     Case: 15-40970    Document: 00513409030     Page: 1   Date Filed: 03/07/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                No. 15-40970                     United States Court of Appeals
                              Summary Calendar                            Fifth Circuit

                                                                        FILED
                                                                    March 7, 2016
UNITED STATES OF AMERICA,                                          Lyle W. Cayce
                                                                        Clerk
             Plaintiff - Appellee

v.

JEREMIAS OVALLE-CHUN, also known as Jeremias Chun-Gonzalez,

             Defendant - Appellant




                 Appeal from the United States District Court
                      for the Southern District of Texas


Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:
      Defendant–Appellant Jeremias Ovalle-Chun pleaded guilty to one count
of illegal reentry into the United States in violation of 8 U.S.C. § 1326. Because
the district court held that Ovalle-Chun’s 2004 conviction for aggravated
menacing in Delaware was for a “crime of violence” under § 2L1.2(b)(1)(A)(ii)
of the United States Sentencing Guidelines Manual, it applied a twelve-level
enhancement to Ovalle-Chun’s base offense level. Ovalle-Chun argues that his
prior conviction does not qualify as a crime of violence. Because aggravated
menacing is an offense under state law that has as an element the threatened
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                                 No. 15-40970
use of physical force against the person of another, it qualifies as a crime of
violence. Accordingly, we AFFIRM the judgment of the district court.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      On February 5, 2015, United States Border Patrol agents encountered
Defendant–Appellant Jeremias Ovalle-Chun in Brooks County, Texas.
Following an immigration inspection, the agents determined that Ovalle-Chun
was a citizen and national of Guatemala with no legal right to enter or remain
in the United States. Ovalle-Chun was charged with one count of being an
alien who was unlawfully present in the United States after deportation in
violation of 8 U.S.C. § 1326(a) and (b). Pursuant to a plea agreement, he
pleaded guilty to one count of illegal reentry following removal.
      Previously, Ovalle-Chun had been deported from the United States on
November 21, 2001, following a conviction in Delaware for misdemeanor
terroristic threatening. He thereafter reentered the United States under the
name “Javier Gordinez” and was indicted on four counts by a Delaware grand
jury on April 22, 2004. Ovalle-Chun pleaded guilty to one count of aggravated
menacing, in violation of Title 11, § 602(b) of the Delaware Code. Following
this conviction, Ovalle-Chun was convicted in federal court for the federal
offense of illegal reentry after deportation and was deported in April 2005.
Ovalle-Chun later returned to the United States again and was deported on
September 17, 2014, following a conviction for driving while intoxicated in
Dallas, Texas.
      Following the acceptance of his guilty plea in the instant case, a
presentence investigation report (“PSR”) was prepared using the 2014 edition
of the United States Sentencing Commission Guidelines Manual (“U.S.S.G.”).
The PSR reflected a base offense level of eight. Ovalle-Chun’s offense level was
reduced by three levels under U.S.S.G. § 3E1.1 because of his acceptance of
responsibility and increased by twelve levels under § 2L1.2(b)(1)(A)(ii) because
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                                 No. 15-40970
he had previously been deported after being convicted of a “crime of violence,”
i.e., his 2004 aggravated menacing conviction in Delaware. A total offense level
of seventeen combined with a criminal history category of III yielded an
advisory guidelines imprisonment range of 30 to 37 months.
      Ovalle-Chun objected to the twelve-level enhancement and argued that
his prior Delaware conviction for aggravated menacing was not a crime of
violence for the purposes of U.S.S.G. § 2L1.2. At the sentencing hearing, the
district court overruled the objection and imposed a below-guidelines sentence
of 24 months imprisonment and a two-year term of supervised release. Ovalle-
Chun timely appealed. On appeal, Ovalle-Chun’s only claim is that the district
court erred in applying a twelve-level sentencing enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii), based on his 2004 Delaware conviction for aggravated
menacing.
                        II. STANDARD OR REVIEW
      We review the district court’s sentencing decision “for reasonableness.”
United States v. Anderson, 559 F.3d 348, 354 (5th Cir. 2009). In doing so, we
review the district court’s interpretation of the guidelines de novo and its
factual findings for clear error. United States v. Cisneros–Gutierrez, 517 F.3d
751, 764 (5th Cir. 2008). Whether a prior conviction qualifies as a crime of
violence is a question of the interpretation of the guidelines and is reviewed de
novo. See United States v. Calderon-Pena, 386 F.3d 254, 256 (5th Cir. 2004)
(en banc).
     III. SENTENCING ENHANCEMENT UNDER U.S.S.G. § 2L1.2
      Under U.S.S.G. § 2L1.2(b)(1)(A)(ii), a defendant’s base offense level will
be increased by twelve levels “[i]f the defendant previously was deported, or
unlawfully remained in the United States, after . . . a conviction for a felony




