United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS June 6, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
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No. 05-41787
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ALFREDO ANTONIO GUILLEN-ALVAREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before JOLLY, STEWART, and PRADO, Circuit Judges.
PRADO, Circuit Judge:
Alfredo Antonio Guillen-Alvarez (“Alvarez”) appeals the
sentence imposed by the district court after his plea of guilty
to illegal reentry after deportation in violation of 8 U.S.C.
§ 1326(a). For the reasons that follow, we AFFIRM the sentence
imposed by the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 13, 2005, Alvarez pleaded guilty to illegal reentry
after deportation in violation of 8 U.S.C. § 1326(a). His
Presentence Report (“PSR”) calculated a base offense level of
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eight and recommended a sixteen-level sentence enhancement on
account of Alvarez’s 2000 Texas conviction for aggravated
assault, which the PSR characterized as a crime of violence under
U.S.S.G. § 2L1.2(b)(1)(A)(ii). Alvarez filed written objections
to the PSR, contending that his Texas conviction for aggravated
assault did not qualify as a crime of violence and that the
sentence enhancement provisions of § 1326(b) were
unconstitutional. The district court overruled Alvarez’s
objections and adopted the PSR’s recommendations. The district
court then departed upwards from the Guidelines range and
sentenced Alvarez to one hundred months in prison followed by
three years of supervised release. On appeal, Alvarez renews his
objections to the sentence imposed by the district court.
II. JURISDICTION AND STANDARD OF REVIEW
This is an appeal from a final judgment of a district court
in a criminal case. This court has jurisdiction pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742.
The district court’s characterization of Alvarez’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. Calderon-Pena, 383 F.3d 254, 256 (5th Cir. 2004).
III. ANALYSIS
A. The district court did not err in determining that Alvarez
was convicted of a crime of violence
For violations of 8 U.S.C. § 1326, section
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2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines provides for a
sixteen-level increase to the defendant’s base offense level
where the defendant was previously deported following a
conviction for a felony that is a crime of violence. The
commentary defines crime of violence as (1) any of a list of
enumerated offenses, which include “aggravated assault,” or (2)
“any 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).1
Alvarez contends that his 2000 Texas conviction for
aggravated assault does not qualify as a crime of violence. He
argues that the Texas aggravated assault statute, Texas Penal
Code § 22.02, does not have as an element the use, attempted use,
or threatened use of physical force. He further argues that his
2000 Texas conviction does not count as a conviction for the
enumerated offense of “aggravated assault” because section 22.02
is broader than the offense contemplated in the Guidelines.
Alvarez is correct that the fact that he was convicted of a
state offense with the label of “aggravated assault” does not
necessarily mean that his conviction counts as “aggravated
1
The commentary to § 2L1.2 is binding and is equivalent in
force to the Guideline language itself, as long as the language
and the commentary are not inconsistent. United States v.
Rayo-Valdez, 302 F.3d 314, 318 n.5 (5th Cir. 2002).
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assault” within the meaning of § 2L1.2. See United States v.
Santiesteban-Hernandez, 469 F.3d 376, 378 (5th Cir. 2006).
Nevertheless, we conclude that Alvarez’s aggravated assault
conviction qualifies as a conviction for the enumerated offense
of “aggravated assault,” and therefore as a conviction for a
crime of violence.2
In analyzing whether Alvarez’s conviction qualifies as a
conviction for the enumerated offense of aggravated assault, we
look to the particular subdivision of the statute under which he
was convicted. United States v. Fierro-Reyna, 466 F.3d 324, 327
(5th Cir. 2006). Alvarez’s state court judgment declares his
convicted offense to have been “aggravated assault with a deadly
weapon, to wit: a knife.” State v. Alvarado, No. 0775423D (Crim.
Dist. Ct. No. 1, Tarrant County, Tex. Nov. 15, 2000). We conclude
that Alvarez was convicted under the following provision of the
Texas code:
(a) A person commits an offense [of aggravated assault] if
the person commits assault as defined in Section 22.01
and the person:
(1) causes serious bodily injury to another, including
the person’s spouse; or
(2) uses or exhibits a deadly weapon during the
commission of the assault.
TEX. PENAL CODE ANN. § 22.02 (Vernon 2000).
2
Because we conclude that Alvarez’s conviction qualifies as
a conviction for the enumerated offense of “aggravated assault,”
we need not decide whether his offense has as an element the use,
attempted use, or threatened use of physical force against the
person of another. See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).
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Recently, in United States v. Mungia-Portillo, No. 06-40273,
2007 U.S. App. LEXIS 8789 (5th Cir. Apr. 17, 2007), this court
upheld a sentence enhancement under section 2L1.2(b)(1)(A)(ii)
for a defendant convicted under the Tennessee aggravated assault
statute, Tennessee Code § 39-13-102. We concluded that Mungia’s
guilty plea to a violation of section 39-13-102 qualified as a
conviction for the enumerated offense of aggravated assault.
