United States of America v. Jose Cobo-Raymundo

* 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.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE COBO-RAYMUNDO,
Defendant - Appellant.
No. 11-10239
D.C. No. 4:10-cr-03542-DCB-
BPV-1
MEMORANDUM*
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.
FILED
AUG 20 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 4 --

Page 2 of 4
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

-- 2 of 4 --

Page 3 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,

-- 3 of 4 --

Page 4 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.

-- 4 of 4 --