     Case: 16-10366      Document: 00513831142         Page: 1    Date Filed: 01/11/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                      No. 16-10366                              FILED
                                                                         January 11, 2017

UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk

              Plaintiff - Appellee

v.

ROBERTO VILLASENOR-ORTIZ,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:15-CR-107-1


Before KING, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant Roberto Villasenor-Ortiz appeals the thirty-nine-month
sentence he received for illegal reentry after previous removal. He maintains
that the district court plainly erred in assessing a sixteen-level enhancement




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-10366
under United States Sentencing Guidelines (“U.S.S.G.”) § 2L1.2(b)(1)(A). 1
Finding no error, we AFFIRM. 2
                                                I.
       Defendant Roberto Villasenor-Ortiz pleaded guilty to illegal reentry
after previous removal in violation of 8 U.S.C. § 1326(a) and (b)(2).                        The
presentence report (“PSR”) prepared by the probation office calculated a
sixteen-level       enhancement        under     U.S.S.G.     § 2L1.2(b)(1)(A)       based    on
Villasenor-Ortiz’s previous conviction in Texas for aggravated assault. 3 The
PSR assessed a total base offense level of twenty-one and a criminal history
category of IV, resulting in a Guidelines range of fifty-seven to seventy-one
months.        At the sentencing hearing, Villasenor-Ortiz requested a below-
Guidelines sentence, stating that under then-proposed amendments to the
Guidelines, the appropriate range would be only thirty to thirty-seven months.
       After considering the Guidelines, the applicable sentencing factors, and
the proposed changes to the Guidelines, the district court sentenced Villasenor-


       1   The 2015 edition of the Guidelines was in effect at the time of sentencing.
       2  Villasenor-Ortiz’s second argument—that his sentence exceeded the statutory
maximum provided in 8 U.S.C. § 1326(a)—is foreclosed under Almendarez-Torres v. United
States, 523 U.S. 224 (1998). See United States v. Guillen-Alvarez, 489 F.3d 197, 201 (5th Cir.
2007).
       3On June 16, 2003, an indictment was filed charging Villasenor-Ortiz with
committing aggravated assault with a deadly weapon on or about March 27, 2003. The
indictment charged Villasenor-Ortiz with:
                intentionally, knowingly[,] and recklessly caus[ing] bodily injury
                to [complainant] . . . by cutting complainant with a broken glass
                bottle, and us[ing] and exhibit[ing] a deadly weapon to wit: a
                broken glass bottle, during the commission of the assault,
                and further . . . intentionally, knowingly[,] and recklessly
                caus[ing] serious bodily injury to [complainant] . . . by cutting
                complainant with a broken glass bottle, a deadly weapon.
       Villasenor-Ortiz pleaded guilty on December 19, 2003, and received ten years deferred
adjudication probation. His probation was later revoked, and Villasenor-Ortiz was sentenced
to two years of imprisonment.
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                                   No. 16-10366
Ortiz to a below-Guidelines sentence of thirty-nine months of imprisonment
and no period of supervised release. 4
                                         II.
      We have jurisdiction to hear this appeal under 28 U.S.C. § 1291 and
18 U.S.C. § 3742.
      We review the district court’s application of the Guidelines de novo.
United States v. Mungia-Portillo, 484 F.3d 813, 815 (5th Cir. 2007). Because
neither party objected to the classification of Villasenor-Ortiz’s previous
conviction as a crime of violence, we review for plain error. See Puckett v.
United States, 556 U.S. 129, 135 (2009). Plain error review involves four
prongs:
             (1) “there must be an error or defect—some sort of
             [d]eviation from a legal rule—that has not been
             intentionally relinquished or abandoned”; (2) “the
             legal error must be clear or obvious, rather than
             subject to reasonable dispute”; (3) “the error must have
             affected the appellant’s substantial rights”; and (4) “if
             the above three prongs are satisfied, the court of
             appeals has the discretion to remedy the error—
             discretion which ought to be exercised only if the error
             seriously affect[s] the fairness, integrity or public
             reputation of judicial proceedings.”
United States v. Escalante-Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc)
(alterations in original) (emphasis omitted) (quoting Puckett, 556 U.S. at 135).
                                         III.
                                         A.
      Under U.S.S.G. § 2L1.2(b)(1)(A)(ii), a defendant that is convicted of
illegal reentry receives a sixteen-level enhancement to his base offense level if
he was previously deported after being convicted of a felony that is a crime of


