     Case: 12-40230       Document: 00512405320         Page: 1     Date Filed: 10/11/2013




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

                                                                            FILED
                                                                         October 11, 2013

                                       No. 12-40230                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,
v.

OSCAR ROMERO–ORTIZ,

                                                  Defendant - Appellant.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:11-CR-1802-1


Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Oscar Romero–Ortiz (“Romero–Ortiz”) pleaded guilty to illegal reentry
after deportation in violation of 8 U.S.C. § 1326 and was sentenced to seventy-
seven months of imprisonment. Romero–Ortiz appeals his sentence, arguing
that the district court incorrectly applied a sixteen-level “crime of violence”
enhancement based on his prior Florida conviction for aggravated assault. We
AFFIRM.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                        I.
      On November 15, 2011, a grand jury charged Romero–Ortiz with illegal
reentry following deportation in violation of 8 U.S.C. § 1326(a). Romero–Ortiz
pleaded guilty to the indictment. The pre-sentence investigation report (“PSR”),
which was prepared using the 2011 edition of the United States Sentencing
Guidelines (“U.S.S.G.” or “Guidelines”), recommended a sixteen-offense-level
increase pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), on the ground that
Romero–Ortiz’s 2003 Florida felony conviction for aggravated assault was a
crime of violence. This increase, combined with a base offense level of eight and
a two-level reduction for acceptance of responsibility, gave Romero–Ortiz a total
offense level of twenty-two. Sixteen criminal history points placed Romero–Ortiz
in a criminal history category of VI. With an additional one-level reduction for
timely acceptance of responsibility, Romero–Ortiz was subject to an
imprisonment range of seventy-seven to ninety-six months. At sentencing,
Romero–Ortiz objected to the sixteen-offense-level increase, arguing that his
prior Florida conviction for aggravated assault did not constitute a crime of
violence. The district court overruled the objection and sentenced Romero–Ortiz
to seventy-seven months of imprisonment. Romero–Ortiz appealed.
                                       II.
      Under the Guidelines, a defendant convicted of illegal reentry is subject
to a sixteen-level sentence enhancement if he was convicted of a crime of violence
prior to his removal or deportation. U.S.S.G. § 2L1.2(b)(1)(A)(ii). The Guidelines
commentary—specifically Application Note 1(B)(iii) to § 2L1.2—further defines
“crime of violence” in two ways: (1) as one of several enumerated offense
categories, including “aggravated assault,” and (2) in a residual clause 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.” Characterization of a prior offense as a crime of violence is a question

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                                       No. 12-40230

of law that this court reviews de novo. United States v. Rodriguez, 711 F.3d 541,
548 (5th Cir. 2013) (en banc).
       Romero–Ortiz argues that his Florida conviction does not fall under either
definition of a crime of violence and that, therefore, the district court incorrectly
imposed a sixteen-level sentence enhancement on that basis. We disagree and
hold that Romero–Ortiz’s Florida conviction qualifies as the enumerated offense
of “aggravated assault” in Application Note 1(B)(iii) to § 2L1.2 and therefore
qualifies as a crime of violence. Accordingly, we need not decide whether
Romero–Ortiz’s conviction qualifies as a crime of violence under the residual
clause of Application Note 1(B)(iii).
       “When determining whether a prior conviction qualifies as a crime of
violence under the Guidelines, we [use] the categorical approach that the
Supreme Court first outlined in Taylor v. United States, 495 U.S. 575 (1990).”
Id. at 549. “Under the categorical approach, the analysis is grounded in the
elements of the statute of conviction rather than a defendant’s specific conduct.”
Id.; see also United States v. Calderon–Pena, 383 F.3d 254, 257 (5th Cir. 2004)
(en banc). Because aggravated assault is not defined by the Guidelines, “we look
to the ‘generic, contemporary’ meaning of aggravated assault, employing a
‘common sense approach’ that looks to the Model Penal Code, the LaFave and
Scott treatises, modern state codes, and dictionary definitions.”1 Esparza–Perez,
681 F.3d at 229; see Taylor v. United States, 495 U.S. 575, 598 (1990) (using the
“generic, contemporary meaning” to define “burglary”). In sum, if the elements
of Florida’s aggravated assault statute under which Romero–Ortiz was convicted

