IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40334

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JOSE ALEJANDRO CRUZ-CAMPOS,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 7:12-CR-1958-1

Before WIENER, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

After Defendant-Appellant Jose Alejandro Cruz-Campos pleaded guilty 

to one count of illegal reentry into the United States, the district court imposed 

a within-guidelines prison sentence of 46 months. Cruz-Campos contends on 

appeal that the district court erred in classifying his prior Pennsylvania 

aggravated assault conviction under Title 18 Pennsylvania Consolidated 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

January 14, 2014

Lyle W. Cayce

Clerk

 

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No. 13-40334

Statute Section 2702(a), as a crime of violence (COV) for purposes of U.S.S.G. 

§ 2L1.2.

We review sentences for reasonableness by conducting a two-part 

analysis. Gall v. United States, 552 U.S. 38, 49-51 (2007); United States v. 

Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). First, we ensure that the 

sentencing court committed no significant procedural error, including 

improperly calculating the guidelines range. Gall, 552 U.S. at 51. If we find 

no procedural error, we determine if the sentence is substantively reasonable 

under a deferential abuse of discretion standard, taking into account the 

totality of the circumstances. Gall, 552 U.S. at 51; United States v. CisnerosGutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The district court’s 

characterization of a prior offense as a crime of violence is a question of law 

that we review de novo. United States v. Izaguirre-Flores, 405 F.3d 270, 272 

(5th Cir. 2005).

We use a categorical approach to classify a prior conviction for 

sentencing purposes. Taylor v. United States, 495 U.S. 575, 602 (1990). Under

this framework, “the analysis is grounded in the elements of the statute of 

conviction rather than a defendant’s specific conduct.” United States v. 

Rodriguez, 711 F.3d 541, 549 (5th Cir.) (en banc), cert. denied, 134 S. Ct. 512

(2013).

When, as here, a statute has disjunctive subsections, we may apply a 

modified categorical approach to determine the applicable subsection of 

conviction. United States v. Miranda-Ortegon, 670 F.3d 661, 663 (5th Cir. 

2012). Under such an approach, we may review “the statutory definition,

charging document, written plea agreement, transcript of plea colloquy, and 

any explicit factual finding by the trial judge to which the defendant assented.” 

Shepard v. United States, 544 U.S. 13, 16 (2005). 

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Cruz-Campos claims that the district court erred by using the 

Pennsylvania criminal complaint to determine the statutory subsection 

governing his aggravated assault conviction. He insists that there is nothing 

in the record to show that the offense named in that charging instrument is 

the offense for which he was convicted. We disagree. In contrast to the 

defendants in the cases on which he relies, Cruz-Campos does not claim that 

he was convicted for an offense other than the one listed in the complaint; 

neither does he contend that a different charging instrument was issued. Cf. 

United States v. Martinez-Paramo, 380 F.3d 799 (5th Cir. 2004); United States 

v. Turner, 349 F.3d 833 (5th Cir. 2003). This case more closely approximates 

United States v. Torres-Diaz, 438 F.3d 529 (5th Cir. 2006), than it does 

Martinez-Paramo and Turner. 

Under Torres-Diaz, when a court must ascertain the statutory 

subsection that governs a prior conviction, it may examine the charging 

document governing that conviction in conducting its analysis, “absent 

anything in the record affirmatively casting doubt on, or creating an ambiguity 

respecting” the conclusion that the charging instrument in the record does in 

fact govern the prior conviction. 438 F.3d at 535. There is nothing in the record 

indicating that the disputed Pennsylvania criminal complaint did not govern 

Cruz-Campos’s prior aggravated assault conviction, so the district court did 

not err by relying on it. See id.

Neither did the district court err by imposing the disputed COV

adjustment. Examination of the record and the pertinent statute leads to the 

conclusion that Cruz-Campos’s prior conviction was under § 2702(a)(4), as the 

allegations in the criminal complaint track that subsection. See United States 

v. Esparza-Perez, 681 F.3d 228, 230 (5th Cir. 2012). We first look to the Model 

Penal Code’s (MPC’s) definition of aggravated assault when determining 

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No. 13-40334

whether a given state conviction for that offense amounts to a COV. See id. at 

231. Section 2702(a)(4) aligns almost perfectly with MPC § 211.1(2)(b), so we 

conclude that this subsection sets forth a COV. See id.; see also United States 

v. Martinez-Flores, 720 F.3d 293, 296 (5th Cir. 2013). It follows that the district 

court did not err when it imposed the disputed adjustment. 

AFFIRMED. 

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