                                                                              FILED
                           NOT FOR PUBLICATION                                AUG 20 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-10239

              Plaintiff - Appellee,              D.C. No. 4:10-cr-03542-DCB-
                                                 BPV-1
  v.

JOSE COBO-RAYMUNDO,                              MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                    David C. Bury, District Judge, Presiding

                             Submitted July 19, 2012**
                             San Francisco, California

Before: PAEZ and BYBEE, Circuit Judges, and VANCE,*** Chief District Judge.

       Jose Cobo-Raymundo appeals his sentence of 51 months’ imprisonment

following his conviction under 8 U.S.C. § 1326(a) and (b)(2). We affirm.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Sarah S. Vance, Chief District Judge of the Eastern
District of Louisiana, sitting by designation.
      Cobo-Raymundo challenges the district court’s conclusion that his prior

conviction for unlawful wounding under Virginia Code § 18.2-51 qualified as a

“crime of violence” under the definition at U.S. Sentencing Guidelines Manual §

2L1.2(b)(1)(A)(ii). He also challenges the district court’s decision not to reduce

sua sponte his total offense level when calculating his sentencing Guidelines range.

Because Cobo-Raymundo did not raise these issues before the district court, we

review for plain error. United States v. Ayala-Nicanor, 659 F.3d 744, 746-47 (9th

Cir. 2011); United States v. Ross, 511 F.3d 1233, 1235 (9th Cir. 2008). We may

reverse for plain error when the appellant shows that “(1) there was error; (2) the

error committed was plain; (3) the error affected substantial rights; and (4) the

error seriously affected the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Gonzalez-Aparicio, 663 F.3d 419, 428 (9th Cir.

2011).

      We note first that the district court simply accepted the conclusion of the

unchallenged pre-sentence report that Cobo-Raymundo’s prior conviction was a

crime of violence, and did not conduct its own analysis. Although Cobo-

Raymundo does not challenge this aspect of the proceeding below, this was plainly

erroneous. See United States v. Castillo-Marin, 684 F.3d 914, 921 (9th Cir. 2012).

However, the error did not affect his substantial rights because no prejudice


                                      Page 2 of 4
ensued. See id. at 918-19. As we explain below, “unlawful wounding” under

Virginia Code § 18.2-51 is categorically a crime of violence and therefore the

district court properly applied the “crime of violence” sentencing enhancement in

determining Cobo-Raymundo’s advisory sentencing Guidelines range.

      Unlawful wounding is not one of the listed offenses that categorically

qualify as a “crime of violence” under comment n.1(B)(iii) to U.S. Sentencing

Guidelines Manual § 2L1.2. However, because the Virginia statute’s elements are

necessarily encompassed by the “crime of violence” definition in U.S. Sentencing

Guidelines Manual § 2L1.2, unlawful wounding as defined by Virginia Code §

18.2-51 is categorically a crime of violence. See Penuliar v. Mukasey, 528 F.3d

603, 608 (9th Cir. 2008). To be convicted under § 18.2-51, a person necessarily

must have shot, stabbed, cut, wounded, or otherwise caused bodily injury to

another person, which means that the offense “has as an element the use . . . of

physical force against the person of another.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iii).

Moreover, § 18.2-51 clearly requires the intentional use of physical force, because

it contains as an element “the intent to maim, disfigure, disable, or kill.” See

Ayala-Nicanor, 659 F.3d at 749; Hampton v. Commonwealth, 542 S.E.2d 41, 45-

46 (Va. Ct. App. 2001). Finally, a violation of § 18.2-51 results in physical injury

to another, because the actus reus element of the statute is satisfied by shooting,


                                     Page 3 of 4
stabbing, cutting, wounding, or causing bodily injury to another person. See

Ayala-Nicanor, 659 F.3d at 749. Cobo-Raymundo points to no case in which the

Virginia state courts did in fact apply § 18.2-51 to conduct outside the federal

definition. See id. at 748.

      In addition, the district court did not plainly err when it declined to reduce

sua sponte Cobo-Raymundo’s offense level by one level for his assisting the

government by timely notifying it of his intention to plead guilty. United States v.

Johnson, 581 F.3d 994, 1003-04 (9th Cir. 2009).

      AFFIRMED.




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