1 United States Court of Appeals Fifth Circuit 

## FILED April 17, 2007 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________ No. 06-40273

__________________________ UNITED STATES OF AMERICA, Plaint iff- Appellee,

versus JORGE ADALBERTO MUNGIA-PORTILLO, Defendant-Appellant

___________________________________________________ Appeal from the United States District Court fo r the Southern District of Texas

___________________________________________________ Before GARWOOD, WIENER, and CLEMENT, Circuit Judges. EDITH BROWN CLEMENT, Circuit Judge: Jorge Adalberto Mungia-Portillo (“Mungia”) pleaded guilt y to illegal reentry aft er deportation in vio lat io n of 8 U.S.C. § 1326(a). The district court enhanced his sentence by sixteen levels after determ ining th at Mungia’s 1992 Tennessee conviction fo r aggravated assault qualified as a crime of vio lence under the Unit ed States Sentencing Guidelines (“U.S.S.G.”) § 2L1.2. For the reasons that fo llo w, we affirm the judgment of the district court. I. FACTS AND PROCEEDINGS Mungia pleaded guilty to illegal reentry int o the Unit ed States aft er deportation in violation2

of 8 U.S.C. § 1326(a). The presentence investigation report (“PSR”) assessed a base offense level of eight pursuant to U.S.S.G. § 2L1.2(a) and subtracted th ree levels fo r acceptance of responsibility. Mungia had been convicted of aggravated assault in Tennessee in 1992, and the PSR added sixt een levels pursuant to § 2L1.2(b)(1)(A), considering the prior conviction to be a crime of vio lence. Wit h

a total of fense level of twenty -one and a criminal hist ory score of th ree, Mungia’s recom

mended sentencing range was between fo rty -one and fift y- one mo nt hs. Mungia filed an objection to the PSR, challenging the enhancement under § 2L1.2(b)(1)(A) because the Tennessee assault statute permitted

a conviction fo r a ggravated assaul t b ased on reckless conduct. At sentencing, the district court overruled the objection and sentenced Mungia to fo rty -six mo nt hs imprisonment and a th ree-year term of supervised release. Mungia appeals, challenging the crime of vio lence determ inat io n and also the constitutionality of 8 U.S.C. § 1326(b). He concedes that the second challenge is foreclosed but raises it in order to preserve it for further review. II. DISCUSSION This court reviews the district court’s application of the sentencing guid elines de novo. United States v. Vargas-Duran , 356 F.3d 598, 602 (5th Cir. 2004) (en banc). For crimes commit ted under 8 U.S.C. § 1326, U.S.S.G. § 2L1.2(b)(1)(A)(ii) provides fo r a sixteen level increase to a defendant’s of

fense level if the defendant was previously deported fo llo wing a conviction fo r a crime of vio lence. The commentary defines crime of violence as (1) any of a list of enumerated offenses,

amo ng which “aggravated assault” is included, or (2) “any offense under federal, state, or lo cal law th at has as an element the use, attem pted use, or th

reatened use of physical fo rce against the person3

of another.” U.S.S.G. § 2L1.2 cm t. n.1(B)(iii) . The commentary does not further define aggravated assault. See id

. The parties dispute whether Mungia’s prior conviction qualifies as the enumerated of fense of aggravated assault. Mungia was co nvict ed in 1992 under Tennessee Code § 39-13-102. The Tennessee statute in effect at the time of Mungia’s conviction provided: (a) A person commits aggravated assault who: (1) Com mit s an assault as defined in § 39-13-101, and: (A) Causes seriously bodily injury to another; or (B) Uses or displays a deadly weapon. . . . T ENN . C ODE § 39-13-102 (1991). Section 39-13-101 provided: (a) A person commits assault who: (1) Intentionally, knowingly or recklessly causes bodily injury to another; (2) Intentionally or knowingly causes another to reasonably fear imminent bodily injury; o r (3) Intentionally or knowingly causes physical contact wit h another and a reasonable person would regard the contact as extremely offensive or provocative. . . . T ENN . C ODE § 39-13-101 (1991). In determ ining which subpart of the statute fo rm ed the basis fo r Mungia’s conviction, Shepard

