United States v. Manuel Buenfil-Catalan , 684 F. App'x 370 ( 2017 )

Case: 16-40799 Document: 00513936820 Page: 1 Date Filed: 04/03/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fif h Circuit
No. 16-40799 FILED
Summary Calendar April 3, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MANUEL JESUS BUENFIL-CATALAN,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:15-CR-868-1
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Manuel Jesus Buenfil-Catalan pleaded guilty to
illegal reentry and was sentenced to 48 months of imprisonment and three
years of supervised release. He contends that the district court plainly erred
in applying the crime-of-violence enhancement in U.S.S.G. § 2L1.2(b)(1)(A)(ii)
(2015) based on his prior Tennessee conviction for aggravated assault.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 16-40799
We have held that Tennessee aggravated assault under subsection (a) of
the statute is categorically a crime of violence. United States v. Mungia-
Portillo, 484 F.3d 813, 815-17 (5th Cir. 2007) (examining TENN. CODE ANN.
§ 39-13-102(a) (1991)). We have also held that the Tennessee aggravated
assault statute is “identical in all material respects” to the Texas aggravated
assault statute. United States v. Guillen-Alvarez, 489 F.3d 197, 200 (5th Cir.
2007) (examining TEX. PENAL CODE ANN. §§ 22.01, 22.02 (2000)). We recently
reaffirmed our holding that Texas aggravated assault is categorically a crime
of violence. United States v. Villasenor-Ortiz, No. 16-10366, 2017 WL 113917,
at *3 & n.9 (5th Cir. Jan. 11, 2017) (unpublished) (examining TEX. PENAL CODE
ANN. § 22.02(a) (2003)); Guillen-Alvarez, 489 F.3d at 200-01.
Buenfil-Catalan nonetheless insists that the Tennessee aggravated
assault statute is indivisible in its entirety and that an aggravated assault
under subsection (b) is not generic aggravated assault. Whether Tennessee
treats an aggravated assault under subsection (b) as an offense with different
elements than an aggravated assault under subsection (a) is subject to
reasonable dispute. See, e.g., State v. Roberson, 988 S.W.2d 690, 696 (Tenn.
Crim. App. 1998). Buenfil-Catalan therefore fails to show that subsection (b) is
clearly or obviously not divisible from subsection (a). See Puckett v. United
States, 556 U.S. 129, 135 (2009). The district court did not plainly err in
treating the Tennessee aggravated assault statute as divisible and examining
the state court documents to determine which subsection Buenfil-Catalan was
convicted of violating. See Shepard v. United States, 544 U.S. 13, 16 (2005).
These documents reflect that Buenfil-Catalan was convicted of violating
subsection (a), namely, § 39-13-102(a)(1). The district court did not plainly err
in determining that his Tennessee conviction for aggravated assault is a crime
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Case: 16-40799 Document: 00513936820 Page: 3 Date Filed: 04/03/2017
No. 16-40799
of violence. See Villasenor-Ortiz, 2017 WL 113917, at *3; Guillen-Alvarez, 489
F.3d at 200-01; Mungia-Portillo, 484 F.3d at 815-17.
The judgment of the district court is AFFIRMED.
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