                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                     F I L E D
                                              In the                                September 28, 2006
                       United States Court of Appeals                             Charles R. Fulbruge III
                                    for the Fifth Circuit                                 Clerk
                                         _______________

                                           m 05-51198
                                         _______________




                                 UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                             VERSUS

                             SERGIO ARMANDO FIERRO-REYNA,
                                 also known as Sergio Fierro,
                             also known as Sergio Fierro Reyna,

                                                            Defendant-Appellant.


                                  _________________________

                           Appeal from the United States District Court
                                for the Western District of Texas
                             ______________________________



Before SMITH, GARZA, and CLEMENT,                                          I.
  Circuit Judges.                                       The issue is the impact on Fierro-Reyna’s
                                                    sentence of his 1979 Texas conviction of ag-
JERRY E. SMITH, Circuit Judge:                      gravated assault of a police officer. The pre-
                                                    sentence investigation report (“PSR”) recom-
    Sergio Armando Fierro-Reyna pleaded guil-       mended a base offense level of 8, pursuant to
ty of illegal reentry after deportation in vio-     U.S.S.G. § 2L1.2(a), and subtracted three lev-
lation of 8 U.S.C. § 1326. He challenges his        els for acceptance of responsibility. The PSR
sentence.      We vacate and remand for             recommended that the 1979 conviction be
resentencing.                                       treated as a “crime of violence” under U.S.S.-
                                                    G. § 2L1.2(b)(1)(A)(ii), thus adding sixteen to
the offense level. With a total offense level of         duty when he knows or has been informed the
21 and a criminal history category of V based            person assaulted is a peace officer.” TEX.
on eleven criminal history points, Fierro-               PENAL CODE § 22.02(a)(2) (1974). Simple as-
Reyna’s guideline range was 70 to 87 months’             sault did not have use of force as an element.2
incarceration. The court overruled Fierro-               Id. § 22.01 (1974).
Reyna’s objections to the PSR and sentenced
him to 87 months and a three-year term of                    Fierro-Reyna argues that because the stat-
supervised release.                                      ute merely required conduct amounting to sim-
                                                         ple assault, and the offense was elevated to
   On appeal Fierro-Reyna challenges the six-            aggravated assault only because of the status
teen-level enhancement.1 We must determine               of the victim as a peace officer, his conviction
whether his conviction of aggravated assault of          does not come within the generic, contempo-
a police officer is a “crime of violence” under          rary meaning of the offense of aggravated as-
U.S.S.G. § 2L1.2(b)(1)(A)(ii).                           sault and therefore does not qualify as a “crime
                                                         of violence.” The government first responds
                       II.                               that because Texas labeled Fierro-Reyna’s
   We review the district court’s application of         crime as aggravated assault, and aggravated
the sentencing guidelines de novo. United                assault is listed among the enumerated crimes
States v. Vargas-Duran, 356 F.3d 598, 602                of violence in the sentencing guidelines, no
(5th Cir. 2004) (en banc). The commentary to             inquiryinto the definition of aggravated assault
the guidelines enumerates offenses that qualify          is necessary. The government cites United
as crimes of violence, among which “aggra-               States v. Rayo-Valdez, 302 F.3d 314 (5th Cir.
vated assault” is included. U.S.S.G. § 2L1.2,            2002), to support its position that any convict-
cmt. n.1 (B)(iii). The commentary does not               ion a state labels with the title of one of the
define aggravated assault.                               enumerated crimes of violence automatically
                                                         triggers a sentence enhancement.3
   The pertinent statute provided, in 1979,
that “[a] person commits an offense if he com-
mits assault as defined in Section 22.01 of this            2
                                                              At the time of Fierro-Reyna’s conviction, a
code and he . . . causes bodily injury to a              person committed assault if he (1) intentionally,
peace officer in the lawful discharge of official        knowingly, or recklessly caused bodily injury to
                                                         another; (2) intentionally or knowingly threatened
                                                         another with imminent bodily injury; or (3) inten-
   1
     Fierro-Reyna makes one other argument, but          tionally or knowingly caused physical contact with
only to preserve it for appeal. The indictment           another when he knew or should reasonably have
charged him under 8 U.S.C. § 1326(a); because he         believed that the other would regard the contact as
had been deported following a criminal conviction,       offensive or provocative. TEX. PENAL CODE §
his sentence was enhanced under 8 U.S.C.                 22.01 (1974).
§ 1326(b). He contends that § 1326(b) defines a
                                                            3
separate offense and should have been charged in              The government also cites United States v.
the indictment. He concedes that his argument is         Vargas-Duran, 356 F.3d 598 (5th Cir. 2004). The
foreclosed by Almendarez-Torres v. United States,        cited language comes from a special concurrence,
523 U.S. 224 (1998), which held that enhanced            however, and the majority holding provides no
penalties are sentencing factors rather than sepa-       support for the government’s position. The unpub-
rate elements of an offense.                                                                  (continued...)

