REVISED April 15, 2016

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-40970

Summary Calendar

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

JEREMIAS OVALLE-CHUN, also known as Jeremias Chun-Gonzalez, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Southern District of Texas

Before KING, CLEMENT, and OWEN, Circuit Judges.

PER CURIAM:

Defendant–Appellant Jeremias Ovalle-Chun pleaded guilty to one count 

of illegal reentry into the United States in violation of 8 U.S.C. § 1326. Because

the district court held that Ovalle-Chun’s 2004 conviction for aggravated 

menacing in Delaware was for a “crime of violence” under § 2L1.2(b)(1)(A)(ii)

of the United States Sentencing Guidelines Manual, it applied a twelve-level 

enhancement to Ovalle-Chun’s base offense level. Ovalle-Chun argues that his 

prior conviction does not qualify as a crime of violence. Because aggravated 

menacing is an offense under state law that has as an element the threatened 

United States Court of Appeals

Fifth Circuit

FILED

March 7, 2016

Lyle W. Cayce

Clerk

 Case: 15-40970 Document: 00513466863 Page: 1 Date Filed: 04/15/2016
No. 15-40970

2

use of physical force against the person of another, it qualifies as a crime of 

violence. Accordingly, we AFFIRM the judgment of the district court. 

I. FACTUAL AND PROCEDURAL BACKGROUND

On February 5, 2015, United States Border Patrol agents encountered 

Defendant–Appellant Jeremias Ovalle-Chun in Brooks County, Texas. 

Following an immigration inspection, the agents determined that Ovalle-Chun 

was a citizen and national of Guatemala with no legal right to enter or remain 

in the United States. Ovalle-Chun was charged with one count of being an 

alien who was unlawfully present in the United States after deportation in 

violation of 8 U.S.C. § 1326(a) and (b). Pursuant to a plea agreement, he 

pleaded guilty to one count of illegal reentry following removal.

Previously, Ovalle-Chun had been deported from the United States on 

November 21, 2001, following a conviction in Delaware for misdemeanor 

terroristic threatening. He thereafter reentered the United States under the 

name “Javier Gordinez” and was indicted on four counts by a Delaware grand 

jury on April 22, 2004. Ovalle-Chun pleaded guilty to one count of aggravated 

menacing, in violation of Title 11, § 602(b) of the Delaware Code. Following 

this conviction, Ovalle-Chun was convicted in federal court for the federal 

offense of illegal reentry after deportation and was deported in April 2005. 

Ovalle-Chun later returned to the United States again and was deported on 

September 17, 2014, following a conviction for driving while intoxicated in 

Dallas, Texas. 

Following the acceptance of his guilty plea in the instant case, a 

presentence investigation report (“PSR”) was prepared using the 2014 edition 

of the United States Sentencing Commission Guidelines Manual (“U.S.S.G.”). 

The PSR reflected a base offense level of eight. Ovalle-Chun’s offense level was 

reduced by three levels under U.S.S.G. § 3E1.1 because of his acceptance of 

responsibility and increased by twelve levels under § 2L1.2(b)(1)(A)(ii) because 

 Case: 15-40970 Document: 00513466863 Page: 2 Date Filed: 04/15/2016
No. 15-40970

3

he had previously been deported after being convicted of a “crime of violence,”

i.e., his 2004 aggravated menacing conviction in Delaware. A total offense level 

of seventeen combined with a criminal history category of III yielded an 

advisory guidelines imprisonment range of 30 to 37 months.

Ovalle-Chun objected to the twelve-level enhancement and argued that 

his prior Delaware conviction for aggravated menacing was not a crime of 

violence for the purposes of U.S.S.G. § 2L1.2. At the sentencing hearing, the 

district court overruled the objection and imposed a below-guidelines sentence 

of 24 months imprisonment and a two-year term of supervised release. OvalleChun timely appealed. On appeal, Ovalle-Chun’s only claim is that the district 

court erred in applying a twelve-level sentencing enhancement under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii), based on his 2004 Delaware conviction for aggravated 

menacing. 

II. STANDARD OF REVIEW

We review the district court’s sentencing decision “for reasonableness.” 

