United States v. Abraham Castro ( 2011 )

Case: 10-20248 Document: 00511343575 Page: 1 Date Filed: 01/07/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 7, 2011
No. 10-20248
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ABRAHAM PEREZ CASTRO, also known as Abraham Castro Perez, also known
as Abraham Perez!Castro, also known as Abraham Perez,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:09-CR-672-1
Before JOLLY, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Abraham Perez Castro appeals his guilty plea conviction for illegal reentry
in violation of 8 U.S.C. § 1326(a) and (b)(2). Castro contends that the district
court erred by imposing a 16-level enhancement under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) because his Texas conviction for aggravated assault is not a
crime of violence. He argues that the Model Penal Code and the majority of
states do not include in their definition of aggravated assault the method of
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-20248
committing aggravated assault through threatening conduct. Thus, he argues
that Texas is in the minority of jurisdictions in which aggravated assault may
be committed by threatening conduct. Because the Texas offense of aggravated
assault can be committed in a way that does not fall within the generic,
contemporary meaning of aggravated assault, Castro argues that it does not
qualify as the enumerated offense of aggravated assault. Castro argues further
that United States v. Guillen-Alvarez, 489 F.3d 197 (5th Cir. 2007), is not
dispositive, as it does not address the argument that the offense encompasses
threatening conduct and, therefore, does not meet the generic definition of
aggravated assault.
“Although post-[United States v. Booker, 543 U.S. 220 (2005)], the
Sentencing Guidelines are advisory only, and an ultimate sentence is reviewed
for reasonableness under an abuse-of-discretion standard, the district court must
still properly calculate the guideline sentencing range for use in deciding on the
sentence to impose.” United States v. Goss, 549 F.3d 1013, 1016 (5th Cir. 2008).
A challenge to the district court’s determination that a prior conviction is a crime
of violence is a challenge to the court’s application of the Guidelines that we
review de novo. United States v. Sandoval-Ruiz, 543 F.3d 733, 734-35 (5th Cir.
2008).
We have rejected the same argument made by Castro in other cases. See
United States v. Delgado-Salazar, 252 F. App’x 596, 597-98 (5th Cir. 2007);
United States v. Peraza-Chicas, 254 F. App’x 399, 403-05 (5th Cir. 2007)
(addressing a different statute). We find these cases to be persuasive. See
Ballard v. Burton, 444 F.3d 391, 401 & n.7 (5th Cir. 2006). Accordingly, our
holding in Guillen-Alvarez, that a conviction under the Texas aggravated assault
statute, Texas Penal Code § 22.02, is substantially similar to the generic,
contemporary definition of aggravated assault and thus qualifies as the
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No. 10-20248
enumerated offense of aggravated assault, is controlling. Guillen-Alvarez, 489
F.3d at 200-01.
The judgment of the district court is AFFIRMED.
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