United States v. Carlos Briceno
681 F. App'x 334
5th Cir.2017Background
- Carlos Borjas Briceno pleaded guilty to illegal reentry under 8 U.S.C. § 1326 after a prior Texas criminal mischief conviction (Tex. Penal Code § 28.03(a)(1)).
- The PSR set a base offense level of 8 under U.S.S.G. § 2L1.2(a); the district court applied an 8-level enhancement under U.S.S.G. § 2L1.2(b)(1)(C) treating the prior Texas conviction as an "aggravated felony."
- The enhancement rested on treating the Texas criminal mischief offense as a "crime of violence" under 18 U.S.C. § 16(b) (and thus an aggravated felony under 8 U.S.C. § 1101(a)(43)(F)).
- The district court used the modified categorical approach, narrowed the conviction to § 28.03(a)(1), and concluded the "ordinary case" involved a substantial risk that physical force would be used against property.
- Briceno challenged that classification; he later was released from custody, but collateral immigration consequences (permanent inadmissibility) preserved the appeal's justiciability.
- The Fifth Circuit held the district court erred: the ordinary case of Texas criminal mischief does not require destructive or violent force and therefore is not a § 16(b) "crime of violence." The judgment was modified to reflect conviction under § 1326(b)(1) and remanded to correct the written judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Texas criminal mischief (§ 28.03(a)(1)) is a § 16(b) "crime of violence" (thus an aggravated felony) | Briceno: ordinary case of the statute does not involve use of physical force; many Texas decisions show convictions without destructive/violent force | Government: the statute encompasses violent acts (including poisoning) and poisoning counts as use of physical force under Castleman | Held: No — the ordinary case does not require destructive/violent force; statute is not a § 16(b) crime of violence, so enhancement was erroneous |
| Whether appeal remains live despite Briceno's release | Briceno: collateral immigration consequences keep controversy live | Government: (implicit) release might moot sentencing challenge | Held: Live — classification affects collateral consequences (e.g., inadmissibility), so appeal is not moot |
| Proper use of the modified categorical approach for divisible statute | Government/district court: statute divisible; use charging documents to identify subsection | Briceno: even after narrowing to § 28.03(a)(1), ordinary case lacks force element | Held: Court applied modified approach but, on ordinary-case analysis, concluded § 28.03(a)(1) is not a § 16(b) offense |
| Whether poisoning qualifies as "physical force" under § 16(b) | Briceno: poisoning examples aside, many non-force cases exist under statute | Government: poisoning is physical force per Castleman; supports classification | Held: Poisoning can be force (per Castleman) but isolated examples do not make the ordinary case violent; overall statute still fails § 16(b) test |
Key Cases Cited
- United States v. Castleman, 134 S. Ct. 1405 (2014) (poisoning can constitute use of physical force)
- Gonzalez-Longoria v. United States, 831 F.3d 670 (5th Cir. 2016) (treatment of prior offense as aggravated felony affects § 1326(b)(2) conviction and collateral consequences)
- United States v. Martinez-Romero, 817 F.3d 917 (5th Cir. 2016) (standard of review: de novo for categorization of prior offenses)
- United States v. Landeros-Gonzales, 262 F.3d 424 (5th Cir. 2001) (definition of "substantial risk" and force as destructive/violent)
- James v. United States, 550 U.S. 192 (2007) (ordinary-case analysis for § 16(b))