United States v. Anderson, 559 F.3d 348, 354 (5th Cir. 2009). In doing so, we 

review the district court’s interpretation of the guidelines de novo and its 

factual findings for clear error. United States v. Cisneros–Gutierrez, 517 F.3d 

751, 764 (5th Cir. 2008). Whether a prior conviction qualifies as a crime of 

violence is a question of the interpretation of the guidelines and is reviewed de 

novo. See United States v. Calderon-Pena, 383 F.3d 254, 256 (5th Cir. 2004) 

(en banc). 

III. SENTENCING ENHANCEMENT UNDER U.S.S.G. § 2L1.2

Under U.S.S.G. § 2L1.2(b)(1)(A)(ii), a defendant’s base offense level will 

be increased by twelve levels “[i]f the defendant previously was deported, or 

unlawfully remained in the United States, after . . . a conviction for a felony 

 Case: 15-40970 Document: 00513466863 Page: 3 Date Filed: 04/15/2016
No. 15-40970

4

that is . . . a crime of violence.”1 The commentary to the Guidelines defines 

“crime of violence” for the purposes of § 2L1.2(b)(1) as follows:

“Crime of violence” means any of the following offenses under 

federal, state, or local law: murder, manslaughter, kidnapping, 

aggravated assault, forcible sex offenses (including where consent 

to the conduct is not given or is not legally valid, such as where 

consent to the conduct is involuntary, incompetent, or coerced), 

statutory rape, sexual abuse of a minor, robbery, arson, extortion, 

extortionate extension of credit, burglary of a dwelling, or 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.

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).2 The parties note that Ovalle-Chun’s 2004 

Delaware conviction for aggravating menacing is not included among the 

enumerated offenses. However, we conclude that aggravated menacing 

qualifies as a crime of violence because it is a state law offense “that has as an 

element the . . . threatened use of physical force against the person of another.”

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). 

Under Title 11, § 602(b) of the Delaware Code, “[a] person is guilty of 

aggravated menacing when by displaying what appears to be a deadly weapon 

that person intentionally places another person in fear of imminent physical 

injury.”3 “When determining whether a prior offense is a crime of violence 

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

district courts must employ the categorical approach established in Taylor v. 

United States, 495 U.S. 575, 602 (1990).” United States v. Hernandez-

 

1 This enhancement only applies “if the conviction does not receive criminal history 

points.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). As noted in the PSR, Ovalle-Chun’s 2004 conviction 

for aggravated menacing received no criminal history points.

2 “Guidelines commentary ‘is given controlling weight if it is not plainly erroneous or 

inconsistent with the guidelines.’” United States v. Velasco, 465 F.3d 633, 637 (5th Cir. 2006)

(quoting United States v. Urias–Escobar, 281 F.3d 165, 167 (5th Cir. 2002)). 3 “Aggravated menacing is a class E felony.” Del. Code Ann. tit. 11, § 602(b).

 Case: 15-40970 Document: 00513466863 Page: 4 Date Filed: 04/15/2016
No. 15-40970

5

Rodriguez, 467 F.3d 492, 494 (5th Cir. 2006) (per curiam) (quoting United 

States v. Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir. 2005)). This court has 

previously explained:

[W]hen applying the categorical approach, courts “compare the 

elements of the statute forming the basis of the defendant’s 

conviction with the elements of the ‘generic’ crime—i.e., the offense 

as commonly understood” that triggers the sentencing 

enhancement. “If the [offense of conviction] has the same elements 

as the ‘generic’ . . . crime [in the sentencing enhancement], then 

the prior conviction can serve as [the] predicate; so too if the 

statute defines the crime more narrowly, because anyone convicted 

under that law is ‘necessarily . . . guilty of all the [generic crime’s] 

elements.’” 

United States v. Schofield, 802 F.3d 722, 727–28 (5th Cir. 2015) (citations 

omitted) (quoting Descamps v. United States, 133 S. Ct. 2276, 2281, 2283 

(2013)). 

Here, the “generic” crime is an “offense under . . . state . . . law that has 

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

against the person of another.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). The “statute 

forming the basis of the defendant’s conviction,” Descamps, 133 S. Ct. at 2281, 

is Title 11, § 602(b) of the Delaware Code. Thus, if § 602(b) “requires as a 

constituent element at least the threatened use of ‘physical force,’” it qualifies 

as a crime of violence under the Guidelines. United States v. Flores–Gallo, 625 

F.3d 819, 823 (5th Cir. 2010). 

