United States of America v. Felipe Quiterio-Zavaleta

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4138
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
FELIPE QUITERIO-ZAVALETA,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:11-cr-00384-TDS-1)
Submitted: November 26, 2014 Decided: December 9, 2014
Before MOTZ, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael E. Archenbronn, LAW OFFICE OF MICHAEL E. ARCHENBRONN,
Winston-Salem, North Carolina, for Appellant. Ripley Rand,
United States Attorney, Randall S. Galyon, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Felipe Quiterio-Zavaleta, a native and citizen of Mexico,
pled guilty pursuant to a plea agreement to one count of illegal
reentry of an aggravated felon in violation of 8 U.S.C.
§ 1326(a), (b)(2) (2012). Pursuant to U.S. Sentencing Guidelines
Manual (USSG) § 2L1.2(b)(1)(A) (2011), the presentence report
(PSR) applied a sixteen-level enhancement due to Quiterio-
Zavaleta’s 1998 conviction in North Carolina of felony assault with
a firearm on a law enforcement officer.
The district court adopted the PSR and the resulting
advisory sentencing range of seventy-seven to ninety-six months.
The court determined that a sentence of seventy-seven months was
appropriate and then granted the government’s motion for a 45%
downward departure pursuant to USSG § 5K1.1, which yielded a
sentence of forty-two months. The court then granted the
parties’ motion to run the federal sentence concurrently with
Quiterio-Zavaleta’s recent state sentence, and reduced his sentence
in the instant case to fifteen months in order to achieve this
result. Quiterio-Zavaleta appeals. His attorney has filed a brief
in accordance with Anders v. California, 386 U.S. 738 (1967), in
which he asserts that there are no meritorious issues for appeal
but argues that the district court erred in determining that the
felony assault with a firearm on a law enforcement officer
constituted a “crime of violence” pursuant to USSG

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§ 2L1.2(b)(1)(A). Quiterio-Zavaleta has filed a pro se
supplemental brief arguing that his federal sentence should run
concurrently with his state sentence and that his fifteen-month
sentence is in the maximum range. The government has filed a
response brief. Finding no error, we affirm.
We review de novo the district court’s
characterization of Quiterio-Zavaleta’s prior conviction as a
crime of violence for the purpose of enhancing his sentence.
See United States v. Gomez, 690 F.3d 194, 197 (4th Cir. 2012).
Counsel argues that the district court erred in enhancing
Quiterio-Zavaleta’s sentence because the assault element of his
prior offense is defined by common law and can encompass a
“show” or “appearance” of force and violence that does not
require physical contact. See State v. Roberts, 155 S.E.2d 303,
305 (N.C. 1967) (noting that assault in North Carolina is
defined as “an overt act or an attempt, or the unequivocal
appearance of an attempt, with force and violence, to do some
immediate physical injury to the person of another, which show
of force or menace of violence must be sufficient to put a
person of reasonable firmness in fear of immediate bodily harm”)
(internal quotation marks and citations omitted). Accordingly,
he contends, it does not qualify categorically as a crime of
violence. See United States v. Donnell, 661 F.3d 890, 893 (4th
Cir. 2011) (utilizing categorical approach to determine whether

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a conviction qualifies as a crime of violence under the
Guidelines). We disagree.
We conclude that Quiterio-Zavaleta’s prior conviction
in North Carolina for felony assault with a firearm on a law
enforcement officer categorically qualifies as a crime of
violence and was thus properly used to enhance his sentence.
Accordingly, counsel’s challenge to the sentencing enhancement
is unavailing. Finally, our review discloses that the issues
raised in Quiterio-Zavaleta’s pro se supplemental brief are
without merit.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm the district court’s judgment. This court
requires that counsel inform Quiterio-Zavaleta, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Quiterio-Zavaleta requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy thereof was served on Quiterio-Zavaleta. Finally, we dispense
with oral argument because the facts and legal contentions are

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adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED

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