United States v. Miguel Martinez-Cerda

Case: 16-11309 Document: 00514162087 Page: 1 Date Filed: 09/19/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-11309 FILED
Summary Calendar September 19, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MIGUEL ANGEL MARTINEZ-CERDA,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-72-1
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Miguel Angel Martinez-Cerda appeals the 41-month sentence imposed
following his guilty plea conviction for illegal reentry. He contends that the
district court erred by imposing a 16-level enhancement under the crime of
violence provision of U.S.S.G. § 2L1.2(a)(1)(A)(ii) (2015) based on his prior
Texas felony conviction of aggravated assault. We review this determination
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11309 Document: 00514162087 Page: 2 Date Filed: 09/19/2017
No. 16-11309
de novo. See United States v. Izaguirre-Flores, 405 F.3d 270, 272 (5th Cir.
2005).
Martinez-Cerda argues that Texas aggravated assault is broader than
generic aggravated assault and, furthermore, does not require the use or
threatened use of force for purposes of § 2L1.2(a)(1)(A)(ii). He acknowledges
this court’s holding in United States v. Guillen-Alvarez, 489 F.3d 197, 198 (5th
Cir. 2007), but argues that Guillen-Alvarez and United States v. Mungia-
Portillo, 484 F.3d 813 (5th Cir. 2007), were wrongly decided and have been
called into question by the reasoning of other circuit courts. However, one
panel of this court may not overrule the decision of another panel absent an
intervening change in the law, for instance through a superseding decision of
the Supreme Court or this court sitting en banc. See United States v. Setser,
607 F.3d 128, 131 (5th Cir. 2010). Moreover, this court has recently reaffirmed
the holding in Guillen-Alvarez. United States v. Shepherd, 848 F.3d 425,
427-28 (5th Cir. 2017). It is unnecessary to consider whether Martinez-Cerda’s
prior conviction involved the use of force.
The district court’s judgment is AFFIRMED.
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