       1
          The government argues that, rather than looking to the Model Penal Code and the
LaFave treatise, we should use the plain-meaning approach we adopted in Rodriguez, 711 F.3d
541. Even assuming the government is correct that extending Rodriguez’s plain-meaning
approach to determine the generic, contemporary meaning of “aggravated assault” would add
clarity to our cases addressing this issue, Rodriguez does not authorize that approach to
offense categories defined at common law, such as “aggravated assault.” Id. at 552 n.17 (citing
Esparza-Perez, 681 F.3d 228).

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comport with the generic, contemporary meaning of aggravated assault, then
Romero–Ortiz’s conviction qualifies as a crime of violence.
      In Esparza–Perez, we relied on the definitions provided in the Model Penal
Code, the LaFave treatise, and Black’s Law Dictionary to conclude that “the
generic, contemporary meaning of aggravated assault is an assault carried out
under certain aggravating circumstances.” 681 F.3d at 231. “Assault, in turn,
requires proof that the defendant either caused, attempted to cause, or
threatened to cause bodily injury or offensive contact to another person.” Id.
Thus, we look to the Florida statute under which Romero–Ortiz was convicted
to see if it requires (1) a threat to cause bodily injury or offensive contact to
another (2) under aggravating circumstances.
      Florida’s aggravated assault statute prohibits “an assault: (a) with a
deadly weapon without intent to kill; or (b) with an intent to commit a felony.”
FLA. STAT. § 784.021(1). Critically for this case, Romero–Ortiz admits that he
was convicted under the “deadly weapon” prong. Therefore, we need not address
whether a conviction under the “with intent to commit a felony” prong comports
with the generic, contemporary definition of aggravated assault. See United
States v. Fierro–Reyna, 466 F.3d 324, 327 (5th Cir. 2006) (“When comparing the
state conviction with the generic, contemporary meaning of the crime . . . . [w]e
look only to the particular subdivision of the statute under which the defendant
was convicted.”). In addition, Romero–Ortiz admits that use of a deadly weapon
qualifies as an aggravating circumstance under our precedent. See United
States v. Mungia–Portillo, 484 F.3d 813, 817 (5th Cir. 2007) (listing use of a
deadly weapon as one of the “two most common aggravating factors”); see also
Black’s Law Dictionary 130 (9th ed. 2009) (listing “using a deadly weapon” as the
prototypical example of aggravating circumstances in the definition of
aggravated assault). Accordingly, our inquiry in this case boils down to whether
a conviction under the “deadly weapon” prong of Florida’s aggravated assault

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statute requires a threat to cause bodily injury or offensive contact to another.
      Romero–Ortiz argues that Florida’s aggravated assault statute does not
require a threat to cause bodily injury or offensive contact.       He relies on
Esparza–Perez, where we held that a Arkansas conviction did not qualify as
aggravated assault because the Arkansas statute in question “did not require
proof of an underlying assault.” 681 F.3d at 231. More specifically, we held that
the statute did not require “any contact or injury or attempt or threat of
offensive contact or injury.” Id. at 231–32. Romero–Ortiz attempts to analogize
the Arkansas statute in Esparza–Perez to this case, arguing that Florida’s
statute does not require proof of an underlying assault.
      To the contrary, and unlike the Arkansas statute in Esparza–Perez, a
conviction under the “deadly weapon” prong of Florida’s aggravated assault
statute requires proof of at least a threat of bodily injury or offensive contact.
To be convicted, the defendant must “with a deadly weapon without intent to
kill” commit “an assault,” FLA. STAT. § 784.021(1), which is in turn defined in
part as an “unlawful threat by word or act to do violence to the person of
another,” id. § 784.011(1) (emphasis added). As further defined in Webster’s
Collegiate Dictionary 1396 (11th ed. 2007), the term “violence” means an
“exertion of physical force so as to injure or abuse.” See also Black’s Law
Dictionary 1705 (9th ed. 2009) (defining “violence” as “use of physical force,
usu[ally] accompanied by fury, vehemence, or outrage; esp[ecially], physical force
unlawfully exercised with the intent to harm”). Thus, inserting the definition
of violence from Webster’s, Romero–Ortiz’s conviction required proof that he at
least threatened to exert physical force so as to injure or abuse—with a deadly
weapon—another person. FLA. STAT. § 784.011(1). This comports with the
generic, contemporary meaning of assault as we defined it in Esparza–Perez: a
threat “to cause bodily injury or offensive contact to another person.” 681 F.3d