      4 The sentence pronounced at the sentencing hearing was forty months, but with a
month credit for time that Villasenor-Ortiz spent in immigration custody.
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                                   No. 16-10366
violence. The commentary to this section provides that “crime of violence”
includes aggravated assault. U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).
      In determining whether a defendant’s conviction qualifies as a particular
enumerated offense, we apply the categorical approach under which the “focus
[is] solely on whether the elements of the crime of conviction sufficiently match
the elements of [the enumerated offense], while ignoring the particular facts of
the case.” Mathis v. United States, 136 S. Ct. 2243, 2248 (2016) (citation
omitted).    Where a statute has a divisible structure, the comparison of
elements is more difficult. Id. at 2249. “To address that need, [the Supreme
Court] approved the ‘modified categorical approach’ for use with statutes
having multiple alternative elements,” under which “a sentencing court looks
to a limited class of documents (for example, the indictment, jury instructions,
or plea agreement and colloquy) to determine what crime, with what elements,
a defendant was convicted of.” Id. (citation omitted). The court then compares
that crime with the relevant generic offense. Id.
      “Because the guidelines do not define the enumerated crimes of violence,
[we] adopt[] a ‘common sense approach,’ defining each crime by its ‘generic,
contemporary meaning.’” United States v. Sanchez-Ruedas, 452 F.3d 409, 412
(5th Cir. 2006) (quoting United States v. Izaguirre-Flores, 405 F.3d 270, 275 &
n.16 (5th Cir. 2005) and United States v. Dominguez-Ochoa, 386 F.3d 639, 642–
43 (5th Cir. 2004)).    We have previously conducted this analysis for the
purposes of generic aggravated assault and determined that the two most
common aggravating factors are “the causation of serious bodily injury and the
use of a deadly weapon.” See Mungia-Portillo, 484 F.3d at 817 (citing United
States v. Fierro-Reyna, 466 F.3d 324, 328 (5th Cir. 2006)). Furthermore, we
have noted “that a defendant’s mental state in committing an aggravated
assault,    whether   exhibiting   ‘depraved   heart’   recklessness   or   ‘mere’
recklessness, is not dispositive of whether the aggravated assault falls within
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                                      No. 16-10366
or outside the plain, ordinary meaning of the enumerated offense of aggravated
assault.” Id. Applying this framework, we have determined that the version
of the Texas aggravated assault statute under which Villasenor-Ortiz was
convicted qualifies as the enumerated offense of aggravated assault, and thus
was a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). 5 United States v.
Guillen-Alvarez, 489 F.3d 197, 198–201 (5th Cir. 2007).
                                            B.
       Villasenor-Ortiz maintains that his conviction for Texas aggravated
assault no longer qualifies as the enumerated offense of aggravated assault.
His argument is based on Mathis, wherein the Supreme Court determined that
Iowa’s burglary statute was not the enumerated offense of burglary under the
Armed Career Criminal Act.              136 S. Ct. at 2257.           In reaching this
determination, the Supreme Court noted that Iowa’s burglary statute covers
more conduct that generic burglary does because the Iowa statute criminalizes
entry into vehicles. Id. at 2250. Recognizing that a jury must find elements
unanimously, the Court went on to note that the statute’s listed locations for
committing burglary were not alternative elements, but rather alternative
means to establish a single element. Id. at 2248, 2250, 2256. Put another way,
some jurors could determine that a defendant burgled a vehicle and some
determine that the defendant burgled a dwelling, and the defendant would still
be convicted of burglary.        See id. at 2250, 2256.        Because the categorical
approach can only be used to determine elements, not means, the lower court




       5  We have also determined that earlier versions of the Texas aggravated assault
statute contain some conduct that qualifies as generic aggravated assault and some that does
not. See United States v. Sanchez-Sanchez, 779 F.3d 300, 303, 305 & n.18 (5th Cir.), cert.
denied, 135 S. Ct. 2911 (2015) (1988 version); Fierro-Reyna, 466 F.3d at 326, 329–30 (1974
version).
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                                       No. 16-10366
erred in looking to the record to determine which occupied structure the
defendant unlawfully entered. Id. at 2253. 6
       Turning to Villasenor’s underlying conviction, at the time of the offense,
Texas law on assault provided as follows:
              (a) A person commits an offense if the person:
                    (1) intentionally, knowingly, or recklessly causes
                    bodily injury to another, including the person’s
                    spouse;
                    (2) intentionally or knowingly threatens another
                    with imminent bodily injury, including the
                    person’s spouse; or
                    (3) intentionally or knowingly causes physical
                    contact with another when the person knows or
                    should reasonably believe that the other will
                    regard the contact as offensive or provocative.
TEX. PENAL CODE § 22.01 (2003). Texas law on aggravated assault at the time
provided as follows:
              (a) A person commits an offense if the person commits
              assault as defined in § 22.01 and the person:
                    (1) causes serious bodily injury to another,
                    including the person’s spouse; or
                    (2) uses or exhibits a deadly weapon during the
                    commission of the assault.
TEX. PENAL CODE § 22.02 (2003). 7
       Relying on Landrian v. State, 268 S.W.3d 532 (Tex. Crim. App. 2008),
Villasenor-Ortiz argues that the Texas aggravated assault statute provides
means, not elements, and therefore is not divisible under Mathis.                        More