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that is . . . a crime of violence.” 1 The commentary to the Guidelines defines
“crime of violence” for the purposes of § 2L1.2(b)(1) as follows:
       “Crime of violence” means any of the following offenses under
       federal, state, or local law: murder, manslaughter, kidnapping,
       aggravated assault, forcible sex offenses (including where consent
       to the conduct is not given or is not legally valid, such as where
       consent to the conduct is involuntary, incompetent, or coerced),
       statutory rape, sexual abuse of a minor, robbery, arson, extortion,
       extortionate extension of credit, burglary of a dwelling, or any
       other 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. n.1(B)(iii). 2 The parties note that Ovalle-Chun’s 2004
Delaware conviction for aggravating menacing is not included among the
enumerated offenses.          However, we conclude that aggravated menacing
qualifies as a crime of violence because it is a state law offense “that has as an
element the . . . threatened use of physical force against the person of another.”
U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).
       Under Title 11, § 602(b) of the Delaware Code, “[a] person is guilty of
aggravated menacing when by displaying what appears to be a deadly weapon
that person intentionally places another person in fear of imminent physical
injury.” 3 “When determining whether a prior offense is a crime of violence
because it has as an element the use, attempted use, or threatened use of force,
district courts must employ the categorical approach established in Taylor v.
United States, 495 U.S. 575, 602 (1990).”                 United States v. Hernandez-



       1 This enhancement only applies “if the conviction does not receive criminal history
points.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). As noted in the PSR, Ovalle-Chun’s 2004 conviction
for aggravated menacing received no criminal history points.
       2 “Guidelines commentary ‘is given controlling weight if it is not plainly erroneous or

inconsistent with the guidelines.’” United States v. Velasco, 465 F.3d 633, 637 (5th Cir. 2006)
(quoting United States v. Urias–Escobar, 281 F.3d 165, 167 (5th Cir. 2002)).
       3 “Aggravated menacing is a class E felony.” Del. Code Ann. tit. 11, § 602(b).

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Rodriguez, 467 F.3d 492, 494 (5th Cir. 2006) (per curiam) (quoting United
States v. Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir. 2005)). This court has
previously explained:
      [W]hen applying the categorical approach, courts “compare the
      elements of the statute forming the basis of the defendant’s
      conviction with the elements of the ‘generic’ crime—i.e., the offense
      as commonly understood” that triggers the sentencing
      enhancement. “If the [offense of conviction] has the same elements
      as the ‘generic’ . . . crime [in the sentencing enhancement], then
      the prior conviction can serve as [the] predicate; so too if the
      statute defines the crime more narrowly, because anyone convicted
      under that law is ‘necessarily . . . guilty of all the [generic crime’s]
      elements.’”

