United States v. Victorino Maldonado-Soria ( 2010 )

Case: 09-10954 Document: 00511119066 Page: 1 Date Filed: 05/24/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 24, 2010
No. 09-10954
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
VICTORINO MALDONADO-SORIA, also known as Victor Maldonado,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:09-CR-44-1
Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
Victorino Maldonado-Soria (Maldonado) appeals his guilty plea conviction
and sentence for illegally reentering the United States following deportation in
violation of 8 U.S.C. § 1326. Maldonado 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 prior Texas conviction for aggravated assault is not a crime of violence under
the Sentencing Guidelines. He argues, inter alia, that the Texas crime of
aggravated assault is more broadly defined than most other definitions 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-10954 Document: 00511119066 Page: 2 Date Filed: 05/24/2010
No. 09-10954
aggravated assault because it may be committed by threatening behavior. The
Government has moved for summary affirmance and provides a detailed
argument regarding governing precedent, which the Government asserts
forecloses Maldonado’s argument. The Government alternatively moves for an
extension of time to file a brief.
The Texas statute under which Maldonado was convicted, Texas Penal
Code § 22.02 (Vernon 2006), is substantially similar to the generic, common
sense definition of “aggravated assault” and thus qualifies as the enumerated
offense of “aggravated assault” under the Guidelines. See United States v.
Guillen-Alvarez, 489 F.3d 197, 199-201 (5th Cir. 2007). Accordingly, the
Government’s motion for summary affirmance is GRANTED, its alternative
motion for an extension of time to file a brief is DENIED, and the judgment of
the district court is AFFIRMED.
2