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

                                                                            FILED
                                                                        November 16, 2007

                                       No. 06-41235                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

JOSE JAVIER PERAZA-CHICAS

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 2:06-cr-00204-ALL


Before BENAVIDES, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Jose Javier Peraza-Chicas appeals from his 52-
month sentence entered on his plea of guilty to illegal reentry into the United
States after deportation, claiming an improper sentencing enhancement for a
prior felony conviction.        He also challenges the constitutionality of the
sentencing enhancement regime of 8 U.S.C. § 1326(b). For the reasons that
follow, we affirm the district court’s sentence.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 06-41235

             I. FACTS AND PROCEDURAL BACKGROUND
      Defendant-Appellant Jose Javier Peraza-Chicas (“Peraza”) is a citizen of
El Salvador. On July 20, 2004, Peraza pleaded guilty to aggravated assault in
state court in Maricopa County, Arizona, arising from an incident during which
he broke into his girlfriend’s mother’s home and threatened his girlfriend with
a knife. He received a one year jail sentence and two years probation. On
February 22, 2005, Peraza was released to the custody of United States
Immigration and Customs Enforcement, and on October 26, 2005, he was
deported through Houston to El Salvador. On March 7, 2006, United States
Border Patrol agents arrested Peraza near a border checkpoint in Brooks
County, Texas.
      On May 2, 2006, Peraza pleaded guilty (with no plea agreement) to illegal
reentry to the United States following deportation, in violation of 8 U.S.C.
§ 1326. Peraza had neither sought nor obtained permission from the United
States Attorney General or the Secretary of Homeland Security to re-apply for
admission to the United States.
      Using the 2005 edition of the United States Sentencing Commission’s
Guidelines Manual, the presentencing report (PSR) recommended a base offense
level of eight. See U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(a) (2005). The
report recommended a sixteen-level enhancement for Peraza’s prior Arizona
conviction for aggravated assault, as a crime of violence. See id. § 2L1.2(b)(1)(A).
Finally, the report recommended a three-level downward adjustment for
acceptance of responsibility and timely notification of his intent to plead guilty.
See id. § 3E1.1(a) & (b). This resulted in a total offense level of 21.
      The PSR assessed two criminal history points for Peraza’s prior conviction,
see id. § 4A1.1(b), two points because he reentered the United States while still
on probation, see id. § 4A1.1(d), and one point because he illegally reentered less
than two years after he was released from custody, see id. § 4A1.1(e). With five

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criminal history points, Peraza earned a criminal history category of III. A total
offense level of 21 and a criminal history category of III subject Peraza to a
punishment range of 46 to 57 months under the Guidelines. See id. ch. 5, pt. A
(sentencing table). The PSR also noted that Peraza was an admitted member
of the Mara-Salvatrucha (MS-13) gang, though he claimed to no longer be a
member.
      Peraza objected to the PSR, arguing that the Arizona statute under which
he was convicted did not qualify as a “crime of violence” under the Guidelines,
and that use of a prior conviction as a factor in raising the statutory maximum
sentence under 8 U.S.C. § 1326 is unconstitutional.
      Overruling Peraza’s objections, the district court sentenced him to 52
months imprisonment, followed by three years supervised release. The district
court imposed the mandatory special assessment of $100 but did not impose a
fine. The district court also instructed Peraza not to be affiliated with any
organized gang or gang members. Peraza timely appealed.
           II. JURISDICTION AND STANDARD OF REVIEW
      We have jurisdiction over this appeal under 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a)(2). The district court’s characterization of Peraza’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. Calderon-Pena, 383 F.3d 254,
256 (5th Cir. 2004) (en banc).
                              III. DISCUSSION
A.    Crime of Violence Enhancement
      The Sentencing Guidelines provide a sixteen-level enhancement for a prior
“crime of violence.” U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(b)(1)(A). The
Guidelines’ commentary defines a crime of violence as (1) any of a list of
enumerated offenses, which includes “aggravated assault,” or (2) “any offense
under federal, state, or local law that has as an element the use, attempted use,