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at 231.2     Any difference between the Florida statute and the generic,
contemporary meaning of aggravated assault is “sufficiently minor” so as not to
remove the Florida statute “from the family of offenses commonly known as
‘aggravated assault.’” Mungia–Portillo, 484 F.3d at 817 (quoting United States
v. Sanchez–Ruedas, 452 F.3d 409, 414 (5th Cir. 2006)).
       Rather than looking to these dictionary definitions, Romero–Ortiz urges
us to define “violence” using a Florida dating and sexual violence statute, which
defines violence as, among other things, “stalking and aggravated stalking.”
FLA. STAT. § 784.046(1)(a). Romero–Ortiz points to our decision in United States
v. Insaulgarat, where we held that Florida’s aggravated stalking law does not
“require any use, or threatened or attempted use, of physical force.” 378 F.3d
456, 469 (5th Cir. 2004). Because, as he argues, stalking does not always require
a threat of bodily harm or offensive contact, a conviction under Florida’s statute
does not necessarily fall within the generic, contemporary meaning of
aggravated assault. We are not persuaded.
       In the context of a conviction under the “deadly weapon” prong of Florida’s
aggravated assault statute, defining “violence” to include stalking would not
square with the fact that each conviction requires use of a deadly weapon. That
is, by requiring use of a deadly weapon, Florida’s aggravated assault statute
contemplates scenarios where a defendant threatens bodily injury or offensive
contact. Cf. Dale v. State, 703 So. 2d 1045, 1047 (Fla. 1997) (defining “deadly
weapon” as an instrument “likely to produce death or great bodily injury”).
Activities like repeated telephone calls, letters, or vandalism, as Romero–Ortiz
posits, are not covered. Moreover, although we generally recognize the in pari


       2
          This result is consistent with an unpublished case from the Eleventh Circuit
addressing the same issue. United States v. Escobar–Pineda, 428 Fed. App’x. 961, 962 (11th
Cir. 2011) (holding that because Florida statute 784.021(1)(a) requires the use of a deadly
weapon, it falls within the generic, contemporary meaning of aggravated assault and therefore
qualifies as a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii)).

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materia canon of statutory construction, see, e.g., Little v. Shell Exploration &
Prod. Co., 690 F.3d 282, 289 (5th Cir. 2012), it does not apply here. Section
784.046, which contains the definitions for Florida’s dating and sexual violence
statute, limits its definition of violence to that section only, FLA. STAT. §
784.046(1), and we will not shoe-horn a technical definition from a dating and
sexual violence statute into a generic assault statute. See Little, 690 F.3d at 289
(“[A] conventional limit on the canon is that courts should harmonize only those
‘statutes addressing the same subject matter.’” (quoting Wachovia Bank v.
Schmidt, 546 U.S. 303, 316 (2006))).
      Therefore, we hold that a conviction under the “deadly weapon” prong of
Florida’s aggravated assault statute qualifies as a crime of violence and that the
district court correctly applied a sixteen-level sentence enhancement.
Romero–Ortiz’s sentence is AFFIRMED.




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