                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                   September 20, 2005

                        _______________________                Charles R. Fulbruge III
                                                                       Clerk
                              No. 04-41163
                        _______________________


                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

                       AUGUSTIN FUENTES-BERLANGA,

                                                     Defendant-Appellant.



            Appeal from the United States District Court
                for the Southern District of Texas -
                           McAllen Division
                      Criminal No. M-03-630-ALL



Before DAVIS, JONES, and GARZA, Circuit Judges.

PER CURIAM:*

           Augustin Fuentes-Berlanga appeals his fifty-seven-month

sentence imposed following his guilty-plea conviction for attempted

illegal reentry     by a previously-deported alien in violation of

8 U.S.C. § 1326.     Citing United States v. Booker, 125 S. Ct. 738

(2005), he argues for the first time on appeal that the district

court erred in sentencing him under a mandatory guideline scheme.

Fuentes-Berlanga further argues that the district court misapplied



     *
            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opinion should not be published and is not precedent except under the limited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.
the Sentencing Guidelines by treating his prior conviction for

aggravated assault in Texas as a “crime of violence” under U.S.S.G.

§ 2L.1.2(b)(1)(A)(ii).       Finding no merit in these contentions, we

affirm.

                                I.   BACKGROUND

           On or about July 6, 2003, Fuentes-Berlanga, a citizen and

national   of   Mexico    and   a    non-citizen   of   the   United   States,

presented an invalid resident alien card to authorities at the

Hidalgo Port of Entry. Fuentes-Berlanga had been deported from the

United States on December 17, 2002, and did not have the necessary

consent to reapply for admission into the United States.

           On September 2, 2003, Fuentes-Berlanga pleaded guilty to

attempting to illegally reenter the United States in violation of

8 U.S.C. § 1326.         In a Pre-sentence Report (PSR) completed on

October 6, 2003, the Probation Office recommended a sixteen-level

enhancement of Fuentes-Berlanga’s base offense level of 8 after

determining that Fuentes-Berlanga’s prior conviction in Texas for

aggravated assault with a motor vehicle constituted a “crime of

violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii).            Fuentes-Berlanga,

driving while intoxicated, had recklessly collided with and injured

another driver.    The probation office made the determination that

the aggravated assault constituted a “crime of violence” because

aggravated assault is an enumerated “crime of violence.” U.S.S.G.

§ 2L1.2 comment. (n.1 (B)(ii)(II)) (2002).              The district court



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agreed with this assessment and found the sixteen-level enhancement

appropriate.     Finding a total offense level of 21, the court

sentenced Fuentes-Berlanga to fifty-seven months in prison.

                           II.    DISCUSSION

A.   Booker Claims

          As Fuentes-Berlanga did not raise his Booker argument in

the district court, we review this issue for plain error.            United

States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for

cert. filed (Mar. 31, 2005)(No. 04-9517).       Plain error occurs only

where there is “(1) error, (2) that is plain, and (3) that affects

substantial rights.”     United States v. Cotton, 535 U.S. 625, 631

(2002).

          The district court committed an error that was plain in

sentencing     Fuentes-Berlanga   under   a    mandatory,   rather    than

advisory, scheme.      Mares, 402 F.3d at 521.       However, Fuentes-

Berlanga fails to meet his burden of showing that the district

court’s error affected his substantial rights.        See United States

v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir. 2005); Mares,

402 F.3d at 521.      This court has rejected the argument that a

Booker error is a structural error or that such error is presumed

to be prejudicial.     Mares, 402 F.3d at 520-22; see also United

States v. Malveux, 411 F.3d 558, 561 n.9 (5th Cir. 2005), petition

for cert. filed (July 11, 2005) (No. 05-5297). Therefore, Fuentes-

Berlanga must demonstrate that the “sentencing judge — sentencing


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under an advisory scheme rather than a mandatory one — would have

reached a significantly different result” in his favor. Mares, 402

F.3d at 521.      There is no indication here that the district court

would    have     sentenced      Fuentes-Berlanga        differently        under    the

advisory Guidelines. Thus, Fuentes-Berlanga’s sentence presents no

reversible error under Booker.