United States v. Schofield, 802 F.3d 722, 727–28 (5th Cir. 2015) (citations
omitted) (quoting Descamps v. United States, 133 S. Ct. 2276, 2281, 2283
(2013)).
      Here, the “generic” crime is an “offense under . . . state . . . 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. n.1(B)(iii). The “statute
forming the basis of the defendant’s conviction,” Descamps, 133 S. Ct. at 2281,
is Title 11, § 602(b) of the Delaware Code. Thus, if § 602(b) “requires as a
constituent element at least the threatened use of ‘physical force,’” it qualifies
as a crime of violence under the Guidelines. United States v. Flores–Gallo, 625
F.3d 819, 823 (5th Cir. 2010).
      The Delaware Supreme Court addressed whether the crime of
aggravated menacing included as an element the threatened use of physical
force against the person of another in Poteat v. State, 840 A.2d 599 (Del. 2003).
In that case, the court began its analysis by comparing the crime of menacing
to the crime of robbery. Id. at 603–06. The court noted that “menacing is a
lesser-included offense to robbery.” Id. at 605. The court then explained that

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                                       No. 15-40970
“‘threatening the immediate use of force upon a person’—the language for
Robbery in the Second Degree and an element of Robbery in the First Degree—
is identical to ‘intentionally places another person in fear of imminent physical
injury’—the language for Menacing and an element of Aggravated Menacing.”
Id. at 606. Thus, the Delaware Supreme Court held that aggravated menacing
includes, as an element, “threatening the immediate use of force upon a
person.” Id.
       Applying the categorical approach, “threatening the immediate use of
force upon a person,” id., is indistinguishable from the “threatened use of
physical force against the person of another,” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).
Therefore, the statute of conviction includes the same elements as the generic
crime in the Guidelines and qualifies as a crime of violence. Descamps, 133 S.
Ct. at 2281. Because aggravated menacing qualifies as a crime of violence, the
district court committed no error in applying a twelve-level enhancement
under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
       On appeal, Ovalle-Chun advances two challenges to the application of
the twelve-level enhancement. 4           As his first challenge, he contends that
aggravated menacing does not involve physical force because it only requires
that the victim have the perception that there is a weapon but does not require
an actual weapon. This argument is unpersuasive for two reasons. First, the
“force” required under U.S.S.G. § 2L1.2 must rise to the level of a violent force,
United States v. Herrera-Alvarez, 753 F.3d 132, 137 (5th Cir. 2014), and a



       4 Ovalle-Chun also argues that his conviction for aggravated menacing does not fall
under the generic meaning of the enumerated offense of aggravated assault. Because we
conclude that Ovalle-Chun’s aggravated menacing conviction qualifies as a crime of violence
under the residual clause of the “crime of violence” definition, we need not, and do not,
address whether aggravated menacing falls under the generic meaning of aggravated assault
or any of the other generic crimes enumerated in U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). See United
States v. Murillo-Lopez, 444 F.3d 337, 339 (5th Cir. 2006) (noting a similar limitation on its
analysis and holding).
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conviction for aggravated menacing requires that the defendant “intentionally
place[] another person in fear of imminent physical injury.” Del. Code Ann. tit.
11, § 602(b) (emphasis added). Under Title 11, § 222(23) of the Delaware Code,
“‘[p]hysical injury’ means impairment of physical condition or substantial
pain.” Impairing a person’s physical condition or causing a person substantial
pain is consistent with a force violent enough to constitute a crime of violence
under U.S.S.G. § 2L1.2. 5 See Herrera-Alvarez, 753 F.3d at 137. Second, the
lack of a weapon has not previously precluded this court from concluding that
an offense involves a sufficiently violent force as an element of the offense.
United States v. Brown, 437 F.3d 450, 451–52 (5th Cir. 2006). In Brown, this
court concluded that the Louisiana offense of simple robbery entailed the use
or threatened use of force despite the explicit provision that the offense did not
require a dangerous weapon. Id. at 452–53. Thus, a defendant who does not
actually possess a deadly weapon may nevertheless communicate an intent to
use a deadly weapon or physical force more generally.
       As his second challenge, Ovalle-Chun argues that no actual threat need
be proved for a conviction under § 602(b) and that, therefore, aggravated
menacing cannot serve as the predicate offense for a sentencing enhancement
under U.S.S.G. § 2L1.2(b)(1)(A)(ii). We are unpersuaded by this argument, as
“intentionally plac[ing] another in fear of imminent physical injury”
constitutes a threat. See Poteat, 840 A.2d at 605 (recognizing that placing a
person in fear of imminent physical injury “is identical” to threatening the use




