did err

by applying the 16-level enhancement, an issue we need not decide, that error is

not plain error. United States v. Frank, 599 F.3d 1221, 1239 (11th Cir. 2010) (“[I]f

the explicit language of the statute or rule does not specifically resolve the issue,

and there is no precedent from this Court or the Supreme Court directly resolving

it, there is no plain error.”) Accordingly, we affirm Zavala-Munoz’s sentence.

       AFFIRMED. 5




       5
       This appeal was originally scheduled for oral argument but was removed from the oral
argument docket by unanimous consent of the panel under 11th Circuit Rule 34-3(f).
                                             6
