REVISED OCTOBER 25, 2012

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10973

UNITED STATES OF AMERICA,

Plaintiff–Appellee

v.

HERMENEGILDO AVALOS-MARTINEZ,

Defendant–Appellant

Appeal from the United States District Court 

for the Northern District of Texas

Before JONES, Chief Judge, and GARZA and PRADO, Circuit Judges.

PER CURIAM:

Defendant–Appellant Hermenegildo Avalos-Martinez appeals the sentence

imposed following his guilty plea for illegally reentering the United States after

having been deported. For the reasons stated below, we AFFIRM.

I. BACKGROUND

Avalos-Martinez pleaded guilty to illegally reentering the United States

after having been deported, in violation of 8 U.S.C. § 1326. In connection with

his guilty plea, Avalos-Martinez stipulated that he is a citizen and national of

Mexico, that he was deported from the United States on July 11, 2006, and that

he illegally reentered the United States prior to December 30, 2010, the date on

United States Court of Appeals

Fifth Circuit

F I L E D

September 21, 2012

Lyle W. Cayce

Clerk
No. 11-10973

1 The Government also argued that assault of a public servant qualifies as a crime of

violence, an argument which it later abandoned.

2

which he was apprehended by federal agents. The criminal complaint for the

crime of illegal reentry states that Avalos-Martinez admitted that he had

unlawfully reentered the United States “sometime in 2008.” The indictment

contains no allegation about the date of Avalos-Martinez’s illegal reentry.

The presentence investigation report (“PSR”) prepared by the probation

office disclosed that Avalos-Martinez had previously pleaded guilty to the crimes

of (1) assault causing bodily injury to a public servant discharging an official

duty and (2) taking or attempting to take a weapon from a peace officer, both in

violation of Texas law. The PSR stated that Avalos-Martinez had been stopped

by police officers for a traffic violation and that he had fled the scene and been

chased and wrestled to the ground by the officers, during which altercation

Avalos-Martinez had punched one of the officers and attempted to remove the

duty weapon of another officer. The PSR stated that Avalos-Martinez was

sentenced to two years’ imprisonment for the assault and one concurrent year

of imprisonment for his attempt to take the officer’s weapon.

The PSR assigned a base offense level of eight in accordance with section

2L1.2(a) of the United States Sentencing Guidelines Manual (“U.S.S.G.”). The

PSR recommended adding four levels because Avalos-Martinez had been

deported after a conviction for a felony offense, which referred to his conviction

for assault of a public servant. See U.S.S.G. § 2L1.2(b)(1)(D).

The Government objected to the PSR, arguing that instead of a mere fourlevel increase for a prior felony, Avalos-Martinez should receive a sixteen-level

increase for having committed a crime of violence when he attempted to take the

officer’s duty weapon.1 See id. § 2L1.2(b)(1)(A)(ii). The district court sustained

the Government’s objection and applied the sixteen-level enhancement.
No. 11-10973

2 This determination was based upon a base offense level of eight, see U.S.S.G.

§ 2L1.2(a), a sixteen-level enhancement for a prior conviction for a crime of violence, see id.

§ 2L1.2(b)(1)(A)(ii), and a three-level reduction for acceptance of responsibility, see id. § 3El.1.

3

ThePSR also assigned Avalos-Martinez four criminal history points based

on his prior Texas convictions for driving while intoxicated and endangering a

child. Avalos-Martinez had pleaded guilty to both of these offenses on February

14, 1997. For driving while intoxicated, Avalos-Martinez was sentenced to

twenty-four months’ probation, which probation was revoked on March 28, 2001,

resulting in a sixty-day jail sentence. For endangering a child, Avalos-Martinez

was sentenced to two years’ imprisonment, but his imprisonment was suspended

for a five-year probation period. His probation was revoked on May 28, 1999,

and he was sentenced to one year of imprisonment. Avalos-Martinez raised no

objection to this portion of the PSR.

