United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 16, 2006
Charles R. Fulbruge III
Clerk
No. 05-41013
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAURICIO ALEJANDRO SAUCEDO-ROMAN, also known
as Mauricio Saucedo-Roman,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(5:05-CR-131-ALL)
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Mauricio Alejandro Saucedo-Roman (Saucedo)
appeals the sentence imposed by the district court following his
guilty-plea conviction for illegal reentry into the United States
after deportation. He argues that the district court erred in
increasing his offense level under the Sentencing Guidelines based
on a determination that his prior Michigan conviction for felonious
assault was a crime of violence under U.S.S.G. § 2L1.2. The
district court determined that the increase was warranted because
*
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this opinion should not be published and is not precedent except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 Michigan felonious-assault offense was the equivalent of
aggravated assault, one of the enumerated crimes of violence under
§ 2L1.2(b)(1)(A)(ii) & comment.(n.1(B)(iii)). We review the
district court’s legal characterization of Saucedo’s prior
conviction under § 2L1.2 de novo. See United States v. Sanchez-
Ruedas, 452 F.3d 409, 412 (5th Cir. 2006), cert. denied, (Oct. 2,
2006) (No. 06-5932).
A prior conviction will qualify as a crime of violence if it
is specifically enumerated in § 2L1.2, comment. (n.1(B)(iii)),
regardless whether it has the use of force as an element. United
States v. Izaguirre- Flores, 405 F.3d 270, 275 n.14 (5th Cir.),
cert. denied, 126 S. Ct. 253 (2005). In determining whether a
state conviction constitutes an “enumerated offense” for purposes
of § 2L1.2’s crime-of-violence enhancement, the court uses a
“common sense approach,” defining each enumerated offense by its
“generic, contemporary meaning.” Id. at 275 & n.16.
Under the Michigan Penal Code, “a person who assaults another
person with a gun, revolver, pistol, knife, iron bar, club, brass
knuckles, or other dangerous weapon without intending to commit
murder or to inflict great bodily harm less than murder is guilty”
of felonious assault. MICH. COMP. LAWS § 750.82 (2002). The Model
Penal Code states: “A person is guilty of aggravated assault if
he: (a)attempts to cause serious bodily injury to another, or
causes such injury purposely, knowingly or recklessly under
circumstances manifesting extreme indifference to the value of
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human life; or (b) attempts to cause or purposely or knowingly
causes bodily injury to another.” Model Penal Code § 211.1(2).
Michigan’s provision is sufficiently similar to the generic
contemporary definition of aggravated assault to qualify as an
enumerated crime of violence. Saucedo’s argument that the offense
of felonious assault does not fall within the ordinary meaning of
aggravated assault because, under Michigan law, felonious assault
can be committed in ways that do not involve bodily injury is
without merit. See Sanchez-Ruedas, 452 F.3d at 413. His argument
that Michigan felonious-assault offenses include battery offenses
which may be committed by mere offensive touching also is without
merit. Id.
Saucedo’s constitutional challenge to 18 U.S.C. § 1326(b) is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998). Although he contends that Almendarez-Torres was
incorrectly decided and that a majority of the Supreme Court would
overrule Almendarez-Torres in light of Apprendi, we have repeatedly
rejected such arguments on the basis that Almendarez-Torres remains
binding. See United States v. Garza-Lopez, 410 F.3d 268, 276 (5th
Cir.), cert. denied, 126 S. Ct. 298 (2005). Saucedo properly
concedes that his argument is foreclosed in light of
Almendarez-Torres and circuit precedent, but he raises it here to
preserve it for further review.
AFFIRMED.
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