### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 i l l e g a l reentry in violation of 8 U.S.C. § 1326. He now appeals his sentence contend i ng 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 U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D June 5, 201 2 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-20322 Document: 00511877473 Page: 1 Date Filed: 06/05/2012No. 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, b u t 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 c o nvi cted 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 p r esentence 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. SeeU.S.S.G. § 2L1.2(a). The PSR then added 16 levels to the base offense level because “Villanueva was p reviously 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 previ o u s ly was

1

ThePS R’s ac countof t his c rim e, wh ich Villanue va doe s not cont es t, is bas ed on the 1
com plai nt and is as fol low s: [O ]n August 10, 1990, wh ile being tra nsp ort ed to the count y jail aft er his arr es t [f or pur chas ing mar ijuana] , Villanue va pull ed out a .38 caliber revolver, poi nted it at off icer s, and tol d them that if they did not st op the vehicl e and rele ase him he wo uld ki ll them

. Villanue va wa s overp ow ere d by off icer s and reli eved of the we apo n. Villanue va wa s origi nally char ged wi th cri mi n a l att em pt [ed] cap ital
mur der ; but, he ple d guilty to the les se r c h a r g e . . . . Count 1, wh ich char ged 2 Case: 11-20322 Document: 00511877473 Page: 2 Date Filed: 06/05/2012No. 11-20322

deported

. . . after

. . . a conviction for a felony that is

. . . a crime of violence

. . . i ncrease [the offense level] by 16 levels

. . . .”). Under U.S.S.G. § 3E1.1 , Villanueva had 3 offense levels deducted for his acceptance of responsibili t y . 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, t h erefore, he

s h o ul d no t h ave received the 16-level enhancement. Villanueva cont e n d e d , citin g United States v. Fierro–Reyna , 466 F.3d 324, 327–29 (5th Cir. 2006), that Fifth Circuit precedent held that where, a s h e r e , 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 t h a t t his 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. Vi l l a nueva now timely appeals his sentence on the sole ground that the district court erred in imposing the 1 6

- l e v e l 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

aggravate d ass a u l t, wa s dis mi ss ed, as Villanue va wa s convic ted on Count 2 wh ich char ged aggravate d ass ault on a p eaceof fic er. 3 Case: 11-20322 Document: 00511877473 Page: 3 Date Filed: 06/05/2012No. 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. Asen c i o–Perdomo , 674 F.3d 444, 446 (5th Cir. 2012) (citation omitted). Section 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines pro vi des for a 16-level enhancement “[i]f the defendant previously was deported . . . after . . .

a convi c t i o n f

o r 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 loc a l law that has as an element the use, attempted use, or threat e n e d u s e of physical force against the person of another.” Id. Acc or din gly, Villanueva’s prior offense is a “crime of violence”—and § 2L1.2’s 16-level enhancement was correctly ap p li e d

—if it “ ( 1 ) h a s physical force

as an element, or (2) q u a l i f i e s 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). “ T h i s 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 Stat e s v . M o reno–Florean , 542 F.3d 445, 449 (5th Cir. 2008) (citing United States v. Mendoza–Sanchez , 456 F.3d 479, 481–82 (5th Cir. 2006) (p e r curiam)). We commence by examining whether Vi llanueva’s 1991 conviction falls within the enumerated list of “crimes o f 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 com me nt a r y t o . . . § 2L1.2

. . . is bind ing, and equivale nt in for ce to the 2 guide line language its elf, as long as the language and the comm enta ry are not inco nsi st ent. ” Uni ted Sta tes v. Ra

yo–V al dez , 302 F.3d314 , 318 n.5 (5t h Cir

. 2002)

.

4 Case: 11-20322 Document: 00511877473 Page: 4 Date Filed: 06/05/2012No. 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 Stat e s’ 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–Ru e das , 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 defe n d a n t w as 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 coll o q u y , a n d 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 p erson 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 stat ute has s incebe en ame nded

. SeeT E X

. P E N AL C ODE § 2 2.02 ( 2009)

. We have 3 fou nd convic tio ns unde r mo re rec ent vers ions of the st atut e to qualif y as “cr im es of violenc e.” See, e .g. , Uni ted Sta tes v. G uil le n–A lv arez , 489 F.3d197 , 200–01 (5t h Cir

. 2007)

