IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-20322

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

GUADALUPE VILLANUEVA,

Defendant-Appellant

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 4:11-cr-00010-ALL

Before KING, HIGGINBOTHAM, and HAYNES, Circuit Judges.

PER CURIAM:*

Guadalupe Villanueva pleaded guilty to illegal reentry in violation of 8

U.S.C. § 1326. He now appeals his sentence contending that the district court

erred in imposing a 16-level “crime of violence” enhancement based on his 1991

Texas conviction for the aggravated assault of a peace officer. We find that his

prior conviction for aggravated assault constitutes a “crime of violence” under

our precedents interpreting the Sentencing Guidelines and that the

United States Court of Appeals

Fifth Circuit

F I L E D

June 5, 2012

Lyle W. Cayce

Clerk

 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.

Case: 11-20322 Document: 00511877473 Page: 1 Date Filed: 06/05/2012
No. 11-20322

enhancement was properly applied. Therefore, we AFFIRM the sentence

imposed by the district court on Villanueva.

I. FACTUAL AND PROCEDURAL BACKGROUND

This sole issue in this case is whether the sentence meted out to

Defendant-Appellant Guadalupe Villanueva (“Villanueva”) was proper. On July

25, 1991, Villanueva, a citizen of Mexico, was convicted of aggravated assault

under the Texas Penal Code and sentenced to 12 years imprisonment. He was

subsequently deported to Mexico on November 24, 1993, but at some point

crossed back into the United States and was convicted of illegal reentry in 1996.

He was deported to Mexico on October 3, 2001. However, on November 22, 2010,

Villanueva was found in Huntsville, Texas. Following his arrest in Huntsville,

Villanueva was charged with the present count of illegal reentry following his

deportation after having been convicted of an aggravated felony. See 8 U.S.C.

§§ 1326(a), (b)(2). On January 31, 2011, Villanueva pleaded guilty to this offense

in district court. He did not sign a plea agreement or otherwise waive his

appellate rights.

The presentence investigation report (“PSR”) calculated Villanueva’s

sentence for the offense as follows. The base offense level for a violation of 8

U.S.C. § 1326(a) is 8. See U.S.S.G. § 2L1.2(a). The PSR then added 16 levels to

the base offense level because “Villanueva was previously deported after a

conviction for a felony that is a crime of violence, to-wit; [the 1991] aggravated

assault.” See id. § 2L1.2(b)(1)(A)(ii) (“If the defendant previously was 1

 The PSR’s account of this crime, which Villanueva does not contest, is based on the 1

complaint and is as follows:

[O]n August 10, 1990, while being transported to the county jail after his arrest

[for purchasing marijuana], Villanueva pulled out a .38 caliber revolver, pointed

it at officers, and told them that if they did not stop the vehicle and release him

he would kill them. Villanueva was overpowered by officers and relieved of the

weapon. Villanueva was originally charged with criminal attempt[ed] capital

murder; but, he pled guilty to the lesser charge . . . . Count 1, which charged

2

Case: 11-20322 Document: 00511877473 Page: 2 Date Filed: 06/05/2012
No. 11-20322

deported . . . after . . . a conviction for a felony that is . . . a crime of violence . . .

increase [the offense level] by 16 levels . . . .”). Under U.S.S.G. § 3E1.1,

Villanueva had 3 offense levels deducted for his acceptance of responsibility.

These adjustments left him with a total offense level of 21. Combined with his

criminal history category of VI, the PSR arrived at a Guidelines’ recommended

range of imprisonment of 77–96 months.

Villanueva timely submitted a written objection to the PSR, arguing that

his Texas aggravated assault conviction did not qualify as a “crime of violence”

under the commentary accompanying U.S.S.G. § 2L1.2 and that, therefore, he

should nothave received the 16-level enhancement. Villanueva contended, citing

United States v. Fierro–Reyna, 466 F.3d 324, 327–29 (5th Cir. 2006), that Fifth

Circuit precedent held that where, as here, an otherwise simple assault made

“aggravated” solely on the basis of the victim’s status as a peace officer does not

qualify as a “crime of violence.”

