IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-20853

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

RAFAEL VASQUEZ GARCIA, also known as Rafael Garcia-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 Vasquez Garcia appeals his sentence following his guilty plea to

having been found unlawfully present in the United States subsequent 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 the increase

United States Court of Appeals

Fifth Circuit

F I L E D

October 12, 2012

Lyle W. Cayce

Clerk

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.

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in the district court; therefore, review 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 if it 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

offense level if the defendant was previously deported after a conviction for 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 violence” as any of several enumerated offenses, including

aggravated assault. § 2L1.2, comment (n.1(B)(iii)). The commentary also

defines 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 isnot an enumerated

“crime of violence” because the 1992 statute under which he was convicted

encompasses behavior that is not within the plain, ordinary meaning of

aggravated assault. The applicable statute provided, 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 deadly weapon or threatens to cause bodily injury or causes bodilyinjury” to

listed state, county, or municipal employees; or (3) “causes bodily injury to a

participant in a court proceeding;” or (4) “uses a deadly weapon.” TEX. PENAL

CODE ANN. § 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 of the statute

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formed the basis of the conviction. See United States v. Mungia-Portillo, 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 enumerated offenses that qualify as

crimes of violence; therefore, 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 States v. Fierro-Reyna, 466

F.3d 324, 327 (5th Cir. 2006). “When the statute of conviction encompasses

prohibited behavior that is not within the plain, ordinary meaning 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 qualified 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 applicability of Guillen-Alvarez to his case. Further,

there is nothing in the court’s decision in Guillen-Alvarez which would suggest

a different result. Moreover, 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. 2009). 

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, attempted 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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