     Case: 14-50375       Document: 00513127364         Page: 1     Date Filed: 07/23/2015




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

                                       No. 14-50375                                   FILED
                                                                                  July 23, 2015
                                                                                 Lyle W. Cayce
UNITED STATES OF AMERICA,                                                             Clerk

               Plaintiff - Appellee

v.

SAMUEL UCLES,

               Defendant - Appellant




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:13-CR-414-1


Before JOLLY and DENNIS, Circuit Judges, and REEVES*, District Judge.
PER CURIAM:**
       Samuel Ucles pled guilty to illegal reentry after deportation in violation
of 8 U.S.C. § 1326. The district court enhanced Ucles’s sentence by sixteen
levels after determining that his prior, Minnesota conviction for second-degree
assault with a dangerous weapon constituted a “crime of violence” under
§ 2L1.2 of the Sentencing Guidelines. For the reasons that follow, we AFFIRM.



       * District Judge of the Southern District of Mississippi, sitting by designation.
       ** Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 14-50375
                                            I.
      Ucles pled guilty to illegal reentry after deportation in violation of 8
U.S.C. § 1326. Ucles previously had been convicted in Minnesota of second-
degree assault with a dangerous weapon, see Minn. Stat. § 609.222, subd. 1.
Based on this conviction, the presentence investigation report recommended
that Ucles’s sentence be enhanced by sixteen levels under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii), which applies, as relevant here, when the defendant
previously has been convicted of a “crime of violence.” Ucles objected to this
enhancement. He argued that, because the “dangerous weapon” required to
violate § 609.222, subd. 1 may include the defendant’s hands or feet, § 609.222,
subd. 1 is broader than the most analogous crime that the Guidelines
enumerate as a “crime of violence”—“aggravated assault.” See U.S.S.G. §
2L1.2 cmt. n.1(B)(iii). The district court rejected this argument, concluding
that the generic crime of “aggravated assault” incorporates a definition of
“dangerous weapon” capacious enough to include the defendant’s hands or feet.
      Applying the enhancement, the district court calculated a Guidelines
range of 57–71 months of imprisonment. The district court sentenced Ucles to
57 months, and Ucles appealed.
                                      II.
      On appeal, Ucles’s sole argument is the one he made to the district court:
that Minn. Stat. § 609.222, subd. 1 is not categorically a “crime of violence”
because under § 609.222, subd. 1—unlike under the generic crime of
“aggravated assault”—the defendant’s hands or feet may constitute a
“dangerous weapon.”      “We review de novo whether a prior conviction
constitutes a conviction for a crime of violence within the meaning of the
Guidelines.” United States v. Carrasco-Tercero, 745 F.3d 192, 195 (5th Cir.
2014) (internal quotation marks omitted).


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                                  No. 14-50375
                                        III.
                                        A.
      “The Guidelines define a crime of violence as (1) any offense in a list of
enumerated offenses which includes ‘aggravated assault,’ or (2) ‘any other
offense . . . that has as an element the use, attempted use, or threatened use of
physical force against the person of another.” Id. (quoting U.S.S.G. § 2L1.2
cmt. n.1(B)(iii)). “This court employs a ‘categorical approach’ in determining
whether an offense qualifies as a [crime of violence] under § 2L1.2.” United
States v. Garcia-Figueroa, 753 F.3d 179, 184 (5th Cir. 2014) (some internal
quotation marks omitted). The categorical approach requires us to compare
the statute of conviction with the enumerated offense to determine whether
the former “categorically fits within the generic federal definition of” the latter.
Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2012) (internal quotation marks
omitted) (citing Taylor v. United States, 495 U.S. 575, 599–600 (1990)). “A
state offense is a categorical match with a generic federal offense only if a
conviction of the state offense necessarily involved facts equating to the generic
federal offense.’” Id. (alterations and internal quotation marks omitted).
      Ucles argues that, because the defendant’s hands or feet may supply the
“dangerous weapon” needed to violate Minn. Stat. § 609.222, subd. 1, that
statute is broader than the most analogous enumerated offense under U.S.S.G.
§ 2L1.2 cmt. n.1(B)(iii)—“aggravated assault.” We disagree.
                                        B.
      We begin our categorical-approach analysis by examining the statute of
conviction. Ucles was convicted under Minn. Stat. § 609.222, subd. 1, which
prohibits “assault[ing] another with a dangerous weapon.”               The term
“dangerous weapon” is defined as “any . . . device or instrumentality that, in
the manner it is used or intended to be used, is calculated to produce death or
great bodily harm.” Minn. Stat. § 609.02, subd. 6. Construing this definition,
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                                       No. 14-50375
Minnesota courts have held that a defendant’s hands or feet may constitute a
“dangerous weapon,” but only if the essential requirements of the definition
are satisfied; that is, only if the hands or feet are used in a manner calculated
to produce death or great bodily harm. See, e.g., State v. Born, 159 N.W.2d 283,
284–85 (Minn. 1968); State v. Davis, 540 N.W.2d 88, 90–91 (Minn. Ct. App.
1995).
                                             C.
       We turn next to the generic crime of “aggravated assault.” “Our primary
source for the generic contemporary meaning of aggravated assault is the
Model Penal Code.” United States v. Torres-Diaz, 438 F.3d 529, 536 (5th Cir.
2006); see also United States v. Ramirez, 557 F.3d 200, 205 (5th Cir. 2009). The
Model Penal Code provides that “[a] person is guilty of aggravated assault if
he,” among other things, “attempts to cause or purposely or knowingly causes
bodily injury to another with a deadly weapon.”                    Model Penal Code §
211.1(2)(b).    “Deadly weapon,” in turn, is defined as “any . . . device,
instrument, material or substance, whether animate or inanimate, which in
the manner it is used or is intended to be used is known to be capable of
producing death or serious bodily injury.” Id. § 210.0(4).
                                             D.
       As noted above, Ucles’s only argument is that the Minnesota statute of
conviction is broader than the generic offense of “aggravated assault” because
the former incorporates a broader definition of “dangerous weapon” than does
the latter. 1 Viewing the relevant definitions side by side, it is plain that this
argument lacks merit.