. 5 Case: 11-20322 Document: 00511877473 Page: 5 Date Filed: 06/05/2012No. 11-20322 (2) threatens with a deadly weapon or threatens to cause bodily injury or causes bodily injury to a . . . peace officer

. . . . when the pe r s o n k n ows 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 info r m e d t h e person assaulted is a participant in a court proceeding . . . ; or (4) uses a deadly weapon. T E X
. P E NA L C O D E § 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 Subdivi s i o n ( 2) of Subsection (a) of this section and the person uses a deadly weapon, in which event the offense is a felon y o f t h e first degree.” Id. § 22.02(c). The aggravated assault indictment against Villanueva stated in relevant part: [T]hat GUADALUPE VILLANUEVA o n o r 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 threat en 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 pr e s e n t that the said defendant did use and exhibit a deadly w e a p o n, to-wit: a firearm,

Thec rim e o f “as sau lt” w as def inedin199 0 as : 4 (1) inte ntio na l l y , k now ingly, or rec kl es sly caus [ing] bod ily injury to anot her, inclu ding the per so n’s s pous e; (2) i n t e n tio nally or kn ow ingly thr eate n[in g] anot her wi th im mi nent bodily injury, in clud ing t he per so n’s s pous e; or (3) inte ntio nally or kn ow ingly caus [ing] phys ical cont act wi th another wh en the per so n kn ow s or sho uld reas onably belie ve that the othe r wi ll regar d the cont act as off ens ive or pr ovoca tive. T E X

. P E N

AL C ODE § 22.0 1(a) (199 0). Villanue va’s aggravate d ass ault convict ion wa s bas ed on an i ncor por ateds im pleas sau lt unde r § 2 2.01 (a) (2)

. 6 Case: 11-20322 Document: 00511877473 Page: 6 Date Filed: 06/05/2012No. 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 n o w . I mportantly, the 1991 judgment of conviction reflects that Villanuev a w a s c onvicted of a third-degree felony and also reports a finding that Villanueva had used a firearm during the offense. It does not, however, in d i c a t e 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 determ i n e 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 fo r a t hird-degree felony, but that the indictment does not further specify whether this was for threate n i n g a p eace 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 p r e c e de nt “c o nclu d [in g] th at the generic, contemporary meaning of a ggr av at e d assault involves aggravating fac t o r s such as use of a deadly weapon and causation of serious bodily injury and does not include considerations regarding t h e 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 amb igu i t y is norm ally unpr oblem atic given that in Texas “th e Sta te is only 5
r e q u i r e d t o pr es ent evide nce suf fic ient to sup por t the convic tio n, [and] the Sta te need not pr es ent evide nce that the def enda nt com mit ted the off en se acc ording to each of the me ans allege d in the indi ctm e n t

. ” U n i te d States v. Mo ra le s–M ar tinez , 496 F.3d 356, 360 (5t h Cir. 2007)

. 7 Case: 11-20322 Document: 00511877473 Page: 7 Date Filed: 06/05/2012No. 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.” T E X
. P E N A L C O D E
. § 22.02(a)(4) (1990). Under § 22.02(c), this crime constit u t e d a third-degree felony. Id. § 22.02(c). We find it mor e 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 de a dly weapon pursuant to § 22.02(a)(4). See, e.g. , Godsey v. State , 719 S.W. 2 d 5 7 8 , 5 8 4 (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 assa u l t i n t o an aggravated assault. 7

Thein dic tm ent mak es c lear that Villanue va’s 199 1 c onvict ion involvedt hrea teni ng 6 wi th a dea dly we apo n. A typi cal def init ion of “us e” is “to put into act ion or se rvice .” W E B ST E R’ S T HI RD N EW I NT ERN A TI O N A L D I C TIO N

AR Y 2523 (13t h ed. 1961)

. Ob vious ly, then , by “th reat ening wi th” a dea dly we apo n, one is “p utt ing into act ion” sai d we apo n. But we are not a l o n e in conc ludi ng so . The Texas Court of Crim inal App eals has em plo yed this exact reas oning wh en inte rp ret ing sim ilar s t a t u tor y pr ovis ions involving the “us e[] or exhibit [io n] of a dea dly we apo n.” See Patters on v. State , 769 S. W.2 d 938, 940–41 (Tex. C r i m . App

. 1989) (en banc) (relyi ng on sim ilar dic tio nary def init ion of “us e” to inte rp ret st atut ory pr ovis ion)

