     Case: 11-20322     Document: 00511877473         Page: 1     Date Filed: 06/05/2012




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

                                                                            FILED
                                                                            June 5, 2012

                                       No. 11-20322                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

GUADALUPE VILLANUEVA,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                           USDC No. 4:11-cr-00010-ALL


Before KING, HIGGINBOTHAM, and HAYNES, Circuit Judges.
PER CURIAM:*
        Guadalupe Villanueva pleaded guilty to illegal reentry in violation of 8
U.S.C. § 1326. He now appeals his sentence contending that the district court
erred in imposing a 16-level “crime of violence” enhancement based on his 1991
Texas conviction for the aggravated assault of a peace officer. We find that his
prior conviction for aggravated assault constitutes a “crime of violence” under
our precedents interpreting the Sentencing Guidelines and that 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-20322

enhancement was properly applied. Therefore, we AFFIRM the sentence
imposed by the district court on Villanueva.
             I. FACTUAL AND PROCEDURAL BACKGROUND
      This sole issue in this case is whether the sentence meted out to
Defendant-Appellant Guadalupe Villanueva (“Villanueva”) was proper. On July
25, 1991, Villanueva, a citizen of Mexico, was convicted of aggravated assault
under the Texas Penal Code and sentenced to 12 years imprisonment. He was
subsequently deported to Mexico on November 24, 1993, but at some point
crossed back into the United States and was convicted of illegal reentry in 1996.
He was deported to Mexico on October 3, 2001. However, on November 22, 2010,
Villanueva was found in Huntsville, Texas. Following his arrest in Huntsville,
Villanueva was charged with the present count of illegal reentry following his
deportation after having been convicted of an aggravated felony. See 8 U.S.C.
§§ 1326(a), (b)(2). On January 31, 2011, Villanueva pleaded guilty to this offense
in district court. He did not sign a plea agreement or otherwise waive his
appellate rights.
      The presentence investigation report (“PSR”) calculated Villanueva’s
sentence for the offense as follows. The base offense level for a violation of 8
U.S.C. § 1326(a) is 8. See U.S.S.G. § 2L1.2(a). The PSR then added 16 levels to
the base offense level because “Villanueva was previously deported after a
conviction for a felony that is a crime of violence, to-wit; [the 1991] aggravated
assault.”1 See id. § 2L1.2(b)(1)(A)(ii) (“If the defendant previously was


      1
       The PSR’s account of this crime, which Villanueva does not contest, is based on the
complaint and is as follows:
      [O]n August 10, 1990, while being transported to the county jail after his arrest
      [for purchasing marijuana], Villanueva pulled out a .38 caliber revolver, pointed
      it at officers, and told them that if they did not stop the vehicle and release him
      he would kill them. Villanueva was overpowered by officers and relieved of the
      weapon. Villanueva was originally charged with criminal attempt[ed] capital
      murder; but, he pled guilty to the lesser charge . . . . Count 1, which charged

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                                      No. 11-20322

deported . . . after . . . a conviction for a felony that is . . . a crime of violence . . .
increase [the offense level] by 16 levels . . . .”). Under U.S.S.G. § 3E1.1,
Villanueva had 3 offense levels deducted for his acceptance of responsibility.
These adjustments left him with a total offense level of 21. Combined with his
criminal history category of VI, the PSR arrived at a Guidelines’ recommended
range of imprisonment of 77–96 months.
       Villanueva timely submitted a written objection to the PSR, arguing that
his Texas aggravated assault conviction did not qualify as a “crime of violence”
under the commentary accompanying U.S.S.G. § 2L1.2 and that, therefore, he
should not have received the 16-level enhancement. Villanueva contended, citing
United States v. Fierro–Reyna, 466 F.3d 324, 327–29 (5th Cir. 2006), that Fifth
Circuit precedent held that where, as here, an otherwise simple assault made
“aggravated” solely on the basis of the victim’s status as a peace officer does not
qualify as a “crime of violence.”
       The district court was unpersuaded by Villanueva’s arguments. The court
reasoned that “if the [Texas] statute permits . . . the finding that the brandishing
of a weapon during the course of a threat makes it an aggravated assault, then
[it] would err . . . on the side of saying that this is . . . an aggravated
assault . . . on a peace officer.” The district court gave Villanueva “seven or eight
months’ credit” and then sentenced him to 70 months’ imprisonment followed by
a three-year term of supervised release.
       Villanueva now timely appeals his sentence on the sole ground that the
district court erred in imposing the 16-level enhancement for his 1991 Texas
conviction for aggravated assault on a peace officer.
                                   II. DISCUSSION
       A challenge to district court’s determination that a prior conviction is a


       aggravated assault, was dismissed, as Villanueva was convicted on Count 2
       which charged aggravated assault on a peace officer.

