     Case: 12-51292      Document: 00512547609         Page: 1    Date Filed: 02/28/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                      No. 12-51292                        FILED
                                                                   February 28, 2014
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA                                                  Clerk

                                                 Plaintiff - Appellee
v.

EDUARDO A. ROBLES

                                                 Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:12-CR-1478-1


Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
       Defendant Eduardo A. Robles pled guilty to assaulting a federal officer
in violation of 18 U.S.C. § 111(a). Robles was sentenced to 51 months pursuant
to U.S.S.G. § 2A2.2, which applies to “aggravated assault.” Robles appeals his
sentence, arguing that he should have been sentenced under § 2A2.4, the
guideline that applies to simple assault. We affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                      No. 12-51292
                          FACTS AND PROCEEDINGS
       Eduardo A. Robles (“Robles”) pled guilty without the benefit of a plea
agreement to 18 U.S.C. § 111, assaulting a federal officer. 1 ROA 48. On May
25, 2012, an officer with the El Paso, Texas Police Department attempted to
conduct a traffic stop on Robles, who was observed driving over 100 m.p.h.
Presentence Rep. (“PSR”) ¶ 3. While attempting to flee into Mexico, Robles
crashed into a metal barricade. PSR ¶¶ 3-5. Upon observing Robles collide
with the barrier, Border Patrol Agent James Lowry (“Lowry”) took cover
behind his vehicle, which was parked between Lowry and the Mexican border.
PSR ¶ 5. In an attempt to flee to Juarez, Mexico, 2 Robles got out of his vehicle
and “physically charged” at Agent Lowry, “intentionally” running towards him.
PSR ¶¶ 4-5.       He impacted Lowry, causing the agent to fall backwards
approximately 10 feet, hitting his head on the pavement and suffering minor
injuries. PSR ¶¶ 5-6. An officer smelled alcohol on Robles’s breath and noticed
two open containers of alcohol on the floor of Robles’s vehicle. PSR ¶ 3.
       The PSR applied § 2A2.2(a) and assigned Robles a base offense level of
14. PSR ¶ 13. After various adjustments, Robles’s total offense level was 22.
PSR ¶¶ 14-22. When that level was combined with a criminal history category
of III, the resulting guidelines imprisonment range was 51 to 63 months. PSR
¶¶ 24-30, 50. Robles objected, contending that the probation officer should
have applied § 2A2.4—rather than § 2A2.2—when determining the offense
level because his conduct did not constitute “aggravated assault.”




       1 Section 111 does not differentiate between simple assault and aggravated assault.
That distinction is found in U.S.S.G § 2A2.4(c)(1)—the applicable guideline for § 111—which
states that “[i]f the conduct constituted aggravated assault, apply § 2A2.2 (Aggravated
Assault).”
       2 ROA 111 (“After waiving his Miranda rights, Robles stated that he had been drinking

and was trying to get to Juarez, Mexico.”).
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                                 No. 12-51292
      The Government responded that the probation officer applied the correct
guideline, reasoning that Robles’s conduct was an aggravated assault because
he committed it with the intent of committing another felony, specifically,
felony flight by motor vehicle and a third driving while intoxicated offense.
      At sentencing, defense counsel reiterated his contention that § 2A2.4
should apply in determining the offense level. ROA 69-71. The Government
persisted in its view that § 2A2.2 was the appropriate guideline. ROA 76-80.
It urged that Robles assaulted the agent as Robles was driving while
intoxicated and fleeing in a motor vehicle, both felonies under Texas law.
ROA 77. The Government acknowledged that it was possible that when Robles
crashed his vehicle, he was no longer trying to evade authorities, but
maintained that the “better argument” was that fleeing in the vehicle, running,
and assaulting the agent, were all a part of Robles’s attempt to avoid being
caught for drunk driving and fleeing in a motor vehicle. ROA 78. The district
court agreed with the Government but did not make any specific factual
findings. ROA 81-82. It imposed a sentence of 51 months of imprisonment,
the bottom of the guidelines range. ROA 82. Robles filed a timely notice of
appeal. ROA 58.