v. United States permits courts to examine “t he statutory definit io n, charging docum ent, written plea agreement, transcript of plea collo quy, and any explicit factual finding by the tri al judge to which the defendant assented.” 544 U.S. 13, 16 (2005). The Tennessee indictment alleged that Mungia “did unlawfully, int entionally, knowingly and recklessly cause serious bodily injury to [the vict im] by use of a deadly weapon, to wit , a handgun.” At oral argument, the parties discussed the import of the indict ment ’s charging of the ment al culpabilit y in the conjunctive. In light of conflicting case law on1 In Omari v. Gonzales , the court observed th at indict ment s of ten conjunctively allege elements th at are disjunctive in the corresponding statute and th at “t his does not require

. . . th at a defendant admit to all of them when pleading guilt y. ” 419 F.3d 303, 309 n.10 (5th Cir. 2005). By contrast, in U nited States v. Still , the court stated th at, when a defendant ple aded guilt y t o a conj unctive charge, he admit ted both elements. 102 F.3d 118, 124–25 (5th Cir. 1996). 4 the mat ter, we will assume wit hout deciding th at Mungia pleaded guilt y to the least culpable ment al state, “recklessly.” 1 In deciding whether a prior statute of conviction qualifies as a crime of violence, this court has alt ernatively employed (1) a “common sense approach,” defining the of fense according to it s “o r dinary, contem

porary , [and] common meaning,” or (2) a “categorical approach,” defining the of fense according to a “generic, contemporary definition.” C ompare United States v. IzaguirreFlores , 405 F.3d 270, 273–74 (5th Cir. 2005), wi th United States v. Dominguez-Ochoa , 386 F.3d 639, 644 (5th Cir. 2004); see also United States v. Mendoza-Sanchez , 456 F.3d 479, 481–82 (5th Cir. 2006) (per curiam) (noting both approaches). Both approaches are rooted in T aylor v. United States , 495 U.S. 575 (1990). See Izaguirre-Flores , 4 05 F.3d at 275 n.16 (quoting D ominguezOchoa ’s cit ation to Taylor ); Dominguez-Ochoa , 386 F.3d at 644 (citing Taylor ). Recently a panel of this court articulated th at the met hodology employed depends u pon whether the prior of fense

con stitutes a crime o f vio lence (1) because it is an enumerated offense or (2) because it has as an element the use or attempted use of force. See Mendoza-Sanchez , 456 F.3d at 481–82. If it is t he fo rm er, then the common sense approach is used; if it is the latter, then the categorical approach is used. See id

. As the issue here involves whether the Tennessee offense constitutes the enumerated of fense of aggravated assault, we employ the common sense approach. Accordingly, this court must determ ine whether the Tennessee of fense of aggravated assault is equivalent to the enumerated of fense of aggravated assault “as th at term is understood i n it s2 The Model Penal Code merges battery and assault such th at aggravated assault includes aggravated

battery

. Many state statutes do the same, including Tennessee. See, e.g., I DAHO C ODE § 18-905; T ENN . C ODE § 39-13-102; T EX . P ENAL C ODE § 22.02. 5 ordinary, contem

porary , and common m eaning.” I

zaguirre-Flores , 405 F.3d at 275 (int ernal quotation and alt eration om it ted). “‘When the statute of conviction encompasses prohibited behavior th at is not wit hin the plain, ordinary meaning of the enumerated of fense,’ the conviction is not a crime of vio lence as a matter of law.” United States v. Fierro-Reyna , 466 F.3d 324, 327 (5th Cir. 2006) (quoting Izaguirre-Flores , 405 F.3d at 276–77). To di still t he plain, ordinary meaning, this court lo oks to sources such as the Model Penal Code, Prof essor LaFave’s treati se, and legal dictionaries. See id . at 327–29. The issue before this court is whether a reckless aggravated assault is included in the ordinary, contem porary , and com

