                                                           United States Court of Appeals
                                                                    Fifth Circuit
                  UNITED STATES COURT OF APPEALS
                       for the Fifth Circuit                     FILED
                                                                June 7, 2007

                                                          Charles R. Fulbruge III
                            No. 06-50745                          Clerk


                           UNITED STATES,

                                                   Plaintiff-Appellee,


                                  VERSUS


                  JUAN ALFREDO TREJO LICON-NUNEZ,

                                                  Defendant-Appellant.




          Appeal from the United States District Court
                for the Western District of Texas
                           (3:06-CR-323-1)


Before KING, DeMOSS, and OWEN, Circuit Judges.

PER CURIAM:*

     Defendant   Juan   Alfredo   Trejo    Licon-Nunez   (“Licon-Nunez”)

appeals the district court’s imposition of a fifty-seven-month

term of imprisonment following his guilty plea conviction for

illegal reentry after deportation. He argues that the district


     *
          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that this opinion should not be published and is not precedent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.
                                1
court erred by increasing his offense level by sixteen levels

based on a determination that his prior guilty plea conviction in

New Mexico for aggravated assault with a deadly weapon was a

crime of violence under U.S.S.G. § 2L1.2. He further argues that

the district court erred by refusing to consider as a sentencing

factor his benign motive for reentering the United States--to

find employment to pay for his daughter’s medical treatment.

Licon-Nunez also challenges the constitutionality of 8 U.S.C.

§   1326(b)’s    treatment      of   prior   felony    and    aggravated    felony

convictions as sentencing factors rather than as elements of the

offense that must be found by a jury in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000). Finding no error, we affirm.

                                        I.

      In   February     2006,    Licon-Nunez     was    charged     with   illegal

reentry after deportation in violation of 8 U.S.C. § 1326(a). The

Government      filed   a   Notice     of    Intent    to    Seek   an   Increased

Statutory Penalty under 8 U.S.C. § 1326(b)(2) based on Licon-

Nunez’s prior guilty plea conviction in New Mexico for aggravated

assault with a deadly weapon. In March 2006, Licon-Nunez pleaded

guilty without a plea agreement to the charged offense of illegal

reentry after deportation.

      Prior to sentencing, Licon-Nunez filed a motion to dismiss

the penalty enhancement and an objection to the imposition of a

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sentence greater than two years, arguing that he was only subject

to the two-year penalty set out in § 1326(a), not the increased

penalty set out in § 1326(b), because his indictment did not

allege the prior commission of a crime of violence and he did not

plead guilty to the same. He cited Apprendi v. New Jersey, 530

U.S. 466 (2000), in support of his argument, but conceded that

his argument was foreclosed by Fifth Circuit precedent. The court

denied his motion.

     The presentence report (PSR) recommended that Licon-Nunez’s

base offense level of eight be increased by sixteen levels under

U.S.S.G. § 2L1.2 based on his prior guilty plea conviction in New

Mexico for a crime of violence, to wit, aggravated assault with a

deadly weapon. The PSR also recommended a three-level reduction

for acceptance of responsibility, resulting in a total offense

level of twenty-one. With a total offense level of twenty-one and

a   Criminal   History   Category       IV,   Licon-Nunez’s   Guidelines

sentencing range was fifty-seven to seventy-one months.

     In his written objections to the PSR, Licon-Nunez renewed

his Apprendi objection to a penalty enhancement and also objected

to the sixteen-level crime of violence enhancement, asserting

that his prior conviction was not a crime of violence under

§ 2L1.2 because it was not an enumerated offense and it did not

include an element of force. He also sought a downward departure

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or variance based on the fact that he reentered the United States

to find employment to pay for his daughter’s medical treatment.

The district court determined at the sentencing hearing that

Licon-Nunez’s      prior      offense      of    aggravated      assault    was    an

enumerated offense and also that the allegation in the indictment

that he assaulted or struck the victim with a deadly weapon, a

knife, was sufficient to show an element of force. The district

court also overruled Licon-Nunez’s Apprendi objection and denied

his request for a downward departure. Licon-Nunez filed a timely

notice of appeal.

                                        II.

                                           A.

