United States v. Fierro-Reyna

United States Court of Appeals
Fifth Circuit
F I L E D
September 28, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-51198
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
SERGIO ARMANDO FIERRO-REYNA,
also known as Sergio Fierro,
also known as Sergio Fierro Reyna,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
______________________________
Before SMITH, GARZA, and CLEMENT,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Sergio Armando Fierro-Reyna pleaded guil-
ty of illegal reentry after deportation in vio-
lation of 8 U.S.C. § 1326. He challenges his
sentence. We vacate and remand for
resentencing.
I.
The issue is the impact on Fierro-Reyna’s
sentence of his 1979 Texas conviction of ag-
gravated assault of a police officer. The pre-
sentence investigation report (“PSR”) recom-
mended a base offense level of 8, pursuant to
U.S.S.G. § 2L1.2(a), and subtracted three lev-
els for acceptance of responsibility. The PSR
recommended that the 1979 conviction be
treated as a “crime of violence” under U.S.S.-
G. § 2L1.2(b)(1)(A)(ii), thus adding sixteen to

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2
the offense level. With a total offense level of
21 and a criminal history category of V based
on eleven criminal history points, Fierro-
Reyna’s guideline range was 70 to 87 months’
incarceration. The court overruled Fierro-
Reyna’s objections to the PSR and sentenced
him to 87 months and a three-year term of
supervised release.
On appeal Fierro-Reyna challenges the six-
teen-level enhancement.1 We must determine
whether his conviction of aggravated assault of
a police officer is a “crime of violence” under
U.S.S.G. § 2L1.2(b)(1)(A)(ii).
II.
We review the district court’s application of
the sentencing guidelines de novo. United
States v. Vargas-Duran, 356 F.3d 598, 602
(5th Cir. 2004) (en banc). The commentary to
the guidelines enumerates offenses that qualify
as crimes of violence, among which “aggra-
vated assault” is included. U.S.S.G. § 2L1.2,
cmt. n.1 (B)(iii). The commentary does not
define aggravated assault.
The pertinent statute provided, in 1979,
that “[a] person commits an offense if he com-
mits assault as defined in Section 22.01 of this
code and he . . . causes bodily injury to a
peace officer in the lawful discharge of official
duty when he knows or has been informed the
person assaulted is a peace officer.” TEX.
PENAL CODE § 22.02(a)(2) (1974). Simple as-
sault did not have use of force as an element.2
Id. § 22.01 (1974).
Fierro-Reyna argues that because the stat-
ute merely required conduct amounting to sim-
ple assault, and the offense was elevated to
aggravated assault only because of the status
of the victim as a peace officer, his conviction
does not come within the generic, contempo-
rary meaning of the offense of aggravated as-
sault and therefore does not qualify as a “crime
of violence.” The government first responds
that because Texas labeled Fierro-Reyna’s
crime as aggravated assault, and aggravated
assault is listed among the enumerated crimes
of violence in the sentencing guidelines, no
inquiryinto the definition of aggravated assault
is necessary. The government cites United
States v. Rayo-Valdez, 302 F.3d 314 (5th Cir.
2002), to support its position that any convict-
ion a state labels with the title of one of the
enumerated crimes of violence automatically
triggers a sentence enhancement.3
1 Fierro-Reyna makes one other argument, but
only to preserve it for appeal. The indictment
charged him under 8 U.S.C. § 1326(a); because he
had been deported following a criminal conviction,
his sentence was enhanced under 8 U.S.C.
§ 1326(b). He contends that § 1326(b) defines a
separate offense and should have been charged in
the indictment. He concedes that his argument is
foreclosed by Almendarez-Torres v. United States,
523 U.S. 224 (1998), which held that enhanced
penalties are sentencing factors rather than sepa-
rate elements of an offense.
2 At the time of Fierro-Reyna’s conviction, a
person committed assault if he (1) intentionally,
knowingly, or recklessly caused bodily injury to
another; (2) intentionally or knowingly threatened
another with imminent bodily injury; or (3) inten-
tionally or knowingly caused physical contact with
another when he knew or should reasonably have
believed that the other would regard the contact as
offensive or provocative. TEX. PENAL CODE §
22.01 (1974).
3 The government also cites United States v.
Vargas-Duran, 356 F.3d 598 (5th Cir. 2004). The
cited language comes from a special concurrence,
however, and the majority holding provides no
support for the government’s position. The unpub-
(continued...)