The district court was unpersuaded by Villanueva’s arguments. The court

reasoned that “if the [Texas] statute permits . . . the finding that the brandishing

of a weapon during the course of a threat makes it an aggravated assault, then

[it] would err . . . on the side of saying that this is . . . an aggravated

assault . . . on a peace officer.” The district court gave Villanueva “seven or eight

months’ credit” and then sentenced him to 70 months’ imprisonment followed by

a three-year term of supervised release.

Villanueva now timely appeals his sentence on the sole ground that the

district court erred in imposing the 16-level enhancement for his 1991 Texas

conviction for aggravated assault on a peace officer. 

II. DISCUSSION

A challenge to district court’s determination that a prior conviction is a

aggravated assault, was dismissed, as Villanueva was convicted on Count 2

which charged aggravated assault on a peace officer.

3

Case: 11-20322 Document: 00511877473 Page: 3 Date Filed: 06/05/2012
No. 11-20322

“crime of violence” is an application of the Guidelines, and “[w]e review de novo

the district court’s interpretation or application of the Sentencing Guidelines.”

United States v. Asencio–Perdomo, 674 F.3d 444, 446 (5th Cir. 2012) (citation

omitted). Section 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines provides for a

16-level enhancement “[i]f the defendant previously was deported . . . after . . .

a conviction for a felony that is . . . a crime of violence.” The commentary to

§ 2L1.2 defines the term “crime of violence” in two relevant ways. First, as “any 2

of the following offenses under federal, state, or local law . . . [including]

aggravated assault.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Second, as “any other

offense under federal, state, or local law that has as an element the use,

attempted use, or threatened use of physical force against the person of

another.” Id. Accordingly, Villanueva’s prior offense is a “crime of violence”—and

§ 2L1.2’s 16-level enhancement was correctly applied—ifit“(1) has physical force

as an element, or (2) qualifies as one of the enumerated offenses,” such as

aggravated assault in this case. United States v. Herrera, 647 F.3d 172, 175 (5th

Cir. 2011) (internal quotation marks omitted). “This court uses different tests

when analyzing whether a particular offense amounts to a [crime of violence],

and the test used depends on whether the offense is an enumerated one or has

physical force as an element.” United States v. Moreno–Florean, 542 F.3d 445,

449 (5th Cir. 2008) (citing United States v. Mendoza–Sanchez, 456 F.3d 479,

481–82 (5th Cir. 2006) (per curiam)). We commence by examining whether

Villanueva’s 1991 conviction falls within the enumerated list of “crimes of

violence.”

The fact that Villanueva was convicted of a crime that Texas has labeled

“aggravated assault” does not automatically transform it into an enumerated 

“[T]he commentary to . . . § 2L1.2 . . . is binding, and equivalent in force to the 2

guideline language itself, as long as the language and the commentary are not inconsistent.”

United States v. Rayo–Valdez, 302 F.3d 314, 318 n.5 (5th Cir. 2002).

4

Case: 11-20322 Document: 00511877473 Page: 4 Date Filed: 06/05/2012
No. 11-20322

“crime of violence.” Fierro–Reyna, 466 F.3d at 327; United States v. Sanchez, 667

F.3d 555, 560 (5th Cir. 2012) (“We should rely on a uniform definition, regardless

of the labels employed by the various States’ criminal codes.” (footnote and

internal quotation marks omitted)). Rather, “[b]ecause [§ 2L1.2’s] enumerated

offenses are not defined, we use a ‘common sense approach’ and give the offenses

their ‘generic, contemporary meaning.’” Fierro–Reyna, 466 F.3d at 327 (quoting

United States v. Sanchez–Ruedas, 452 F.3d 409, 412 (5th Cir. 2006) (citations

omitted)). In doing so, we normally only look “to the particular subdivision of the

statute under which the defendant was convicted rather than the defendant’s

specific conduct.” United States v. Diaz–Corado, 648 F.3d 290, 293 (5th Cir.