     In his first point of error, Licon-Nunez argues that the

district   court      erred   in    applying     a    sixteen-level      enhancement

under U.S.S.G. § 2L1.2 because his New Mexico conviction does not

qualify as a crime of violence. This Court reviews the district

court’s    interpretation      of    the    Sentencing     Guidelines      de   novo.

United States v. Sarmiento-Funes, 374 F.3d 336, 338 (5th Cir.

2004). Section 2L1.2(b)(1)(A)(ii) provides for a sixteen-level

enhancement when the defendant was previously deported after a

conviction      for      a     crime        of       violence.     See      U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). A crime of violence, as defined in the

commentary to that section, includes various enumerated offenses,

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including “aggravated assault,” and “any 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. 1(B)(iii); see also United States

v. Dominguez, 479 F.3d 345, 347 (5th Cir. 2007). Licon-Nunez’s

New Mexico conviction qualifies as a crime of violence if it

meets either of these definitions. Dominguez, 479 F.3d at 347.

Because we find that the New Mexico conviction “has as an element

the use,   attempted   use,   or   threatened   use   of   physical   force

against the person of another,” we do not consider whether it

qualifies as the enumerated offense of aggravated assault.

     Under the New Mexico aggravated assault statute, a person

commits aggravated assault by

     A. unlawfully assaulting or striking at another with a
     deadly weapon;
     B. committing assault by threatening or menacing
     another while wearing a mask, hood, robe or other
     covering upon the face, head or body, or while
     disguised in any manner, so as to conceal identity; or
     C. willfully and intentionally assaulting another with
     intent to commit any felony.

N.M. STAT. ANN. § 30-3-2. Licon-Nunez’s indictment tracked the

language of § 30-3-2A, charging that he “did assault or strike at

Cesar Esparza with a deadly weapon, to wit: a knife, a fourth

degree felony contrary to Section 30-3-2A NMSA 1978.” The New

Mexico Uniform Jury Instructions indicate that to be convicted of

aggravated assault by use of a deadly weapon, a defendant must
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(1) try to touch or apply force to the victim, (2) act in a rude,

insolent, or angry manner, (3) use a deadly weapon, and (4)

intend to touch or apply force to the victim. NEW MEXICO UNIFORM

JURY INSTRUCTIONS--CRIMINAL 14-304.

     This Court employs a categorical approach in determining

whether   an   offense   qualifies    as    a    crime   of   violence     under

§ 2L1.2. Dominguez, 479 F.3d at 347 (citing United States v.

Chapa-Garza,   243   F.3d   921,   924    (5th   Cir.    2001)).   Under    that

approach, “we examine the elements of the offense, rather than

the facts underlying the conviction or the defendant’s actual

conduct, to determine whether an offense meets the definition of

a crime of violence.” Id. (citing United States v. Calderon-Pena,

383 F.3d 254, 257-58 (5th Cir. 2004) (en banc), cert. denied, 543

U.S. 1076 (2005)). If the statute of conviction contains a series

of disjunctive elements, “‘a court may look to the indictment or

jury instructions, for the limited purpose of determining which

of a series of disjunctive elements a defendant’s conviction

satisfies.’” Id. (quoting Calderon-Pena, 383 F.3d at 258).

     As mentioned above, Licon-Nunez’s indictment charged that he

“did assault or strike at Cesar Esparza with a deadly weapon, to

wit: a knife, a fourth degree felony contrary to Section 30-3-2A

NMSA 1978.” Thus, his offense has two elements: (1) the unlawful

assaulting or striking at another and (2) the use of a deadly

                                      6
weapon. The New Mexico Uniform Jury Instructions clarify that the

“the unlawful assaulting or striking at another” element requires

that the defendant try to and intend to touch or apply force to

the victim while acting in a rude, insolent, or angry manner. We

have not previously considered whether the New Mexico crime of

aggravated assault by use of a deadly weapon requires as an

element the use, attempted use, or threatened use of physical

force against the person of another. Licon-Nunez argues that the

offense does not require an element of force because it can be

committed    by   via    offensive     touching   rather   than     via   the

application of force. He distinguishes offensive touching from

touching involving injury to the victim, and cites Fifth Circuit

precedent questioning whether offensive touching alone requires

an element of force.