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3
In Rayo-Valdez, however, we considered
whether the enumerated offenses must also in-
clude an element of force. We held that even
if an enumerated offense does not include an
element of force, it remains a crime of violence
precisely because it is enumerated. Rayo-
Valdez, 302 F.3d at 317. We did not discuss
a method for determining whether a given
conviction falls within one of the enumerated
offense categories; that is the issue we address
now.
Contrary to the government’s position, we
have established a standard by which to deter-
mine whether a state conviction qualifies as an
enumerated offense, regardless of how the
conviction is labeled by the state. Because the
enumerated offenses are not defined, we use a
“common sense approach” and give the of-
fenses their “generic, contemporary meaning.”
United States v. Sanchez-Ruedas, 452 F.3d
409, 412 (5th Cir. 2006) (citations omitted).
We then determine whether the state convic-
tion falls under the generic, contemporary
meaning of the enumerated offense. See, e.g.,
United States v. Izaguirre-Flores, 405 F.3d
270, 274-76 (5th Cir. 2005).4 We therefore
reject the government’s contention that Fierro-
Reyna’s conviction is a crime of violence
merely because Texas categorized the offense
as aggravated assault.
We must decide whether the conviction
comes under the generic contemporary mean-
ing of aggravated assault. To establish the
generic contemporary meaning of an enumer-
ated offense, we consider, inter alia, the Mod-
el Penal Code, Professors LaFave’s and
Scott’s treatises, modern state codes, and dic-
tionaries. Dominguez-Ochoa, 386 F.3d at
643-45.
When comparing the state conviction with
the generic, contemporary meaning of the
crime, we examine the elements of the statute
of conviction rather than the specifics of the
defendant’s conduct. United States v. Fernan-
dez-Cusco, 447 F.3d 382, 385 (5th Cir. 2006).
We look only to the particular subdivision of
the statute under which the defendant was
convicted. Id. “When the statute of convic-
tion encompasses prohibited behavior that is
not within the plain, ordinary meaning of the
enumerated offense,” the conviction is not a
crime of violence as a matter of law. Iza-
guirre-Flores, 405 F.3d at 276–77.
3(...continued)
lished cases to which the government points were
decided under a plain error standard and thus have
very little instructive value for a court engaged in
a de novo review of the application of the sentenc-
ing guidelines.
4 The decision in Taylor v. United States, 495
U.S. 575 (1990), is the source of the generic, con-
temporary meaning test. In the context of the
Armed Career Criminal Act, the Taylor Court re-
jected the proposition that federal sentencing en-
hancements should be contingent on the labels
states choose to place on crimes. We have summa-
rized Taylor’s impact on our crime of violence
(continued...)
4(...continued)
analysis as follows:
Taylor instructs that where, as here, the en-
hancement provision does not specifically de-
fine the enumerated offense, we must define it
according to its “generic, contemporary mean-
ing” . . . and should rely on a uniform defini-
tion, regardless of the “labels employed by the
various States’ criminal codes.”
United States v. Dominguez-Ochoa, 386 F.3d 639,
642-43 (5th Cir. 2004) (citing Taylor, 495 U.S. at
592, 598).