2011) (per curiam). However, if the statute of conviction contains a series of

disjunctive elements, we may look beyond the statute to certain records made or

used in adjudicating guilt to determine which subpart of the statute formed the

basis of the conviction. See, e.g., United States v. Mungia–Portillo, 484 F.3d 813,

815 (5th Cir. 2007). In such cases, the records we consider are “generally limited

to the charging document, written plea agreement, transcript of the plea

colloquy, and any explicit factual findings by the trial judge to which the

defendant assented.” United States v. Murillo–Lopez, 444 F.3d 337, 340 (5th Cir.

2006) (internal quotation marks omitted).

Villanueva was convicted under the 1990 version of the Texas aggravated

assault statute, which provided that: 3

(a) A person commits an offense if the person commits assault as

defined in Section 22.01 of this code and the person:

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

person’s spouse; or

 The statute has since been amended. See TEX. PENAL CODE § 22.02 (2009). We have 3

found convictions under more recent versions of the statute to qualify as “crimes of violence.”

See, e.g., United States v. Guillen–Alvarez, 489 F.3d 197, 200–01 (5th Cir. 2007). 

5

Case: 11-20322 Document: 00511877473 Page: 5 Date Filed: 06/05/2012
No. 11-20322

(2) threatens with a deadly weapon or threatens to cause

bodily injury or causes bodily injury to a . . . peace officer . . . .

when the person knows or has been informed the person

assaulted is . . . a peace officer . . . ; or

(3) causes bodily injury to a participant in a court proceeding

when the person knows or has been informed the person

assaulted is a participant in a court proceeding . . . ; or

(4) uses a deadly weapon.

TEX.PENAL CODE § 22.02(a) (1990). The statute also provided that “[a]n offense 4

under this section is a felony of the third degree, unless the offense is committed

under Subdivision (2) of Subsection (a) of this section and the person uses a

deadly weapon, in which event the offense is a felony of the first degree.” Id.

§ 22.02(c). 

The aggravated assault indictment against Villanueva stated in relevant

part:

[T]hat GUADALUPE VILLANUEVA on or about the 10th day of

August, 1990, . . . did then and there unlawfully, intentionally and

knowingly use a deadly weapon, to-wit: a firearm, and did then and

there threaten JUAN VALLEJO, a peace officer in the lawful

discharge of his official duty, with imminent bodily injury by the use

of said weapon when GUADALUPE VILLANUEVA knew that the

said JUAN VALLEJO was a peace officer.

And the Grand Jurors do further present that the said

defendant did use and exhibit a deadly weapon, to-wit: a firearm,

 The crime of “assault” was defined in 1990 as:

4

(1) intentionally, knowingly, or recklessly caus[ing] bodily injury to another,

including the person’s spouse;

(2) intentionally or knowingly threaten[ing] another with imminent bodily

injury, including the person’s spouse; or

(3) intentionally or knowingly caus[ing] physical contact with another when the

person knows or should reasonably believe thatthe other will regard the contact

as offensive or provocative.

TEX. PENAL CODE § 22.01(a) (1990). Villanueva’s aggravated assault conviction was based on

an incorporated simple assault under § 22.01(a)(2).

6

Case: 11-20322 Document: 00511877473 Page: 6 Date Filed: 06/05/2012
No. 11-20322

during the commission of the felony offense.

There is no indication that Villanueva objected to these findings at the time they

were made nor does he contest them now. Importantly, the 1991 judgment of

conviction reflects that Villanueva was convicted of a third-degree felony and

also reports a finding that Villanueva had used a firearm during the offense. It

does not, however, indicate which subpart of the statute Villanueva was

convicted under, referring only to § 22.02. 

