United States of America v. Michael Alexander Barillas, a/k/a Jose Fermin Vasquez

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5141
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL ALEXANDER BARILLAS, a/k/a Jose Fermin Vasquez,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:10-cr-00753-AW-1)
Submitted: July 31, 2012 Decided: August 14, 2012
Before WILKINSON and NIEMEYER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Elita C. Amato, LAW OFFICE OF ELITA C. AMATO, Arlington,
Virginia, for Appellant. Rod J. Rosenstein, United States
Attorney, Paul K. Nitze, Special Assistant United States
Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Pursuant to a plea agreement, Michael Alexander
Barillas pled guilty to unauthorized reentry of a deported alien
after an aggravated felony conviction, in violation of 8 U.S.C.
§ 1326(a), (b) (2006). The district court sentenced Barillas to
seventy-two months’ imprisonment, near the low end of the
advisory Guidelines range. Barillas timely appealed.
The district court increased Barillas’ offense level
under U.S. Sentencing Guidelines Manual § 2L1.2(B)(1)(A) (2010).
This provision calls for a sixteen-level enhancement if the
defendant was deported after he was convicted of a crime of
violence. The district court found that Barillas’ prior
Maryland second degree assault conviction qualified as a crime
of violence. On appeal, Barillas disputes this finding.1
Barillas first argues that the district court
erroneously employed the modified categorical approach in
determining that his Maryland second degree assault conviction
qualified as a crime of violence. His argument is foreclosed by
1 The district court alternatively found that Barillas
qualified for the sixteen-level enhancement under
§ 2L1.2(b)(1)(A) based on his 1994 California drug conviction.
Barillas does not challenge the district court’s alternate
finding on appeal. Because we agree with the district court’s
finding that Barillas’ Maryland second degree assault conviction
qualifies as a crime of violence, we need not consider whether
Barillas has forfeited appellate review of the district court’s
alternate finding.

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this Court’s recent decisions in United States v. Donnell, 661
F.3d 890, 893 (4th Cir. 2011), and United States v. Taylor, 659
F.3d 339, 346 (4th Cir. 2011), cert. denied, 132 S. Ct. 1817
(2012).
Next, Barillas argues that, even if the court properly
applied the modified categorical approach to determine that his
Maryland second degree assault conviction qualified as a crime
of violence, under our decision in United States v. Alston, 611
F.3d 219, 226 (4th Cir. 2010), the district court improperly
relied on the guilty plea colloquy in the state proceeding to
conclude that his assault conviction was a crime of violence.
Unlike the defendant in Alston, however, Barillas did not enter
an Alford2 plea in the state proceeding. We recently recognized
this distinction and confirmed that a court may depend on a
traditional guilty plea to determine whether a prior conviction
qualifies as a predicate offense. Taylor, 659 F.3d at 347. We
find no error in the district court’s finding that, based on the
plea hearing transcript from the Maryland second degree assault
proceeding, Barillas’ state conviction qualified as a crime of
violence. Therefore, we conclude that Barillas’ argument is
unavailing.
2 North Carolina v. Alford, 400 U.S. 25 (1970).

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Finally, Barillas contends that the district court
erred by concluding that he did not qualify for a downward
departure based on cultural assimilation. The district court
has the discretion to depart downward if:
(A) the defendant formed cultural ties primarily with
the United States from having resided continuously in
the United States from childhood, (B) those cultural
ties provided the primary motivation for the
defendant’s illegal reentry or continued presence in
the United States, and (C) such departure is not
likely to increase the risk to the public from further
crimes of the defendant.
USSG § 2L1.2 cmt. n.8. However, “‛[w]e lack the authority to
review a sentencing court’s denial of a downward departure
unless the court failed to understand its authority to do so’.”
United States v. Hackley, 662 F.3d 671, 686 (4th Cir. 2011)
(quoting United States v. Brewer, 520 F.3d 367, 371 (4th Cir.
2008)) (alteration in original), cert. denied, 132 S. Ct. 1936
(2012). Barillas does not argue, and the record does not show,
that the district court failed to recognize its authority to
depart downward. Therefore, we decline to review the district
court’s denial of Barillas’ motion for a downward departure.
For these reasons, we affirm Barillas’ sentence. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED

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