### 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 D efendant

- Appellant J ose 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 classi fyi ng his p rior Pennsylvania aggravated assault conviction under Title 18 Pennsylvania Consolidated

* Pursuant to 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED January 14, 2014

Lyle W. Cayce Clerk Case: 13-40334 Document: 00512500014 Page: 1 Date Filed: 01/14/2014No. 13

- 40334 Statute Section 2702(a), as a crime of violence ( COV ) for purposes of U.S.S.G. § 2L1.2. We review sentence s 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 substantive ly 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. Cisneros

Gutierrez , 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 sentenc ing 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 dis junctive 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 e rred by using the Pennsylvania criminal complaint to determine the statutory subsection governing his aggravated assault conviction . H e insists that there is nothing in the record to sh ow that the offense named in that charging instrument is the o ffense f or which he was convicted. We disagree. In contrast to the defendants in the cases on which he relies, Cruz

- Campos does not claim that h e was convict ed 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)

. T his case more close ly 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 convictio n, it may examine the charging document governing that conviction in conduct ing i ts 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. T he re 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 t he district court err by imposing the disputed COV adjustment. E xamination 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, 2 30 (5th Cir. 2012 ). We first look to the Model Penal Code’s (MPC’s) definition of aggravated assault when determining

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- 40334
whether a given state conviction for that offense amounts to a COV. See id

. at 231

. S ection 2702(a)(4) aligns almost perfectly with MPC § 211.1(2)(b), so we conclude that this subsection sets forth a COV

. S ee 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 impos ed the disputed adjustment. AFFIRMED.

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