### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-20853 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. RAF A E L V A S Q U E Z GAR C IA , al s o kno wn a s R af a el G arci a - Vasquez, also known as Rafael Garcia Velasques, also known as Rafael Vasquez-Garcia, also known as Rafael Garcia, also known as Rafael Velasquez Garcia, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:11-CR-413-1

Before REAVLEY, JOLLY, and DAVIS, Circuit Judges. PER CURIAM: * Rafael V a s q u e z Garcia appeals his sentence following his guilty plea to having been found unlawfully present in the United States s ub s e q u e nt to deportation and following an aggravated felony conviction. He argues that the district court committed reversible plain error when it increased his base offense level under U.S.S. G. § 2L1.2(b)(1)(A)(ii). Garcia did not object to th e increase U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 12 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-20853 Document: 00512018632 Page: 1 Date Filed: 10/12/2012No. 11-20853

in the district court; there f o r e , r e view of his argument is for plain error. See Puckett v. United States , 556 U

. S

. 129, 135 (2009). To establish plain error, Garcia must show a forfeited error that is clear or obvious and that affected his substantial rights. If he makes such a showing, this court has the discretion to correct the error but will do so only i f i t seriously impinges the fairness, integrity, or public reputation of judicial proceedings. Id. The Sentencing Guidelines provide for a 12-level increase in a defendant’s

o f fense level if the defendant was previously deported after a convicti o n f o r a felony that is a “crime of violence” and where the conviction does not receive criminal history points. § 2L1.2(b)(1)(A)(ii). The commentary to § 2L1.2 defines the term “crime of vi o l ence” as any of several enumerated offenses, including aggravate d assault. § 2L1.2, comment (n.1(B)(iii)). The commentary also defi n es a “crime of violence” as “any other offense

. . . that has an element the
use, attempted use, or threatened use of physical force against the person of another.” Id. Garcia argues that his aggravated assault conviction i s not an e nu merated “crime of violence” because t h e 1992 statute under which he was convicted encompasses behavior that is not within the pl a i n , o r dinary meaning of aggravated assault. The applicable statute provi d e d, in relevant part, that a person commits an aggravated assault if, during the commission of an assault, the person: (1) “causes serious bodily injury to another”; or (2) “threatens with

a de a dl y w e apon or threatens to cause bodily injury or causes bodilyinjury” to listed state, county, or municipal employees; or (3) “causes bodily injury to a p a r ticipant in a court proceeding;” or (4) “uses a deadly weapon.” T E X
. P E NA L C O D E AN N
. § 22.02 (a)(West 1990). The statute also provided that an offense under § 22.02 was a third degree felony, except in limited cases involving a peace officer. Id. at § 22.02(c). Where, as here, the statute contains a series of disjunctive elements, this court looks to specific documents to determine which subpart o f the statute
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formed the basis of the conviction. See United States v. Mungia-Porti l lo , 484 F.3d 813, 815 (5th Cir. 2007). A review of these documents supports Garcia’s assertion that he was convicted of the third degree felony of aggravated assault for committing an assault while using a deadly weapon. The Guidelines do not define the e n umerated offenses that qualify as crimes of violence; ther e f o r e, this court uses a common sense approach, giving each offense its generic, contemporary meaning, and then determines whether the conviction falls within such meaning. United Stat e s v . F ierro-Reyna , 466 F.3d 324, 32 7 ( 5th Cir. 2006). “When the statute of conviction encompasses prohibited behavior that is not within the plain, ordinary m e a n i n g of the enumerated offense, the conviction is not a crime of violence as a matter of law.” Id. (internal quotation marks and citation omitted). In United States v. Guillen-Alvarez , 489 F.3d 197, 199 (5th Cir. 2007), this court considered a more recent version of the Texas aggravated assault statute and concluded that the defendant’s conviction under that statute qualif i ed as the enumerated offense of aggravated assault and, thus, a crime of violence under § 2L1.2. Garcia cites no circuit precedent which supports his assertion that the phrase “or exhibits” in the more recent version of the Texas aggravated assault statute undermines the applicab i l i t y of Guillen-Alvarez to his case. Further, there is nothing in the court’s decision in Guillen-Alvarez which would suggest

a different result. Mor e o v er, none of the cases cited by Garcia support his suggestion that the Texas courts have interpreted the term “use” to include the

mere “inert presence” of a weapon. Because Garcia cites no authority from this court which supports his contentions, this court will not find plain error. United States v. Evans , 587 F.3d 667, 671 (5th Cir. 200 9). Garcia has failed to establish clear or obvious error in the district court’s determination that his aggravated assault conviction was a crime of violence for purposes of § 2L1.2(b). Accordingly, we need not decide whether the offense has

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as an element the use , a t t e m p t e d use, or threatened use of force against the person of another. See, e.g., Guillen-Alvarez , 489 F.3d at 199 n.2. AFFIRMED.

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