United States v. Mack Hinojosa ( 2013 )

Case: 12-41414 Document: 00512456470 Page: 1 Date Filed: 12/02/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 12-41414 FILED
Summary Calendar December 2, 2013
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MACK LOPEZ HINOJOSA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:12-CR-550-1
Before HIGGINBOTHAM, DENNIS, and GRAVES, Circuit Judges.
PER CURIAM: *
Mack Lopez Hinojosa pleaded guilty to possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g)(1), and he was sentenced to
180 months of imprisonment, in accordance with the Armed Career Criminal
Act (ACCA), 18 U.S.C. § 924(e). Hinojosa appeals the application of the ACCA
enhancement, arguing that his prior conviction for assault on a public servant
in violation of Texas Penal Code § 22.01(b)(1) does not qualify as a violent
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-41414
felony under the ACCA. He first maintains that § 22.01 does not have as a
necessary element the use, attempted use, or threatened use of physical force
against the person of another, nor does the statute involve conduct that
presents a serious potential risk of physical injury to another. See
§ 924(e)(2)(B)(i)-(ii). He also contends that in determining whether his prior
conviction qualifies as a predicate offense under the ACCA, the sentencing
court should have taken into consideration the sentence available for the Texas
offense of simple assault, without reference to any victim-specific enhancement
factors.
We review the legal conclusions underlying a district court’s application
of § 924(e) de novo. See United States v. Fuller, 453 F.3d 274, 278 (5th Cir.
2006). A conviction for assault on a public servant pursuant to Texas Penal
Code § 22.01(b)(1) constitutes a crime of violence pursuant to U.S.S.G.
§ 4B1.2(a). See United States v. Anderson, 559 F.3d 348, 355-56 (5th Cir. 2009);
see also United States v. Mohr, 554 F.3d 604, 609 n.4 (5th Cir. 2009) (noting
that this court has applied case law under the residual clause of § 924(e) to
analyze the definition of crime of violence under § 4B1.2, and vice versa).
Moreover, we recently held that a conviction for felony assault pursuant to
Texas Penal Code § 22.01 constitutes a crime of violence for purposes of the
ACCA. United States v. Espinoza, ___ F.3d ___-, 2013 WL 5223494, at **4-5
(5th Cir. Sept. 17, 2013). Accordingly, applying Espinoza and the Anderson
definition, Hinojosa’s conviction for assault on a public servant pursuant to
Texas Penal Code § 22.01(b)(1) was a violent felony for purposes of § 924(e).
Thus, he has not demonstrated that the district court wrongly determined his
base offense level under U.S.S.G. § 4B1.4.
In a separate yet related argument, Hinojosa argues for the first time,
without citing any legal authority, that when determining whether an offense
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No. 12-41414
qualifies as a violent felony under the ACCA, sentencing courts should consider
the maximum sentence generally prescribed for that offense (here, one year for
simple assault), without any reference to any victim-specific sentencing
factors. The argument that the district court should disregard certain
elements of the offense, such as the identity of the victim, and consider the
various sentences available under a disjunctive statute, such as § 22.01 which
criminalizes misdemeanor assaults and felony assaults, runs afoul of Supreme
Court authority and has no merit. Indeed, the Supreme Court recently
reinforced the “categorical approach,” including the focus on “the elements of
the state statute of conviction.” Descamps v. United States, 133 S. Ct. 2276,
2283 (2013).
AFFIRMED.
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