USA v. Angel Hernandez-Cifuentes, No. 16-40550 (5th Cir. 2016)
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Case: 16-40550 Document: 00513731099 Page: 1 Date Filed: 10/24/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-40550 Summary Calendar United States Court of Appeals Fifth Circuit FILED October 24, 2016 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. ANGEL HERNANDEZ-CIFUENTES, Defendant-Appellant Appeal from the United States District Court for the Southern District of Texas USDC No. 1:15-CR-928-1 Before JOLLY, SMITH, and GRAVES, Circuit Judges. PER CURIAM: * Angel Hernandez-Cifuentes appeals the sentence he received following his guilty plea conviction for illegal reentry. He argues that the district court erred in assessing a 16-level increase under U.S.S.G. § 2L1.2(b) based on the determination that he was previously deported following a conviction for a crime of violence (COV). Hernandez-Cifuentes contends that his prior Georgia conviction for aggravated assault is not a COV because the Georgia offense is 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 16-40550 Document: 00513731099 Page: 2 Date Filed: 10/24/2016 No. 16-40550 broader than the generic definition of aggravated assault as it does not require an intent to injure but instead requires only the intent to commit an act that places another in reasonable apprehension of injury. Hernandez-Cifuentes cites to United States v. Hernandez-Rodriguez, 788 F.3d 193 (5th Cir. 2015), in support of his contentions. The arguments raised by Hernandez-Cifuentes are identical to those raised by the defendant and rejected by this court in United States v. TorresJaime, 821 F.3d 577, 582-85 (5th Cir. 2016), petition for cert. filed (Sept. 1, 2016) (No. 16-5853). Relying on prior unpublished decisions and the Model Penal Code, the Torres-Jaime court held that the Georgia offense was the equivalent of the generic offense of aggravated assault under the common sense approach. Id. Thus, the district court did not err in determining that Hernandez-Cifuentes’s prior Georgia conviction for aggravated assault was a COV and in applying the 16-level § 2L1.2(b) enhancement. Accordingly, Hernandez-Cifuentes’s motion for summary disposition is GRANTED, and the judgment of the district court is AFFIRMED. 2
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