                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       July 13, 2010
                      UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                                   TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 09-2272
 v.                                            (D.C. No. 2:06–CR–01501-RB-1)
                                                           (D.N.M.)
 JUAN JOSE MAGALLANES-
 TORRES,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before KELLY, BALDOCK, and HARTZ, Circuit Judges.


      Defendant-Appellant Juan Jose Magallanes-Torres pled guilty to simple

assault (count 1), 18 U.S.C. §§ 2, 111(a)(1), and re-entry of a removed alien

(count 2), 8 U.S.C. §§ 1326(a) & (b). 1 R. 5-6; 3 R. 47. He had an offense level

of 24 and a criminal history category of I resulting in an advisory guideline

imprisonment range of 51-63 months. 2 R. 1. After reducing the advisory range

to the statutory maximums, the advisory sentence was twelve months’

imprisonment on count 1 followed by twenty-four months’ imprisonment on count


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
2. 1 3 R. 33; 2 R. 1, 23-24 ¶ 89; U.S.S.G. §§ 5G1.1(a) & 5G1.2(d). The district

court sentenced Mr. Magallanes-Torres to this advisory sentence: twelve months’

imprisonment on count 1 and twenty-four months’ imprisonment on count 2, to

run consecutively, followed by one year of unsupervised release. 1 R. 25-26. On

appeal, Mr. Magallanes-Torres argues that the district court (1) sentenced him for

simple assault under the wrong guideline, and (2) could not enhance his sentence

absent proof of his involvement in bodily injury beyond a reasonable doubt. Aplt.

Br. at 11-13. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a) and affirm.



                                   Background

      On September 12, 2002, several persons attempted to rob a train near the

Mexican border. 2 R. 10. As FBI agents attempted to stop the suspects from

escaping, two of the agents were seriously injured with rocks, sticks and blunt

objects. 2 R. (P.S.R.) 9, ¶ 23; 12, ¶ 32; 13, ¶ 36. Mr. Magallanes-Torres was

charged with conspiracy in connection with the attempted train robbery, 18


      1
         The base offense level for the first count was 14 under U.S.S.G.
§ 2A2.2(a) (2008) which applies to aggravated assault. To that was added a
seven-level enhancement for permanent or life-threatening injury, id. §
2A2.2(b)(3)(C), and a six-level enhancement for a knowing that the victim was a
law enforcement officer, id. § 3A1.2(c)(1). 2 R. at 18, ¶¶ 46-48. No additional
offense level applied for the second count given the grouping rules in U.S.S.G. §
3D1.4(c). Mr. Magallanes-Torres received a three-level reduction for acceptance
of responsibility. Id. § 3E1.1. Thus, the total offense level was 24.

                                       -2-
U.S.C. § 371, but in 2002 the government dismissed the indictment against him

due to lack of evidence. 2 R. 6, ¶ 1-2; 12, ¶ 33. He was deported to Mexico on

December 31, 2002. 2 R. 12, ¶ 33.

      The FBI then determined that blood found on Mr. Magallanes-Torres’s shoe

matched an injured FBI officer’s DNA. 2 R. 12, ¶ 33. In 2006, the government

indicted Mr. Magallanes-Torres for simple assault on a federal officer and issued

a warrant for his arrest. 18 U.S.C. §§ 2, 111(a)(1); 1 R. 4. On December 23,

2008, Mr. Magallanes-Torres was arrested upon re-entering the United States. 2

R. 12, ¶ 33-34. Thereafter, he pled guilty to an information containing the assault

count and an additional count for unlawful re-entry. 1 R. 5-6; 3 R. 47.

      In a sentencing memorandum, Mr. Magallanes-Torres argued that the PSR

incorrectly used the sentencing guideline, U.S.S.G. § 2A2.2 (2008), which applies

to aggravated assault. 1 R. 10-12. Mr. Magallanes-Torres argued that the

elements of the simple assault charged did not involve aggravated conduct, such

as “physical contact, a deadly or dangerous weapon, bodily injury, or the intent to

commit murder or any felony other than those referred to in § 113(a)(2).” United

States v. Hathaway, 318 F.3d 1001, 1008 (10th Cir. 2003); 1 R. 11. He pointed

out that under U.S.S.G. § 2A2.2, the base offense level was 14 and resulted in a

guideline sentence well above the one-year statutory maximum. 2 1 R. 11-

      2
        At the time of the offense (September 12, 2002), 18 U.S.C. § 111
provided:


                                        -3-
12. According to Mr. Magallanes-Torres, a better fit was either U.S.S.G. § 2A2.3

(minor assault) or U.S.S.G. § 2A2.4 (obstructing or impeding officers). 1 R. 12.