Based on the recommendations in the PSR, the district court determined

that Avalos-Martinez had a total offense level of twenty-one2 and a category V

criminal history, resulting in an advisory guidelines range of 70–87 months’

imprisonment. See id. at ch. 5, pt. A. Having stated that it “d[id] not intend to

impose a sentence above the guideline range determined to be applicable,” the

district court gave Avalos-Martinez a within-guidelines sentence of 72 months,

followed by three years of supervised release. Avalos-Martinez timely appealed.

II. DISCUSSION

A. Crime-of-Violence Enhancement

The first argument that Avalos-Martinez makes on appeal is that the

district court erred in applying a sixteen-level crime-of-violence enhancement for

his conviction for attempting to take a weapon from a peace officer. This court

reviews the district court’s interpretation and application of the sentencing

guidelines de novo, including the issue of whether a defendant’s prior conviction

qualifies as a crime of violence. United States v. Hernandez-Galvan, 632 F.3d
No. 11-10973

3 Neither party argues that Avalos-Martinez committed one of the enumerated crime-ofviolence offenses.

4 Avalos-Martinez was convicted in June 2005. For the purposes of determining

whether an offense is a crime of violence, we look to the version of the statute in effect at the

time of the defendant’s conviction. United States v. Herrera, 647 F.3d 172, 176 n.3 (5th Cir.

2011).

4

192, 196 (5th Cir. 2011). To determine whether an offense qualifies as a crime

of violence, this court applies a categorical approach, examining the elements of

the offense rather than the specific facts underlying the defendant’s conviction.

United States v. Dominguez, 479 F.3d 345, 347 (5th Cir. 2007).

Section 2L1.2(b)(1)(A)(ii) of the sentencing guidelines provides that a

defendant’s offense level will be increased by sixteen if he was previously

deported after having committed a “crime of violence” that results in criminal

history points. An offense is classified as a crime of violence if it is one of several

enumerated offenses,3or if it is “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. cmt. 1(B)(iii). Thus, the dispositive

issue is whether the crime of attempting to take the weapon of a peace officer

has as an element the use, attempted use, or threatened use of physical force

against another person.

At the time of Avalos-Martinez’s conviction, the offense was defined as

follows:4

§ 38.14. Taking or Attempting to Take Weapon From Peace Officer,

Parole Officer, or Community Supervision and Corrections

Department Officer

. . . .

(b) A person commits an offense if the person intentionally or

knowingly and with force takes or attempts to take from a peace

officer . . . the officer’s firearm, nightstick, or personal protection

chemical dispensing device with the intention of harming the officer

or a third person.
No. 11-10973

5

Tex. Penal Code § 38.14 (2005) (emphasis added). Texas courts have distilled

this offense to the following elements:

(1) Intentionally or knowingly;

(2) With force;

(3) Take or attempt to take;

(4) Peace officer’s firearm;

(5) From a peace officer;

(6) With intent to harm officer or third person.

Jackson v. State, 993 S.W.2d 162, 166 (Tex. App.—Eastland 1992, no pet.).

Neither party disputes thatforce is an element ofthe crime. Nevertheless,

Avalos-Martinez argues that the element of force encompasses not only force

directed against a person, but also force directed against property. He argues

that if an officer’s firearm were locked inside a patrol car, someone could violate

this statute by breaking into the patrol car to steal the firearm because that

person would have taken the firearm through the use of force directed against

the property of the patrol car. Because he believes that the statute could be

violated through such conduct, Avalos-Martinez argues thatthe offense does not

have as a required element the use of force against a person, and that it

therefore is not a crime of violence.

We find Avalos-Martinez’s argument unpersuasive. While we do not argue

with his contention that the word “force” is capable of referring to force against

property, we disagree that the word carries such a broad meaning in the context

of this statute. The statute outlaws using force to take a firearm from an officer

with the intention of harming that officer or a third person. This language

indicates that the harm that the statute seeks to prevent is the danger created

when someone takes a firearm from an officer’s actual possession, stripping the

officer ofthe means to protect himself and others while giving the wrongdoer the

power to use that weapon against the officer or others. See United States v.