The Delaware Supreme Court addressed whether the crime of 

aggravated menacing included as an element the threatened use of physical 

force against the person of another in Poteat v. State, 840 A.2d 599 (Del. 2003). 

In that case, the court began its analysis by comparing the crime of menacing 

to the crime of robbery. Id. at 603–06. The court noted that “menacing is a 

lesser-included offense to robbery.” Id. at 605. The court then explained that

 Case: 15-40970 Document: 00513466863 Page: 5 Date Filed: 04/15/2016
No. 15-40970

6

“‘threatening the immediate use of force upon a person’—the language for 

Robbery in the Second Degree and an element of Robbery in the First Degree—

is identical to ‘intentionally places another person in fear of imminent physical 

injury’—the language for Menacing and an element of Aggravated Menacing.” 

Id. at 606. Thus, the Delaware Supreme Court held that aggravated menacing 

includes, as an element, “threatening the immediate use of force upon a 

person.” Id.

Applying the categorical approach, “threatening the immediate use of 

force upon a person,” id., is indistinguishable from the “threatened use of 

physical force against the person of another,” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). 

Therefore, the statute of conviction includes the same elements as the generic

crime in the Guidelines and qualifies as a crime of violence. Descamps, 133 S. 

Ct. at 2281. Because aggravated menacing qualifies as a crime of violence, the 

district court committed no error in applying a twelve-level enhancement 

under U.S.S.G. § 2L1.2(b)(1)(A)(ii). 

On appeal, Ovalle-Chun advances two challenges to the application of 

the twelve-level enhancement.4 As his first challenge, he contends that 

aggravated menacing does not involve physical force because it only requires 

that the victim have the perception that there is a weapon but does not require 

an actual weapon. This argument is unpersuasive for two reasons. First, the 

“force” required under U.S.S.G. § 2L1.2 must rise to the level of a violent force,

United States v. Herrera-Alvarez, 753 F.3d 132, 137 (5th Cir. 2014), and a 

 

4 Ovalle-Chun also argues that his conviction for aggravated menacing does not fall 

under the generic meaning of the enumerated offense of aggravated assault. Because we 

conclude that Ovalle-Chun’s aggravated menacing conviction qualifies as a crime of violence 

under the residual clause of the “crime of violence” definition, we need not, and do not,

address whether aggravated menacing falls under the generic meaning of aggravated assault 

or any of the other generic crimes enumerated in U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). See United 

States v. Murillo-Lopez, 444 F.3d 337, 339 (5th Cir. 2006) (noting a similar limitation on its 

analysis and holding). 

 Case: 15-40970 Document: 00513466863 Page: 6 Date Filed: 04/15/2016
No. 15-40970

7

conviction for aggravated menacing requires that the defendant “intentionally 

place[] another person in fear of imminent physical injury.” Del. Code Ann. tit. 

11, § 602(b) (emphasis added). Under Title 11, § 222(23) of the Delaware Code, 

“‘[p]hysical injury’ means impairment of physical condition or substantial 

pain.” Impairing a person’s physical condition or causing a person substantial 

pain is consistent with a force violent enough to constitute a crime of violence 

under U.S.S.G. § 2L1.2.5 See Herrera-Alvarez, 753 F.3d at 137. Second, the 

lack of a weapon has not previously precluded this court from concluding that 

an offense involves a sufficiently violent force as an element of the offense. 

United States v. Brown, 437 F.3d 450, 451–52 (5th Cir. 2006). In Brown, this 

court concluded that the Louisiana offense of simple robbery entailed the use 

or threatened use of force despite the explicit provision that the offense did not 

require a dangerous weapon. Id. at 452–53. Thus, a defendant who does not 

actually possess a deadly weapon may nevertheless communicate an intent to 

use a deadly weapon or physical force more generally. 

As his second challenge, Ovalle-Chun argues that no actual threat need 

be proved for a conviction under § 602(b) and that, therefore, aggravated 

menacing cannot serve as the predicate offense for a sentencing enhancement 

under U.S.S.G. § 2L1.2(b)(1)(A)(ii). We are unpersuaded by this argument, as 

“intentionally plac[ing] another in fear of imminent physical injury” 

constitutes a threat. See Poteat, 840 A.2d at 605 (recognizing that placing a 

person in fear of imminent physical injury “is identical” to threatening the use 

 

5 This court has previously held that “offensive touching” does not involve a 

sufficiently violent force for a given crime to qualify as a crime of violence. Herrera-Alvarez, 

753 F.3d at 137. Impairing a person’s physical condition or causing substantial pain certainly 

rises above offensive touching, which, under Delaware law, occurs when a person 

“[i]ntentionally touches another person either with a member of his or her body or with any 

instrument, knowing that the person is thereby likely to cause offense or alarm to such other 

person.” Del. Code Ann. tit. 11, § 601(a)(1).

