Thursday, June 07, 2007

TX Aggravated Assault with Deadly Weapon is Generic "Aggravated Assault"; Triggers 16-Level COV Bump Under U.S.S.G. §2L1.2

United States v. Guillen-Alvarez, No. 05-41787 (5th Cir. June 6, 2007) (Jolly, Stewart, Prado)

Another case for all you COV junkies out there. Although there's really nothing new in this one, beyond the specific holding. At issue was whether assault with a deadly weapon under Tex. Penal Code § 22.02(a)(2) constitutes generic aggravated assault for purposes of the 16-level COV enhancement in U.S.S.G. §2L1.2(b)(1)(A)(ii). The court said "yes," considering itself bound by the recent decision in United States v. Mungia-Portillo. That case held that the Tennessee aggravated assault statute squared with the generic definition of aggravated assault (albeit wrongly, for reasons explained here). Guillen-Alvarez says that because there are "only minor differences" between the relevant versions of the Texas and Tennessee statutes, the Texas offense qualifies as generic aggravated assault, as well.

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