### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 12

- 51286 Summary Calendar

UNITED STATES OF AMERICA , Plaintiff

− Appellee ,

v ersus
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 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED April 3, 2014 Lyle W. Cayce Clerk Case: 12-51286 Document: 00512584804 Page: 1 Date Filed: 04/03/2014No. 12

- 51286
United States after deportation. On appeal of her sentence , she chall e nges 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 “aggra vated assault

. ” § 2L1.2, comment. (n.1(B)(iii)). Because we agree with the district court tha t the Oklahoma offense qualifies as a n 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 U nited States v. Velasco , 465 F.3d 633, 637 & n.4 (5th Cir. 2006). We de termine 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 “stat ute sets out one or more elements of the offense in the alternative,” and s ome elements make the generic enumerated offense while others do not, we may “consult a limited class of documents, such as indictments and jury instruc tions, to determine which alternative formed the basis of the defendant’s prior convic

tion.” 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 i d

.

2 Case: 12-51286 Document: 00512584804 Page: 2 Date Filed: 04/03/2014No. 12

- 51286 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 (refer ring to M ODEL P ENAL C ODE § 211.1(2)); United States v. Guerrero

- Robledo , 565 F.3d 940, 946 47 (5th Cir. 20 09) (same)

. The Okla

homa 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 O K

. S T

. A NN . § 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 approv ed state

- court document s show that Padilla

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

- Loera contends that the Oklahoma crime is not generic aggra

vated assault because it does not require “serious” bodily harm but only “bodily harm.” We need not a n swer 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); V elasco , 465 F.3d at 637 n.4 (noting in dict um that the conviction would be an agg ravated assault under the Model Penal Code because t he defendant used a weapon)

. Padilla

Loera ’s prior offense was a generic aggravated assault under the dangerous

weapon provision of the Oklahoma statute.

3 Case: 12-51286 Document: 00512584804 Page: 3 Date Filed: 04/03/2014No. 12

- 51286

Padilla

- Loera nonetheless maintains that the Okl ahoma crime is not
aggra vated assault because it requires the use of a “dangerous” weapon rather than a “deadly” one. Th at conclusional assertion deserves merits no considera

tion because it merely presumes , without explanation, that there is a distinc

t ion between a “dangerous” weapon and a “deadly” one. See United States v. McMil lan , 600 F.3d 434, 457 n.75 (5th Cir. 2010) (declining to review conclu

s ional assertions). I n any event, we have not recognize d any distinction between a danger

ous 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, u nder 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 an y item “ ‘ whi ch in the manner it is used or is intended to be used is known to be capable of pro

ducing death or serious bodily injury. ’” United States v. Sanchez

- Ruedas , 452 F.3d 409, 414 ( 5th Cir. 2006) (quoting M ODEL P ENAL C ODE § 210.0(4) ). Further,

our pattern jury instructions use a single, simi lar definition for the inclusive term “deadly or dangerous weapon.” 5 th C IR

. P ATTERN J URY I NSTRUCTIONS : C RIMINAL §§ 2.09, 2.79 (2012); see United States v. Williams , 520 F.3d 414, 421 (5th Cir. 2008). The judgment of sentence is AFFIRMED.

4 Case: 12-51286 Document: 00512584804 Page: 4 Date Filed: 04/03/2014