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

                                                 FILED
                                                                            March 5, 2009

                                       No. 08-40319                    Charles R. Fulbruge III
                                                                               Clerk

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.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                       No. 08-40319

                          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.1 Mackey objected to various portions of the
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:



      1
          See U.S. SENTENCING GUIDELINES MANUAL § 2K2.1 cmt. n.1 (2008) (referencing
section 4B1.2(a) for the relevant definition of “crime of violence”).
      2
          United States v. Herrera-Montes, 490 F.3d 390, 391 (5th Cir. 2007).

                                              2
                                       No. 08-40319

               (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.”




      3
          TEX . PENAL CODE § 22.01(a) (Vernon 2007).
      4
          Id. § 22.01(b)(1) (emphasis added).

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                                       No. 08-40319

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




       5
         See United States v. Andereson, --- F.3d ---, 2009 WL 330263, at *5 (5th Cir. Feb. 11,
2009) (quoting U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a) (2008)).
       6
           U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a)(2).

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