      Finally, relying upon United States v. Booker, 543 U.S. 220, 244 (2005),

Mr. Magallanes-Torres argued that the introduction of argument or evidence

concerning serious bodily injury at sentencing was improper. 1 R. 13-14. He

argued that the government must prove aggravated assault beyond a reasonable

doubt for the court to sentence him on that basis. Id.

      The government responded that the PSR correctly calculated the offense



      (a) In general.--Whoever--

      (1) forcibly assaults, resists, opposes, impedes, intimidates, or
      interferes with any person designated in section 1114 of this title
      while engaged in or on account of the performance of official duties;
      or

      (2) forcibly assaults or intimidates any person who formerly served
      as a person designated in section 1114 on account of the performance
      of official duties during such person's term of service,

      shall, where the acts in violation of this section constitute only
      simple assault, be fined under this title or imprisoned not more than
      one year, or both, and in all other cases, be fined under this title or
      imprisoned not more than three years, or both.

      (b) Enhanced penalty.--Whoever, in the commission of any acts
      described in subsection (a), uses a deadly or dangerous weapon
      (including a weapon intended to cause death or danger but that fails
      to do so by reason of a defective component) or inflicts bodily injury,
      shall be fined under this title or imprisoned not more than ten years,
      or both.

The statute now contains more severe penalties.

                                         -4-
guideline by selecting “the guideline most appropriate for the offense conduct

charged” given two choices contained in the statutory index: §§ 2A2.2

(aggravated assault) and 2A2.4 (obstructing or impeding officers). U.S.S.G. App.

A intro. comment.; 1 R. 17-23; see also U.S.S.G. §§ 1B1.1(a), 1B1.2(a). The

government argued that the DNA evidence linking Mr. Magallanes-Torres to the

incident, the admitted factual basis for his plea, and his statement that he “could

have encouraged others” to injure the victim all proved his relevant conduct to be

aggravated assault. 1 R. 17-18. The government conceded that it erred in not

charging Mr. Magallanes-Torres with felony assault. 1 R. 16.

      Before announcing the sentence, the district court remarked that he was

“proud to report” that the sentence in the typical re-entry case was less than forty-

five to seventy-five days. 3 R. 20. In the end, however, the district court ruled

that it had discretion to impose each count’s statutory maximum consecutively. 1

R. 32-33. The court sentenced Mr. Magallanes-Torres to twelve months’

imprisonment on count 1 and twenty-four months’ imprisonment on count 2, to

run consecutively, followed by one year of unsupervised release. 1 R. 33-34.



                                     Discussion

      We review the sentence imposed by the district court for reasonableness

under an abuse of discretion standard after first considering the procedure used to

determine that sentence. Gall v. United States, 552 U.S. 38, 51 (2007). The

                                         -5-
district court’s legal conclusions concerning the guidelines are reviewed de novo;

its factual findings for clear error. United States v. Kristl, 437 F.3d 1050, 1054

(10th Cir. 2006).

      I.     The Court Correctly Calculated the Guideline Sentence.

      On appeal, Mr. Magallanes-Torres renews his argument that the district

court used the wrong guideline when it sentenced him for simple assault. Aplt.

Br. at 13-21. He argues that either § 2A2.3 (minor assault) or § 2A2.4

(obstructing or impeding officers) captures his conduct better than § 2A2.2

(aggravated assault). Id. at 19.

      The starting point for determining a sentence is the correct guideline range.

Gall 552 U.S. at 49. Here, the starting point is the statutory index in Appendix A,

see U.S.S.G. §§ 1B1.1(a), 1B1.2(a), which contains two guideline provisions, §§

2A2.2 and 2A2.4. According to the commentary, where multiple guidelines are

listed, a court should “use the guideline most appropriate for the offense conduct

charged in the count of which the defendant was convicted.” U.S.S.G. App. A,

intro. comment. In this case, that choice is made easier because § 2A2.4 refers

the court to § 2A2.2 “if the conduct constituted aggravated assault.” U.S.S.G.