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or threatened use of physical force against the person of another.” Id. § 2L1.2
cmt. n.1(B)(iii).1 The commentary does not define aggravated assault.
      The Arizona aggravated assault statute under which Peraza was originally
convicted provides, “A person commits aggravated assault if such person
commits assault as defined in § 13-1203 under any of the following
circumstances: . . . 2. If such person uses a deadly weapon or dangerous
instrument.” ARIZ. REV. STAT. ANN. § 13-1204(A)(2) (West 2005). Assault is
defined under § 13-1203 as follows:
      A person commits assault by:
            1. Intentionally, knowingly or recklessly causing any physical
            injury to another person; or
            2. Intentionally placing another person in reasonable
            apprehension of imminent physical injury; or
            3. Knowingly touching another person with the intent to
            injure, insult or provoke such person.
Id. § 13-1203(A).      A “dangerous instrument” is “anything that under the
circumstances in which it is used, attempted to be used or threatened to be used
is readily capable of causing death or serious physical injury.” Id. § 13-105(8).
      Peraza’s indictment charged that he, “on or about the 22nd day of
February, 2004, using a KNIFE, a deadly weapon or dangerous instrument,
intentionally placed ANA CARRASCO in reasonable apprehension of imminent
physical injury . . . .” The indictment tracks the language of § 13-1203(A)(2). See
United States v. Mungia-Portillo, 484 F.3d 813, 815 (5th Cir. 2007) (“In
determining which subpart of the statute formed the basis for [the defendant’s]
conviction, . . . [we] examine ‘the statutory definition, charging document,
written plea agreement, transcript of plea colloquy, and any explicit factual



      1
         “The commentary to § 2L1.2 is binding and is equivalent in force to the Guideline
language itself, as long as the language and the commentary are not inconsistent.” United
States v. Guillen-Alvarez, 489 F.3d 197, 199 n.1 (5th Cir. 2007) (citing United States v.
Rayo-Valdez, 302 F.3d 314, 318 n.5 (5th Cir. 2002)).

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finding by the trial judge to which the defendant assented.’” (quoting Shepard
v. United States, 544 U.S. 13, 16 (2005)).
      Peraza argues that the district court improperly determined his prior
conviction for aggravated assault to be a crime of violence under U.S.S.G.
§ 2L1.2(b)(1)(A) because (1) the Arizona statute is broader than the usual
meaning of aggravated assault and thus cannot be included as one of the
enumerated offenses under the Guidelines; and (2) the Arizona statute lacks as
an element the use, attempted use, or threatened use of physical force.
      When determining whether a prior offense constitutes a crime of violence
as an enumerated offense under U.S.S.G. § 2L1.2(b)(1)(A), we employ a “common
sense” approach. Mungia-Portillo, 484 F.3d at 816 (citing United States v.
Mendoza-Sanchez, 456 F.3d 479, 481-82 (5th Cir. 2006)). “[W]here, as here, the
enhancement provision does not specifically define the enumerated offense, we
must define it according to its ‘generic, contemporary meaning,’ and should rely
on a uniform definition, regardless of the ‘labels employed by the various States’
criminal codes.’” United States v. Dominguez-Ochoa, 386 F.3d 639, 642-43 (5th
Cir. 2004) (quoting Taylor v. United States, 495 U.S. 575, 592, 598 (1990))
(citations omitted). It is not enough merely to rely on the label a state statute
applies to the offense. United States v. Fierro-Reyna, 466 F.3d 324, 326-27 (5th
Cir. 2006).
      We compare the generic, contemporary meaning of the crime with the
state conviction, examining elements of the statute of conviction, rather than the
specifics of the defendant’s conduct. Id. at 328. “‘When the statute of conviction
encompasses prohibited behavior that is not within the plain, ordinary meaning
of the enumerated offense,’ the conviction is not a crime of violence as a matter
of law.” Id. at 327 (quoting United States v. Izaguirre-Flores, 405 F.3d 270, 276-
77 (5th Cir. 2005)). A statute of conviction need not correlate precisely with the
generic definition; “minor differences” between definitions are acceptable.

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United States v. Santiesteban-Hernandez, 469 F.3d 376, 381 (5th Cir. 2006). The
question before us is whether the Arizona statute exceeds the bounds of the
generic, contemporary meaning of “aggravated assault” as referenced by the
Sentencing Guidelines’ enumerated list of offenses. We hold that it does not.
      “To establish the generic contemporary meaning of an enumerated offense,
we consider, inter alia, the Model Penal Code, Professors LaFave’s and Scott’s
treatises, modern state codes, and dictionaries.” Dominguez-Ochoa, 386 F.3d at
644-45.   “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). Under the Model Penal Code, a person is guilty
of aggravated assault if he:
      (a) attempts to cause serious bodily injury to another, or causes such
      injury purposely, knowingly or recklessly under circumstances
      manifesting extreme indifference to the value of human life; or
      (b) attempts to cause or purposely or knowingly causes bodily injury
      to another with a deadly weapon.