       6 We recently applied Mathis to determine that the Texas simple assault statute was
not divisible with respect to the mens rea requirement. See Gomez-Perez v. Lynch, 829 F.3d
323, 328 (5th Cir. 2016) (“Texas’s assault statute can be committed by mere reckless conduct
and thus does not qualify as a crime involving moral turpitude, which requires a more
culpable mental state.”).
       7The version of section 22.02 in effect at the time of Villasenor-Ortiz’s offense was the
version effective September 1, 1994. See 1993 Tex. Sess. Law Serv. 3586, 3619–20.
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                                        No. 16-10366
specifically, he maintains that (1) the various mens rea set forth in section
22.01(a) are not divisible and (2) the two aggravating factors in section 22.02(a)
are not divisible. The fundamental flaw with Villasenor-Ortiz’s argument,
however, is that Mathis applies where the conduct at issue is broader than the
conduct in the enumerated offense. See Mathis, 136 S. Ct. at 2257 (“Because
the elements of Iowa’s burglary law are broader than those of generic burglary,
Mathis’s convictions under that law cannot give rise to an ACCA sentence.”
(emphasis added)). That is not the case here. We have already held that the
ways of committing the version of Texas aggravated assault that Villasenor-
Ortiz challenges are included within the generic offense of aggravated assault. 8
See Guillen-Alvarez, 489 F.3d at 199–201 (relying on Mungia-Portillo, 484 F.3d
at 815–17). 9 We have held that both subsections of section 22.02(a) fall within
the scope of generic aggravated assault and that recklessness does not bring
the conduct outside of the scope of generic aggravated assault. 10 See id.; see




       8  We note again, however, that we have held that earlier versions of the Texas
aggravated assault statute cover conduct that falls outside of the scope of generic aggravated
assault. See Sanchez-Sanchez, 779 F.3d 303, 305 & n.18; Fierro-Reyna, 466 F.3d at 326, 329–
30 (5th Cir. 2006). Because Villasenor-Ortiz was not convicted under either of the versions
of the statute at issue in those cases, we express no opinion as to the effect, if any, of Mathis
on these earlier versions of the Texas aggravated assault statute.
       9  At oral argument, Villasenor-Ortiz attempted to distinguish Guillen-Alvarez and
Mungia-Portillo on the ground that, in those cases, the court used the modified categorical
approach to determine the conduct underlying the defendants’ offenses. Although in both
cases we noted the charging instrument alleged the offense involved a deadly weapon, we
still considered the entirety of the state aggravated assault statutes to determine whether
they constituted generic aggravated assault. Guillen-Alvarez, 489 F.3d at 199; Mungia-
Portillo, 484 F.3d at 815. More specifically, in Mungia-Portillo, “[w]e assumed without
deciding that Mungia pleaded guilty to the least culpable mental state, ‘recklessly.’” Guillen-
Alvarez, 489 F.3d at 200. Accordingly, Villasenor-Ortiz’s identified distinction is not a
meaningful reason to depart from our binding precedent.
       10Villasenor-Ortiz further notes that the Fourth Circuit has expressly disagreed with
Guillen-Alvarez’s conclusion that offenses that can be committed recklessly are within the
scope of generic aggravated assault. See United States v. Barcenas–Yanez, 826 F.3d 752,
756–58 (4th Cir. 2016); see also United States v. Garcia-Jimenez, 807 F.3d 1079, 1085–86 (9th
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also Mungia-Portillo, 484 F.3d at 817. It is therefore irrelevant whether the
challenged statutory alternatives are considered means or elements. 11
Accordingly, Villasenor-Ortiz’s argument fails the first prong of plain error
review: there was no error. Alternatively, any such error was not plain, given
the analysis above. 12
       AFFIRMED.




Cir. 2015). We are nonetheless bound by Guillen-Alvarez under this court’s rule of
orderliness. See Spong v. Fid. Nat’l Prop. & Cas. Ins. Co., 787 F.3d 296, 305 (5th Cir. 2015).
       11 It is for this reason that Gomez-Perez, is distinguishable. There, we had to decide
whether Texas assault qualified as a crime involving moral turpitude. 829 F.3d at 325. We
noted that, for a crime to involve moral turpitude, it must involve an intentional act, and
Texas assault included reckless conduct. Id. Because Texas law had determined that the
three culpable mental states in the statute were means, not elements, the statute was not
divisible under Mathis. Id. at 328.
       12 We therefore need not, and do not, reach the Government’s alternative argument
for applying the sixteen-level enhancement—that Texas aggravated assault is a crime of
violence under the “use of force” clause. See U.S.S.G. § 2L1.2(b)(1)(A) cmt. n.1(B)(iii).
                                              8