Given that the 1991 aggravated assault statute was composed of various

subparts, we must determine which subpart formed the basis for Villanueva’s

1991 conviction. Villanueva posits that the statute provides four possible bases

for his conviction: threatening a peace officer with bodily injury or threatening

a peace officer with a deadly weapon—both third-degree felonies—or the same

two acts charged as first degree felonies under the deadly weapon enhancement

in the 1990 version of § 22.02(c). Villanueva further observes that his conviction

was for a third-degree felony, but that the indictment does not further specify

whether this was for threatening a peace officer with bodily injury or

threatening a peace officer with a deadly weapon. He argues that we should find 5

the former—and effectively disregard the deadly weapon finding—directing us

to precedent“conclud[ing]that the generic, contemporary meaning of aggravated

assault involves aggravating factors such as use of a deadly weapon and

causation of serious bodily injury and does not include considerations regarding

the victim’s status as a police officer.” Fierro–Reyna, 466 F.3d at 329. This

precedent, he asserts, forecloses a finding that his 1991 conviction qualifies as

an enumerated “crime of violence” because his assault was aggravated only on

Such ambiguity is normally unproblematic given that in Texas “the State is only 5

required to present evidence sufficient to support the conviction, [and] the State need not

present evidence that the defendant committed the offense according to each of the means

alleged in the indictment.” United States v. Morales–Martinez, 496 F.3d 356, 360 (5th Cir.

2007). 

7

Case: 11-20322 Document: 00511877473 Page: 7 Date Filed: 06/05/2012
No. 11-20322

the basis of the victim’s status as a peace officer.

We read Villanueva’s charging and plea documents differently, however.

Under the 1990 version of § 22.02(a)(4), “[a] person commit[ted] an [aggravated

assault] if the person commit[ted] assault as defined in Section 22.01 of this code

and the person . . . use[d] a deadly weapon.” TEX. PENAL CODE. § 22.02(a)(4)

(1990). Under § 22.02(c), this crime constituted a third-degree felony. Id.

§ 22.02(c). We find it more reasonable to conclude, as the probation officer did,

that Villanueva was convicted of the third-degree felony of aggravated assault

for committing a simple assault—“threaten[ing] another with imminent bodily

harm” under Texas Penal Code § 22.01(a)(2)—while using a deadly weapon

pursuant to § 22.02(a)(4). See, e.g., Godsey v. State, 719 S.W.2d 578, 584 (Tex.

Crim. App. 1986) (en banc) (describing elements of predecessor to § 22.02(a)(4)).6

Under this reading, the fact that Villanueva’s victim was a peace officer was

unnecessary for transforming his simple assault into an aggravated assault.7

 The indictment makes clear that Villanueva’s 1991 conviction involved threatening 6

with a deadly weapon. A typical definition of “use” is “to put into action or service.” WEBSTER’S

THIRD NEWINTERNATIONALDICTIONARY 2523 (13th ed. 1961). Obviously, then, by “threatening

with” a deadly weapon, one is “putting into action” said weapon. But we are not alone in

concluding so. The Texas Court of Criminal Appeals has employed this exact reasoning when

interpreting similar statutory provisions involving the “use[] or exhibit[ion] of a deadly

weapon.” See Patterson v. State, 769 S.W.2d 938, 940–41 (Tex. Crim. App. 1989) (en banc)

(relying on similar dictionary definition of “use” to interpret statutory provision). In such

contexts, the Court of Criminal Appeals has concluded that the term “‘used . . . a deadly

weapon’ during the commission of the offense[,] means that the deadly weapon was employed

or utilized in order to achieve its purpose. . . . [This] extends . . . to any employment of a deadly

weapon, even its simple possession, if such possession facilitates the associated felony.” Id. at

941 (first alteration in original) (internal quotation marks omitted). This capacious

understanding likely informed the Court of Criminal Appeals’ decision to affirm the conviction

of a defendant under an identical, previous version of § 22.02(a)(4) on the ground that “[t]he

mere fact that appellant displayed the shotgun and pointed it in [the victim’s] general

direction is sufficient ‘use.’” May v. State, 660 S.W.2d 888, 889 (Tex. App.—1983), aff’d, 722

S.W.2d 699 (Tex. Crim. App. 1984).