First, we determined from Mungia’s indictment that he pleaded
guilty to “unlawfully, intentionally, knowingly and recklessly
caus[ing] serious bodily injury to [the victim] by use of a
deadly weapon, to wit, a handgun.” Id. at *5. We assumed without
deciding that Mungia pleaded guilty to the least culpable mental
state, “recklessly.” Id. We identified the relevant provision of
the Tennessee aggravated assault statute as the following:
(a) A person commits aggravated assault who:
(1) Commits an assault as defined in § 39-13-101, and:
(A) Causes serious bodily injury to another; or
(B) Uses or displays a deadly weapon . . . .
TENN. CODE ANN. § 39-13-102 (1991).
We then looked at the correspondence between this provision
and the definitions of aggravated assault found in the Model
Penal Code, Wayne F. LaFave’s Substantive Criminal Law treatise,
and Black’s Law Dictionary. Addressing arguments similar to those
made by Alvarez in this case, we explained that the differences
between Tennessee’s definition of aggravated assault and the
Model Penal Code definition were “sufficiently minor” that they
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did not “remove the Tennessee statute ‘from the family of
offenses commonly known as “aggravated assault.”’” Mungia-
Portillo, 2007 U.S. App. LEXIS 8789 at *10-11 (quoting United
States v. Sanchez-Ruedas, 452 F.3d 409, 414 (5th Cir. 2006)). We
further noted that Tennessee’s “aggravated assault statute
includes the two most common aggravating factors,” found in other
state aggravated assault statutes, that is, “the causation of
serious bodily injury and the use of a deadly weapon.” Id. at
*11.
A comparison of the provision of the Tennessee aggravated
assault statute under which Mungia was convicted and the
provision of the Texas aggravated assault statute under which
Alvarez was convicted reveals that they are identical in all
material respects. Likewise, the two states’ definitions of the
incorporated offense of assault in the relevant years contained
only minor differences. The Tennessee assault statute stated:
(a) A person commits assault who:
(1) Intentionally, knowingly or recklessly causes
bodily injury to another;
(2) Intentionally or knowingly causes another to
reasonably fear imminent bodily injury; or
(3) Intentionally or knowingly causes physical contact
with another and a reasonable person would regard
the contact as extremely offensive or provocative.
TENN. CODE ANN. § 39-13-101 (1991). The Texas assault statute
stated:
(a) A person commits an offense [of assault] if the person:
(1) intentionally, knowingly, or recklessly causes
bodily injury to another, including the person’s
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spouse;
(2) intentionally or knowingly threatens another with
imminent bodily injury, including the person’s
spouse; or
(3) intentionally or knowingly causes physical contact
with another when the person knows or should
reasonably believe that the other will regard the
contact as offensive or provocative.
TEX. PENAL CODE ANN. § 22.01 (Vernon 2000).
In light of the essential similarity of the relevant
provisions of the Texas aggravated assault statute and the
Tennessee aggravated assault statute, we conclude that Mungia-
Portillo controls this decision. Mungia-Portillo compels the
conclusion that Alvarez’s aggravated assault conviction qualifies
as a conviction for the enumerated offense of “aggravated
assault,” and therefore that Alvarez was convicted of a crime of
violence under section 2L1.2(b)(1)(A)(ii). Accordingly, we hold
that the district court did not err in imposing the sixteen-level
sentence enhancement.
B. Alvarez’s constitutional challenge is foreclosed
Alvarez contends that the sentence imposed by the district
court is unconstitutional because it exceeds the statutory
maximum sentence allowed for the § 1326(a) offense charged in his
indictment. Citing Apprendi v. New Jersey, 530 U.S. 466 (2000),
he challenges the constitutionality of § 1326(b)’s treatment of
his prior felony conviction as a sentencing factor rather than as
an element of the offense that must be found by the jury.
Alvarez’s challenge is foreclosed by Almendarez-Torres v.
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United States, 523 U.S. 224, 239-47 (1998), in which the Supreme
Court held that the treatment of prior convictions as sentencing
factors under § 1326(b) was constitutional. This court has
repeatedly rejected arguments like the one made by Alvarez and
has held that Almendarez-Torres remains binding despite Apprendi.
See, e.g, United States v. Garza-Lopez, 410 F.3d 268, 276 (5th
Cir. 2005); United States v. Mendez-Villa, 346 F.3d 568, 570-71
(5th Cir. 2003). Alvarez concedes that his argument is foreclosed
and raises the argument to preserve it for further review.
IV. CONCLUSION
For the reasons stated above, the sentence imposed by the
district court is AFFIRMED.
AFFIRMED.
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