B.     “Crime of Violence”

            The     district      court’s       characterization       of     Fuentes-

Berlanga’s prior conviction is a question of law that we review de

novo.    United States v. Villegas, 404 F.3d 355, 359 (5th Cir.

2005); United States v. Vasquez-Balandran, 76 F.3d 648, 649 (5th

Cir. 1996).     Appellant preserved this point of error by objection

in the district court.

            Because of the district court’s determination that he had

been    convicted       of   a   crime   of      violence    prior     to    his    2002

deportation,      Fuentes-Berlanga         was    subject    to    a   sixteen-level

increase   in     his    base    offense       level   and   a    longer    period    of

incarceration under U.S.S.G. § 2L1.2(b)(1)(A)(ii). The application

note to U.S.S.G. § 2L1.2 used at the time of Fuentes-Berlanga’s

federal sentencing states that a crime of violence “includes

murder, manslaughter, kidnapping, aggravated assault, forcible sex

offenses (including sexual abuse of a minor), robbery, arson,

extortion, extortionate extension of credit, and burglary of a

dwelling.” U.S.S.G. § 2L1.2 comment. (n.1 (B)(ii)(II)) (2002). In

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Texas, where Fuentes-Berlanga was convicted of aggravated assault,

the state penal code defines assault as an act where an individual

“intentionally, knowingly, or recklessly causes bodily injury to

another, including the person’s spouse.”                  TEX. PENAL CODE ANN.

§ 22.01(a)(1).      The aggravated assault indictment against Fuentes-

Berlanga stated that his actions were reckless. At issue, then, is

whether Fuentes-Berlanga’s reckless aggravated assault in Texas

constitutes “aggravated assault” under the Guidelines.

             Fuentes-Berlanga cites Taylor v. United States, 495 U.S.

575 (1990), for the proposition that the relevant definition of

“aggravated assault” in the Guidelines must be the “generic,

contemporary meaning” of the offense.              Id. at 595.    Because Texas

is   among   a    minority   of   states     that    allows   a   mens   rea   of

recklessness for aggravated assault, Fuentes-Berlanga contends that

aggravated       assault   with   a   mens   rea     of   recklessness   cannot

constitute aggravated assault for “crime of violence” purposes.

             This court, however, need not conduct a Taylor inquiry

into the “generic, contemporary definition” of enumerated offenses

within the Guidelines.       We have previously held that when dealing

with an enumerated offense, the court need only utilize a “common

sense” inquiry and ask whether the conviction at issue constitutes

an enumerated offense as “that term is understood in its ‘ordinary,

contemporary, [and] common’ meaning.”          United States v. Izaguirre-

Flores, 405 F.3d 270, 275 (5th Cir. 2005) (quoting United States v.


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Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir. 2000)).               This broader

standard properly recognizes that the “Commission has predetermined

that, regardless of . . . the way they are defined by state laws,

the listed offenses are inherently violent and forceful. . .                Thus,

their enumeration in the commentary ensures that they are treated

as ‘crimes of violence.’”       United States v. Rayo-Valdez, 302 F.3d

314, 317 (5th Cir. 2002); see also United States v. McQuilkin, 97

F.3d 723 (3d Cir. 1996) (holding that aggravated assault was a

“crime of violence” without making a Taylor inquiry).                   The Texas

Penal   Code   defines   an   aggravated    assault    as   such    a    term    is

ordinarily,    contemporarily,     and     commonly    understood.          Thus,

Fuentes-Berlanga    committed     a   “crime    of    violence”     under       the

Guidelines and the sixteen-level increase to his base level offense

was proper.

                                CONCLUSION

           Fuentes-Berlanga fails to demonstrate plain error under

Booker, and his prior conviction is properly construed as a “crime

of violence.” Therefore, the sentence issued by the district court

is AFFIRMED.




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