 In the addendum to the PSR, the probation officer explained this well: 7

Since the former (like the current) Texas offense of aggravated assault under

Texas Penal Code § 22.02 incorporates § 22.01 (Assault) into its definition, the

8

Case: 11-20322 Document: 00511877473 Page: 8 Date Filed: 06/05/2012
No. 11-20322

Our confidence in this reading is bolstered by its consistency with the wordings

of the indictment and the judgment, as well as the fact that Villanueva was

convicted of a third-degree, rather than first-degree, felony, with the judgment

reflecting a deadly weapon finding.

This finding defeats Villanueva’s argument. Our previous precedents make

clear that an otherwise simple assault that is made aggravated by the use of a

deadly weapon is clearly a “crime of violence.” In United States v.

Guillen–Alvarez, 489 F.3d 197, 199 (5th Cir. 2007), we considered a more recent

version of the Texas aggravated assault statute, which provided that:

(a) A person commits an offense [of aggravated assault] if the person

commits assault as defined in Section 22.01 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.

Id. (alteration in original) (quoting TEX. PENAL CODE § 22.02(a) (2000)). We

concluded that the defendant’s “aggravated assault conviction [under the abovequoted statute] qualifies as a conviction for the enumerated offense of

‘aggravated assault,’ and therefore as a conviction for a crime of violence [under

§ 2L1.2].” Id. Subsequent cases have drawn on Guillen–Alvarez to conclude that

a conviction under § 22.02 for threatening imminent bodily injury with a deadly

weapon—Villanueva’s exact offense—qualifies as a “crime of violence.” United

defendant [i.e., Villanueva] violated § 22.01(a)(2) and § 22.02(a)(2) and (4). In

other words, he intentionally or knowingly threatened another with imminent

bodily injury (the 22.01 component) coupled with two additional acts:

threatened with a deadly weapon or threatened to cause bodily injury to a peace

officer (a)(2) and used a deadly weapon (a)(4) (the 22.02 component). While

22.02 only requires one of four aggravating factors to elevate an assault to that

of aggravated assault, the defendant met two factors, one of which involved the

threat upon a peace officer. Thus, his use of a deadly weapon means his assault

was aggravated on that fact alone; it was not merely aggravated because the

victim was a peace officer.

9

Case: 11-20322 Document: 00511877473 Page: 9 Date Filed: 06/05/2012
No. 11-20322

States v. Garcia–Ramirez, 230 F. App’x 458, 459–60 (5th Cir. 2007)

(unpublished) (per curiam). The precedent that Villanueva cites—United States

v. Fierro–Reyna—did not address a defendant who threatened with a deadly

weapon and so is, at best, inapposite to his circumstances. Indeed, it may even

undercut his position, as we held in that case that “the generic, contemporary

meaning of aggravated assault involves aggravating factors such as use of a

deadly weapon.” Fierro–Reyna, 466 F.3d at 329 (emphasis added). Given that we

find that Villanueva’s aggravated assault conviction rested on his use of a deadly

weapon, Fierro–Reyna provides no support for vacating his sentence. The 8

district court properly concluded that Villanueva’s 1991 aggravated assault

conviction constituted a conviction for a “crime of violence” and therefore the

district court correctly applied § 2L1.2’s 16-level enhancement. 

III. CONCLUSION

In light of the foregoing, we AFFIRM the sentence imposed by the district

court.

Because we conclude that Villanueva’s 1991 conviction for aggravated assault was a

8

“crime of violence” for purposes of § 2L1.2 of the Guidelines, we have no need to decide

whether this offense has as an element the use, attempted use, or threatened use of force

against the person of another. See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii); Guillen–Alvarez, 489 F.3d

at 199 n.2.

10

Case: 11-20322 Document: 00511877473 Page: 10 Date Filed: 06/05/2012