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“crime of violence” is an application of the Guidelines, and “[w]e review de novo
the district court’s interpretation or application of the Sentencing Guidelines.”
United States v. Asencio–Perdomo, 674 F.3d 444, 446 (5th Cir. 2012) (citation
omitted). Section 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines provides for a
16-level enhancement “[i]f the defendant previously was deported . . . after . . .
a conviction for a felony that is . . . a crime of violence.” The commentary to
§ 2L1.2 defines the term “crime of violence” in two relevant ways.2 First, as “any
of the following offenses under federal, state, or local law . . . [including]
aggravated assault.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Second, as “any other
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.” Id. Accordingly, Villanueva’s prior offense is a “crime of violence”—and
§ 2L1.2’s 16-level enhancement was correctly applied—if it “(1) has physical force
as an element, or (2) qualifies as one of the enumerated offenses,” such as
aggravated assault in this case. United States v. Herrera, 647 F.3d 172, 175 (5th
Cir. 2011) (internal quotation marks omitted). “This court uses different tests
when analyzing whether a particular offense amounts to a [crime of violence],
and the test used depends on whether the offense is an enumerated one or has
physical force as an element.” United States v. Moreno–Florean, 542 F.3d 445,
449 (5th Cir. 2008) (citing United States v. Mendoza–Sanchez, 456 F.3d 479,
481–82 (5th Cir. 2006) (per curiam)). We commence by examining whether
Villanueva’s 1991 conviction falls within the enumerated list of “crimes of
violence.”
       The fact that Villanueva was convicted of a crime that Texas has labeled
“aggravated assault” does not automatically transform it into an enumerated


       2
        “[T]he commentary to . . . § 2L1.2 . . . is binding, and equivalent in force to the
guideline language itself, as long as the language and the commentary are not inconsistent.”
United States v. Rayo–Valdez, 302 F.3d 314, 318 n.5 (5th Cir. 2002).

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“crime of violence.” Fierro–Reyna, 466 F.3d at 327; United States v. Sanchez, 667
F.3d 555, 560 (5th Cir. 2012) (“We should rely on a uniform definition, regardless
of the labels employed by the various States’ criminal codes.” (footnote and
internal quotation marks omitted)). Rather, “[b]ecause [§ 2L1.2’s] enumerated
offenses are not defined, we use a ‘common sense approach’ and give the offenses
their ‘generic, contemporary meaning.’” Fierro–Reyna, 466 F.3d at 327 (quoting
United States v. Sanchez–Ruedas, 452 F.3d 409, 412 (5th Cir. 2006) (citations
omitted)). In doing so, we normally only look “to the particular subdivision of the
statute under which the defendant was convicted rather than the defendant’s
specific conduct.” United States v. Diaz–Corado, 648 F.3d 290, 293 (5th Cir.
2011) (per curiam). However, if the statute of conviction contains a series of
disjunctive elements, we may look beyond the statute to certain records made or
used in adjudicating guilt to determine which subpart of the statute formed the
basis of the conviction. See, e.g., United States v. Mungia–Portillo, 484 F.3d 813,
815 (5th Cir. 2007). In such cases, the records we consider are “generally limited
to the charging document, written plea agreement, transcript of the plea
colloquy, and any explicit factual findings by the trial judge to which the
defendant assented.” United States v. Murillo–Lopez, 444 F.3d 337, 340 (5th Cir.
2006) (internal quotation marks omitted).
       Villanueva was convicted under the 1990 version of the Texas aggravated
assault statute,3 which provided that:
       (a) A person commits an offense if the person commits assault as
       defined in Section 22.01 of this code and the person:
              (1) causes serious bodily injury to another, including the
              person’s spouse; or



       3
          The statute has since been amended. See TEX. PENAL CODE § 22.02 (2009). We have
found convictions under more recent versions of the statute to qualify as “crimes of violence.”
See, e.g., United States v. Guillen–Alvarez, 489 F.3d 197, 200–01 (5th Cir. 2007).

