* 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should not be published and is not precedent except under the limited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 UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10001

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JUAN MANUEL TORRES-SALAZAR

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:07-CR-204-ALL

Before GARWOOD, JOLLY, and SOUTHWICK, Circuit Judges. 

PER CURIAM:*

Juan Manuel Torres-Salazar (Torres) appeals the 57-month sentence

imposed following his guilty-plea conviction for illegal reentry following

deportation in violation of 8 U.S.C. § 1326. Specifically, he challenges the

sixteen-level enhancement assessed pursuant to United States Sentencing

Guideline (U.S.S.G.) § 2L1.2(b)(1)(A)(ii) based on the district court’s conclusion

United States Court of Appeals

Fifth Circuit

F I L E D

November 24, 2008

Charles R. Fulbruge III

Clerk
No. 08-10001

2

that he had previously been deported following a conviction for a “crime of

violence,” to wit: a Texas conviction for aggravated assault.

Under section 2L1.2(b)(1)(A)(ii) of the guidelines, a sixteen-level increase

applies if a defendant illegally reenters the United States after having been

convicted of a felony that is a “crime of violence.” “Aggravated assault” is an

enumerated crime of violence. U.S.S.G. § 2L1.2, cmt. n.1(B)(iii). However, a

state conviction for aggravated assault will not qualify as an enumerated crime

of violence under section 2L1.2, unless the state’s version of the crime is

sufficiently similar to the generic, contemporary meaning of aggravated assault.

United States v. Guillen-Alvarez, 489 F.3d 197, 199–200 (5th Cir. 2007), cert.

denied, 128 S.Ct. 418 (2007); United States v. Mungia-Portillo, 484 F.3d 813,

816–17 (5th Cir. 2007), cert. denied, 128 S.Ct. 320 (2007). 

Atthe time ofthe offense,theTexas statute governing aggravated assault,

Texas Penal Code § 22.02(a), provided as follows:

“A person commits an offense ifthe person commits [simple] assault

as defined in Section 22.01 [of the Texas Penal Code] and the

person:

(1) causes serious bodily injury to another, including the

person’s spouse; or

(2) uses or exhibits a deadly weapon during the commission of

the assault.”

(Vernon 1994). Torres’s state court judgment of conviction (and sentence to eight

year confinement) states the offense of conviction as being “aggravated assault,”

“second degree” “committed 9/20/95" but the judgment does not expressly state

under which subdivision of section 22.02(a) Torres was convicted. The judgment

reflects thatthe charging instrument was an indictment and the plea was guilty.

The PSR states that “the indictment reflects that the defendant did unlawfully

then and there knowingly and intentionally cause the death of Franklin Valdez,

an individual, by shooting Valdez with a firearm, a deadly weapon.” Because

Torres pled guilty to aggravated assault as lesser included offense under this
No. 08-10001

3

indictment, the indictment of itself may not necessarily determine whether the

offense of conviction was under section 22.02(a)(1) or 22.02(a)(2). However the

judgment of conviction expressly states that“[t]he courtfinds thatthe defendant

herein used or exhibited a deadly weapon during the commission of said offense,

to-wit: [a] firearm.” Torres did not object to that finding upon (or after) entering

his guilty plea, nor did he object when it was referenced in his presentencing

report at his subsequent prosecution for illegal reentry.

This court has specifically determined that aggravated assault under

Texas Penal Code § 22.02(a) is substantially similar to both the definition of

aggravated assault under section 211.1(2) of the Model Penal Code and the

generic, common sense meaning of aggravated assault, and therefore section

22.02(a) qualifies as the enumerated offense of “aggravated assault” under the

guidelines. See Guillen-Alvarez, 489 F.3d at 199. Torres acknowledges GuillenAlvarez and its progeny but asserts that these cases should not be interpreted

so broadly as to conclude that every possible offense under section 22.02(a) is a

crime of violence. He argues instead that these cases should be read to hold that

convictions involving the injury of another with a deadly weapon under section

22.02(a)(2), but not necessarily all possible permutations of aggravated assault

under section 22.02(a), are crimes of violence.

For the first time on appeal, Torres now contests the district court’s

conclusion that his prior conviction was for aggravated assault with a deadly

weapon under section 22.02(a)(2). Specifically, he argues that, although the

judgmentin his aggravated-assault case contains an affirmative deadly-weapon

finding, that finding may not be considered as establishing a conviction under

section 22.02(a)(2), because there is no evidence that he assented to it as

assertedly required by Shepard v. United States, 125 S.Ct. 1254, 1257 (2005).

He also argues for the first time on appeal that the record does not show that his

underlying assault was not a mere offensive touching under section 22.01(a)(3),
No. 08-10001

1

In Torres’s attorney’s memorandum in support of his objection to the

PSR’s treatment of his aggravated assault conviction as a crime of violence it is

stated, inter alia, “In the instant case, the PSR describes the offense as

‘Aggravated Assault - Deadly Weapon.’ It appears from the PSR that Mr.

Torres-Salazar was convicted of committing an ‘assault’ under Tex. Penal Code

§ 22.01(a)(2) (intentional or knowing threatening of another with bodily injury)

that was an ‘aggravated assault’ under Tex. Penal Code § 22.01(a)(2) because

Mr. Torres-Salazar used a deadly weapon during the commission of the assault.

