     Case: 16-40699      Document: 00513956286         Page: 1    Date Filed: 04/18/2017




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

                                      No. 16-40699
                                                                              Fifth Circuit

                                                                            FILED
                                                                        April 18, 2017

UNITED STATES OF AMERICA,                                              Lyle W. Cayce
                                                                            Clerk
              Plaintiff - Appellee

v.

DOMINGO GARCES,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 2:15-CR-1162-1


Before KING, JOLLY, and PRADO, Circuit Judges.
PER CURIAM:*
       Domingo Garces appeals the sentence he received following his guilty
plea conviction for possession with the intent to distribute marijuana. The
issue in this appeal is whether the district court committed reversible error in
applying     the   career    offender     enhancement        under      U.S.        Sentencing
Guideline § 4B1.1. This, in turn, depends upon whether Garces’ conviction for




       * 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 R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40699
aggravated assault under Texas Penal Code § 22.02(a) constitutes a conviction
for a “crime of violence” under U.S.S.G. § 4B1.2.
       We review “a district court’s interpretation or application of the
Sentencing Guidelines . . . de novo, and its factual findings . . . for clear error.”
United States v. Cisneros–Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008) (citation
and internal marks omitted). Additionally, this Court reviews de novo “a
preserved constitutional challenge to the Guidelines’ application.”                United
States v. Preciado-Delacruz, 801 F.3d 508, 511 (5th Cir. 2015).
       Garces contends that, even though “aggravated assault” is an
enumerated “crime of violence” in Application Note 1 to § 4B1.2, Texas
aggravated assault is not a crime of violence because: (1) it does not have as an
element the use, attempted use, or threatened use of physical force against the
person of another; (2) the residual clause of § 4B1.2(a)(2) is unconstitutionally
vague; and (3) the commentary’s listing of “aggravated assault” as a crime of
violence must be disregarded because it is inconsistent with and does not
interpret or explain the remaining Guideline text. We disagree.
       Aggravated assault under Texas Penal Code § 22.02(a) qualifies as a
crime of violence under § 4B1.2(a)(2). 1 As the Supreme Court recently held,
“[t]he residual clause in §4B1.2(a)(2) . . . is not void for vagueness” because “the
Guidelines are not subject to a vagueness challenge under the Due Process
Clause.” Beckles v. United States, No. 15-8544, 2017 WL 855781, at *6 (U.S.
Mar. 6, 2017). The residual clause therefore provides a textual hook for the
Guideline commentary’s list of enumerated offenses, making the commentary


       1 We therefore need not, and do not, reach the question of whether Texas aggravated
assault is a crime of violence under the elements clause of § 4B1.2(a)(1). Accordingly, this
Court DENIES Garces’ motion to reconsider its decision to grant the Government’s motion
to supplement the record on appeal with state court documents relevant to the issue of
whether Garces’ conviction had as an element the use, attempted use, or threatened use of
physical force.

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                                 No. 16-40699
consistent with and an interpretation or explanation of § 4B1.2 text. See
Stinson v. United States, 508 U.S. 36, 42–43 (1993).
      As this Court has previously held, a conviction for aggravated assault
under Texas Penal Code § 22.02(a) qualifies as a conviction for the enumerated
offense of “aggravated assault” and is a crime of violence under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). United States v. Guillen–Alvarez, 489 F.3d 197, 199–201
(5th Cir. 2007).   “[T]he crime of violence analysis applies consistently for
guidelines calculations involving § 4B1.2 and § 2L1.2.”       United States v.
Flanagan, No. 15-10780, 2016 WL 3455950, at *1 (5th Cir. June 23, 2016)
(citing United States v. Rayo-Valdez, 302 F.3d 314, 318 (5th Cir. 2002)); see,
e.g., United States v. Shepherd, 848 F.3d 425, 427–28 (5th Cir. 2017). Guillen–
Alvarez is therefore controlling. E.g., United States v. Fernandez, 292 F. App’x
301, 304 n.3 (5th Cir. 2008) (citation omitted). Accordingly, the district court
did not err in determining that Garces’ prior conviction for aggravated assault
was a crime of violence and applying the career offender enhancement.
      The judgment of the district court is therefore AFFIRMED.




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