Herrera, 375 F.3d 399, 405 (6th Cir. 2004) (“The perpetrator who tries to gain

possession of an officer’s gun is not ordinarily a mere thief, trying to make off
No. 11-10973

5 Our conclusion is bolstered by the fact that the weapons mentioned in the

statute—firearm, nightstick, personal protection chemical dispensing device—are alltypically

worn on a police officer’s belt, and to take such weapons from an officer’s belt would necessarily

entail the use of force against that officer.

6

with the firearm, but more often is trying to gain a tactical advantage over the

officer in a confrontational situation.”). In this context, the plain meaning of

“force” is force directed against the officer in possession of the weapon.5

A further problem with Avalos-Martinez’s proposed interpretation is that

it renders the “from an officer” element mere surplusage. See Campbell v. State,

49 S.W.3d 874, 876 (Tex. Crim. App. 2001) (“In analyzing the language of a

statute, we assume that every word has been used for a purpose and that each

word, phrase, clause, and sentence should be given effect if reasonably

possible.”). If the statute were intended to criminalize the conduct of one who

uses force against property to take a weapon in an officer’s constructive, as

opposed to actual, possession, it could accomplish that objective with the

following elements: intentionally or knowingly; with force; take or attempt to

take; a peace officer’s firearm; with intent to harm the officer or a third person.

The way to give meaning to the “from an officer” element is to interpret the

statute to criminalize the taking of a weapon from an officer in actual possession

of that weapon. Once the statute is interpreted in this fashion, AvalosMartinez’s hypothetical falls apart; the force that would be used to take a

weapon from an officer’s actual possession is force against another person. 

Of course, our interpretation of this Texas statute would be trumped by a

contrary interpretation by Texas courts. However, our interpretation is

buttressed by Texas cases applying the statute. The Government has presented

many cases in which section 38.14 was violated by conduct involving force

directed against an officer. See, e.g., Chadwick v. Texas, 277 S.W.3d 99, 101–02

(Tex. App.—Austin 2009, pet. granted) (defendant attempted to remove the

officer’s gun from its holster during a struggle), aff’d, 309 S.W.3d 558 (Tex. Crim.
No. 11-10973

7

App. 2010); Hernandez v. Texas, 903 S.W.2d 109, 112 (Tex. App.—Fort Worth

1995, pet. ref’d) (same); Jackson, 993 S.W.2d at 164 (same). Avalos-Martinez

has failed to present any case applying the statute in which force was directed

against property rather than against a person. He has also failed to present any

case wherein a Texas court accepted his interpretation of “force.” In the absence

of case law supporting the interpretation proposed by Avalos-Martinez, we must

rest on our interpretation of the plain language of the statute, which leads us to

the conclusion that “force” means force against people, not property. Therefore,

we conclude that the crime of attempting to take a weapon from a peace officer

has the use of force against a person as a necessary element, and that it qualifies

as a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). The district court did

not err in applying the sixteen-level enhancement.

B. Criminal History Points

The second argument that Avalos-Martinez makes on appeal is that the

district court erred in assigning criminal history points to two of his prior

convictions that occurred more than ten years prior to the instant offense and

that resulted in less than one year and one month of imprisonment. AvalosMartinez failed to make this objection before the district court and thus he

acknowledges that our review is for plain error. See United States v. Espinoza,

677 F.3d 730, 735 (5th Cir. 2012). To show plain error, Avalos-Martinez must

show (1) an error (2) that was clear or obvious (3) that affected his substantial

rights. Puckett v. United States, 556 U.S. 129, 135 (2009). A sentencing error

affected a defendant’s substantial rights if there is a “reasonable probability

that, but for the district court’s misapplication of the Guidelines, he would have

received a lesser sentence.” United States v. John, 597 F.3d 263, 285 (5th Cir.