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4
“Our primary source for the generic con-
temporarymeaning of aggravated assault is the
Model Penal Code.” United States v. Tor-
res-Diaz, 438 F.3d 529, 536 (5th Cir. 2006).
The Code provides the following:
A person is guilty of aggravated assault if
he: (a) attempts to cause serious bodily in-
jury to another, or causes such injury pur-
posely, knowingly or recklessly under cir-
cumstances manifesting extreme indiffer-
ence to the value of human life; or (b) at-
tempts to cause or purposely or knowingly
causes bodily injury to another with a dead-
ly weapon.
MODEL PENAL CODE § 211.1(2).
The statutorysubdivision under which Fier-
ro-Reyna was convicted differs significantly
from the Model Penal Code’s definition of ag-
gravated assault. Fierro-Reyna was convicted
of simple assault, the sole aggravating factor
being the victim’s status as a police officer.
See TEX. PENAL CODE § 22.02(a)(2) (1974).
The Model Penal Code indicates that ag-
gravated assault involves causing “serious
bodilyinjury,” exhibiting “extreme indifference
to human life,” or attempting to cause bodily
injury with a deadly weapon. The status of the
victim, as a police officer or otherwise, is not
part of this definition. Thus under the Model
Penal Code, the statute under which Fierro-
Reyna was convicted prohibits conduct that
does not fall within the generic, contemporary
definition of aggravated assault.
Likewise, Black’s Law Dictionary does not
list the status of the victim as a potential ag-
gravating factor in its definition of aggravated
assault, which reads as follows: “Criminal
assault accompanied by circumstances that
make it more severe, such as the intent to
commit another crime or the intent to cause
serious bodily injury, esp[ecially] by using a
deadly weapon.” BLACK’S LAW DICTIONARY
122 (8th ed. 2004). This definition essentially
reproduces the Model Penal Code’s. Al-
though it does not purport to include an ex-
haustive list of aggravating factors, its failure
to make any mention of the victim’s status
lends credence to Fierro-Reyna’s position that
victim status is not a part of the generic, con-
temporary definition of aggravated assault.
LaFave’s treatise is another source we rec-
ognize as informing the generic, contemporary
meaning of an enumerated offense. See, e.g.,
Torres-Diaz, 438 F.3d at 536. LaFave focuses
his discussion of aggravated assault on the two
most common aggravating factors: the means
used to commit the crime, such as use of a
deadly weapon, and the consequences of the
crime, such as serious bodily injury.
2 LAFAVE, SUBSTANTIVE CRIMINAL LAW
§ 16.2(d). The treatise notes that, in some
states, the status of the victim—as a police of-
ficer, fireman, or pregnant woman, for exam-
ple—raises a simple assault to aggravated as-
sault. Id. §§ 16.2(d), 16.3(d). The govern-
ment relies on this section of the treatise, in
which LaFave cites twenty-two states that in-
clude assault on a police officer as an aggra-
vating factor, for its argument that the generic,
contemporary meaning of aggravated assault
includes statutes such as the one under which
Fierro-Reyna was convicted. See id. § 16.2(d)
n.76.
Our research reveals that twenty-two is not
an accurate count of the states that currently
consider simple assault on a police officer to
be aggravated assault. Some state statutes
have been amended. Texas, Montana, and
South Dakota, for example, have dispensed
with the status of the victim as an aggravating
factor and adopted a definition similar to the