MODEL PENAL CODE § 211.1(2). Unlike the Arizona aggravated assault statute,
the Model Penal Code requires that a defendant cause or attempt to cause bodily
injury to the victim. The provision of the Arizona statute under which Peraza
was convicted—which adds aggravating factors (e.g., use of a deadly weapon) to
elevate simple assault to aggravated assault—implicates conduct that involves
neither causing nor attempting to cause bodily injury. See ARIZ. REV. STAT.
§ 13-1203(A)(2) (“placing another person in reasonable apprehension of
imminent physical injury”). Thus, the Arizona conviction statute is broader than
the Model Penal Code. It is not obvious whether that difference exceeds the
“minor differences” allowed under the common sense approach.
      LaFave’s treatise provides little to illuminate this question:
      It seems clear that one who, with a loaded or unloaded gun, intends
      only to frighten his victim without shooting him has no “intent to
      murder” or “intent to kill,” though, as we have seen, in most

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      jurisdictions he is guilty of simple assault if he succeeds in
      frightening the other. One who, in such a jurisdiction, aims an
      unloaded gun with intent to frighten is guilty of simple assault if he
      succeeds in causing apprehension, but not of aggravated assault
      “with a dangerous weapon,” the gun being unloaded.

2 WALTER R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 16.3(d) (2d ed. 2007).
LaFave does not address directly the question of whether threatening another
with a deadly weapon can constitute aggravated assault; however, one of the
cases he cites suggests that it does. See State v. Baker, 38 A. 653 (R.I. 1897)
(affirming conviction of assault “with a dangerous weapon” where defendant
fired a loaded pistol at the victim, intending only to scare—and succeeding only
in scaring—the victim).
      Black’s Law Dictionary provides a mixed answer. It defines aggravated
assault as “[c]riminal assault accompanied by circumstances that make it more
severe, such as the intent to commit another crime or the intent to cause serious
bodily injury, esp. by using a deadly weapon.” BLACK’S LAW DICTIONARY 122 (8th
ed. 2004).   This seems to imply that use of a deadly weapon is only an
aggravating circumstance when it is used with the intent to cause serious bodily
injury. However, supporting a contrary position later in the same entry, the
dictionary defines “assault with a deadly weapon” as “[a]n aggravated assault
in which the defendant, using a deadly weapon, threatens the victim with death
or serious bodily injury.” BLACK’S LAW DICTIONARY 122 (emphasis added).
Therefore, Black’s Law Dictionary provides no clear support for removing
Arizona’s aggravated assault statute from the generic, contemporary meaning
of that crime.
      Peraza argues that the Arizona statute is a minority approach and thus
not representative of the generic, contemporary meaning of aggravated assault.
He notes that thirty-one states (including the District of Columbia) require a
showing of at least causing serious bodily injury or causing bodily injury with a

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deadly weapon. The remaining nineteen states, Peraza notes, have aggravated
assault statutes similar to Arizona’s. This, Peraza contends, places Arizona’s
statute in the minority of U.S. jurisdictions and therefore outside the generic,
contemporary meaning of the enumerated offense. “Where only a small minority
of states support a particular viewpoint regarding the generic, contemporary
meaning of an enumerated offense, and where the Model Penal Code supports
the contrary position, this court has rejected the position of the minority and
adopted that of the Model Penal Code.” Fierro-Reyna, 466 F.3d at 329 (finding
a rule followed by only seven states not to be part of the generic, contemporary
meaning of aggravated assault); see also Dominguez-Ochoa, 386 F.3d at 643, 646
(finding a rule followed by nine states insufficient to constitute the generic,
contemporary meaning, where a larger number of states employed a different
definition). However, a strict numerical approach is not dispositive. If fully
twenty states (including Arizona) follow a certain approach in criminal statutes,
that does not seem to us like a “small minority.” Furthermore, removing nearly
half of the state aggravated assault statutes from the Guidelines’ enumerated
list of “crimes of violence” would undermine the goal of that provision. See
United States v. Rayo-Valdez, 302 F.3d 314, 317 (5th Cir. 2002) (“The
[Sentencing] Commission has predetermined that, regardless of their
circumstances or the way they are defined by state laws, the [enumerated]
offenses are inherently violent and forceful, or inherently risk violence and use
of force.”).
       Our previous analysis of similar statutes is instructive on this question.
In Mungia-Portillo, we held that a prior conviction under the Tennessee
aggravated assault statute was a crime of violence under the Guidelines’
enumerated offense of aggravated assault. 484 F.3d 813. Under the relevant
Tennessee statute,
       (a) A person commits aggravated assault who:

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              (1) Commits an assault as defined in § 39-13-101, and:
                    (A) Causes serious bodily injury to another; or
                    (B) Uses or displays a deadly weapon ....

