     Case: 11-20853     Document: 00512018632         Page: 1     Date Filed: 10/12/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 12, 2012
                                     No. 11-20853
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

RAFAEL VASQUEZ GARCIA, also known as Rafael Garcia-Vasquez, also known
as Rafael Garcia Velasques, also known as Rafael Vasquez-Garcia, also known
as Rafael Garcia, also known as Rafael Velasquez Garcia,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CR-413-1


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
        Rafael Vasquez Garcia appeals his sentence following his guilty plea to
having been found unlawfully present in the United States subsequent to
deportation and following an aggravated felony conviction. He argues that the
district court committed reversible plain error when it increased his base offense
level under U.S.S. G. § 2L1.2(b)(1)(A)(ii). Garcia did not object to the increase


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-20853

in the district court; therefore, review of his argument is for plain error. See
Puckett v. United States, 556 U.S. 129, 135 (2009). To establish plain error,
Garcia must show a forfeited error that is clear or obvious and that affected his
substantial rights. If he makes such a showing, this court has the discretion to
correct the error but will do so only if it seriously impinges the fairness,
integrity, or public reputation of judicial proceedings. Id.
      The Sentencing Guidelines provide for a 12-level increase in a defendant’s
offense level if the defendant was previously deported after a conviction for a
felony that is a “crime of violence” and where the conviction does not receive
criminal history points. § 2L1.2(b)(1)(A)(ii). The commentary to § 2L1.2 defines
the term “crime of violence” as any of several enumerated offenses, including
aggravated assault. § 2L1.2, comment (n.1(B)(iii)). The commentary also
defines a “crime of violence” as “any other offense . . . that has an element the
use, attempted use, or threatened use of physical force against the person of
another.” Id.
      Garcia argues that his aggravated assault conviction is not an enumerated
“crime of violence” because the 1992 statute under which he was convicted
encompasses behavior that is not within the plain, ordinary meaning of
aggravated assault. The applicable statute provided, in relevant part, that a
person commits an aggravated assault if, during the commission of an assault,
the person: (1) “causes serious bodily injury to another”; or (2) “threatens with
a deadly weapon or threatens to cause bodily injury or causes bodilyinjury” to
listed state, county, or municipal employees; or (3) “causes bodily injury to a
participant in a court proceeding;” or (4) “uses a deadly weapon.” TEX. PENAL
CODE ANN. § 22.02 (a)(West 1990). The statute also provided that an offense
under § 22.02 was a third degree felony, except in limited cases involving a peace
officer. Id. at § 22.02(c).
      Where, as here, the statute contains a series of disjunctive elements, this
court looks to specific documents to determine which subpart of the statute

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                                  No. 11-20853

formed the basis of the conviction. See United States v. Mungia-Portillo, 484
F.3d 813, 815 (5th Cir. 2007). A review of these documents supports Garcia’s
assertion that he was convicted of the third degree felony of aggravated assault
for committing an assault while using a deadly weapon.
      The Guidelines do not define the enumerated offenses that qualify as
crimes of violence; therefore, this court uses a common sense approach, giving
each offense its generic, contemporary meaning, and then determines whether
the conviction falls within such meaning. United States v. Fierro-Reyna, 466
F.3d 324, 327 (5th Cir. 2006). “When the statute of conviction encompasses
prohibited behavior that is not within the plain, ordinary meaning of the
enumerated offense, the conviction is not a crime of violence as a matter of law.”
Id. (internal quotation marks and citation omitted).
      In United States v. Guillen-Alvarez, 489 F.3d 197, 199 (5th Cir. 2007), this
court considered a more recent version of the Texas aggravated assault statute
and concluded that the defendant’s conviction under that statute qualified as the
enumerated offense of aggravated assault and, thus, a crime of violence under
§ 2L1.2. Garcia cites no circuit precedent which supports his assertion that the
phrase “or exhibits” in the more recent version of the Texas aggravated assault
statute undermines the applicability of Guillen-Alvarez to his case. Further,
there is nothing in the court’s decision in Guillen-Alvarez which would suggest
a different result. Moreover, none of the cases cited by Garcia support his
suggestion that the Texas courts have interpreted the term “use” to include the
mere “inert presence” of a weapon. Because Garcia cites no authority from this
court which supports his contentions, this court will not find plain error. United
States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009).
      Garcia has failed to establish clear or obvious error in the district court’s
determination that his aggravated assault conviction was a crime of violence for
purposes of § 2L1.2(b). Accordingly, we need not decide whether the offense has


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as an element the use, attempted use, or threatened use of force against the
person of another. See, e.g., Guillen-Alvarez, 489 F.3d at 199 n.2.
      AFFIRMED.




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