       1  It has been suggested that Minn. Stat. Ann. § 609.222, subd. 1, is broader than the
generic offense of “aggravated assault” for a different reason than the one Ucles identifies—
that is, that it incorporates a broader definition of “assault” than does the generic offense.
Compare Minn. Stat. Ann. § 609.02, subd. 10 (defining “[a]ssault” as “(1) an act done with
intent to cause fear in another of immediate bodily harm or death; or (2) the intentional
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                                      No. 14-50375
       As an initial matter, the definitions are nearly identical. Compare Minn.
Stat. § 609.02, subd. 6 (“‘Dangerous weapon’ means any . . . device or
instrumentality that, in the manner it is used or intended to be used, is
calculated or likely to produce death or great bodily harm . . . .”) with Model
Penal Code § 210.0(4) (“‘[D]eadly weapon’ means any . . . material or substance,
whether animate or inanimate, which in the manner it is used or is intended
to be used is known to be capable of producing death or serious bodily injury.”).
Furthermore, the text of the Model Penal Code’s definition of “deadly weapon”
gives every indication that it, like Minnesota’s definition, is broad enough to
encompass the defendant’s hands or feet, provided they are used in a manner
“known to be capable of producing death or serious bodily injury.” Model Penal
Code § 210.0(4). Again, the Model Penal Code defines a “deadly weapon” as
“any . . . material or substance, whether animate or inanimate, which” is used
in the above-described manner. Id. (emphasis added). There is no question
that a hand or a foot is a “material or substance.”                 See Oxford English
Dictionary (online ed. 2014) (defining “material” as “[m]atter” or “a material
thing”); Black’s Law Dictionary (9th ed. 2009) (defining “substance” as “[a]ny
matter”). And any residual reluctance we might have to describe something
living—like a hand—using a word typically reserved for nonliving things—
“weapon”—is dispelled by the Model Penal Code’s express statement that a
“deadly weapon” may be “animate or inanimate.” Model Penal Code § 210.0(4).
                                      *      *       *



infliction of or attempt to inflict bodily harm upon another” (emphasis added)) with, e.g.,
United States v. Esparza-Perez, 681 F.3d 228, 231 (5th Cir. 2012) (“[Generic a]ssault . . .
requires proof that the defendant either caused, attempted to cause, or threatened to cause
bodily injury or offensive contact to another person.”). This argument is not properly before
the court, however, because Ucles has never raised it. See, e.g., Turner v. Quarterman, 481
F.3d 292, 295 n.1 (5th Cir. 2007) (“[A party] waives the arguments he has not briefed.”);
Greenberg v. Crossroads Sys., Inc., 364 F.3d 657, 669 (5th Cir. 2004) (“Arguments not raised
in the district court cannot be asserted for the first time on appeal.”).
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                                No. 14-50375
      We therefore conclude that, for the purposes of the generic crime of
“aggravated assault,” the defendant’s hands and feet may constitute a
“dangerous” or “deadly weapon,” provided they are used in a manner known to
be capable of producing death or serious bodily injury. Because these are the
same circumstances under which a defendant’s hands or feet may constitute a
“dangerous weapon” under Minn. Stat. § 602.222, subd. 1, we reject Ucles’s
argument that Minnesota’s definition of “dangerous weapon” makes his statute
of conviction broader than the generic offense of “aggravated assault.”
                                                                  AFFIRMED.




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