     Case: 18-11651      Document: 00515367537         Page: 1    Date Filed: 04/01/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 18-11651
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                    April 1, 2020
                                                                           Lyle W. Cayce
                                                 Plaintiff-Appellee             Clerk

v.

ERIC FABIAN CRUZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CV-2164


Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Eric Fabian Cruz, federal prisoner # 50182-177, pleaded guilty to four
counts of distributing a controlled substance and one count of possession of a
firearm by a felon. He was sentenced as a career offender under U.S.S.G.
§ 4B1.1 and U.S.S.G. § 4B1.2 (2015) to 188-month prison terms for the drug
counts and a 120-month prison term as to the remaining count, with all terms
running concurrently.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-11651

      Cruz now moves this court for a certificate of appealability (COA) to
appeal the denial of his 28 U.S.C. § 2255 motion. To obtain a COA, Cruz must
make “a substantial showing of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). When a district court has rejected constitutional claims on the
merits, as herein, the COA applicant “must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), or that an
issue presented “deserve[s] encouragement to proceed further,” Miller-El v.
Cockrell, 537 U.S. 322, 327 (2003).
      In his COA application, Cruz first challenges the designation of his prior
Texas aggravated assault convictions as predicate crimes of violence under the
career offender sentencing guideline, essentially arguing that the caselaw
addressing Texas aggravated assault was unclear or in his favor when he
pleaded guilty and was sentenced, unfavorable cases did not issue until after
this time, and his attorney should have raised the issue in the district court.
      Almost ten years before his conviction in 2016, this court considered the
portions of Texas Penal Code § 22.01 and § 22.02 that are identical to the
versions applicable to Cruz. See United States v. Guillen-Alvarez, 489 F.3d
197, 199-201 (5th Cir. 2007) (quoting TEX. PENAL CODE § 22.02(a) (2000) and
TEX. PENAL CODE § 22.01 (2000)). After considering the statutes, we held that
Texas aggravated assault constitutes the aggravated assault offense
enumerated in the definition of a crime of violence under the illegal reentry
guideline, § 2L1.2. See id. at 199-201. “[T]he crime of violence analysis applies
consistently for guidelines calculations involving § 4B1.2 and § 2L1.2.” United
States v. Flanagan, 667 F. App’x 140, 141 (5th Cir. 2016) (citing United States
v. Rayo-Valdez, 302 F.3d 314, 318 (5th Cir. 2002)).




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    Case: 18-11651    Document: 00515367537     Page: 3   Date Filed: 04/01/2020


                                 No. 18-11651

      In light of the foregoing precedent, it would have been meritless for
counsel to argue that Cruz’s § 22.02 aggravated assault offenses did not
constitute the crime of violence offense enumerated in the career offender
guideline. See § 4B1.2, comment. (n.1) (2015). Because counsel does not act
deficiently by failing to raise a meritless argument, reasonable jurists would
not debate the district court’s rejection of Cruz’s ineffective assistance claim.
See United States v. Kimler, 167 F.3d 889, 893 (5th Cir. 1999); Green v.
Johnson, 160 F.3d 1029, 1041 (5th Cir. 1998); United States v. Burleson, 22
F.3d 93, 95 (5th Cir. 1994).
      Next, Cruz argues that the district court should have held an evidentiary
hearing before denying his claims concerning the designation of his prior
convictions as crimes of violence and his counsel’s ineffective assistance. As to
this argument, we construe Cruz’s COA request as a direct appeal, see Norman
v. Stephens, 817 F.3d 226, 234 (5th Cir. 2016), and affirm.
      COA DENIED; AFFIRMED.




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