United States v. Leo Asberry

394 F.3d 712 UNITED STATES of America, Plaintiff-Appellee, v. Leo ASBERRY, Defendant-Appellant. No. 04-30009. United States Court of Appeals, Ninth Circuit. Argued and Submitted September 17, 2004. Filed January 11, 2005. COPYRIGHT MATERIAL OMITTED Nancy Bergeson, Assistant Federal Public Defender, for the defendant-appellant. Fredric N. Weinhouse, Assistant United States Attorney, for the plaintiff-appellee. Appeal from the United States District Court for the District of Oregon; Ann L. Aiken, District Judge, Presiding. D.C. No. CR-02-00246-ALA. Before: WALLACE, GOULD, and BEA, Circuit Judges. GOULD, Circuit Judge: 1 Leo Asberry, Jr. appeals his sentence for possessing ammunition as a felon, in violation of 18 U.S.C. § 922 (g)(1) (2000). On appeal, Asberry challenges district court rulings that: 1) an Oregon conviction for Rape in the Third Degree constituted a "crime of violence" under United States Sentencing Guidelines section 4B1.2(a); 1 2) the Rape in the Third Degree conviction and a Delivery of Marijuana for Consideration conviction were not related under Guidelines section 4A1.2(a)(2); and 3) discretionary downward departure from the Sentencing Guidelines was neither…

Leo Asberry, Jr. appeals his sentence for possessing ammunition as a felon, in violation of 18 U.S.C. § 922 (g)(1) (2000). On appeal, Asberry challenges district court rulings that: 1) an Oregon conviction for Rape in the Third Degree constituted a “crime of violence” under United States Sentencing Guidelines section 4B1.2(a); 1 2) the Rape in the Third Degree conviction and a Delivery of Marijuana for Consideration conviction were not related under Guidelines section 4A1.2(a)(2); and 3) discretionary downward departure from the Sentencing Guidelines was neither allowed nor warranted under Guidelines section 5K2.0. We have jurisdiction over the appeal of the first two rulings pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742 (a). We do not have jurisdiction over the appeal of the third ruling. We affirm in part and dismiss in part.

I

On December 15, 2003, the district court sentenced Asberry to seventy-seven months in prison and three years supervised release for violating 18 U.S.C. section 922 (g)(1), which prohibits felons from possessing firearms or ammunition. In sentencing Asberry, the district court considered three 1993 Oregon offense’s including a November 4, 1993…

concurring:

I concur in all sections of Judge Gould’s opinion except as to Sections II.B and II.C. I write separately, however, because although United States v. Granbois, 376 F.3d 993 (9th Cir.2004), controls here, I see it as wrongly decided, notwithstanding Judge Gould’s faithful attempts to bolster its reasoning.

The primary issue in this appeal is whether Asberry’s prior conviction for statutory rape is a “crime of violence” as defined by U.S. Sentencing Guidelines (“U.S.S.G.”) § 4B1.2, which governs As-berry’s sentence enhancement. Section 4B1.2(a) provides:

The commentary to section 4B1.2 further explains a “crime of violence” includes “murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.” U.S.S.G. § 4B1.2, cmt. n. 1 (emphasis added).

U.S.S.G. § 2L1.2, which governs sentence enhancements for an alien’s unlawful reentry into the United States, provides:

U.S.S.G. § 2L1.2, cmt. n. l(B)(iii) (2003) (emphasis added).

In Granbois , we held the defendant’s prior conviction for engaging in sexual contact with a minor in violation of 18 U.S.C. § 2244 (a)(3) 2 was…