§ 2A2.4(c)(1). This cross-reference provision must be applied with regard to

relevant conduct. U.S.S.G. § 1B1.3(a); United States v. Rue, 988 F.2d 94, 96

(10th Cir. 1993).

      The question thus is whether Mr. Magallanes-Torres’s relevant assault

                                         -6-
conduct was aggravated. “Aggravated assault” is “a felonious assault that

involved (A) a dangerous weapon with intent to cause bodily injury (i.e., not

merely to frighten) with that weapon; (B) serious bodily injury; or (C) an intent to

commit another felony.” U.S.S.G. § 2A2.2 comment. n.1.

      The sentencing court identified Mr. Magallanes-Torres’s relevant conduct

from the presentence report and Mr. Magallanes-Torres’s other admissions. 3 R.

22, 30-32. In his statement accepting responsibility, Mr. Magallanes-Torres

admitted that he “was part of group of people who were involved in the attack of

the victim in this case.” 2 R. 17, ¶ 44. Though he stated that he “was not

personally involved in the injury to the victim,” he admitted that he “could have

encouraged others to do so.” Id. He admitted he intended to rob the train. 3 R.

25. At the plea hearing, the government highlighted that he admitted to

participating in a forcible assault and also maintained that it could produce an

eyewitness to this conduct. 3 R. 47-48. The government also relied upon the

DNA evidence linking Mr. Magallanes-Torres to the assault on the victim. 3 R.

48. The victim suffered permanent bodily injury in the form of skull fractures

that caused seizures, headaches, and sleep disorders, all of which required

continued medication. 2 R. 14-15.

      The facts support use of the aggravated assault guideline (§ 2A2.2) based

upon relevant conduct. At sentencing, counsel for Mr. Magallanes-Torres seemed

to concede that the aggravated assault conduct could be used in determining the

                                         -7-
sentence for the assault count, although he argued that this conduct had nothing to

do with the unlawful re-entry count. 3 R. 23–24. As it is, we conclude that the

district court correctly calculated the advisory sentence by applying § 2A2.2.

      Mr. Magallanes-Torres relatedly argues that the most appropriate guideline

was § 2A2.3 (minor assault) because the charge was for misdemeanor assault.

U.S.S.G. § 2A2.3 comment. n.1; Aplt. Br. at 19. There are at least two problems

with this argument. First, the statutory index does not list § 2A2.3 as applicable

to 18 U.S.C. § 111 and therefore its use would be improper. United States v.

Hicks, 313 F. App’x 674, 675 n.3 (4th Cir. 2009) (unpublished); United States v.

Williams, 260 F. App’x 444, 447 (3rd Cir. 2008) (unpublished). Second, the

minor assault guideline refers the court to the aggravated assault guideline if “the

conduct constituted aggravated assault.” U.S.S.G. § 2A2.3(c). As noted

previously, the cross-reference must be determined with regard to relevant

conduct, so § 2A2.3 leads to the aggravated assault guideline in this case. The

commentary to § 2A2.3 makes it clear that minor assault includes “a misdemeanor

assault, or a felonious assault not covered by § 2A2.2.” U.S.S.G. § 2A2.3

comment. n.1 (emphasis added).

      II.    The Court Correctly Did Not Commit Booker Error.

      Mr. Magallanes-Torres also renews his argument that, under Booker, the

district court could not enhance his sentence without proving his aggravated

assault conduct beyond a reasonable doubt. Aplt. Br. at 21-29. He argues that

                                         -8-
the court cannot take his uncharged aggravated conduct into account at sentencing

because the misdemeanor assault statute did not contemplate this level of injury.

Id. at 28-29.