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Model Penal Code’s.5 Moreover, most of the
states listed in LaFave’s treatise use the vic-
tim’s status as a police officer only to increase
the punishment range for aggravated assault.
In those states, the victim’s status as a police
officer does not turn simple assault into ag-
gravated assault. Rather, status merely chang-
es the severity of the punishment for the of-
fense, where the underlying offense is already
aggravated assault or aggravated battery.6
Only seven states explicitly categorize sim-
ple assault on a police officer as aggravated
assault.7 For purposes of determining the gen-
eric, contemporary meaning of aggravated as-
sault, it is this number, rather than twenty-two,
that more accurately estimates the number of
states whose aggravated assault statutes cur-
rently resemble the Texas statute.8
Where only a small minority of states sup-
port a particular viewpoint regarding the gen-
eric, contemporary meaning of an enumerated
offense, and where the Model Penal Code sup-
ports the contrary position, this court has re-
jected the position of the minority and adopted
that of the Model Penal Code.9 The bulk of
authority indicates that the generic, contempo-
rary meaning of aggravated assault does not
include simple assault on a police officer. The
Model Penal Code, dictionary definitions, and
the criminal codes of the majority of states
5 See TEX. PENAL CODE § 22.02 (amending the
statute in 1993); MONT. CODE § 45-5-202 (amend-
ing code in 1997); S.D. CODIFIED LAWS
§ 22-18-1.1 (amending code in 2005).
6 See CAL. PENAL CODE § 245; FLA.
STAT.§ 784.021; IDAHO CODE §§ 18-905, 18-915;
IND.CODE §§ 35-42-2-1.5, 35-42-2-1; KAN. STAT.
§§ 21-3411, 21-3415; LA. REV. STAT. § 14:37.2;
MISS. CODE § 97-3-7; NEV. REV. STAT.
§§ 200.471, 200.481; S.D. CODIFIED LAWS § 22-
18-1.05; TENN. CODE § 39-13-102; TEX. PENAL
CODE § 22.02; VA. CODE § 18.2-57; WIS. STAT.
§ 940.20.
7 See ARIZ. REV. STAT. § 13-1204; ARK. CODE.
§ 5-13-202; DEL. CODE tit. 11, § 613; 720 ILL.
COMP. STAT. 5/12-4; N.J. STAT. § 2C:12-1; N.Y.
PENAL LAW § 120.05; 18 PA. CONS. STAT. § 2702.
8 This number does not include states that pro-
vide for the status of the victim as an aggravating
factor where the victim is someone other than a
police officer. LAFAVE, SUBSTANTIVE CRIMINAL
(continued...)
8(...continued)
LAW § 16.2(d) nn. 77–85. See ALA. CODE
§ 13A-6-21(a)(5) (making simple assault an aggra-
vated assault where victim is, e.g., a teacher); FLA.
STAT. ANN. § 784.045 (same, where the victim is
pregnant); N.C. GEN. STAT. § 14-33(c)(2), (3)
(same, where victim is, e.g., female or a child);
OKLA. STAT. tit. 21, § 646(A)(2) (same, where
victim is elderly); WYO. STAT. § 6-2-502(a)(iv)
(same, where victim is pregnant).
Thus if the inquiry is broadened to whether the
generic, contemporary meaning of aggravated as-
sault includes simple assault on not just a police
officer but any statutorily-recognized victim, there
are somewhere on the order of twelve to fifteen
states that recognize victim status generally. It is
unnecessary to determine whether the analysis
should consider these states; whatever the number,
it is only a small minority of states that would
consider Fierro-Reyna’s conviction to be an aggra-
vated assault. The result of our inquiry into the
generic, contemporary meaning of aggravated
assault would not be affected even if we were to
include these states in our analysis.
9 See Dominguez-Ochoa, 386 F.3d at 643, 646
(finding that, because only nine states define man-
slaughter with a mens rea of criminal negligence
but a larger number define manslaughter with reck-
lessness, generic manslaughter requires a mens rea
of recklessness).

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uphold this position. We conclude that the
generic, contemporary meaning of aggravated
assault involves aggravating factors such as
use of a deadly weapon and causation of seri-
ous bodily injury and does not include consid-
erations regarding the victim’s status as a pol-
ice officer.
Because the statutory section under which
Fierro-Reyna was convicted prohibits behavior
that is not within the generic, contemporary
meaning of aggravated assault as it is used in
U.S.S.G. § 2L1.2, his conviction does not
qualify as a crime of violence, so his sentence
was improperly enhanced by sixteen levels.
The sentence is VACATED, and this matter
is REMANDED for resentencing.

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