                                                     2
    In Rayo-Valdez, however, we considered                 reject the government’s contention that Fierro-
whether the enumerated offenses must also in-              Reyna’s conviction is a crime of violence
clude an element of force. We held that even               merely because Texas categorized the offense
if an enumerated offense does not include an               as aggravated assault.
element of force, it remains a crime of violence
precisely because it is enumerated. Rayo-                     We must decide whether the conviction
Valdez, 302 F.3d at 317. We did not discuss                comes under the generic contemporary mean-
a method for determining whether a given                   ing of aggravated assault. To establish the
conviction falls within one of the enumerated              generic contemporary meaning of an enumer-
offense categories; that is the issue we address           ated offense, we consider, inter alia, the Mod-
now.                                                       el Penal Code, Professors LaFave’s and
                                                           Scott’s treatises, modern state codes, and dic-
   Contrary to the government’s position, we               tionaries. Dominguez-Ochoa, 386 F.3d at
have established a standard by which to deter-             643-45.
mine whether a state conviction qualifies as an
enumerated offense, regardless of how the                     When comparing the state conviction with
conviction is labeled by the state. Because the            the generic, contemporary meaning of the
enumerated offenses are not defined, we use a              crime, we examine the elements of the statute
“common sense approach” and give the of-                   of conviction rather than the specifics of the
fenses their “generic, contemporary meaning.”              defendant’s conduct. United States v. Fernan-
United States v. Sanchez-Ruedas, 452 F.3d                  dez-Cusco, 447 F.3d 382, 385 (5th Cir. 2006).
409, 412 (5th Cir. 2006) (citations omitted).              We look only to the particular subdivision of
We then determine whether the state convic-                the statute under which the defendant was
tion falls under the generic, contemporary                 convicted. Id. “When the statute of convic-
meaning of the enumerated offense. See, e.g.,              tion encompasses prohibited behavior that is
United States v. Izaguirre-Flores, 405 F.3d                not within the plain, ordinary meaning of the
270, 274-76 (5th Cir. 2005).4 We therefore                 enumerated offense,” the conviction is not a
                                                           crime of violence as a matter of law. Iza-
                                                           guirre-Flores, 405 F.3d at 276–77.
   3
     (...continued)
lished cases to which the government points were
                                                              4
decided under a plain error standard and thus have             (...continued)
very little instructive value for a court engaged in       analysis as follows:
a de novo review of the application of the sentenc-
ing guidelines.                                               Taylor instructs that where, as here, the en-
                                                              hancement provision does not specifically de-
   4
     The decision in Taylor v. United States, 495             fine the enumerated offense, we must define it
U.S. 575 (1990), is the source of the generic, con-           according to its “generic, contemporary mean-
temporary meaning test. In the context of the                 ing” . . . and should rely on a uniform defini-
Armed Career Criminal Act, the Taylor Court re-               tion, regardless of the “labels employed by the
jected the proposition that federal sentencing en-            various States’ criminal codes.”
hancements should be contingent on the labels
states choose to place on crimes. We have summa-           United States v. Dominguez-Ochoa, 386 F.3d 639,
rized Taylor’s impact on our crime of violence             642-43 (5th Cir. 2004) (citing Taylor, 495 U.S. at
                                     (continued...)        592, 598).