2010) (internal quotation mark omitted). If Avalos-Martinez establishes plain

error, we have the discretion to correct the error if it “seriously affects the
No. 11-10973

8

fairness, integrity or public reputation of judicial proceedings.” Puckett, 556 U.S.

at 135 (internal quotation marks omitted).

Section 4A1.2(e) of the sentencing guidelines provides that a prior

sentence imposed more than ten years before the commencement of the instant

offense is not to be counted toward a defendant’s criminal history unless it was

a sentence of imprisonment exceeding one year and one month. U.S.S.G.

§ 4A1.2(e)(1)–(3). The two prior sentences at issue were imposed on February

14, 1997, and the “commencement of the instant offense”—i.e., the moment that

Avalos-Martinez illegally reentered the United States—occurred “sometime in

2008”; thus, the prior sentences were imposed more than ten years before the

commencement of the instant offense and should have been counted only if they

were sentences of imprisonment exceeding one year and one month. However,

both were sentences of probation, and although both were revoked, neither

revocation resulted in a sentence of imprisonment exceeding one year and one

month. It was therefore clear error to assign criminal history points based on

these sentences, and the Government concedes as much. See United States v.

Arviso-Mata, 442 F.3d 382, 385 (5th Cir. 2006).

This error resulted in Avalos-Martinez having four more criminal history

points than he should have had, making his criminal history category V when

it should have been category IV. See U.S.S.G. ch. 5, pt. A. Accordingly, the

district court applied an advisory guidelines range of 70–87 months instead of

the correct advisory guidelines range of 57–71 months. Avalos-Martinez’s

sentence of 72 months exceeds the correct advisory guidelines range. In

addition, the district court had stated that it did not intend to impose a sentence

above the applicable guidelines range. Based on the district court’s expressed

intention and the fact that Avalos-Martinez’s sentence exceeded the correct

advisory guidelines range, the district court’s error affected his substantial

rights, which the Government also concedes. See United States v. Mudekunye,
No. 11-10973

9

646 F.3d 281, 290 (5th Cir. 2011) (holding that a defendant’s substantial rights

had been affected when the correct and incorrect guidelines ranges overlapped,

the defendant was sentenced above the correct guidelines range, and it was not

apparent from the record that the defendant would have received an aboveguidelines sentence).

The final issue we must decide is whether this error seriously affects the

fairness, integrity or public reputation of judicial proceedings such that we

should exercise our discretion to correct it. The Government has expressed no

position on whether we should exercise our discretion in this case. We have

noted that“[n]ot every error thatincreases a sentence need be corrected by a call

upon plain error doctrine.” United States v. Ellis, 564 F.3d 370, 378 (5th Cir.

2009). Instead, we look to “the degree of the error and the particular facts of the

case” to determine whether to exercise our discretion. United States v. Davis,

602 F.3d 643, 651 (5th Cir. 2010).

In this case, Avalos-Martinez received a 72-month sentence that exceeded

the correct advisory guidelines range by one month. Although he received

probation for each of the convictions giving rise to the challenged criminal

history points, his probation for each conviction was revoked. In the case of the

child endangerment conviction, his probation was revoked for several violations:

failure to report for seventeen months, failure to pay supervision fees and court

costs, failure to attend substance abuse treatment, failure to complete

community service, and an arrest for evading arrest in connection with a

reported assault. His revocation sentence of one year fell just short of the

sentence required for the conviction to be properly counted. Considering the

degree to which his sentence exceeds the correct guidelines range and the facts

surrounding these convictions, we decline to exercise our discretion to correct the

error in Avalos-Martinez’s sentence.

III. CONCLUSION
No. 11-10973

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For the foregoing reasons, the judgment of the district court is

AFFIRMED.