       We have recently held that the offensive touching of an

individual with a deadly weapon creates a sufficient threat of

force to qualify as a crime of violence. Dominguez, 479 F.3d at

348.   In   Dominguez,   the   Court   considered   whether   the    Florida

offense of aggravated battery by use of a deadly weapon, which

can be committed via the intentional touching of a victim with a

deadly weapon, was a crime of violence. The Court determined that

even though an intentional touching with a deadly weapon might

not itself cause injury, as required for an actual use of force,

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“it could lead to more violent contact, or could at least put the

victim on notice of the possibility that the weapon will be used

more harshly in the future, thereby constituting a threatened use

of force.” Id. at 349. We think the same may be said of the New

Mexico crime of aggravated assault by use of a deadly weapon.

While the New Mexico crime differs from the crime in Dominguez

because the     former   does    not       require    an    actual     touching,     the

attempt   to   offensively      touch      a    victim     with   a    deadly     weapon

combined with the intent to do the same is enough to give rise to

a threatened use of force under the reasoning in Dominguez. Thus,

Licon-Nunez’s    conviction      for       aggravated      assault     by   use    of   a

deadly weapon     qualifies     as     a    crime    of    violence     warranting      a

sentence enhancement under § 2L1.2.

                                           B.

     In his second point of error, Licon-Nunez argues that the

district court     erred   by    failing        to   consider     as    a   sentencing

factor under 18 U.S.C. § 3553(a) his alleged benign motive for

reentering the United States. Post-Booker, we review a district

court’s sentence for reasonableness. United States v. Booker, 543

U.S. 220, 261-63 (2005); United States v. Mares, 402 F.3d 511,

520 (5th Cir.), cert denied, 126 S. Ct. 43 (2005). Although

district courts have considerable discretion in sentencing post-

Booker, they remain bound to consider the Sentencing Guidelines

                                           8
and the sentencing factors set forth in 18 U.S.C. § 3553(a).

Mares, 402 F.3d at 518-19. This duty to consider the Guidelines

includes     a       duty    to    calculate      and    consider       the        Guidelines

sentencing range. United States v. Charon, 442 F.3d. 881, 886

(5th Cir.), cert. denied, 127 S. Ct. 260 (2006).

       Despite       Licon-Nunez’s       contention,      the      district        court   did

consider Licon-Nunez’s alleged benign motive for reentering the

United States. Licon-Nunez filed a written objection to the PSR

requesting       a    downward      departure     on    the    basis    of    his     family-

oriented motive. And at his sentencing hearing, Licon-Nunez’s

attorney addressed the basis for the objection and Licon-Nunez

took   the   stand      to     explain    his     situation.       Only      then    did   the

district     court          deny   Licon-Nunez’s        request        for     a    downward

departure.

       Assuming without deciding that Licon-Nunez’s family-oriented

motive is an appropriate sentencing factor under § 3553(a), we

are not persuaded that his sentence is unreasonable. Although the

district court did not explicitly state at sentencing that it had

considered all of the § 3553(a) factors in reaching its decision,

“[a]    district       court       is   not   required        to   give      ‘a     checklist

recitation of the section 3553(a) factors.’” United States v.

Washington, 480 F.3d 309, 314 (5th Cir. 2007) (quoting United

States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006)). When a

                                              9
district court imposes a Guidelines sentence, it does not have to

articulate its reasons as thoroughly as when it imposes a non-

Guidelines      sentence.    Smith,    440     F.3d     at    707.    Congress    never

intended sentencing “to become a hyper-technical exercise devoid

of common sense.” United States v. Gonzales, 250 F.3d 923, 930

(5th Cir. 2001). Licon-Nunez has not shown that his sentence of

fifty-seven months is unreasonable, and the district court did

not err in imposing it.

                                         C.

      In his third point of error, Licon-Nunez argues that his

fifty-seven-month      term    of     imprisonment       exceeds      the   statutory

maximum sentence of two years permitted for a conviction under 8

U.S.C.   1326(a).    He     challenges    the    constitutionality          8    U.S.C.

§   1326(b)’s    treatment     of   prior      felony    and    aggravated       felony

convictions as sentencing factors rather than as elements of the

offense that must be found by a jury in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000). He recognizes that his argument is

foreclosed by Alemendarez-Torres v. United States, 523 U.S. 224

(1998), but raises it to preserve it for further review.

                                        III.

      For    the    foregoing       reasons,       we        AFFIRM    Licon-Nunez’s

conviction and sentence.




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