     Case: 16-40646       Document: 00513903657         Page: 1     Date Filed: 03/08/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                     No. 16-40646
                                   Summary Calendar
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                             March 8, 2017
UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk
                                                  Plaintiff - Appellee

v.

OCTAVIO GONZALEZ-LINCE,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Sothern District of Texas
                             USDC No. 5:15-CR-808-1


Before BARKSDALE, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
       Octavio Gonzalez-Lince appeals the sentence imposed following his
guilty plea for illegal reentry. He asserts the district court plainly erred in
applying Sentencing Guideline § 2L1.2(b)(1)(A)(ii)’s 16-level “crime of violence”
enhancement, based on his prior conviction for second-degree assault under
Colorado Revised Statute §§ 18-3-203(1)(g) and (2)(a). Gonzalez contends his
prior conviction did not either qualify as the enumerated offense “aggravated


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 16-40646

assault” or have as an element the “use, attempted use, or threatened use of
force against the person of another”.
      As Gonzalez concedes, because he did not raise these issues in district
court, review is only for plain error. E.g., United States v. Broussard, 669 F.3d
537, 546 (5th Cir. 2012). Under that standard, he must show a forfeited plain
(clear or obvious) error that affected his substantial rights. Puckett v. United
States, 556 U.S. 129, 135 (2009). If he does so, we have the discretion to correct
the reversible plain error, but should do so only if it “seriously affect[s] the
fairness, integrity or public reputation of judicial proceedings”. Id.
      Under the Guidelines in effect at the time of Gonzalez’ sentencing,
defendants with a prior crime-of-violence conviction were subject to a 16-level
enhancement.      The crime-of-violence definition included:          “aggravated
assault . . . or any offense under federal, state, or local law that has an element
the use, attempted use, or threatened use of physical force against the person
of another”. U.S.S.G. § 2L1.2, cmt. (n.1(B)(iii)).
      Regarding the prior offense, Gonzalez pleaded guilty in 2010 to “second
degree assault—in the heat of passion” under Colorado Revised Statute §§ 18-
3-203(1)(g), (2)(a). Pursuant to that statute at the time of Gonzalez’ conviction,
a person committed second-degree assault if:
      (g) With intent to cause bodily injury to another person, he or she
      causes serious bodily injury to that person or another[.]
      (2)(a) If assault in the second degree is committed under
      circumstances where the act causing the injury is performed upon
      a sudden heat of passion, caused by a serious and highly provoking
      act of the intended victim, affecting the person causing the injury
      sufficiently to excite an irresistible passion in a reasonable person,
      and without an interval between the provocation and the injury
      sufficient for the voice of reason and humanity to be heard, it is a
      class 6 felony.
Colo. Rev. Stat. §§ 18-3-203(1)(g), (2)(a).


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                                  No. 16-40646

      The statute is divisible, listing multiple alternative elements creating
different crimes of second-degree assault; therefore, the modified categorical
approach is applicable. See id.; United States v. Mathis, 136 S. Ct. 2243, 2249
(2016). Under the modified categorical approach, a court may consider, inter
alia, state-court documents underlying defendant’s prior conviction to
determine whether the statute of conviction qualifies as a crime of violence.
See Shepard v. United States, 544 U.S. 13, 16 (2005).
      Gonzalez maintains the Colorado conviction plainly does not qualify as
the enumerated crime of violence of aggravated assault because the Model
Penal Code (MPC) defines “serious bodily injury” more broadly than the state
statute.   The MPC defines aggravated assault, in relevant part, as
“attempt[ing] to cause serious bodily injury to another, or caus[ing] such injury,
purposely, knowingly or recklessly under circumstances manifesting extreme
indifference to the value of human life”. MPC § 211.1(2)(a) (emphasis added).
Along that line, “serious bodily injury” is defined by the MPC as “bodily injury
which creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ”. MPC § 210.0(3).
      The Colorado statute defined “serious bodily injury” as: “bodily injury
which . . . involves a substantial risk of death, a substantial risk of serious
permanent disfigurement, a substantial risk of protracted loss or impairment
of the function of any part or organ of the body, or breaks, fractures, or burns
of the second or third degree”.      Colo. Rev. Stat. § 18-1-901(3)(p).     Thus,
Gonzalez contends the Colorado statute includes a different class of injuries
(e.g., fractures) than the MPC.
      Although Gonzalez cites similar cases supporting his assertions, other
case-law cuts against his position. Compare United States v. Calzada-Ortega,



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551 F. App’x 790, 792–93 (5th Cir. 2014) (concluding a similar Wisconsin
statute was broader than the enumerated aggravated-assault offense), with
United States v. Aluya, 590 F. App’x 434, 434 (5th Cir. 2015) (holding, on plain-
error review, an Oklahoma statute for assault and battery was equivalent to
the enumerated offense).
      Therefore, pursuant to our limited plain-error review, and without any
controlling or persuasive authority addressing the issue directly, it is not clear
or obvious that the difference in the Colorado definition was sufficient to take
the crime out of the common-sense definition of the enumerated offense of
aggravated assault. See United States v. Ramirez, 557 F.3d 200, 207 (5th Cir.
2009). Accordingly, Gonzalez fails to show the requisite plain error. See
Puckett, 556 U.S. at 135.
      AFFIRMED.




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