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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-40319

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

BILLY MACKEY

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:07-CR-517-ALL

Before JONES, Chief Judge, and WIENER and BENAVIDES, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Billy Mackey pleaded guilty to one count of

possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1) and

§ 924(a)(2). He now appeals his sentence, claiming that the district court erred

in classifying his prior Texas state conviction for assault on a public servant as

a crime of violence. Finding no reversible error, we affirm Mackey’s sentence.

United States Court of Appeals

Fifth Circuit

F I L E D

March 5, 2009

Charles R. Fulbruge III

Clerk
No. 08-40319

 See U.S. SENTENCING GUIDELINES MANUAL § 2K2.1 cmt. n.1 (2008) (referencing 1

section 4B1.2(a) for the relevant definition of “crime of violence”).

 United States v. Herrera-Montes, 490 F.3d 390, 391 (5th Cir. 2007). 2

2

I. FACTS AND PROCEEDINGS

A grand jury indicted Mackey for a sole count of felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). He pleaded guilty

to the offense. Mackey’s pre-sentence report categorized his prior Texas state

conviction for assault on a public servant under Texas Penal Code § 22.01 as a

“crime of violence” pursuant to section 4B1.2 of the United States Sentencing

Guidelines (the “Guidelines”). Mackey received a base offense level of 24

pursuant to section 2K2.1(a)(2) of the Guidelines because he possessed a firearm

after two or more felony convictions for either a controlled substance offense or

a section 4B1.2(a) crime of violence. Mackey objected to various portions of the 1

pre-sentence report, including the one objection relevant to the instant appeal,

that his prior state conviction was not a crime of violence. In overruling the

objection, the district court determined that the Texas offense was a crime of

violence because it involved “serious risk of physical injury to another.” The

court imposed a Guidelines sentence of 98 months imprisonment to be followed

by three years of supervised release. Mackey objected to this sentence and

timely filed a notice of appeal.

II. ANALYSIS

A. Standard of Review

We review de novo a district court’s application of the Guidelines,

including its determination that a prior conviction is a crime of violence.2

B. Claimed Sentencing Error

Under Texas Penal Code § 22.01, assault has a three-pronged definition:

(a) A person commits [assault] if the person:
No. 08-40319

 TEX. PENAL CODE § 22.01(a) (Vernon 2007). 3

 Id. § 22.01(b)(1) (emphasis added). 4

3

(1) intentionally, knowingly, or recklessly causes bodily injury

to another, including the person’s spouse;

(2) intentionally or knowingly threatens another with

imminent bodily injury, including the person’s spouse; or

(3) intentionally or knowingly causes physical contact with

another when the person knows or should reasonably believe

that the other will regard the contact as offensive or 

provocative.3

Mackey was not convicted of simple assault, however, but of assault on a public

servant pursuant to Texas Penal Code § 22.01(b)(1), which states: 

(b) “[Assault] under Subsection (a)(1) is a Class A misdemeanor, except

that the offense is a felony of the third degree if the offense is committed

against:

(1) a person the actor knows is a public servant while the public

servant is lawfully discharging an official duty, or in retaliation or

on account of an exercise of official power or performance of an

official duty as a public servant; . . .

4

As the italicized language above indicates, only one prong of the general assault

definition applies in the context of assault on a public servant, viz.,

“intentionally, knowingly, or recklessly caus[ing] bodily injury” as described in

subsection (a)(1) of Texas Penal Code § 22.01. Consistent with this conclusion,

Mackey’s Texas indictment states that he was charged with “intentionally,

knowingly, and recklessly caus[ing] bodily injury to E. Reyes by hitting E. Reyes,

and the said E. Reyes was then and there a public servant in the lawful

discharge of an official duty, and Billy Mackey knew and had been informed that

E. Reyes was a public servant.” 
No. 08-40319

 See United States v. Andereson, --- F.3d ---, 2009 WL 330263, at *5 (5th Cir. Feb. 11, 5

2009) (quoting U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a) (2008)).

 U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a)(2). 6

4

Our recent opinion in United States v. Anderson controls the instant case.

In that case, we said that assault on a public servant in violation of Texas Penal

Code § 22.01(b)(1) certainly “present[s] more than a ‘serious potential risk of

physical injury to another’” even if the defendant only recklessly commits the

offense. This is all that the section 4B1.2(a) of the Guidelines requires to

5

constitute a crime of violence.6

The Texas offense of assault on a public servant is a crime of violence for

the purposes of section 4B1.2(a) of the Guidelines. The sentencing court did not

err in characterizing the offense in this manner, so we affirm Mackey’s sentence.

AFFIRMED.