     Case: 14-51165       Document: 00513209689         Page: 1    Date Filed: 09/28/2015




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

                                      No. 14-51165                                  FILED
                                                                            September 28, 2015
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk

                                                  Plaintiff–Appellee,
v.

GERARDO TAVAREZ-GRADO, also known as Albert Rodriguez, also known
as Reid Rodriguez, also known as Reid Rodruguez, also known as Pedro
Tavarez, also known as Albert Tavarez, also known as Reid Rodriguez-Veroza,
also known as George Rodriguez, also known as Pedro Rodriguez, also known
as George Arebalo, also known as George Arevalo, also known as Gerardo
Tavarez,

                                                  Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:14-CR-229-1


Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
PER CURIAM: ∗
       Appellant Gerardo Tavarez-Grado, who pleaded guilty to illegal reentry
after deportation, appeals his sentence on two grounds: (1) that the district
court’s application of a sixteen-level “crime of violence” sentencing



       ∗
         Pursuant to Fifth Circuit Rule 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should not be published and is not precedent except under the limited circumstances set forth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 Fifth Circuit Rule 47.5.4.
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                                    No. 14-51165
enhancement under U.S.S.G. § 2L1.2 was reversible error; and (2) that his
sentence is substantively unreasonable “based on the facts of his case and as
measured by the sentencing goals of 18 U.S.C. § 3553(a).” Because Appellant’s
prior conviction for felony menacing under Colorado law constitutes a “crime
of violence” under § 2L1.2, and because Appellant cannot show that his
sentence is substantively unreasonable under plain error review, we AFFIRM
the district court.
                                           I.
      Appellant Tavarez-Grado pleaded guilty to illegal reentry after
deportation in violation of 8 U.S.C. § 1326. Appellant’s presentence report
recommended a guideline range of 70–87 months imprisonment.                        That
calculation included a determination that Tavarez-Grado’s prior felony
menacing conviction under Colorado law was a “crime of violence” under
U.S.S.G. § 2L1.2(b)(1)(A)(ii), which resulted in a sixteen-level increase to
Tavarez-Grado’s offense level. Tavarez-Grado’s counsel objected to the sixteen-
level increase, arguing that the menacing conviction did not qualify as a crime
of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). 1 The district court ultimately
sentenced Tavarez-Grado to 57 months imprisonment. Tavarez-Grado timely
appealed his sentence.
                                           II.
      Tavarez-Grado first argues that Colorado’s felony menacing crime does
not constitute a “crime of violence” under § 2L1.2. The issue was preserved,
and we review de novo the district court’s characterization of a defendant’s




      1  Appellant’s counsel objected to the sixteen-level increase under § 2L1.2 both in
written objections to the presentence report and orally at the sentencing hearing. At the
sentencing hearing, the district court ruled that Appellant’s prior conviction for felony
menacing under Colorado law was a crime of violence under § 2L1.2.
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                                     No. 14-51165
prior conviction as a crime of violence for sentence-enhancement purposes.
United States v. Garcia-Figueroa, 753 F.3d 179, 184 (5th Cir. 2014).

       Section 2L1.2 of the United States Sentencing Guidelines states that if
a “defendant previously was deported, or unlawfully remained in the United
States, after—(A) a conviction for a felony that is . . . (ii) a crime of violence . .
., increase by 16 levels if the conviction receives criminal history points under
Chapter Four . . . .” U.S.S.G. § 2L1.2(b)(1)(A)(ii). The section’s commentary
defines a “crime of violence” as either certain enumerated crimes 2 or “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.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).

       At the time of Tavarez-Grado’s conviction, 3 a person committed the crime
of menacing under Colorado law “if, by any threat or physical action, he
knowingly places or attempts to place another person in fear of imminent
serious bodily injury.” C.R.S. § 18-3-206 (1999). The statute increased the
crime of menacing from a misdemeanor to a felony if the crime was committed
“by the use of a deadly weapon.” C.R.S. § 18-3-206 (1999).

      There are two prongs under which a court may analyze whether a
particular offense constitutes a crime of violence under § 2L1.2—the



      2   The enumerated offenses are:
        any of the following offenses under federal, state, or local law: Murder,
        manslaughter, kidnapping, aggravated assault, forcible sex offenses (including
        where consent to the conduct is not given or is not legally valid, such as where
        consent to the conduct is involuntary, incompetent, or coerced), statutory rape,
        sexual abuse of a minor, robbery, arson, extortion, extortionate extension of
        credit, [and] burglary of a dwelling.
U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).
        3 See United States v. Hernandez-Rodriguez, 788 F.3d 193, 196 (applying the version

of the statute of conviction under which the defendant was convicted). Appellant pleaded
guilty to felony menacing in February 1999.
                                            3
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                                      No. 14-51165
“equivalent” prong and the “intentional use of force as an element” prong. See
United States v. Hernandez-Rodriguez, 788 F.3d 193, 195 (5th Cir. 2015). The
Government argues that Colorado’s felony menacing crime is both (1) the
“equivalent” of one of the enumerated crimes of violence under § 2L1.2—
specifically, aggravated assault, and (2) a non-enumerated crime of violence
that has as an element the intentional use of force. Because our analysis under
the second prong is conclusive, we need not address whether felony menacing
is the “equivalent” of one of the enumerated crimes of violence under § 2L1.2.