For the reasons stated below,this offense is not a ‘crime of violence’ under USSG

§ 2L1.2.

a. Mr. Torres-Salazar’s ‘Aggravated Assault’ Conviction Under Tex.

Penal Code § 22.01(a)(2) Does not Fall Within the Generic,

Contemporary Meaning of ‘Aggravated Assault’ as Enumerated in

Application Note 1(B)(iii) to USSG § 2L1.2.”

. . .

“. . . thirty jurisdictions – a clear majority – do not include in their

definitions of ‘aggravated assault’theTexas alternative means of committing the

offense by ‘threaten[ing] imminent bodily injury to another’ coupled with the

aggravating factor ‘uses or exhibits a deadly weapon.’ . . . 

Thus, Texas is in the minority of jurisdictions in which the offense of

aggravated assault may be committed by threatening another with imminent

bodily injury by use of a deadly weapon.”

At no time before the district court did Torres ever assert that his prior

aggravated assault conviction did not involve an assault under § 22.01(a)(2) –

indeed he admitted that that was the assault involved in the offense of which he

was convicted. Nor did he ever contend below that his conviction was not for an

assault under § 22.01(a)(2) during the commission of which he used or exhibited

a deadly weapon and so committed the aggravated assault under § 22.02(a)(2)

for which he was convicted. Nor did he at any time below contend that he did

not use or exhibit a deadly weapon during the commission of the assault (or was

not convicted of doing so) or thatthe judgment’s finding that he did so should not

be considered or was insufficient. Nor did he ever argue below that his

aggravated assault conviction was not a crime of violence because it was not

shown not to have been based on an assault under § 22.01(a)(3); to the contrary

he argued that it was based on an assault under § 22.01(a)(2). 

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rather than under section 22.01(a)(2) (intentionally threatening imminent bodily

injury) or section 22.01(a)(1) (intentionally causing bodily injury).1

Because Torres makes these arguments for the first time on appeal, we

review his challenge to the adequacy in those respects of the proof establishing
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his subsection of conviction for plain error. See United States v. Jenkins, 487

F.3d 279, 281 (5th Cir. 2007). To demonstrate plain error, Torres-Salazar must

show a clear or obvious error that affected his substantial rights. See United

States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005). Even if he makes the

required showing, this court may exercise its discretion to correct the error only

if it “seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” United States v. Cotton, 122 S.Ct. 1781, 1785 (2002).

With respect to the claim that the section 22.02(a) conviction should not

be considered an “aggravated assault” because the underlying assault offense

may have been under section 22.01(a)(3), intentional offensive touching, we find

that any error (if any) by the trial court was not clear or plain because Torres

asserted below that his prior section 22.02(a) offense involved an underlying

assault under section 22.01(a)(2), intentionally threatening imminent bodily

injury, and nothing in the record suggests that the underlying assault was

actually not under section 22.01(a)(2) (or section 22.01(a)(1)), and also because

Guillen-Alvarez and its progeny indicate that any conviction under section

22.02(a) constitutes an aggravated assault under this guideline and we are

unaware of any decision holding that a section 22.02(a) conviction is not an

aggravated assault under this guideline.

With respect to the claim that the section 22.02(a) conviction was not

under section 22.02(a)(2) (use or exhibit a deadly weapon) we also conclude that

any error, if any, by the trial court was not plain or obvious because Torres

contended below that the conviction was under section 22.02(a)(2), there is no

evidence to the contrary and, further, the judgment of conviction expressly states

that the defendant used or exhibited a deadly weapon during the commission of

the offense. The argument that Shepard v. United States, 125 S.Ct. 1254, 1257

(2005), precludes consideration of this aspect of the judgment because it is not

shown that “the defendant assented” thereto likewise was not made below and

any error, if any, in this respect is not plain or clear for several reasons. In the
No. 08-10001

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first place,the judgmentindicates thatTorres assented to all findings, and there

is certainly nothing to suggest otherwise. Moreover, the deadly weapon recitals

are not mere findings but are a formal part of the judgment of conviction itself

and are called for under Tex. Code Crim. Proc. art. 42.12 § 3g(a)(2) and are

subject to challenge by the defendant. See, e.g., Johnson v. State, 233 S.W.3d

420 (Tex. App.–Ft. Worth 2007, writ ref’d). The Shepard language relied on by

Torres describes what is “generally” proper to consider, id., and Shepard

concludes by saying that “some comparable judicial record” is acceptable. Id. at

1263. There is good reason to think that the judgment of conviction, containing

such a finding mandated by law, which the defendant could have but did not

challenge (or unsuccessfully did so) may be properly considered for this purpose,

and we are aware of no contrary authority. No plain or obvious error has been

shown in this respect. 

The only argument both raised here and properly preserved below is that

a conviction under section 22.02(a)(2) (use or exhibit a deadly weapon) based on

an underlying assault under section 22.01(a)(2) (intentionally or knowingly

threaten imminent bodily injury) does not constitute the guideline enumerated

offense of “aggravated assault.” We reject this contention on the basis of

Guillen-Alvarez and its many progeny. See, e.g., United States v. CamachoLopez, 2008 WL 510516 (5th Cir. 2008) (unpublished); United States v. DelgadoSalazar, 252 Fed. Appx. 596 (5th Cir. 2007); United States v. Galves, 262 Fed.

Appx. 587 (5th Cir. 2008); United States v. Peraza-Chicas, 254 Fed. Appx. 399

(5th Cir. 2007).

The district court’s judgment is AFFIRMED.