Opinion
No. 08-30418 Summary Calendar.
March 13, 2009.
Dorothy Manning Taylor, Assistant U.S. Attorney, U.S. Attorney's Office Eastern District of Louisiana, New Orleans, LA, for Plaintiff-Appellee.
Valerie Welz Jusselin, Assistant Federal Public Defender, Federal Public Defender's Office Eastern District of Louisiana, New Orleans, LA, for Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of Louisiana, USDC No. 2:07-CR-376-1.
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
Luis Andino-Valenzulea pled guilty to violating 8 U.S.C. § 1326 by illegally reentering the United States following deportation. After enhancing Andino-Valenzulea's offense level by 16 levels because of his prior conviction for aggravated battery under Georgia law, the district court sentenced Andino-Valenzulea to 46 months of imprisonment.
On appeal he contends that his Georgia conviction was not for a crime of violence within the meaning of U.S.S.G. § 2L1.2(b)(1)(A) because it was neither for an offense enumerated in that Guideline nor for an offense that has as an element the use, attempted use, or threatened use of physical force against the person of another. Andino-Valenzulea asserts that the relevant Georgia statute requires that the perpetrator achieve certain harmful results but not necessarily through the use of force. See Ga. Code Ann. § 16-5-24(a). Additionally, Andino-Valenzulea disputes the government's contention that aggravated battery under Georgia law is sufficiently similar to the enumerated offense of aggravated assault as to constitute a crime of violence.
As Andino-Valenzulea did not object to the enhancement in the district court, we review for plain error. See United States v. Dupre, 117 F.3d 810, 817 (5th Cir. 1997). The determination of whether the district court plainly erred in enhancing a sentence depends on "how this court and other courts interpreted [the Guideline]" at the time of sentencing. United States v. Garcica-Rodriguez, 415 F.3d 452, 455 (5th Cir. 2005).
We have not previously decided whether a sentence may be enhanced on account of a prior conviction of aggravated battery under Georgia law or whether the Georgia crime of aggravated battery is sufficiently similar to the enumerated offense of aggravated assault as to constitute a crime of violence. Nor have the parties pointed us to any decisions of this court that compel a particular result in this case, such as decisions construing similar statutes of other states. Accordingly, given that the law of this circuit was uncertain at the time of Andino-Valenzulea's sentencing, any error in enhancing Andino-Valenzulea's sentence could not have been plain. Id. at 455-56.
AFFIRMED.