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United States v. Velazquez

United States Court of Appeals, First Circuit

January 26, 2015

UNITED STATES OF AMERICA, Appellee,
v.
JOSÉ L. VELÁZQUEZ, Defendant, Appellant

Page 92

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE. Hon. D. Brock Hornby, U.S. District Judge.

J. Hilary Billings, Assistant Federal Defender, for appellant.

Margaret D. McGaughey, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

Before Lynch, Chief Judge, Souter,[*] Associate Justice, and Selya, Circuit Judge.

OPINION

Page 93

SELYA, Circuit Judge.

Employing a categorical approach, we held in United States v. Eirby, 515 F.3d 31 (1st Cir. 2008), that the strict liability offense of engagement in a sexual act with a 14- or 15-year-old minor by a person at least 10 years older constituted a crime of violence and, thus, qualified as a predicate offense under the career offender guideline, U.S.S.G. § 4B1.2(a)(2). See id. at 38. Defendant-appellant José L. Velázquez invites us to abrogate that holding, asserting that a subsequent Supreme Court decision has relegated it to the scrap heap. After careful consideration, we decline the appellant's invitation and affirm his sentence.

I. BACKGROUND

We rehearse the background of the case to the extent needed to frame the issue on appeal. Since the appellant's sentence followed a guilty plea, we glean the facts from the plea agreement, the change-of-plea colloquy, the unchallenged portions of the presentence investigation report (PSI Report), and the transcript of the disposition hearing. See United States v. Almonte-Nuñez, 771 F.3d 84, 86 (1st Cir. 2014).

In 2008, the appellant was haled into a Maine state court for, inter alia, two counts of gross sexual assault of a child under the age of 14. See Me. Rev. Stat. tit. 17-A, § 253(1)(B). The indictment charged in pertinent part that the appellant had on two separate occasions " engage[d] in a sexual act with [E.O.], not his spouse, who had not in fact attained the age of 14 years." The appellant was 29 years old at the time of the offense, and the victim (whose age was known to the appellant) was 12 years old. The appellant pleaded guilty to these charges and the state court sentenced him to a substantial prison term.

The convictions resulted in the appellant's classification as a sex offender with a lifetime registration requirement under both federal and state law. See 42 U.S.C. § § 16911(4), 16915(a)(3); Me. Rev. Stat. tit. 34-A, § § 11203(7)(A), 11203(8)(A), 11225-A(3). Shortly after his release from custody in 2011, the appellant flouted not only these registration requirements but also the reporting obligations imposed as a condition of his state-court probation. As a result, the state reincarcerated him as a probation violator.

The appellant did not learn his lesson. Upon his provisional release from custody, he absconded. The Maine authorities issued a warrant, which led to the appellant's apprehension in Miami. It later came to light that, during his time on the run, the appellant allegedly committed a sex crime in New York involving a four-year-old girl. Those charges were pending at the time of sentencing in this case.

In May of 2013, a federal grand jury sitting in the District of Maine charged the appellant with being a sex offender who had traveled in interstate commerce without registering or updating his registration. See 18 U.S.C. § 2250(a). In due course, the appellant entered into a plea agreement (the Agreement) with the government. The Agreement contained a stipulated total offense level of 13. Although the Agreement did not specify the appellant's criminal history category (CHC), the parties agreed to limit their sentencing recommendations to the guideline sentencing range (GSR) eventually determined by the district court.

Arriving at the appropriate CHC proved to be contentious. The PSI Report treated the appellant's two prior convictions for gross sexual assault as effectively yielding a single sentence, see U.S.S.G. § 4A1.2(a)(2), generating three ...


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