                                                       3
   “Our primary source for the generic con-            commit another crime or the intent to cause
temporary meaning of aggravated assault is the         serious bodily injury, esp[ecially] by using a
Model Penal Code.” United States v. Tor-               deadly weapon.” BLACK’S LAW DICTIONARY
res-Diaz, 438 F.3d 529, 536 (5th Cir. 2006).           122 (8th ed. 2004). This definition essentially
The Code provides the following:                       reproduces the Model Penal Code’s. Al-
                                                       though it does not purport to include an ex-
   A person is guilty of aggravated assault if         haustive list of aggravating factors, its failure
   he: (a) attempts to cause serious bodily in-        to make any mention of the victim’s status
   jury to another, or causes such injury pur-         lends credence to Fierro-Reyna’s position that
   posely, knowingly or recklessly under cir-          victim status is not a part of the generic, con-
   cumstances manifesting extreme indiffer-            temporary definition of aggravated assault.
   ence to the value of human life; or (b) at-
   tempts to cause or purposely or knowingly               LaFave’s treatise is another source we rec-
   causes bodily injury to another with a dead-        ognize as informing the generic, contemporary
   ly weapon.                                          meaning of an enumerated offense. See, e.g.,
                                                       Torres-Diaz, 438 F.3d at 536. LaFave focuses
MODEL PENAL CODE § 211.1(2).                           his discussion of aggravated assault on the two
                                                       most common aggravating factors: the means
   The statutorysubdivision under which Fier-          used to commit the crime, such as use of a
ro-Reyna was convicted differs significantly           deadly weapon, and the consequences of the
from the Model Penal Code’s definition of ag-          crime, such as serious bodily injury.
gravated assault. Fierro-Reyna was convicted           2 LAFAVE, SUBSTANTIVE CRIMINAL LAW
of simple assault, the sole aggravating factor         § 16.2(d). The treatise notes that, in some
being the victim’s status as a police officer.         states, the status of the victim—as a police of-
See TEX. PENAL CODE § 22.02(a)(2) (1974).              ficer, fireman, or pregnant woman, for exam-
                                                       ple—raises a simple assault to aggravated as-
   The Model Penal Code indicates that ag-             sault. Id. §§ 16.2(d), 16.3(d). The govern-
gravated assault involves causing “serious             ment relies on this section of the treatise, in
bodilyinjury,” exhibiting “extreme indifference        which LaFave cites twenty-two states that in-
to human life,” or attempting to cause bodily          clude assault on a police officer as an aggra-
injury with a deadly weapon. The status of the         vating factor, for its argument that the generic,
victim, as a police officer or otherwise, is not       contemporary meaning of aggravated assault
part of this definition. Thus under the Model          includes statutes such as the one under which
Penal Code, the statute under which Fierro-            Fierro-Reyna was convicted. See id. § 16.2(d)
Reyna was convicted prohibits conduct that             n.76.
does not fall within the generic, contemporary
definition of aggravated assault.                         Our research reveals that twenty-two is not
                                                       an accurate count of the states that currently
    Likewise, Black’s Law Dictionary does not          consider simple assault on a police officer to
list the status of the victim as a potential ag-       be aggravated assault. Some state statutes
gravating factor in its definition of aggravated       have been amended. Texas, Montana, and
assault, which reads as follows: “Criminal             South Dakota, for example, have dispensed
assault accompanied by circumstances that              with the status of the victim as an aggravating
make it more severe, such as the intent to             factor and adopted a definition similar to the

