* 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this opinion should not be published and is not precedent except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

May 20, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-20777

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN CARDENAS-GARCIA,

Defendant-Appellant.

--------------------

Appeals from the United States District Court

for the Southern District of Texas

USDC No. H-01-CR-826-1

--------------------

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Juan Cardenas-Garcia (“Cardenas”) appeals his sentence for

illegal reentry after deportation. Cardenas argues that the

district court erred in applying the 16-level increase pursuant to

the 2001 version of United States Sentencing Guidelines

(“U.S.S.G.”) § 2L1.2(b)(1)(A)(ii).

The district court construed Cardenas pleadings as arguing

that to qualify as a crime of violence for the purpose of

§ 2L1.2(b)(1)(A)(ii), his prior offense must satisfy both
2

subparagraphs I and II of the definition of “crime of violence” in

application note 1(B)(ii). The district court found that both

subparagraphs need not be satisfied. Although in his appellate

brief Cardenas has emphasized the “and” which connects the two

subparagraphs, Cardenas makes no argument and cites no legal

authority for the proposition that both subparagraphs must be

satisfied in order for this conviction to be a crime of violence.

Accordingly, he has waived this issue on appeal. See Brinkmann v.

Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.

1987).

Cardenas now argues that his prior state felony conviction

for assault-family violence under Texas Penal Code § 22.01 is not a

crime of violence as defined in either subparagraph of application

note 1(B)(ii) to § 2L1.2. Because Cardenas did not raise this

argument in the district court, it is reviewed for plain error.

Plain error must be clear or obvious and must affect the

appellant’s substantial rights. United States v. Calverley, 37

F.3d 160, 162-64 (5th Cir. 1994) (en banc). 

Because assault-family violence under Texas Penal Code § 22.01

(a non-aggravated offense) is not listed in application note

1(B)(ii)(II), it is a crime of violence only if it has as

an element “the use, attempted use, or threatened use of physical

force against the person of another.” § 2L1.2, comment. 

(n.1(B)(ii)(I)); see United States v. Rodriguez-Rodriguez, 

323 F.3d 317, 318 (5th Cir. 2003); United States v. Rayo-Valdez,
3

302 F.3d 314, 316 (5th Cir.), cert. denied, 123 S. Ct. 694 (2002).

Because Cardenas’ assault-family violence was enhanced to a felony,

the only provision under which he could have been convicted was

Texas Penal Code § 22.01(a)(1). TEXAS PENAL CODE § 22.01(b)(2).

Because Texas Penal Code § 22.01(a) requires that the

perpetrator cause bodily injury, that provision has as an element

the use of physical force against another person. United States v.

Shelton, __ F.3d ___, 2003 WL 1227611, *4, *6 (5th Cir. Mar. 18,

2003) (interpreting the elements of § 22.01(a) in the context of a

18 U.S.C. § 922(g)(9) conviction). Accordingly, Cardenas’

conviction under § 22.01(a)(1) is a crime of violence as defined in

application note 1(B)(ii)(I), and the district court committed no

error, much less plain error, in applying the 16-level increase

under § 2L1.2(b)(1)(A)(ii).

Shelton also distinguished Texas Penal Code § 22.01(a)(1) from

the statute at issue in United States v. Gracia-Cantu, 302 F.3d 308

(5th Cir. 2002), injury to a child under Texas Penal Code

§ 22.04(a). Shelton, 2003 WL 1227611 at *6. In Gracia-Cantu, 302

F.3d at 311-12, this court held under the pre-amendment version of

§ 2L1.2 that injury to a child under § 22.04(a) did not require

that physical force be used because that statute provided that the

injury could be the result of omission and, thus, was not a crime

of violence. Shelton held that “despite the broad `resultsoriented’ language, because Gracia-Cantu involves a predicate

offense that is materially different from that at issue, it is not
4

controlling.” Shelton, 2003 WL 1227611 at *6.

AFFIRMED.