      Both before and after Booker, district courts have had the authority to take

uncharged conduct into account at sentencing. United States v. Rodriguez-Felix,

450 F.3d 1117, 1131 (10th Cir. 2006); see also 18 U.S.C. § 3661 (“No limitation

shall be placed on the information concerning the background, character, and

conduct of a person convicted of an offense which a court of the United States

may receive and consider for the purpose of imposing an appropriate sentence.”);

U.S.S.G. § 6A1.3(a). “[I]t is now universally accepted that judge-found facts by

themselves do not violate the Sixth Amendment.” United States v. Lauder, 409

F.3d 1254, 1269 (10th Cir. 2005). The relevant constitutional issue is instead how

courts may enhance sentences based on uncharged conduct. Booker held that the

Sixth Amendment prohibited the court from relying on judge-found facts to

enhance a defendant’s sentence mandatorily. Lauder, 409 F.3d at 1269. Here,

there is no evidence that the district court mandatorily enhanced Mr. Magallanes-

Torres’s sentence and committed Booker error.

      And under the current advisory guideline system, the government need not

prove sentencing evidence to a judge or jury beyond a reasonable doubt. Instead,

a district court may find facts relevant to sentencing by a preponderance of the

evidence. Rodriguez-Felix, 450 F.3d at 1131. At the same time, of course, a

                                        -9-
judge may not use these facts to enhance a sentence beyond the offense’s

statutory maximum or to sentence an offender for a different, uncharged offense.

United States v. Magallanez, 408 F.3d 672, 685 (10th Cir. 2005); Hathaway, 318

F.3d at 1010. Mr. Magallanes-Torres therefore is incorrect when he asserts that

the government needed to prove his uncharged aggravated assault conduct beyond

a reasonable doubt. Rather, to consider the conduct at sentencing, the court need

only find by a preponderance of the evidence that Mr. Magallanes-Torres’s

relevant assault conduct was aggravated.

      Mr. Magallanes-Torres does not dispute whether this evidentiary burden

was met or could have been satisfied. The court did not sentence him above his

offenses’s statutory maximums. 3 R. 33. Nor did the court sentence him for any

offense other than those offences to which he pled guilty. Accordingly, the court

permissibly used uncharged aggravated assault conduct when it sentenced Mr.

Magallanes-Torres.

      In support of his claim that the government must prove his aggravated

assault beyond a reasonable doubt, Mr. Magallanes-Torres relies upon this court’s

opinion in United States v. Hathaway. Aplt. Br. at 22-29. But that case only

discussed the elements of assault that an indictment must charge to elevate an

assault offense from a misdemeanor to a felony. Hathaway, 318 F.3d at 1006-09.

It did not discuss a district court’s ability to consider the circumstances

surrounding an assault when it calculates the advisory guideline range. And,

                                         - 10 -
again, this is not a case where a defendant was sentenced for a crime different

from the one charged and proven at trial. Id. at 1010.

      Mr. Magallanes-Torres further argues that the court could not rely on facts

he admitted in his plea colloquy when he did not know that his stipulations to

conduct involving aggravated assault would be used to calculate his sentence.

Aplt. Br. at 23-29. We review the district court’s “factual findings for clear error,

reversing only if a finding is wholly without factual support in the record, or after

reviewing the evidence, we are definitively and firmly convinced that a mistake

has been made.” Rodriguez-Felix, 450 F.3d at 1130.

      We find no error. In the plea colloquy, Mr. Magallanes-Torres said that he

understood that the district court would calculate and impose a sentence that may

be at the statutory maximum or that may differ from what Mr. Magallanes-

Torres’s counsel anticipated. 3 R. 46-47. The court found that these statements,

as well as Mr. Magallanes-Torres’s plea and other factual stipulations, were

knowing and voluntary. 3 R. 48. As such, the court could rely on his admissions

at sentencing.

      To the extent that Mr. Magallanes-Torres is arguing that the district court

imposed a substantively unreasonable sentence, he has not overcome the appellate

presumption of reasonableness that attaches to a properly-calculated guidelines

sentence. Rita v. United States, 551 U.S. 338, 350-51 (2007). The presumption

may be overcome if the length of the sentence is unreasonable after considering

                                        - 11 -
the 18 U.S.C. § 3553(a) factors within the totality of the circumstances. See

United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006) (per curiam).

Although he argues that the length of his sentence is unfair when compared to

other defendants charged with re-entry, we think it is apparent that the district

court differentiated based upon his prior conduct, specifically, his admitted role in

a robbery and an assault.

      AFFIRMED.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




                                        - 12 -