TENN.CODE ANN. § 39-13-102 (1991). In addition,
      (a) A person commits assault who:
            (1) Intentionally, knowingly or recklessly causes bodily injury to
            another;
            (2) Intentionally or knowingly causes another to reasonably fear
            imminent bodily injury; or
            (3) Intentionally or knowingly causes physical contact with another
            and a reasonable person would regard the contact as extremely
            offensive or provocative.

Id. § 39-13-101.
      Based on the indictment, the court determined that the defendant was
convicted under the definition of assault in § 39-13-101(a)(1), which was elevated
to aggravated assault by meeting both aggravating factors: causing serious
bodily injury and use of a deadly weapon. Mungia-Portillo, 484 F.3d at 815. The
Model Penal Code and the Tennessee statute differed in their definitions of
“reckless.”   The defendant argued that the Model Penal Code required a
“depraved heart” recklessness, a higher mental state than the Tennessee
statute’s “mere” recklessness. Id. at 817. Nevertheless, the court compared the
Tennessee law to the Model Penal Code, Wayne F. LaFave’s Substantive
Criminal Law treatise, and Black’s Law Dictionary, and held the differences
“sufficiently minor” that they did not remove it “from the family of offenses
commonly known as ‘aggravated assault.’” Id. (quoting United States v. Sanchez-
Ruedas, 452 F.3d 409, 414 (5th Cir. 2006)).
      Similarly, in United States v. Guillen-Alvarez, we concluded that the Texas
aggravated assault statute is a crime of violence for purposes of the Guidelines.
489 F.3d 197, 200-01 (5th Cir. 2007). The relevant Texas statute reads:
      (a) A person commits an offense [of aggravated assault] if the person
      commits assault as defined in Section 22.01 and the person:

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              (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 ANN. § 22.02 (Vernon 2000). Under section 22.01, a person
commits assault if he:
       (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.

Id. § 22.01.2 The defendant argued, as Peraza does in this case, that the
Texas statute was broader than the offense of aggravated assault enumerated
in the Guidelines. Finding that the Texas aggravated assault statute was
“identical in all material respects” to the Tennessee statutes analyzed in
Mungia-Portillo and contained “only minor differences,” we held the Texas
statute to be a crime of violence. Guillen-Alvarez, 489 F.3d. at 200-01 (“In
light of the essential similarity of the relevant provisions of the Texas
aggravated assault statute and the Tennessee aggravated assault statute, we
conclude that Mungia-Portillo controls this decision [and] compels the
conclusion that [the defendant’s] aggravated assault conviction qualifies as a
conviction for the enumerated offense of ‘aggravated assault’ . . . .”).
       Given the close similarity between the relevent Tennessee, Texas, and
Arizona statutes, Mungia-Portillo and Guillen-Alvarez control our decision in
this case. Indeed, the Arizona statute is nearly identical to the relevant


       2
        Based on the state court’s judgment declaring the convicted offense to be “aggravated
assault with a deadly weapon, to wit: a knife,” we determined that the defendant was convicted
under § 22.02, without considering which subsection of § 22.01 was controlling.
Guillen-Alvarez, 489 F.3d at 199.

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                                     No. 06-41235

aggravated assault statutes in Tennessee and Texas, which we held to be
covered under the Guidelines’ enumerated list. Therefore, under our analysis
of the generic, contemporary meaning of aggravated assault, and following
controlling precedent, we conclude that the district did not err in finding
Peraza’s Arizona conviction to be a crime of violence under the Guidelines’
enumerated offenses.3
B.       Constitutionality of § 1326(b)
         Peraza’s constitutional challenge to 8 U.S.C. § 1326(b) is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998). Although he
argues that Almendarez-Torres was incorrectly decided and that a majority of
the Supreme Court would overrule Almendarez-Torres in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000), we have repeatedly rejected such arguments
on the basis that Almendarez-Torres remains binding. Guillen-Alvarez, 489
F.3d at 201. Peraza concedes that his argument is foreclosed and raises it
here to preserve it for further review.
                                IV. CONCLUSION
         We find that Peraza’s prior conviction is a “crime of violence” under the
Sentencing Guidelines and that his Apprendi claim is foreclosed by Supreme
Court precedent. We therefore AFFIRM the sentence imposed by the district
court.
         AFFIRMED.




         3
        Because we find Arizona’s statute falls under the generic, contemporary meaning of
aggravated assault, we need not consider whether the statute has as an element the use,
attempted use, or threatened use of physical force. See U.S. SENTENCING GUIDELINES MANUAL
§ 2L1.2 cmt. n.1(B)(iii).

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