       5  This court has previously held that “offensive touching” does not involve a
sufficiently violent force for a given crime to qualify as a crime of violence. Herrera-Alvarez,
753 F.3d at 137. Impairing a person’s physical condition or causing substantial pain certainly
rises above offensive touching, which, under Delaware law, occurs when a person
“[i]ntentionally touches another person either with a member of his or her body or with any
instrument, knowing that the person is thereby likely to cause offense or alarm to such other
person.” Del. Code Ann. tit. 11, § 601(a)(1).
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                                  No. 15-40970
of force). Delaware courts have held that aggravated menacing requires both
intentional conduct and that the victim actually be in fear of imminent physical
injury. State v. Amad, 767 A.2d 806, 810 (Del. Super. Ct. 1999), overruled on
other grounds by Poteat, 840 A.2d at 605. This holding is in line with our
caselaw.
      This court has previously explained that “[a] threat imports ‘[a]
communicated intent to inflict physical or other harm.’” United States v. White,
258 F.3d 374, 383 (5th Cir. 2001) (quoting Threat, Black’s Law Dictionary (6th
ed. 1990)). Intentional conduct by the defendant combined with an actual fear
of imminent physical injury in the victim is consistent with a “communicated
intent to inflict physical . . . harm.” Id. For example, in Hernandez-Rodriguez,
this court held that the “conscious choice to discharge a firearm in the direction
of an individual would constitute a real threat of force against his person,” even
when the individual discharging the firearm aimed only in the direction of the
other person, not at the other person. 467 F.3d at 495. It follows that a person
who intends to, and does, place another in fear of imminent physical injury by
displaying what appears to be a deadly weapon has communicated an intent
to inflict physical harm and, thus, threatened the use of force. Cf. United
States v. Dominguez, 479 F.3d 345, 349 (5th Cir. 2007) (concluding that “an
intentional touching with a deadly weapon . . . could at least put the victim on
notice of the possibility that a weapon will be used more harshly in the future,
thereby constituting a threatened use of force.”).
      Our conclusion that an aggravated menacing conviction under Title 11,
§ 602(b) of the Delaware Code qualifies as a crime of violence under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) is consistent with the decisions of our sister circuits that
have addressed similar questions. See, e.g., United States v. Melchor–Meceno,
620 F.3d 1180, 1186 (9th Cir. 2010) (concluding that Colorado’s similar offense
of menacing “requires active violent force” and “includes the requisite mens rea
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                                 No. 15-40970
of intent for a crime of violence”). In Ledoue v. Attorney General, 462 F. App’x
162 (3d Cir. 2011) (per curiam) (unpublished), the Third Circuit specifically
considered whether Delaware’s aggravated menacing statute qualified as a
crime of violence under 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16(a). Id. at
163. Similar to U.S.S.G. § 2L1.2(b)(1)(A)(ii), 18 U.S.C. § 16(a) defines a crime
of violence as “an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of another.” As
we do in this case, the Third Circuit applied the categorical approach from
Taylor, 495 U.S. at 599. Ledoue, 462 F. App’x at 164. The court explained that
“a conviction for aggravated menacing under Delaware law requires an
intentional act, the purpose of which is to threaten another with impending
corporeal harm,” and “that the threat be communicated by the display of what
appears to be a deadly weapon.” Id. at 165. Accordingly, the court concluded
that aggravated menacing qualified as a crime of violence. Id.
      While Ovalle-Chun correctly points out that Ledoue is not precedential
in the Third Circuit and not binding on this court, we nevertheless find it
persuasive and decline Ovalle-Chun’s invitation to depart from the Third
Circuit’s analysis and conclusion. Because aggravated menacing in violation
of Title 11, § 602(b) of the Delaware Code qualifies as a crime of violence and
can therefore serve as the predicate offense for a twelve-level sentencing
enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii), the district court committed
no error in applying this enhancement.
                             IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment of the district court.




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