. In s u c h cont exts , the Court of Crim inal App eals has conc lud e d t hat the ter m “‘u se d

. . . a dea dly we apo n’ dur ing the com mi ss ion of the off ens e[, ] me ans that the dea dly we apo n wa s em plo yed or util ized in ord er to achie ve its pur pos e. . . . [This ] exten ds

. . . to any em plo ymen t of a dea dly we apo n, even its sim ple pos se ss ion, if suc h pos se ss ion fac ilit ates the ass ocia ted fel ony.” Id. at 941 (f irs t alte rat ion in origi nal) (int erna l quot atio n mar ks om itt ed)

. This cap acio us unde rs tand ing lik ely info rm ed the Court of Crim inal App eals ’ dec isi on to aff irm the convic tio n of a def enda nt unde r an ident ical , pr evious versi on of § 22. 02(a)( 4) on the groundt hat “[t] he me re fac t that app ellant dis playe d the sho tgun and poi nted it in [t he vict i m ’ s ] g e n eral d i rec tio n is suf

fic ient ‘us e.’ ” Ma

y v. State , 660 S. W.2 d 888, 889 (Tex. App .— 1983) , af f’ d , 72 2 S. W.2 d 699 (Tex. Cr im

. App

. 1984)

. In the add endu m to the PSR, the pr obat ion off icerexp lainedt his w ell: 7 Sinc e the for me r (li ke the c u r r e n t) Texas off ens e of aggravate d ass ault unde r Texas Penal Code § 22.0 2 inco rp orat es § 22.0 1 (As sau lt) into its def init ion, the 8 Case: 11-20322 Document: 00511877473 Page: 8 Date Filed: 06/05/2012No. 11-20322

Our confidence in this reading is bolstered by its consistency with the wordings of the indictment a n d t h e 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 d e f

e at s Vill anu ev a’ s ar gu m e nt

. O ur p revio u s p re c e d e nt s m ak e clear that an otherwise simple assault that is made aggravated by the use of a deadly we apon 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. (altera t i o n i n original) (quoting T E X
. P E NA L C O D E § 22.02(a) (2000)). We concluded that the defendant’s “aggravated assault conviction [under the abovequoted statute] qualifie s a s 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—qu alifies as a “crime of violence.” United

d e f enda nt [i. e., Villanue va] violat ed § 22.0 1(a) (2) and § 22.0 2(a) (2) and (4)

. In othe r wo rd s, he inte ntio nally or kn ow ingly thr eate ned another wi th im mi nent b o dil y injury (t he 22.0 1 com pone nt) coup led wi th tw o add itio nal a c t s : thr eate ned wi th a dea dly we apo n or thr eate ned to caus e bod ily injury to a pea ce off icer (a) (2) and use d a dea dly we apo n (a) (4) (t he 22.0 2 com pone nt)

. While 22.0 2 only requ ires one of fou r aggravati ng fac tor s to elevat e an ass ault to that of aggravate d ass ault, the def enda nt me t tw o fac tor s, one of wh ich involved the thr eat upon a pea ce off icer

. Thus, his use of a dea dly we apo n me ans his ass ault wa s aggravate d on that fac t alone ; it wa s not me rely a g gr a vated beca use the victi m wa s a p eaceof

fic er. 9 Case: 11-20322 Document: 00511877473 Page: 9 Date Filed: 06/05/2012No. 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
u n d e rcut his position, as we held in that case that “the generic, contempora r y meaning of aggravated assault involves aggravatin g 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

we a pon, Fierro–Reyna provides no support for vacating his sentence. The 8 d i s t rict court properly concluded that Villanueva’s 1991 aggravated assault conviction constituted a convic t i o n 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.

Becaus e we conc lude that Villanue va’s 1991 convic tio n for aggravate d ass ault was a

8 “cr im e of violenc e” for pur pos es o f § 2 L 1

. 2 of the Gu ide lines , we have no need to dec ide wh ethe r this off

ens e has as an elem ent the use , att em pt ed use , or thr eat e n e d u s e o f for ce agains t the per so n of anot her. See U. S. S. G. § 2L1.2 cm t. n.1( B)(iii) ; Gu il le n–A lv arez , 489 F.3d at 199 n.2. 10 Case: 11-20322 Document: 00511877473 Page: 10 Date Filed: 06/05/2012