                         STANDARD OF REVIEW
      The court reviews the district court’s interpretation and application of
the Sentencing Guidelines de novo and its factual findings for clear error.
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The
district court’s determination that Robles’s conduct evidenced an intent to
commit another felony during the course of felonious assault is a factual
finding. See, e.g., United States v. Goynes, 175 F.3d 350, 353 (5th Cir. 1999)
(“The district court’s determination that [the defendant’s] conduct evidenced
an intent to carry out his threat [resulting in a six-level increase under
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U.S.S.G. § 2A6.1(b)(1)] is a factual finding, and must be reviewed for clear
error.”). “[I]n determining the applicability under the present § 2A2.4(c)(1) of
§ 2A2.2, the district court is not limited to considering the conduct of the
offense of conviction, but also may consider the defendant’s ‘underlying
conduct’ or, as some courts state, the ‘relevant’ conduct.” United States v.
Street, 66 F.3d 969, 979 (8th Cir. 1995); United States v. Valdez-Torres, 108
F.3d 385, 387 (D.C. Cir. 1997).


                                  DISCUSSION
      The question on appeal is not whether the district court properly applied
or interpreted the sentencing guidelines. Rather, the question is whether
Robles’s conduct evidenced an intent to commit another felony during the
course of felonious assault. Unless the district court’s determination that he
intended to commit another felony was clearly erroneous, we must affirm.
      The offense level for Obstructing or Impeding Officers, U.S.S.G. § 2A2.4,
is calculated as follows:
      (a)   Base Offense Level: 10
      (b)   Specific Offense Characteristics
            (1)    If (A) the offense involved physical contact; or (B) a
                   dangerous weapon (including a firearm) was possessed
                   and its use was threatened, increase by 3 levels.
            (2)    If the victim sustained bodily injury, increase by 2
                   levels.
      (c)   Cross Reference
            (1)    If the conduct constituted aggravated assault, apply §
                   2A2.2 (Aggravated Assault).
In turn, U.S.S.G. § 2A2.2 cmt. n.1, defines “aggravated assault” as “a felonious
assault that involved . . . (C) an intent to commit another felony.”         The



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                                      No. 12-51292
government argues that Robles assaulted Lowry—a felony under 18 U.S.C.
§ 111—with the intent to commit the felony of evading arrest with a vehicle. 3
       Texas Penal Code section 38.04—Evading Arrest or Detention—provides
that “[a] person commits an offense if he intentionally flees from a person he
knows is a peace officer or federal special investigator attempting lawfully to
arrest or detain him.” Section 38.04(a). While evading arrest is generally a
misdemeanor, it becomes a “state jail felony” if “the actor uses a
vehicle . . . while the actor is in flight.” There is no question that Robles used
a vehicle in his initial attempt to evade the police prior to the assault. The
question is whether he intended to evade the police using a vehicle when he
assaulted Lowry. Robles argues that the crime of evading arrest using a
vehicle was complete when he abandoned the car, negating the intent
necessary to elevate his simple assault into aggravated assault.
       Because the felony at issue is a product of Texas law, we are bound by
the state court’s construction of evading arrest. “A State’s highest court is
unquestionably ‘the ultimate exposito[r] of state law.’” Riley v. Kennedy, 553
U.S. 406, 409 (2008). Under Texas law, the crime of fleeing arrest in a vehicle
is a continuous offense. See Hobbs v. State, 175 S.W.3d. 777, 778 (Tex. Crim.
App. 2005). In Hobbs, defendant used a vehicle to flee from police officers. 175
S.W.3d at 778. He eventually abandoned the vehicle, fled on foot, and began
searching for a place to hide. Defendant broke in to a woodshed, where the
police later found him hiding. He was convicted for burglary of a habitation
with intent to commit felony evading arrest. On appeal, defendant argued that
“because the felony evading arrest offense was completed when [he] abandoned
his vehicle”—before his entry into the woodshed—he lacked the felonious


