                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                      F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                      October 9, 2006
                            FOR THE FIFTH CIRCUIT
                            _____________________                  Charles R. Fulbruge III
                                                                           Clerk
                                 No. 05-51429
                            _____________________

UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                   versus

JESUS HERNANDEZ-RODRIGUEZ,

                                             Defendant-Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                 for the Western District o Texas
                     USDC No. 2:05-CR-124-ALL
_________________________________________________________________

Before JOLLY, DAVIS, and WIENER, Circuit Judges.

PER CURIAM:

      Jesus Hernandez-Rodriguez appeals from the sentence imposed

upon his conviction for illegal reentry in violation of 8 U.S.C. §

1326(a). He contends that the district court erred in finding that

his conviction under Texas Penal Code § 22.05(b)(1) triggered the

16-level     crime-of-violence      adjustment       under   the     sentencing

guideline § 2L1.2(b)(1)(A)(ii).         Hernandez-Rodriguez also argues

that, in the light of Apprendi v. New Jersey, 530 U.S. 466 (2000),

his   §   1326   sentence   was   limited   to   a   maximum   two    years    of

imprisonment.     For the forthcoming reasons, we AFFIRM the judgment

of the district court.
                                              I

     Jesus Hernandez-Rodriguez pled guilty before a magistrate

judge   to   illegal     reentry.          The      district   court      adopted       the

magistrate judge’s recommendation and accepted the guilty plea.

The probation officer who prepared the presentence report (“PSR”)

assigned Hernandez-Rodriguez a base offense level of eight pursuant

to the United States Sentencing Guidelines § 2L1.2.                        His offense

level was increased by 16 levels, under § 2L1.2(b)(1)(A)(ii)

because of his prior conviction for a crime of violence.                        According

to the PSR, Hernandez-Rodriguez pled guilty in 1996 to the crime of

“deadly conduct” in Houston, Texas.

     The PSR awarded a three-level decrease for acceptance of

responsibility, resulting in a total offense level of 21.                                It

determined Hernandez-Rodriguez’s criminal history category to be

IV, subjecting him to an advisory guidelines range of 57 to 71

months of imprisonment.

     At sentencing, Hernandez-Rodriguez objected to the 16-level

increase on the grounds that his conviction for deadly-conduct did

not qualify as a “crime of violence” under § 2L1.2(b)(1)(A)(ii).

The district court overruled this objection but, on motion from

Hernandez-Rodriguez, it departed downward to an offense level of 19

based   on   a   finding    of        cultural      assimilation.         See    U.S.    v.

Rodriguez-Montelongo,           263    F.3d       429,   433-444   (5th    Cir.    2001)

(holding that the district court had discretion to consider a

downward     departure     on    the     basis      of   defendant’s      demonstrated

                                              2
cultural assimilation).     This departure resulted in a guidelines

sentencing range of 46 to 57 months.          The district court sentenced

Hernandez-Rodriguez to 48 months of imprisonment, followed by three

years of supervised release.        He timely appealed.

                                       II

     This case presents the question whether the district court

properly   construed    Hernandez-Rodriguez’s        Texas     deadly-conduct

conviction   as    a   crime      of    violence    for     purposes     of    §

2L1.2(B)(1)(A)(ii)     16-level    sentence     enhancement.      This   court

applies de novo review when considering this legal issue.                     See

United States v. Izaguirre-Flores, 405 F.3d 270, 272 (5th Cir.),

cert. denied, 126 S. Ct. 253 (2005).

     Section 2L1.2 of the Guidelines provides that the offense

level for unlawfully entering or remaining in the United States

shall be increased by 16 levels if the defendant has a prior

conviction for a “crime of violence.”           See § 2L1.2(b)(1)(A)(ii).

The commentary to § 2L1.2 defines “crime of violence” as: (1) any

specified enumerated offense or (2) “any offense under federal,

state, or local law that has as an element the use, attempted use,

or threatened use of physical force against the person of another.”

§ 2L1.2, comment. (n.(1)(B)(iii)). Neither party contends that the

deadly-conduct    offense   could      be   characterized    as   one   of    the

enumerated offenses; thus, the 16-level increase is warranted only

if Hernandez-Rodriguez’s Texas deadly-conduct offense qualifies as

a crime of violence because it has as an element “the use,

                                       3
attempted use, or threatened use of physical force against the

person of another.”       See United States v. Rodriguez-Rodriguez, 388

F.3d 466,    467   (5th    Cir.    2004)   (internal    quotation    marks   and

citation omitted).

     “When determining whether a prior offense is a crime of

violence because it has as an element the use, attempted use, or

threatened   use    of    force,     district    courts    must     employ   the

categorical approach established in Taylor v. United States, 495

U.S. 575, 602 (1990).”       United States v. Bonilla-Mungia, 422 F.3d

316, 320 (5th Cir.), cert. denied, 126 S. Ct. 819 (2005); United

States v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2004) (en

banc), cert. denied, 125 S. Ct. 932 (2005).            “If a statute contains

multiple, disjunctive subsections, courts may look beyond the

statute to certain conclusive records made or used in adjudicating

guilt in order to determine which particular statutory alternative

applies to the defendant’s conviction.” United States v. Gonzalez-

Chavez, 432 F.3d 334, 337 (5th Cir. 2005) (internal quotation marks

and citation omitted). “These records are generally limited to the

‘charging document, written plea agreement, transcript of the plea

colloquy, and any explicit factual finding by the trial judge to

which the defendant assented.’”            Id. at 337-38 (citing Shepard v.

United States, 544 U.S. 13, 16 (2005)).

