United States v. Albin Torres
923 F.3d 420
| 5th Cir. | 2019Background
- Defendant Albin Alexander Torres pled guilty in 2015 to illegal reentry under 8 U.S.C. § 1326(a); his sentence (56 months) was imposed after the presentence report and district court treated a 2010 Texas aggravated-assault conviction as an "aggravated felony," exposing him to the higher § 1326(b)(2) maximum.
- The aggravated-assault conviction arose under Texas Penal Code § 22.01(a), which contains three alternative subsections: (1) causing bodily injury, (2) threatening imminent bodily injury, and (3) offensive/ provocative physical contact; the indictment charged subsection (a)(2) (threat by displaying a knife).
- This court initially affirmed based on Fifth Circuit precedent treating § 16(b) as valid; the Supreme Court’s decision in Sessions v. Dimaya later held § 16(b) void for vagueness, and the Supreme Court remanded Torres’s case for reconsideration in light of that holding.
- On remand, the question became whether Torres’s Texas aggravated-assault conviction qualifies as a "crime of violence" under 18 U.S.C. § 16(a) (elemental use, attempted use, or threatened use of physical force), making it an aggravated felony under 8 U.S.C. § 1101(a)(43)(F).
- The Fifth Circuit applied the modified categorical approach, found § 22.01(a) divisible into three distinct offenses (per Texas Court of Criminal Appeals), and relied on the indictment to identify subsection (a)(2) as the offense of conviction.
- The court concluded that a knowing threat of imminent bodily injury under § 22.01(a)(2) satisfies § 16(a)’s requirement (threatened use of physical force) and therefore affirmed the judgment treating the prior conviction as a crime of violence.
Issues
| Issue | Torres's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Torres’s Texas aggravated-assault conviction is a "crime of violence" under 18 U.S.C. § 16(a) | § 22.01(a)(2) does not qualify because "threat" is not the same as threatened use of physical force; alternatively, § 16(b) was void | The conviction fits § 16(a): a knowing threat of imminent bodily injury is a threatened use of physical force | The conviction under § 22.01(a)(2) is a crime of violence under § 16(a); affirmed |
| Whether Texas Penal Code § 22.01(a) is divisible (requiring modified categorical approach) | The statute may be indivisible; all subsections define one offense | The subsections are separate offenses; Texas CCA treats them as distinct | § 22.01(a) is divisible; use modified categorical approach |
| Whether courts may rely on § 16(b) after Dimaya | § 16(b) should apply per earlier Fifth Circuit precedent | § 16(b) is unconstitutional under Dimaya | § 16(b) is void; courts must assess § 16(a) instead |
| Proper mens rea to ascribe when statute lists alternative mental states | Use the higher culpability listed in the charging instrument | Use the least culpable alternative when alternatives are means of satisfying an element | Ascribe the lesser culpability ("knowing") under the categorical approach |
Key Cases Cited
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (held 18 U.S.C. § 16(b) unconstitutionally vague)
- Aguirre-Arellano v. United States, 138 S. Ct. 1978 (2018) (consolidated remand guidance after Dimaya)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (explains categorical and modified categorical approaches)
- Reyes-Contreras v. United States, 910 F.3d 169 (5th Cir. 2018) (rejected rigid distinction between direct/indirect force; clarified force analysis under § 16)
- Voisine v. United States, 136 S. Ct. 2272 (2016) (interprets "use of physical force" to include conduct causing physical pain or injury)
- United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016) (en banc precedent initially applied to § 16(b) before Dimaya)
- McKithan v. State, 324 S.W.3d 582 (Tex. Crim. App. 2010) (Texas Court of Criminal Appeals: § 22.01(a)(1)-(3) are three distinct offenses)