### 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 f

or the Southern District of Texas USDC No. 2:15

- CR

- 1162

- 1

Before KING, J OLLY, and PRADO, Circuit Judges

. PER CURIAM: * Domingo Garces appeals the sen tence 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 i n applying the career offender enhancement under U.S. Sentencing Guideline § 4B1.1. This, in turn, depends upon whether Garces’ conviction for

* Pursuant to 5 TH C IR . R. 47.5, the C ourt has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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 April 18 , 2017 Lyle W. Cayce Clerk Case: 16-40699 Document: 00513956286 Page: 1 Date Filed: 04/18/2017No. 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 i nternal 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 threate ned 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 wi th and does not interpret or explain the remaining Guideline text. We disagree. A ggravated 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 t he Guideline commentary ’s list of enumerated offenses , making the commentary

1 We therefore need not, and do not, rea ch 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 ap peal 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. Case: 16-40699 Document: 00513956286 Page: 2 Date Filed: 04/18/2017No. 16

- 40699

3 consistent with and an interpretation or explanation of § 4B1.2 text. See Stinson v. United States , 508 U.S. 36, 42

– 43 (1993)

. As t his Court has prev iously held , a conviction for aggravated assault under Texas Penal Code § 22.02(a) qualifies as a conviction for the enumerated offense of “aggrav ated assault ” and is a crime of violence under U.S.S.G

. § 2L1.2(b)(1)(A)(ii). United States v. Guillen

– Alvare z , 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, t he 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. Case: 16-40699 Document: 00513956286 Page: 3 Date Filed: 04/18/2017