     Texas law defines the crime of deadly conduct in pertinent

part as follows:



                                       4
          (a) A person commits an offense if he
          recklessly engages in conduct that places
          another in imminent danger of serious bodily
          injury.

          (b) A person commits an offense if he
          knowingly discharges a firearm at or in the
          direction of:

          (1) one or more individuals; or

          (2) a habitation, building, or vehicle and is
          reckless as to whether the habitation,
          building, vehicle is occupied.

          (c) Recklessness and danger are presumed if
          the actor knowingly pointed a firearm at or in
          the direction of another whether or not the
          actor believed the firearm to be loaded.

TEX. PENAL CODE ANN. § 22.05 (Vernon 2003). The indictment indicates,

and the parties agree, that Hernandez-Rodriguez was convicted of

violating § 22.05(b)(1).1

                                III

     Hernandez-Rodriguez argues that, because a conviction under §

22.05(b)(1) can be obtained by merely discharging a firearm in the

general direction of a person rather than at the person, the use of


     1
       Prior to 1994, § 22.05(b) created the presumption of
recklessness currently found at § 22.05(c). See United States v.
White, 258 F.3d 374, 382-83 (5th Cir. 2001). This court held that
an offense under § 22.05(b), as it previously existed, was not a
domestic crime of violence for purposes of 18 U.S.C. §
921(a)(33)(A)(ii) because it did not require the threatened use of
a deadly weapon against another person. White, 258 F.3d at 383.
White is distinguishable from the instant case, however, because §
22.05(b) as it existed at the time of White required only that the
defendant have “knowingly pointed a firearm at or in the direction
of another ....” Id. at 381 (emphasis added). The revised version
of § 22.05(b) requires that the defendant have actually discharged
the firearm. TEX. PENAL CODE ANN. § 22.05 (Vernon 2003).

                                 5
force is not a requisite element of the offense.               He analogizes to

this court’s decision in United States v. Alfaro, 408 F.3d 204 (5th

Cir.), cert. denied, 126 S. Ct. 271 (2005).            In Alfaro, this court

considered whether a conviction under VA. CODE ANN. § 18.2-279, for

shooting into     an   occupied      dwelling,     qualified    as    a   crime   of

violence for purposes of § 2L1.2.               Alfaro, 408 F.3d at 208-09.

This court found that the offense was not a crime of violence

because “a defendant could violate th[e] statute merely by shooting

a gun at a building that happens to be occupied without actually

shooting, attempting to shoot, or threatening to shoot another

person.”    Id. at 209.

      Alfaro is distinguishable from this case.                      The Virginia

statute outlawed discharging a firearm inside or at an occupied

building in such a manner as to endanger the life of another

person. See § 18.2-279; Alfaro, 408 F.3d at 208-09.                  Following the

categorical approach, the court in Alfaro focused on the fact that

the Virginia statute “did not require the use, the threatened use,

or attempted use of force against the person of another.”                    Id. at

209 (emphasis in original).

      The Virginia statute in Alfaro is more analogous to TEX. PENAL

CODE ANN. § 22.05(b)(2), which outlaws discharging a firearm at or

in   the   direction   of    a    habitation,    building,     or    vehicle   with

reckless    disregard       for    whether   the    structure       is    occupied.

Hernandez-Rodriguez, however, was convicted under § 22.05(b)(1),

which requires that a defendant discharge a firearm at or in the

                                        6
direction of one or more individuals.           Thus, the Texas statute,

unlike that in Alfaro, requires that a firearm be discharged at or

in the direction of another person.            Alfaro is not controlling

here.

          Hernandez-Rodriguez      maintains   that   an     offense   under   §

22.05(b)(1) is not a crime of violence because “if the defendant

knowingly chooses to shoot not at an individual, but merely in the

individual’s direction, he is decidedly not using force against the

person of another.”        This argument is unavailing.             An offense

qualifies as a crime of violence if it includes as an element “the

use, attempted use, or threatened use of physical force against the

person of another.”       § 2L1.2, comment. (n.(1)(B)(iii)) (emphasis

added). Whereas the knowing pointing of a firearm at another “when

done in obvious jest would not necessarily constitute threatened

use   of   a   deadly   weapon,”      White,   258    F.3d    at   384,   it   is

unreasonable to conclude that the purposeful discharge of that

weapon in the direction of a person would not “import[] ‘[a]

communicated intent to inflict physical or other harm.’”                  Id. at

383 (quoting BLACK’S LAW DICTIONARY 1480 (6th ed. 1990)). This element

of a conscious choice to discharge a firearm in the direction of an

individual would constitute a real threat of force against his

person.2 The offense of deadly conduct, as defined in TEX. PENAL CODE

      2
       Because the statute requires proof of “knowing” conduct as
an element of the offense, there is no possibility of conviction on
the basis of reckless or negligent behavior. See Brief for the
United States at 8.

                                       7
ANN. § 22.05(b)(1), therefore constitutes a crime of violence for

purposes of sentence enhancement under § 2L1.2(b).

                                     IV

       Hernandez-Rodriguez also challenges the constitutionality of

§    1326(b)’s   treatment   of   prior   felony   and   aggravated   felony

convictions as sentencing factors rather than elements of the

offense that must be found by a jury in the light of Apprendi v.

New Jersey, 530 U.S. 466 (2000).          This argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

“This court has repeatedly rejected arguments like the one made by

[Hernandez-Rodriguez] and has held that Almendarez-Torres remains

binding despite Apprendi.”        United States v. Garza-Lopez, 410 F.3d

268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).

                                      V

       For the foregoing reasons, the judgment of the district court

is

                                                                 AFFIRMED.




                                      8
