     Case: 13-40334      Document: 00512500014         Page: 1    Date Filed: 01/14/2014




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


                                    No. 13-40334                                   FILED
                                  Summary Calendar                          January 14, 2014
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE ALEJANDRO CRUZ-CAMPOS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:12-CR-1958-1


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       After Defendant-Appellant Jose Alejandro Cruz-Campos pleaded guilty
to one count of illegal reentry into the United States, the district court imposed
a within-guidelines prison sentence of 46 months. Cruz-Campos contends on
appeal that the district court erred in classifying his prior Pennsylvania
aggravated assault conviction under Title 18 Pennsylvania Consolidated




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-40334    Document: 00512500014     Page: 2   Date Filed: 01/14/2014


                                 No. 13-40334

Statute Section 2702(a), as a crime of violence (COV) for purposes of U.S.S.G.
§ 2L1.2.
      We review sentences for reasonableness by conducting a two-part
analysis. Gall v. United States, 552 U.S. 38, 49-51 (2007); United States v.
Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009). First, we ensure that the
sentencing court committed no significant procedural error, including
improperly calculating the guidelines range. Gall, 552 U.S. at 51. If we find
no procedural error, we determine if the sentence is substantively reasonable
under a deferential abuse of discretion standard, taking into account the
totality of the circumstances. Gall, 552 U.S. at 51; United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).             The district court’s
characterization of a prior offense as a crime of violence is a question of law
that we review de novo. United States v. Izaguirre-Flores, 405 F.3d 270, 272
(5th Cir. 2005).
      We use a categorical approach to classify a prior conviction for
sentencing purposes. Taylor v. United States, 495 U.S. 575, 602 (1990). Under
this framework, “the analysis is grounded in the elements of the statute of
conviction rather than a defendant’s specific conduct.”        United States v.
Rodriguez, 711 F.3d 541, 549 (5th Cir.) (en banc), cert. denied, 134 S. Ct. 512
(2013).
      When, as here, a statute has disjunctive subsections, we may apply a
modified categorical approach to determine the applicable subsection of
conviction. United States v. Miranda-Ortegon, 670 F.3d 661, 663 (5th Cir.
2012). Under such an approach, we may review “the statutory definition,
charging document, written plea agreement, transcript of plea colloquy, and
any explicit factual finding by the trial judge to which the defendant assented.”
Shepard v. United States, 544 U.S. 13, 16 (2005).



                                       2
    Case: 13-40334     Document: 00512500014       Page: 3   Date Filed: 01/14/2014


                                    No. 13-40334

      Cruz-Campos claims that the district court erred by using the
Pennsylvania criminal complaint to determine the statutory subsection
governing his aggravated assault conviction. He insists that there is nothing
in the record to show that the offense named in that charging instrument is
the offense for which he was convicted. We disagree. In contrast to the
defendants in the cases on which he relies, Cruz-Campos does not claim that
he was convicted for an offense other than the one listed in the complaint;
neither does he contend that a different charging instrument was issued. Cf.
United States v. Martinez-Paramo, 380 F.3d 799 (5th Cir. 2004); United States
v. Turner, 349 F.3d 833 (5th Cir. 2003). This case more closely approximates
United States v. Torres-Diaz, 438 F.3d 529 (5th Cir. 2006), than it does
Martinez-Paramo and Turner.
      Under Torres-Diaz, when a court must ascertain the statutory
subsection that governs a prior conviction, it may examine the charging
document governing that conviction in conducting its analysis, “absent
anything in the record affirmatively casting doubt on, or creating an ambiguity
respecting” the conclusion that the charging instrument in the record does in
fact govern the prior conviction. 438 F.3d at 535. There is nothing in the record
indicating that the disputed Pennsylvania criminal complaint did not govern
Cruz-Campos’s prior aggravated assault conviction, so the district court did
not err by relying on it. See id.
      Neither did the district court err by imposing the disputed COV
adjustment. Examination of the record and the pertinent statute leads to the
conclusion that Cruz-Campos’s prior conviction was under § 2702(a)(4), as the
allegations in the criminal complaint track that subsection. See United States
v. Esparza-Perez, 681 F.3d 228, 230 (5th Cir. 2012). We first look to the Model
Penal Code’s (MPC’s) definition of aggravated assault when determining



                                         3
    Case: 13-40334     Document: 00512500014      Page: 4   Date Filed: 01/14/2014


                                  No. 13-40334

whether a given state conviction for that offense amounts to a COV. See id. at
231. Section 2702(a)(4) aligns almost perfectly with MPC § 211.1(2)(b), so we
conclude that this subsection sets forth a COV. See id.; see also United States
v. Martinez-Flores, 720 F.3d 293, 296 (5th Cir. 2013). It follows that the district
court did not err when it imposed the disputed adjustment.
      AFFIRMED.




                                        4
