IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-50327

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

v.

ANGEL LEONEL GUZMAN-MATIAS,

Defendant–Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:13-CR-559-1

Before PRADO, OWEN, and GRAVES, Circuit Judges.

PER CURIAM:*

Angel Leonel Guzman-Matias appeals the sentence imposed following

his conviction for illegal reentry into the United States. He contends that the 

district court erred in applying the crime-of-violence (COV) enhancement 

under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on his 2008 California conviction for 

infliction of corporal injury on a spouse or cohabitant. He first argues that the 

enhancement was erroneous because his presentence report (PSR) contained 

* 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

December 29, 2014

Lyle W. Cayce

Clerk

 

 Case: 14-50327 Document: 00512883995 Page: 1 Date Filed: 12/29/2014
No. 14-50327

conflicting dates regarding when his California offense occurred and lacked 

information showing that he possessed the requisite mens rea for the offense. 

He also argues that his California offense does not categorically qualify as a 

COV because it could have been committed merely by minimal offensive 

touching.

In reviewing challenges to a COV enhancement that were preserved in 

the district court, we review the district court’s factual findings for clear error 

and its interpretation and application of the Sentencing Guidelines de novo. 

United States v. Chacon, 742 F.3d 219, 220 (5th Cir. 2014). “A factual finding 

is not clearly erroneous if it is plausible in light of the record as a whole.” 

United States v. Coleman, 609 F.3d 699, 708 (5th Cir. 2010). Even assuming 

that Guzman-Matias’s instant arguments were preserved, the arguments are 

unavailing.

The Government has filed an unopposed motion to supplement the 

record on appeal with a copy of the plea agreement from Guzman-Matias’s 

California case. The motion to supplement the record is GRANTED. The plea 

agreement indicates that Guzman-Matias agreed to plead guilty to an 

amended third count for corporal injury to a spouse or cohabitant, an offense 

under CAL. PENAL CODE § 273.5(a). We conclude that the district court’s 

finding that such conviction did in fact occur is not clearly erroneous. To the 

extent Guzman-Matias wishes to challenge the validity of his California 

conviction on the ground that the stipulated factual basis in that case did not 

include the requisite mens rea, he may not do so collaterally here. See United 

States v. Longstreet, 603 F.3d 273, 277 (5th Cir. 2010).

In his second argument, Guzman-Matias contends that his conviction 

under § 273.5(a) does not qualify as a COV because it could have been 

committed merely by offensive touching, no matter how slight the touching. 

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No. 14-50327

According to Guzman-Matias, the force required for a COV therefore was not 

an element of an offense under § 273.5(a).

Guzman-Matias has not shown that a conviction under § 273.5(a) for 

non-violent, light touching is a realistic probability, rather than a mere 

theoretical possibility. See United States v. Carrasco-Tercero, 745 F.3d 192, 

197-98 (5th Cir. 2014) (“Theoretical applications of a statute to conduct that 

would not constitute a crime of violence do not demonstrate that the statutory 

offense is categorically not a crime of violence.”). To the contrary, we have held 

that an offense under § 273.5(a) categorically qualifies as a COV under § 2L1.2 

because it has as an element the use, attempted use, or threatened use of 

physical force against the person of another. United States v. Cruz-Rodriguez, 

625 F.3d 274, 276 (5th Cir. 2010) (per curiam) (citing with approval United 

States v. Gutierrez, 371 F. App’x 550, 551 (5th Cir. 2010)); see § 2L1.2, cmt. 

n.1(B)(iii). Guzman-Matias has not shown that the district court erred in 

applying the COV enhancement.

The Government has moved for summary affirmance in this case. 

Summary affirmance is not appropriate, and the Government’s motion is 

DENIED. See United States v. Holy Land Found. for Relief and Dev., 445 F.3d 

771, 781 (5th Cir. 2006). The Government’s alternative motion for an extension 

of time to file a brief is also DENIED, as Guzman-Matias is not entitled to relief

and further briefing is unnecessary.

The judgment of the district court is AFFIRMED.

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