United States v. Delgado-Salazar ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 25, 2007
No. 05-40890 Charles R. Fulbruge III
Summary Calendar Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ALFREDO DELGADO-SALAZAR
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:05-CR-132
Before GARWOOD, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Alfredo Delgado-Salazar appeals his guilty-plea conviction and June 2005
sentence for attempted illegal reentry into the United States, in violation of 8
U.S.C. § 1326(b)(2). Delgado-Salazar argues that the district court committed
reversible error by finding that his 2003 Texas conviction for aggravated assault
(for which he was sentenced to two years’ imprisonment) was a “crime of
violence” warranting a 16-level enhancement under Sentencing Guidelines §
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 05-40890
2L1.2(b)(1)(A)(ii).1 He contends that the Texas offense of aggravated assault
does not fall within the generic, contemporary meaning of “aggravated assault”
set forth in the Model Penal Code (MPC) or in other states’ statutes because the
Texas offense may be committed by merely threatening another with imminent
bodily injury using a deadly weapon. Delgado-Salazar also contends that the
Texas offense of aggravated assault is not a “crime of violence” because it does
not have “as an element the use, attempted use, or threatened use of physical
force against the person of another” as set forth in § 2L1.2. U.S.S.G. § 2L1.2
cmt. –1(B)(iii).
The Government asserts that, because Delgado-Salazar argued at
sentencing only that his offense was not a “16-level offense” and was “not a crime
of violence,” the specific argument he raises on appeal was not properly
preserved and that, consequently, this court’s review should be for plain error.
Although he does so in greater detail, Delgado-Salazar raises the same
argument on appeal that he raised in the district court. The argument fully
apprised the court that Delgado-Salazar was challenging the probation officer’s
determination that his offense was a “crime of violence” as defined in § 2L1.2.
See id. His objection also required the court to consider whether the elements
of the offense for which Delgado-Salazar was convicted met the requirements of
§ 2L1.2. Because Delgado-Salazar preserved his argument for appeal, this
court’s review is de novo. See United States v. Santiesteban-Hernandez, 469 F.3d
376, 378 (5th Cir. 2006).
Nonetheless, Delgado-Salazar’s argument is unavailing. Texas Penal Code
§ 22.02 defines the offense of aggravated assault in a manner that is
1
The Texas indictment under which appellant was convicted and sentenced alleged that
he did “intentionally and knowingly threaten Jose Estrada with imminent bodily injury and
the defendant did use and exhibit a deadly weapon, to-wit: a knife, that in the manner of its
use and intended use was capable of causing death and serious bodily injury, during the
commission of the assault.”
2
No. 05-40890
substantially similar to the definition of aggravated assault set forth in the
Model Penal Code. See United States v. Guillen-Alvarez, 489 F.3d 197, 199-201
(5th Cir. 2007).2 See also, e.g., United States v. Garcia-Ramirez, 230 Fed. App’x
458 (5th Cir. 2007) (unpublished) (Texas aggravated assault conviction under
Tex. Penal Code §§ 22.02 & 22.01(a)(2), indictment alleging “threaten . . . with
imminent bodily injury and did then and there use or exhibit a deadly weapon,
to-wit: a knife . . .”; offense is crime of violence); United States v. Pereira-
Carballo, 230 Fed. App’x 460 (5th Cir. 2007) (unpublished) (“the generic
contemporary meaning of aggravated assault does not require that the
defendant have caused or intended to cause bodily injury”); United States v.
Molina-Cano, No. 06-40008, 5th Cir., Sept. 27, 2007 (unpublished). Delgado-
Salazar’s 2003 Texas conviction for aggravated assault thus qualifies as the
enumerated offense of aggravated assault under the Guidelines.
In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Delgado-Salazar
also challenges the constitutionality of section 1326(b)’s treatment of prior felony
and aggravated felony convictions as sentencing factors rather than elements of
the offense that must be found by a jury. This court has held that this issue is
“fully foreclosed from further debate.” United States v. Pineda-Arrellano, 492
F.3d 624, 625 (5th Cir. 2007), pet. for cert. filed (Aug. 28, 2007) (No. 07-6202).
The judgment of the district court is
AFFIRMED.
2
In Guillen-Alvarez appellant’s brief urged, inter alia, that the Texas aggravated
assault offense included “mere threats of bodily injury” while the Model Penal Code definition
of aggravated assault does not.
3