       To determine whether a non-enumerated offense is a crime of violence
under the “intentional use of force as an element” prong of § 2L1.2,                       a
“categorical approach” is applied. United States v. Velasco, 465 F.3d 633, 638
(5th Cir. 2006). Under the categorical approach, the court may “consider only
the statutory definition of the offense charged, rather than the defendant’s
actual conduct underlying the offense, to determine whether the offense
contains an element involving the use of force.” Id. If the statute of conviction
has “disjunctive subsections,” the court “may apply a modified categorical
approach to ascertain under which statutory subsection the defendant was
convicted.” United States v. Elizondo-Hernandez, 755 F.3d 779, 781 (5th Cir.
2014). Under the modified categorical approach, the court may consider “‘the
statutory definition, charging document, written plea agreement, transcript of
plea colloquy, and any explicit factual finding by the trial judge to which the
defendant assented.’” Id. 4 “If the statute of conviction cannot be narrowed,”




       4See Taylor v. United States, 495 U.S. 575, 602 (1990) (holding that the categorical
approach permits a court to “go beyond the mere fact of conviction in a narrow range of cases
where a jury was actually required to find all the elements” of a subsection of an offense);
United States v. Martinez-Paramo, 380 F.3d 799, 803 (5th Cir. 2004) (extending Taylor such
that when a defendant pleads guilty to an offense, the court may review the indictment “to
determine the elements of the statute to which the defendant pleaded guilty”).
                                             4
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                                       No. 14-51165
the court must determine “‘whether the least culpable act constituting a
violation of that statute’” is a crime of violence under § 2L1.2. Id.

       Colorado’s crime of menacing at the time of Tavarez-Grado’s conviction
was defined as follows:

   A person commits the crime of menacing if, by any threat or physical
   action, he knowingly places or attempts to place another person in
   fear of imminent serious bodily injury. Menacing is a class 3
   misdemeanor, but, if committed by the use of a deadly weapon, it is a
   class 5 felony.
C.R.S. § 18-3-206 (1999). Tavarez-Grado pleaded guilty to felony menacing,
which necessarily includes as an element “use of a deadly weapon.” 5

       We have already determined that “use” of a deadly weapon constitutes
intentional use of physical force in the § 2L1.2 context. See Velasco, 465 F.3d
at 640–41. In Velasco, an opinion related to an Illinois criminal statute, we
held that because the statute required the “use” of a deadly weapon (as opposed
to mere possession), the crime had as an element the requisite intentional use
of physical force to constitute a crime of violence under § 2L1.2. Id. at 640 (“In
order to ‘use’ a weapon to cause bodily harm, one must, at the very least,
threaten the use of physical force.”). Our holding in Velasco is conclusive here.
Because Appellant’s crime of conviction required the “use of a deadly weapon,”


       5 The charging instrument to which Tavarez-Grado pleaded guilty alleged that he “by
threat and physical action and by use of a deadly weapon, to wit: motor vehicle, did
feloniously, unlawfully and knowingly place and attempt to place [the victim] in fear of
imminent serious bodily injury. As explained above, the court may consider the charging
instrument to which the defendant pleaded guilty to “determine the elements of the statute
to which the defendant pleaded guilty.” United States v. Martinez-Paramo, 380 F.3d 799 (5th
Cir. 2004); see United States v. Gomez, 547 F.3d 242, 245 n.3 (5th Cir. 2003) (“Despite the
general rule that a prior crime is defined categorically by the statute of conviction, a crime’s
definition may be narrowed based, e.g., on the specific facts contained in the charging
papers.”). Even without reviewing the charging instrument, it is clear that any felony
menacing conviction under the 1999 version of the statute must have had as an element the
use of a deadly weapon, as use of a deadly weapon was the only element that made a felony
menacing conviction a felony and not a misdemeanor. See C.R.S. § 18-3-206 (1999).
                                               5
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                                       No. 14-51165
the crime had as an element the intentional use of physical force and is thus a
crime of violence under § 2L1.2. 465 F.3d at 640–41.

                                             III.
       Appellant argues that his sentence is substantively unreasonable
because the factors in 18 U.S.C. § 3553(a) should have further mitigated his
sentence. Appellant concedes that review of this issue is for plain error because
he did not preserve the issue below. See United States v. Peltier, 505 F.3d 389,
391–92 (5th Cir. 2007). There is no evidence of plain error—Appellant merely
disagrees with the court’s assessment of the sentencing factors, and Gall
mandates deference to the sentencing court’s assessment of the § 3553(a)
factors, even under the more appellant-favorable abuse of discretion standard.
Gall v. United States, 552 U.S. 38, 51 (2007); see United States v. Alonzo, 435
F.3d 551, 553 (5th Cir. 2006). Moreover, because Appellant’s sentence was
within “a properly calculated Guideline range,” 6 his sentence is “afforded a
rebuttable presumption of reasonableness.” United States v. Smith, 440 F.3d
704, 706–07 (5th Cir. 2006); see United States v. Mondragon-Santiago, 564
F.3d 357 (5th Cir. 2009) (“[W]e will presume a sentence within the . . .
Guidelines to be reasonable, and the defendant must rebut that presumption




       6 A sentence resulting from an “upward or downward departure as allowed by the
Guidelines” is still a “’Guideline sentence’” afforded a rebuttable presumption of
reasonableness. United States v. Smith, 440 F.3d 704, 706–07 (5th Cir. 2006). At Appellant’s
sentencing, the district court granted what it called a “2 level downward variance for cultural
assimilation,” but this was clearly a Guidelines departure because the adjustment was based
upon a Guidelines departure reason—cultural assimilation; the district court stated this
departure reason and then proceeded to move down the table two levels and announce a new
range under the Guidelines: 57 to 71 months imprisonment. The final judgment statement
of reasons likewise uses the Guidelines departure section. As such, Appellant’s sentence was
a sentence resulting from a downward departure under the Guidelines and is therefore
presumed reasonable. Id.

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                                 No. 14-51165
to demonstrate substantive unreasonableness.”). Appellant has failed to rebut
that presumption under plain error review.

                                      IV.
         For the above-stated reasons, we AFFIRM the judgment of the district
court.




                                       7