mo n meaning of aggravated assault. Mungia directs the court to the Model Penal Code, which defines aggravated assault: 2 Aggravated Assault. A person is guilty of aggravated assault if he: (a) attem pts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifest ing extreme indifference to the value of human life; or (b) attem pts to cause or purposely or knowingly causes bodily injury to another wit h a deadly weapon. M ODEL P ENAL C ODE § 211.1(2). By contrast, under Tennessee law, “reckless:” refers to a person who acts recklessly wit h respect to circumstances surrounding the conduct or the result of the conduct when the person i s aware of but consciously disregards a substantial and unjustifiable ri sk th at the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care th at an ordinary person would exerci se under all the circumstances as viewed from the accused person’s standpoint.6

T ENN . C ODE § 39-11-302(c) (1991). Mungia argues that a reckless aggravated assault under the Model Penal Code is a kind of “deprav ed heart” recklessness that is greater than the “mere” recklessness required in Tennessee. Mungia also cites several states whose codes employ language similar to the “depraved heart” recklessness of the Model Penal Code or whose codes requi re a knowing or int entional ment al state, in order to demonstrate th at aggravated assaul t i s com mo nly understood not to include the lo wer degree of recklessness. See, e.g., FLA . S TAT . § 784.03; I ND . C ODE § 35-42-2-1.5; M ISS . C ODE § 97-3-7; N.J. S TAT . § 2C:12-1; WYO . S TAT . § 6-2-502. We reject M ungi a’s argument. We have held that a prior statute of conviction need not perfectly correlate wit h the Model Penal Code; “mino r differences” are acceptable. See United States v. Santiesteban-Hernandez , 469 F.3d 376, 381 (5th Cir. 2006); see also United States v. SanchezRuedas , 452 F.3d 409, 414 (5th Cir. 2006) (“Th[e] Califo rnia Penal Code provision is sufficiently similar to the generic contem porary definit io n of aggravated ass ault to qual ify cat egorically as an enumerated crime of violence.”). As a result, the fact th at the Tennessee statute defines “reckless” dif ferently than the Model Penal Code is not fatal, and we find this difference in definition to be sufficient ly mino r. LaFave’s treatise makes no special note of the degree of the mental culpability ty pical of an aggravated battery , and neit her does Black’s Law Dictionary. See 2 WAYNE R. LA FAVE , S UBSTANTIVE C RIMINAL LAW , § 16.2(d); B LACK ’ S LAW D ICTIONARY 162 (8th ed. 2004). We infer from this th at a defendant’s ment al st ate in com mit ting an aggravated assault, whether exhibiting “depraved heart” recklessness or “mere” recklessness, is not dispositive of whether the aggravated assault falls within or outside the plain, ordinary meaning of the enumerated of fense of aggravated assault.3 Determ

ining t hat this discrepancy in the definition of “reckless” does not remove the Tennessee statute from the plain, ordinary meaning of aggravated assault, we decline to exhaustively survey all state codes. 7 What is mo re significant than the manner in which Tennessee defines “reckless” is that its aggravated assault st atute incl udes the two m

ost com mo n aggravating factors, the causation of serious bodily injury and the use of a deadly weapon. See Fierro-Reyna , 466 F.3d at 328; 2 LA FAVE , supra , § 16.2(d). Wit h t hese considerations, the difference in the definition of “reckless” between the Tennessee statute and the Model Penal Code does not remove the Tennessee statute “from the family of of

fenses com

mo nly known as ‘aggravated assault.’” See Sanchez-Ruedas , 452 F.3d at 414;

see also United States v. Fuentes-Berlanga , 149 F. App’x 258, 261 (5th Cir. 2005) (holding th at a conviction fo r reckless aggravated assault under the applicable Texas statute qual ifies as t he enumerated of

fense of aggravated assault). We hold that the Tennessee st atute f alls wit hin t he ordinary, contem

porary , and com

mo n me aning of aggravated assault and that Mungia’s prior conviction qualifies as a crime of violence. 3 III. CONCLUSION The judgment of the district court is AFFIRMED.