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                 (2) threatens with a deadly weapon or threatens to cause
                 bodily injury or causes bodily injury to a . . . peace officer . . . .
                 when the person knows or has been informed the person
                 assaulted is . . . a peace officer . . . ; or
                 (3) causes bodily injury to a participant in a court proceeding
                 when the person knows or has been informed the person
                 assaulted is a participant in a court proceeding . . . ; or
                 (4) uses a deadly weapon.
TEX. PENAL CODE § 22.02(a) (1990).4 The statute also provided that “[a]n offense
under this section is a felony of the third degree, unless the offense is committed
under Subdivision (2) of Subsection (a) of this section and the person uses a
deadly weapon, in which event the offense is a felony of the first degree.” Id.
§ 22.02(c).
        The aggravated assault indictment against Villanueva stated in relevant
part:
        [T]hat GUADALUPE VILLANUEVA on or about the 10th day of
        August, 1990, . . . did then and there unlawfully, intentionally and
        knowingly use a deadly weapon, to-wit: a firearm, and did then and
        there threaten JUAN VALLEJO, a peace officer in the lawful
        discharge of his official duty, with imminent bodily injury by the use
        of said weapon when GUADALUPE VILLANUEVA knew that the
        said JUAN VALLEJO was a peace officer.
             And the Grand Jurors do further present that the said
        defendant did use and exhibit a deadly weapon, to-wit: a firearm,


        4
            The crime of “assault” was defined in 1990 as:
        (1) intentionally, knowingly, or recklessly caus[ing] bodily injury to another,
        including the person’s spouse;
        (2) intentionally or knowingly threaten[ing] another with imminent bodily
        injury, including the person’s spouse; or
        (3) intentionally or knowingly caus[ing] 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(a) (1990). Villanueva’s aggravated assault conviction was based on
an incorporated simple assault under § 22.01(a)(2).

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                                     No. 11-20322

       during the commission of the felony offense.
There is no indication that Villanueva objected to these findings at the time they
were made nor does he contest them now. Importantly, the 1991 judgment of
conviction reflects that Villanueva was convicted of a third-degree felony and
also reports a finding that Villanueva had used a firearm during the offense. It
does not, however, indicate which subpart of the statute Villanueva was
convicted under, referring only to § 22.02.
       Given that the 1991 aggravated assault statute was composed of various
subparts, we must determine which subpart formed the basis for Villanueva’s
1991 conviction. Villanueva posits that the statute provides four possible bases
for his conviction: threatening a peace officer with bodily injury or threatening
a peace officer with a deadly weapon—both third-degree felonies—or the same
two acts charged as first degree felonies under the deadly weapon enhancement
in the 1990 version of § 22.02(c). Villanueva further observes that his conviction
was for a third-degree felony, but that the indictment does not further specify
whether this was for threatening a peace officer with bodily injury or
threatening a peace officer with a deadly weapon.5 He argues that we should find
the former—and effectively disregard the deadly weapon finding—directing us
to precedent “conclud[ing] that the generic, contemporary meaning of aggravated
assault involves aggravating factors such as use of a deadly weapon and
causation of serious bodily injury and does not include considerations regarding
the victim’s status as a police officer.” Fierro–Reyna, 466 F.3d at 329. This
precedent, he asserts, forecloses a finding that his 1991 conviction qualifies as
an enumerated “crime of violence” because his assault was aggravated only on


      5
         Such ambiguity is normally unproblematic given that in Texas “the State is only
required to present evidence sufficient to support the conviction, [and] the State need not
present evidence that the defendant committed the offense according to each of the means
alleged in the indictment.” United States v. Morales–Martinez, 496 F.3d 356, 360 (5th Cir.
2007).

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                                         No. 11-20322

the basis of the victim’s status as a peace officer.
       We read Villanueva’s charging and plea documents differently, however.
Under the 1990 version of § 22.02(a)(4), “[a] person commit[ted] an [aggravated
assault] if the person commit[ted] assault as defined in Section 22.01 of this code
and the person . . . use[d] a deadly weapon.” TEX . PENAL CODE. § 22.02(a)(4)
(1990). Under § 22.02(c), this crime constituted a third-degree felony. Id.
§ 22.02(c). We find it more reasonable to conclude, as the probation officer did,
that Villanueva was convicted of the third-degree felony of aggravated assault
for committing a simple assault—“threaten[ing] another with imminent bodily
harm” under Texas Penal Code § 22.01(a)(2)—while using a deadly weapon
pursuant to § 22.02(a)(4). See, e.g., Godsey v. State, 719 S.W.2d 578, 584 (Tex.
Crim. App. 1986) (en banc) (describing elements of predecessor to § 22.02(a)(4)).6
Under this reading, the fact that Villanueva’s victim was a peace officer was
unnecessary for transforming his simple assault into an aggravated assault.7