       3 In the district court, the government also argued that Robles intended to commit his
third driving while intoxicated offense—a state felony—while assaulting the agent, but it did
not brief this contention on appeal and we do not address it.
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“intent” required to sustain his burglary conviction. Id. at 778-79. Because
evading arrest on foot was merely a misdemeanor, defendant argued that he
lacked felonious intent at the time he broke-in to the woodshed.
       The Court of Criminal Appeals of Texas (“CCA”) affirmed his conviction.
Finding that the felony of evading arrest using a vehicle continues until the
defendant is apprehended, the CCA held that “the evidence must show only
that appellant used a vehicle at some time during the commission of this
offense.” Id. at 781. Because the plain text of section 38.04(a) “does not define
separate offenses (or ‘allowable units of prosecution’) when different methods
of locomotion are used,” it does “not require that appellant intended to use his
abandoned vehicle (or some other vehicle) when he entered the habitation.” 4
Id. at 779.
       Likewise, under our own precedent, “A continuing offense is a
continuous, unlawful act or series of acts set on foot by a single impulse and
operated by an unintermittent force, however long a time it may occupy.”
United States v. Santana-Castellano, 74 F.3d 593, 597 (5th Cir. 1996) (quoting
United States v. Midstate Horticultural Co., 306 U.S. 161, 166 (1939)). The
unlawful series of acts, “by its very nature, does not terminate until the date
of the indictment or the voluntary termination of the illegal activity.” United
States v. Maxim, 55 F.3d 394, 398 (8th Cir. 1995). In Santana-Castellano, we
applied a continuing offense analysis to determine whether criminal history



       4 In the CCA’s view, separating offenses by means of locomotion would lead to absurd
results. See id. at 779 (“Under appellant's construction of Article 38.04(a), therefore, a person
would commit 10 evading arrest offenses when (1) that person fled from the police in his car
which he abandoned and (2) fled on foot until (3) he used a small-wheeled (less than 14 inches
in diameter) bicycle which he abandoned and (4) fled on foot until (5) he used a pair of roller
skates which he abandoned and (6) fled on foot until (7) he used a pair of roller-blades which
he abandoned and (8) fled on foot until (9) he used a skateboard which he abandoned and (10)
fled on foot until he was caught.”).

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                                  No. 12-51292
points were correctly calculated under the Guidelines. Santana-Castellano
was an alien who had previously been deported, had illegally reentered and
was ultimately convicted and sentenced in Texas state court for injury to a
child.     While serving his state sentence, he was interviewed by INS and
discovered to be illegally present in violation of 8 U.S.C. § 1326. Santana-
Castellano, 74 F.3d at 595. This court determined that because illegal reentry
was a continuing offense, it was not error for the district court to find that the
offense was committed “while under any criminal justice system sentence,
including probation, parole, supervised release, imprisonment, work release,
or escape status.” Id. at 598. The court reasoned that because the illegal
reentry offense started when Santana-Castellano entered the United States
and did not terminate until he was discovered by the INS agents, he continued
to commit the offense while in Texas state prison. Id. (citing Maxim, 55 F.3d
at 397).
         Applying both our precedent regarding continuing offenses and Hobbs’s
determination that evading arrest using a vehicle is a felony that continues
until the suspect is apprehended, it is clear that Robles assaulted Lowry with
intent to commit a separate felony. There is no doubt that he attempted to flee
using a vehicle, nor that he was attempting to flee to Juarez, Mexico, once he
exited the car and attacked Lowry. Under Hobbs, the fact that he abandoned
his car is irrelevant; it is sufficient that he (1) formed the intent to flee, (2)
utilized a vehicle, and (3) was continuing his flight at the time of the assault.
The intent to evade arrest using a vehicle was established, and would not cease
until he was apprehended or voluntarily terminated the illegal activity of




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                                    No. 12-51292
fleeing from law enforcement authorities. 5 The district court’s application of
§ 2A2.2 was not clear error.


                                   CONCLUSION
      For the reasons stated, the judgment of the district court is AFFIRMED.




      5  Robles’s argument that United States v. Gomez-Vega governs this case is without
merit. 471 F. App’x 327 (5th Cir. 2012). Unlike evading arrest using a vehicle—which
continues until the suspect is apprehended—this court in Gomez-Vega found that the would-
be intended felonies had already been completed. If Robles had already been apprehended,
but then escaped on foot, Gomez-Vega might apply. But because he never completed the
offense of evading arrest using a vehicle, this case is inapposite.
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