 Case: 15-40970 Document: 00513466863 Page: 7 Date Filed: 04/15/2016
No. 15-40970

8

of force). Delaware courts have held that aggravated menacing requires both 

intentional conduct and that the victim actually be in fear of imminent physical 

injury. State v. Amad, 767 A.2d 806, 810 (Del. Super. Ct. 1999), overruled on 

other grounds by Poteat, 840 A.2d at 605. This holding is in line with our

caselaw.

This court has previously explained that “[a] threat imports ‘[a] 

communicated intent to inflict physical or other harm.’” United States v. White, 

258 F.3d 374, 383 (5th Cir. 2001) (quoting Threat, Black’s Law Dictionary (6th 

ed. 1990)). Intentional conduct by the defendant combined with an actual fear 

of imminent physical injury in the victim is consistent with a “communicated 

intent to inflict physical . . . harm.” Id. For example, in Hernandez-Rodriguez, 

this court held that the “conscious choice to discharge a firearm in the direction 

of an individual would constitute a real threat of force against his person,” even 

when the individual discharging the firearm aimed only in the direction of the 

other person, not at the other person. 467 F.3d at 495. It follows that a person 

who intends to, and does, place another in fear of imminent physical injury by 

displaying what appears to be a deadly weapon has communicated an intent 

to inflict physical harm and, thus, threatened the use of force. Cf. United 

States v. Dominguez, 479 F.3d 345, 349 (5th Cir. 2007) (concluding that “an 

intentional touching with a deadly weapon . . . could at least put the victim on 

notice of the possibility that a weapon will be used more harshly in the future, 

thereby constituting a threatened use of force”). 

Our conclusion that an aggravated menacing conviction under Title 11, 

§ 602(b) of the Delaware Code qualifies as a crime of violence under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) is consistent with the decisions of our sister circuits that 

have addressed similar questions. See, e.g., United States v. Melchor–Meceno, 

620 F.3d 1180, 1186 (9th Cir. 2010) (concluding that Colorado’s similar offense 

of menacing “requires active violent force” and “includes the requisite mens rea

 Case: 15-40970 Document: 00513466863 Page: 8 Date Filed: 04/15/2016
No. 15-40970

9

of intent for a crime of violence”). In Ledoue v. Attorney General, 462 F. App’x 

162 (3d Cir. 2011) (per curiam) (unpublished), the Third Circuit specifically

considered whether Delaware’s aggravated menacing statute qualified as a 

crime of violence under 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16(a). Id. at 

163. Similar to U.S.S.G. § 2L1.2(b)(1)(A)(ii), 18 U.S.C. § 16(a) defines a crime 

of violence as “an offense that has as an element the use, attempted use, or 

threatened use of physical force against the person or property of another.” As 

we do in this case, the Third Circuit applied the categorical approach from 

Taylor, 495 U.S. at 599. Ledoue, 462 F. App’x at 164. The court explained that

“a conviction for aggravated menacing under Delaware law requires an 

intentional act, the purpose of which is to threaten another with impending 

corporeal harm,” and “that the threat be communicated by the display of what 

appears to be a deadly weapon.” Id. at 165. Accordingly, the court concluded 

that aggravated menacing qualified as a crime of violence. Id. 

While Ovalle-Chun correctly points out that Ledoue is not precedential

in the Third Circuit and not binding on this court, we nevertheless find it 

persuasive and decline Ovalle-Chun’s invitation to depart from the Third 

Circuit’s analysis and conclusion. Because aggravated menacing in violation 

of Title 11, § 602(b) of the Delaware Code qualifies as a crime of violence and 

can therefore serve as the predicate offense for a twelve-level sentencing 

enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), the district court committed 

no error in applying this enhancement. 

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court. 

 Case: 15-40970 Document: 00513466863 Page: 9 Date Filed: 04/15/2016