                                                   4
Model Penal Code’s.5 Moreover, most of the                    Where only a small minority of states sup-
states listed in LaFave’s treatise use the vic-            port a particular viewpoint regarding the gen-
tim’s status as a police officer only to increase          eric, contemporary meaning of an enumerated
the punishment range for aggravated assault.               offense, and where the Model Penal Code sup-
In those states, the victim’s status as a police           ports the contrary position, this court has re-
officer does not turn simple assault into ag-              jected the position of the minority and adopted
gravated assault. Rather, status merely chang-             that of the Model Penal Code.9 The bulk of
es the severity of the punishment for the of-              authority indicates that the generic, contempo-
fense, where the underlying offense is already             rary meaning of aggravated assault does not
aggravated assault or aggravated battery.6                 include simple assault on a police officer. The
                                                           Model Penal Code, dictionary definitions, and
   Only seven states explicitly categorize sim-            the criminal codes of the majority of states
ple assault on a police officer as aggravated
assault.7 For purposes of determining the gen-
eric, contemporary meaning of aggravated as-                  8
                                                                (...continued)
sault, it is this number, rather than twenty-two,
                                                           LAW § 16.2(d) nn. 77–85. See ALA. CODE
that more accurately estimates the number of               § 13A-6-21(a)(5) (making simple assault an aggra-
states whose aggravated assault statutes cur-              vated assault where victim is, e.g., a teacher); FLA.
rently resemble the Texas statute.8                        STAT. ANN. § 784.045 (same, where the victim is
                                                           pregnant); N.C. GEN. STAT. § 14-33(c)(2), (3)
                                                           (same, where victim is, e.g., female or a child);
   5
     See TEX. PENAL CODE § 22.02 (amending the             OKLA. STAT. tit. 21, § 646(A)(2) (same, where
statute in 1993); MONT. CODE § 45-5-202 (amend-            victim is elderly); WYO. STAT. § 6-2-502(a)(iv)
ing code in 1997); S.D. CODIFIED LAWS                      (same, where victim is pregnant).
§ 22-18-1.1 (amending code in 2005).
                                                               Thus if the inquiry is broadened to whether the
   6                                                       generic, contemporary meaning of aggravated as-
      See CAL. PENAL CODE § 245; FLA.
STAT.§ 784.021; IDAHO CODE §§ 18-905, 18-915;              sault includes simple assault on not just a police
IND.CODE §§ 35-42-2-1.5, 35-42-2-1; KAN. STAT.             officer but any statutorily-recognized victim, there
§§ 21-3411, 21-3415; LA. REV. STAT. § 14:37.2;             are somewhere on the order of twelve to fifteen
MISS. CODE § 97-3-7; NEV. REV. S TAT .                     states that recognize victim status generally. It is
§§ 200.471, 200.481; S.D. CODIFIED LAWS § 22-              unnecessary to determine whether the analysis
18-1.05; TENN. CODE § 39-13-102; TEX. PENAL                should consider these states; whatever the number,
CODE § 22.02; VA. CODE § 18.2-57; WIS. STAT.               it is only a small minority of states that would
§ 940.20.                                                  consider Fierro-Reyna’s conviction to be an aggra-
                                                           vated assault. The result of our inquiry into the
   7
    See ARIZ. REV. STAT. § 13-1204; ARK. CODE.             generic, contemporary meaning of aggravated
§ 5-13-202; DEL. CODE tit. 11, § 613; 720 ILL.             assault would not be affected even if we were to
COMP. STAT. 5/12-4; N.J. STAT. § 2C:12-1; N.Y.             include these states in our analysis.
PENAL LAW § 120.05; 18 PA. CONS. STAT. § 2702.
                                                              9
                                                                See Dominguez-Ochoa, 386 F.3d at 643, 646
   8
     This number does not include states that pro-         (finding that, because only nine states define man-
vide for the status of the victim as an aggravating        slaughter with a mens rea of criminal negligence
factor where the victim is someone other than a            but a larger number define manslaughter with reck-
police officer. LAFAVE, SUBSTANTIVE CRIMINAL               lessness, generic manslaughter requires a mens rea
                                      (continued...)       of recklessness).

                                                       5
uphold this position. We conclude that the
generic, contemporary meaning of aggravated
assault involves aggravating factors such as
use of a deadly weapon and causation of seri-
ous bodily injury and does not include consid-
erations regarding the victim’s status as a pol-
ice officer.

   Because the statutory section under which
Fierro-Reyna was convicted prohibits behavior
that is not within the generic, contemporary
meaning of aggravated assault as it is used in
U.S.S.G. § 2L1.2, his conviction does not
qualify as a crime of violence, so his sentence
was improperly enhanced by sixteen levels.


   The sentence is VACATED, and this matter
is REMANDED for resentencing.




                                                   6
