IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40699

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

DOMINGO GARCES, 

 Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:15-CR-1162-1

Before KING, JOLLY, and PRADO, Circuit Judges.

PER CURIAM:*

Domingo Garces appeals the sentence he received following his guilty 

plea conviction for possession with the intent to distribute marijuana. The 

issue in this appeal is whether the district court committed reversible error in 

applying the career offender enhancement under U.S. Sentencing 

Guideline § 4B1.1. This, in turn, depends upon whether Garces’ conviction for 

 

* 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

April 18, 2017

Lyle W. Cayce

Clerk

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No. 16-40699

2

aggravated assault under Texas Penal Code § 22.02(a) constitutes a conviction 

for a “crime of violence” under U.S.S.G. § 4B1.2.

We review “a district court’s interpretation or application of the 

Sentencing Guidelines . . . de novo, and its factual findings . . . for clear error.” 

United States v. Cisneros–Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (citation 

and internal marks omitted). Additionally, this Court reviews de novo “a 

preserved constitutional challenge to the Guidelines’ application.” United 

States v. Preciado-Delacruz, 801 F.3d 508, 511 (5th Cir. 2015).

Garces contends that, even though “aggravated assault” is an 

enumerated “crime of violence” in Application Note 1 to § 4B1.2, Texas

aggravated assault is not a crime of violence because: (1) it does not have as an 

element the use, attempted use, or threatened use of physical force against the 

person of another; (2) the residual clause of § 4B1.2(a)(2) is unconstitutionally 

vague; and (3) the commentary’s listing of “aggravated assault” as a crime of 

violence must be disregarded because it is inconsistent with and does not 

interpret or explain the remaining Guideline text. We disagree.

Aggravated assault under Texas Penal Code § 22.02(a) qualifies as a 

crime of violence under § 4B1.2(a)(2).1 As the Supreme Court recently held,

“[t]he residual clause in §4B1.2(a)(2) . . . is not void for vagueness” because “the 

Guidelines are not subject to a vagueness challenge under the Due Process 

Clause.” Beckles v. United States, No. 15-8544, 2017 WL 855781, at *6 (U.S. 

Mar. 6, 2017). The residual clause therefore provides a textual hook for the 

Guideline commentary’s list of enumerated offenses, making the commentary 

 

1 We therefore need not, and do not, reach the question of whether Texas aggravated 

assault is a crime of violence under the elements clause of § 4B1.2(a)(1). Accordingly, this 

Court DENIES Garces’ motion to reconsider its decision to grant the Government’s motion 

to supplement the record on appeal with state court documents relevant to the issue of 

whether Garces’ conviction had as an element the use, attempted use, or threatened use of 

physical force. 

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consistent with and an interpretation or explanation of § 4B1.2 text. See 

Stinson v. United States, 508 U.S. 36, 42–43 (1993).

As this Court has previously held, a conviction for aggravated assault 

under Texas Penal Code § 22.02(a) qualifies as a conviction for the enumerated 

offense of “aggravated assault” and is a crime of violence under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). United States v. Guillen–Alvarez, 489 F.3d 197, 199–201 

(5th Cir. 2007). “[T]he crime of violence analysis applies consistently for 

guidelines calculations involving § 4B1.2 and § 2L1.2.” United States v. 

Flanagan, No. 15-10780, 2016 WL 3455950, at *1 (5th Cir. June 23, 2016) 

(citing United States v. Rayo-Valdez, 302 F.3d 314, 318 (5th Cir. 2002)); see, 

e.g., United States v. Shepherd, 848 F.3d 425, 427–28 (5th Cir. 2017). Guillen–

Alvarez is therefore controlling. E.g., United States v. Fernandez, 292 F. App’x 

301, 304 n.3 (5th Cir. 2008) (citation omitted). Accordingly, the district court 

did not err in determining that Garces’ prior conviction for aggravated assault 

was a crime of violence and applying the career offender enhancement. 

The judgment of the district court is therefore AFFIRMED.

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