IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-51286

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff−Appellee,

versus

SILVIA MANUELA PADILLA-LOERA,

Defendant−Appellant.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 2:11-CR-2169-1

Before JOLLY, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM:*

Silvia Manuela Padilla-Loera pleaded guilty of illegally reentering the 

* 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 3, 2014

Lyle W. Cayce

Clerk

 

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No. 12-51286

United States after deportation. On appeal of her sentence, she challenges a

sixteen-level increase in her offense level based on a pre-deportation conviction 

in Oklahoma for assault and battery with a dangerous weapon, which was 

deemed a “crime of violence” (“COV”) under U.S.S.G. § 2L1.2(b)(1)(A)(ii). We 

review Padilla-Loera’s challenge de novo because she properly objected to the 

increase in the district court. See United States v. Ortiz-Gomez, 562 F.3d 683, 

684 (5th Cir. 2009).

A COV is defined as any of several enumerated offenses, including 

“aggravated assault.” § 2L1.2, comment. (n.1(B)(iii)). Because we agree with 

the district court that the Oklahoma offense qualifies as an aggravated assault, 

we need not decide in the alternative whether it “has as an element the use, 

attempted use, or threatened use of physical force.” § 2L1.2, comment. 

(n.1(B)(iii)); see United States v. Velasco, 465 F.3d 633, 637 & n.4 (5th Cir. 

2006).

We determine whether a prior offense is an enumerated COV by looking

to the elements of the offense rather than the defendant’s conduct. Descamps 

v. United States, 133 S. Ct. 2276, 2287−88; United States v. Martinez-Flores, 

720 F.3d at 293, 296 (5th Cir. 2013). If the elements are the same as or 

narrower than the “generic, contemporary meaning” of the enumerated 

offense, the prior offense is a COV. Id. at 295−96. Where a “statute sets out 

one or more elements of the offense in the alternative,” and some elements 

make the generic enumerated offense while others do not, we may “consult a 

limited class of documents, such as indictments and jury instructions, to 

determine which alternative formed the basis of the defendant’s prior conviction.” Descamps, 133 S. Ct. at 2281. We then compare the elements of the 

offense, as narrowed by the documents, with the elements of the generic 

offense. See id. 

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The generic contemporary definition of “aggravated assault” is an 

assault that is aggravated by either of two traditional factors, namely “serious” 

bodily injury or the use of a deadly weapon. See Martinez-Flores, 720 F.3d at

296, 299 & nn.6 & 7 (referring to MODEL PENAL CODE § 211.1(2)); United States 

v. Guerrero-Robledo, 565 F.3d 940, 946 47 (5th Cir. 2009) (same). The Oklahoma statute provides,

Every person who, with intent to do bodily harm . . . commits any 

assault, battery, or assault and battery upon the person of another 

with any sharp or dangerous weapon, or who . . . shoots at another, 

with any kind of firearm, air gun, conductive energy weapon or 

other means whatever . . . is guilty of a felony . . . .

21 OK. ST. ANN. § 645 (emphasis added). Under Oklahoma law, the “dangerous 

weapon is what distinguishes the crime of an assault with a dangerous weapon 

with intent to do bodily harm from a simple assault.” Wilcox v. State, 

166 P. 74, 75 (Ok. Crim. App. 1917). The approved state-court documents show 

that Padilla-Loera was convicted under the “dangerous weapon” alternative. 

Padilla-Loera contends that the Oklahoma crime is not generic aggravated assault because it does not require “serious” bodily harm but only “bodily 

harm.” We need not answer this contention because, even without “serious” 

bodily injury, a simple assault that is made “aggravated” by the use of a deadly 

weapon is a COV. See United States v. Guillen-Alvarez, 489 F.3d 197, 199 (5th 

Cir. 2007); cf. Martinez-Flores, 720 F.3d at 295, 298-99 & n.6 (indicating that 

the defendant’s prior offense would have been aggravated assault had he been 

convicted of using a deadly weapon as originally charged); Velasco, 465 F.3d at 

637 n.4 (noting in dictum that the conviction would be an aggravated assault 

under the Model Penal Code because the defendant used a weapon). PadillaLoera’s prior offense was a generic aggravated assault under the dangerousweapon provision of the Oklahoma statute.

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Padilla-Loera nonetheless maintains that the Oklahoma crime is not 

aggravated assault because it requires the use of a “dangerous” weapon rather 

than a “deadly” one. That conclusional assertion deserves merits no consideration because it merely presumes, without explanation, that there is a distinction between a “dangerous” weapon and a “deadly” one. See United States v. 

McMillan, 600 F.3d 434, 457 n.75 (5th Cir. 2010) (declining to review conclusional assertions).

In any event, we have not recognized any distinction between a dangerous weapon and a deadly one. The guideline definition of “aggravated assault” 

refers to “a dangerous weapon,” which is defined to include “an instrument 

capable of inflicting death or serious bodily injury.” § 1B1.1, comment. 

(n.1(D)(i) (dangerous weapon)); § 2A2.2, comment. (n.1) (aggravated assault). 

Likewise, under Oklahoma law, “[a] dangerous weapon is one likely to produce 

death or great bodily injury by the use made of it.” Wilcox, 166 P. at 75. The 

Model Penal Code similarly defines a “deadly weapon” as any item “‘which in 

the manner it is used or is intended to be used is known to be capable of producing death or serious bodily injury.’” United States v. Sanchez-Ruedas, 452 

F.3d 409, 414 (5th Cir. 2006) (quoting MODEL PENAL CODE § 210.0(4)). Further, 

our pattern jury instructions use a single, similar definition for the inclusive 

term “deadly or dangerous weapon.” 5th CIR. PATTERN JURY INSTRUCTIONS:

CRIMINAL §§ 2.09, 2.79 (2012); see United States v. Williams, 520 F.3d 414, 421 

(5th Cir. 2008). 

The judgment of sentence is AFFIRMED. 

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