       6
          The indictment makes clear that Villanueva’s 1991 conviction involved threatening
with a deadly weapon. A typical definition of “use” is “to put into action or service.” WEBSTER’S
THIRD NEW INTERNATIONAL DICTIONARY 2523 (13th ed. 1961). Obviously, then, by “threatening
with” a deadly weapon, one is “putting into action” said weapon. But we are not alone in
concluding so. The Texas Court of Criminal Appeals has employed this exact reasoning when
interpreting similar statutory provisions involving the “use[] or exhibit[ion] of a deadly
weapon.” See Patterson v. State, 769 S.W.2d 938, 940–41 (Tex. Crim. App. 1989) (en banc)
(relying on similar dictionary definition of “use” to interpret statutory provision). In such
contexts, the Court of Criminal Appeals has concluded that the term “‘used . . . a deadly
weapon’ during the commission of the offense[,] means that the deadly weapon was employed
or utilized in order to achieve its purpose. . . . [This] extends . . . to any employment of a deadly
weapon, even its simple possession, if such possession facilitates the associated felony.” Id. at
941 (first alteration in original) (internal quotation marks omitted). This capacious
understanding likely informed the Court of Criminal Appeals’ decision to affirm the conviction
of a defendant under an identical, previous version of § 22.02(a)(4) on the ground that “[t]he
mere fact that appellant displayed the shotgun and pointed it in [the victim’s] general
direction is sufficient ‘use.’” May v. State, 660 S.W.2d 888, 889 (Tex. App.—1983), aff’d, 722
S.W.2d 699 (Tex. Crim. App. 1984).
       7
           In the addendum to the PSR, the probation officer explained this well:
       Since the former (like the current) Texas offense of aggravated assault under
       Texas Penal Code § 22.02 incorporates § 22.01 (Assault) into its definition, the

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                                      No. 11-20322

Our confidence in this reading is bolstered by its consistency with the wordings
of the indictment and the judgment, as well as the fact that Villanueva was
convicted of a third-degree, rather than first-degree, felony, with the judgment
reflecting a deadly weapon finding.
      This finding defeats Villanueva’s argument. Our previous precedents make
clear that an otherwise simple assault that is made aggravated by the use of a
deadly weapon is clearly a “crime of violence.” In United States v.
Guillen–Alvarez, 489 F.3d 197, 199 (5th Cir. 2007), we considered a more recent
version of the Texas aggravated assault statute, which provided that:
      (a) A person commits an offense [of aggravated assault] if the person
      commits assault as defined in Section 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.
Id. (alteration in original) (quoting TEX. PENAL CODE § 22.02(a) (2000)). We
concluded that the defendant’s “aggravated assault conviction [under the above-
quoted statute] qualifies as a conviction for the enumerated offense of
‘aggravated assault,’ and therefore as a conviction for a crime of violence [under
§ 2L1.2].” Id. Subsequent cases have drawn on Guillen–Alvarez to conclude that
a conviction under § 22.02 for threatening imminent bodily injury with a deadly
weapon—Villanueva’s exact offense—qualifies as a “crime of violence.” United


      defendant [i.e., Villanueva] violated § 22.01(a)(2) and § 22.02(a)(2) and (4). In
      other words, he intentionally or knowingly threatened another with imminent
      bodily injury (the 22.01 component) coupled with two additional acts:
      threatened with a deadly weapon or threatened to cause bodily injury to a peace
      officer (a)(2) and used a deadly weapon (a)(4) (the 22.02 component). While
      22.02 only requires one of four aggravating factors to elevate an assault to that
      of aggravated assault, the defendant met two factors, one of which involved the
      threat upon a peace officer. Thus, his use of a deadly weapon means his assault
      was aggravated on that fact alone; it was not merely aggravated because the
      victim was a peace officer.

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States v. Garcia–Ramirez, 230 F. App’x 458, 459–60 (5th Cir. 2007)
(unpublished) (per curiam). The precedent that Villanueva cites—United States
v. Fierro–Reyna—did not address a defendant who threatened with a deadly
weapon and so is, at best, inapposite to his circumstances. Indeed, it may even
undercut his position, as we held in that case that “the generic, contemporary
meaning of aggravated assault involves aggravating factors such as use of a
deadly weapon.” Fierro–Reyna, 466 F.3d at 329 (emphasis added). Given that we
find that Villanueva’s aggravated assault conviction rested on his use of a deadly
weapon, Fierro–Reyna provides no support for vacating his sentence.8 The
district court properly concluded that Villanueva’s 1991 aggravated assault
conviction constituted a conviction for a “crime of violence” and therefore the
district court correctly applied § 2L1.2’s 16-level enhancement.
                                   III. CONCLUSION
         In light of the foregoing, we AFFIRM the sentence imposed by the district
court.




         8
         Because we conclude that Villanueva’s 1991 conviction for aggravated assault was a
“crime of violence” for purposes of § 2L1.2 of the Guidelines, we have no need to decide
whether this offense has as an element the use, attempted use, or threatened use of force
against the person of another. See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii); Guillen–Alvarez, 489 F.3d
at 199 n.2.

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