     Case: 12-51286      Document: 00512584804         Page: 1    Date Filed: 04/03/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 12-51286
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             April 3, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff−Appellee,

versus

SILVIA MANUELA PADILLA-LOERA,

                                                 Defendant−Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:11-CR-2169-1




Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Silvia Manuela Padilla-Loera pleaded guilty of illegally reentering the



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-51286

United States after deportation. On appeal of her sentence, she challenges a
sixteen-level increase in her offense level based on a pre-deportation conviction
in Oklahoma for assault and battery with a dangerous weapon, which was
deemed a “crime of violence” (“COV”) under U.S.S.G. § 2L1.2(b)(1)(A)(ii). We
review Padilla-Loera’s challenge de novo because she properly objected to the
increase in the district court. See United States v. Ortiz-Gomez, 562 F.3d 683,
684 (5th Cir. 2009).
      A COV is defined as any of several enumerated offenses, including
“aggravated assault.” § 2L1.2, comment. (n.1(B)(iii)). Because we agree with
the district court that the Oklahoma offense qualifies as an aggravated assault,
we need not decide in the alternative whether it “has as an element the use,
attempted use, or threatened use of physical force.”        § 2L1.2, comment.
(n.1(B)(iii)); see United States v. Velasco, 465 F.3d 633, 637 & n.4 (5th Cir.
2006).
      We determine whether a prior offense is an enumerated COV by looking
to the elements of the offense rather than the defendant’s conduct. Descamps
v. United States, 133 S. Ct. 2276, 2287−88; United States v. Martinez-Flores,
720 F.3d at 293, 296 (5th Cir. 2013). If the elements are the same as or
narrower than the “generic, contemporary meaning” of the enumerated
offense, the prior offense is a COV. Id. at 295−96. Where a “statute sets out
one or more elements of the offense in the alternative,” and some elements
make the generic enumerated offense while others do not, we may “consult a
limited class of documents, such as indictments and jury instructions, to
determine which alternative formed the basis of the defendant’s prior convic-
tion.” Descamps, 133 S. Ct. at 2281. We then compare the elements of the
offense, as narrowed by the documents, with the elements of the generic
offense. See id.



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                                 No. 12-51286

      The generic contemporary definition of “aggravated assault” is an
assault that is aggravated by either of two traditional factors, namely “serious”
bodily injury or the use of a deadly weapon. See Martinez-Flores, 720 F.3d at
296, 299 & nn.6 & 7 (referring to MODEL PENAL CODE § 211.1(2)); United States
v. Guerrero-Robledo, 565 F.3d 940, 946 47 (5th Cir. 2009) (same). The Okla-
homa statute provides,
      Every person who, with intent to do bodily harm . . . commits any
      assault, battery, or assault and battery upon the person of another
      with any sharp or dangerous weapon, or who . . . shoots at another,
      with any kind of firearm, air gun, conductive energy weapon or
      other means whatever . . . is guilty of a felony . . . .
21 OK. ST. ANN. § 645 (emphasis added). Under Oklahoma law, the “dangerous
weapon is what distinguishes the crime of an assault with a dangerous weapon
with intent to do bodily harm from a simple assault.”          Wilcox v. State,
166 P. 74, 75 (Ok. Crim. App. 1917). The approved state-court documents show
that Padilla-Loera was convicted under the “dangerous weapon” alternative.
      Padilla-Loera contends that the Oklahoma crime is not generic aggra-
vated assault because it does not require “serious” bodily harm but only “bodily
harm.” We need not answer this contention because, even without “serious”
bodily injury, a simple assault that is made “aggravated” by the use of a deadly
weapon is a COV. See United States v. Guillen-Alvarez, 489 F.3d 197, 199 (5th
Cir. 2007); cf. Martinez-Flores, 720 F.3d at 295, 298-99 & n.6 (indicating that
the defendant’s prior offense would have been aggravated assault had he been
convicted of using a deadly weapon as originally charged); Velasco, 465 F.3d at
637 n.4 (noting in dictum that the conviction would be an aggravated assault
under the Model Penal Code because the defendant used a weapon). Padilla-
Loera’s prior offense was a generic aggravated assault under the dangerous-
weapon provision of the Oklahoma statute.




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                                 No. 12-51286

      Padilla-Loera nonetheless maintains that the Oklahoma crime is not
aggravated assault because it requires the use of a “dangerous” weapon rather
than a “deadly” one. That conclusional assertion deserves merits no considera-
tion because it merely presumes, without explanation, that there is a distinc-
tion between a “dangerous” weapon and a “deadly” one. See United States v.
McMillan, 600 F.3d 434, 457 n.75 (5th Cir. 2010) (declining to review conclu-
sional assertions).
      In any event, we have not recognized any distinction between a danger-
ous weapon and a deadly one. The guideline definition of “aggravated assault”
refers to “a dangerous weapon,” which is defined to include “an instrument
capable of inflicting death or serious bodily injury.”     § 1B1.1, comment.
(n.1(D)(i) (dangerous weapon)); § 2A2.2, comment. (n.1) (aggravated assault).
Likewise, under Oklahoma law, “[a] dangerous weapon is one likely to produce
death or great bodily injury by the use made of it.” Wilcox, 166 P. at 75. The
Model Penal Code similarly defines a “deadly weapon” as any item “‘which in
the manner it is used or is intended to be used is known to be capable of pro-
ducing death or serious bodily injury.’” United States v. Sanchez-Ruedas, 452
F.3d 409, 414 (5th Cir. 2006) (quoting MODEL PENAL CODE § 210.0(4)). Further,
our pattern jury instructions use a single, similar definition for the inclusive
term “deadly or dangerous weapon.” 5th CIR. PATTERN JURY INSTRUCTIONS:
CRIMINAL §§ 2.09, 2.79 (2012); see United States v. Williams, 520 F.3d 414, 421
(5th Cir. 2008).
      The judgment of sentence is AFFIRMED.




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