United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 20, 2005
_______________________ Charles R. Fulbruge III
Clerk
No. 04-41163
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AUGUSTIN FUENTES-BERLANGA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas -
McAllen Division
Criminal No. M-03-630-ALL
Before DAVIS, JONES, and GARZA, Circuit Judges.
PER CURIAM:*
Augustin Fuentes-Berlanga appeals his fifty-seven-month
sentence imposed following his guilty-plea conviction for attempted
illegal reentry by a previously-deported alien in violation of
8 U.S.C. § 1326. Citing United States v. Booker, 125 S. Ct. 738
(2005), he argues for the first time on appeal that the district
court erred in sentencing him under a mandatory guideline scheme.
Fuentes-Berlanga further argues that the district court misapplied
*
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opinion should not be published and is not precedent except under the limited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.
the Sentencing Guidelines by treating his prior conviction for
aggravated assault in Texas as a “crime of violence” under U.S.S.G.
§ 2L.1.2(b)(1)(A)(ii). Finding no merit in these contentions, we
affirm.
I. BACKGROUND
On or about July 6, 2003, Fuentes-Berlanga, a citizen and
national of Mexico and a non-citizen of the United States,
presented an invalid resident alien card to authorities at the
Hidalgo Port of Entry. Fuentes-Berlanga had been deported from the
United States on December 17, 2002, and did not have the necessary
consent to reapply for admission into the United States.
On September 2, 2003, Fuentes-Berlanga pleaded guilty to
attempting to illegally reenter the United States in violation of
8 U.S.C. § 1326. In a Pre-sentence Report (PSR) completed on
October 6, 2003, the Probation Office recommended a sixteen-level
enhancement of Fuentes-Berlanga’s base offense level of 8 after
determining that Fuentes-Berlanga’s prior conviction in Texas for
aggravated assault with a motor vehicle constituted a “crime of
violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Fuentes-Berlanga,
driving while intoxicated, had recklessly collided with and injured
another driver. The probation office made the determination that
the aggravated assault constituted a “crime of violence” because
aggravated assault is an enumerated “crime of violence.” U.S.S.G.
§ 2L1.2 comment. (n.1 (B)(ii)(II)) (2002). The district court
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agreed with this assessment and found the sixteen-level enhancement
appropriate. Finding a total offense level of 21, the court
sentenced Fuentes-Berlanga to fifty-seven months in prison.
II. DISCUSSION
A. Booker Claims
As Fuentes-Berlanga did not raise his Booker argument in
the district court, we review this issue for plain error. United
States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005), petition for
cert. filed (Mar. 31, 2005)(No. 04-9517). Plain error occurs only
where there is “(1) error, (2) that is plain, and (3) that affects
substantial rights.” United States v. Cotton, 535 U.S. 625, 631
(2002).
The district court committed an error that was plain in
sentencing Fuentes-Berlanga under a mandatory, rather than
advisory, scheme. Mares, 402 F.3d at 521. However, Fuentes-
Berlanga fails to meet his burden of showing that the district
court’s error affected his substantial rights. See United States
v. Valenzuela-Quevedo, 407 F.3d 728, 732-33 (5th Cir. 2005); Mares,
402 F.3d at 521. This court has rejected the argument that a
Booker error is a structural error or that such error is presumed
to be prejudicial. Mares, 402 F.3d at 520-22; see also United
States v. Malveux, 411 F.3d 558, 561 n.9 (5th Cir. 2005), petition
for cert. filed (July 11, 2005) (No. 05-5297). Therefore, Fuentes-
Berlanga must demonstrate that the “sentencing judge — sentencing
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under an advisory scheme rather than a mandatory one — would have
reached a significantly different result” in his favor. Mares, 402
F.3d at 521. There is no indication here that the district court
would have sentenced Fuentes-Berlanga differently under the
advisory Guidelines. Thus, Fuentes-Berlanga’s sentence presents no
reversible error under Booker.
B. “Crime of Violence”
The district court’s characterization of Fuentes-
Berlanga’s prior conviction is a question of law that we review de
novo. United States v. Villegas, 404 F.3d 355, 359 (5th Cir.
2005); United States v. Vasquez-Balandran, 76 F.3d 648, 649 (5th
Cir. 1996). Appellant preserved this point of error by objection
in the district court.
Because of the district court’s determination that he had
been convicted of a crime of violence prior to his 2002
deportation, Fuentes-Berlanga was subject to a sixteen-level
increase in his base offense level and a longer period of
incarceration under U.S.S.G. § 2L1.2(b)(1)(A)(ii). The application
note to U.S.S.G. § 2L1.2 used at the time of Fuentes-Berlanga’s
federal sentencing states that a crime of violence “includes
murder, manslaughter, kidnapping, aggravated assault, forcible sex
offenses (including sexual abuse of a minor), robbery, arson,
extortion, extortionate extension of credit, and burglary of a
dwelling.” U.S.S.G. § 2L1.2 comment. (n.1 (B)(ii)(II)) (2002). In
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Texas, where Fuentes-Berlanga was convicted of aggravated assault,
the state penal code defines assault as an act where an individual
“intentionally, knowingly, or recklessly causes bodily injury to
another, including the person’s spouse.” TEX. PENAL CODE ANN.
§ 22.01(a)(1). The aggravated assault indictment against Fuentes-
Berlanga stated that his actions were reckless. At issue, then, is
whether Fuentes-Berlanga’s reckless aggravated assault in Texas
constitutes “aggravated assault” under the Guidelines.
Fuentes-Berlanga cites Taylor v. United States, 495 U.S.
575 (1990), for the proposition that the relevant definition of
“aggravated assault” in the Guidelines must be the “generic,
contemporary meaning” of the offense. Id. at 595. Because Texas
is among a minority of states that allows a mens rea of
recklessness for aggravated assault, Fuentes-Berlanga contends that
aggravated assault with a mens rea of recklessness cannot
constitute aggravated assault for “crime of violence” purposes.
This court, however, need not conduct a Taylor inquiry
into the “generic, contemporary definition” of enumerated offenses
within the Guidelines. We have previously held that when dealing
with an enumerated offense, the court need only utilize a “common
sense” inquiry and ask whether the conviction at issue constitutes
an enumerated offense as “that term is understood in its ‘ordinary,
contemporary, [and] common’ meaning.” United States v. Izaguirre-
Flores, 405 F.3d 270, 275 (5th Cir. 2005) (quoting United States v.
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Zavala-Sustaita, 214 F.3d 601, 604 (5th Cir. 2000)). This broader
standard properly recognizes that the “Commission has predetermined
that, regardless of . . . the way they are defined by state laws,
the listed offenses are inherently violent and forceful. . . Thus,
their enumeration in the commentary ensures that they are treated
as ‘crimes of violence.’” United States v. Rayo-Valdez, 302 F.3d
314, 317 (5th Cir. 2002); see also United States v. McQuilkin, 97
F.3d 723 (3d Cir. 1996) (holding that aggravated assault was a
“crime of violence” without making a Taylor inquiry). The Texas
Penal Code defines an aggravated assault as such a term is
ordinarily, contemporarily, and commonly understood. Thus,
Fuentes-Berlanga committed a “crime of violence” under the
Guidelines and the sixteen-level increase to his base level offense
was proper.
CONCLUSION
Fuentes-Berlanga fails to demonstrate plain error under
Booker, and his prior conviction is properly construed as a “crime
of violence.” Therefore, the sentence issued by the district court
is AFFIRMED.
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