United States v. Curtis Howell
838 F.3d 489
| 5th Cir. | 2016Background
- Defendant Curtis Howell pleaded guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)); at sentencing the PSR recommended a Guidelines enhancement under § 2K2.1(a)(3) based on a prior Texas third-degree felony assault conviction (Tex. Penal Code § 22.01(a)(1), (b)(2)(B)).
- The Texas offense criminalized intentionally, knowingly, or recklessly causing bodily injury by impeding breathing/circulation (applying pressure to throat/neck or blocking nose/mouth) against certain family/relationship victims.
- The district court applied § 4B1.2(a)’s definition of "crime of violence," raising the base offense level and resulting in a 100-month sentence; Howell appealed, arguing (1) his plea must be treated as to the least culpable mental state (recklessness) and (2) the Guidelines’ residual clause is unconstitutionally vague.
- The government argued the conviction qualifies under § 4B1.2(a)(1) (use of physical force), and alternatively that Howell’s judicial admissions established intentional conduct; the parties also disputed whether the modified categorical approach could be used to identify the specific mental state.
- The Fifth Circuit declined to address the vagueness challenge to § 4B1.2(a)(2) (the residual clause) because it resolved the case on the nonconstitutional ground that the Texas offense, even at its least culpable (reckless), involves the “use … of physical force” under § 4B1.2(a)(1).
Issues
| Issue | Plaintiff's Argument (Howell) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether the prior Texas conviction is a "crime of violence" under U.S.S.G. § 4B1.2(a)(1) (element: use/attempted use/threatened use of physical force) | The indictment and guilty plea include recklessness; recklessness does not constitute the "use" of physical force | The conviction involves impeding breathing by applying pressure/blocking — affirmative acts that constitute use of force; judicial admissions show intentional conduct | Held: The Texas offense—even if committed recklessly—has as an element the use of physical force and thus qualifies under § 4B1.2(a)(1) |
| Whether the modified categorical approach may be used to treat Howell’s plea as to an intentional offense | Howell: statute is indivisible as to mental state; plea must be construed as least culpable (recklessness) | Government: statute divisible; judicial confession proves intentional conduct | Held: The Texas statute is indivisible as to the listed mental states (means, not separate elements); modified categorical approach not applicable; cannot narrow to intentional conduct |
| Whether "use" of force in § 4B1.2(a)(1) requires intent (i.e., recklessness insufficient) | Recklessness is insufficient to constitute "use" under precedent (Vargas-Duran footnote/others) | "Use" can encompass reckless volitional conduct; Voisine supports that reckless assault qualifies as use for related federal firearms ban | Held: Recklessness can satisfy the "use of physical force" element; Voisine and related reasoning control |
| Whether the court must resolve vagueness of the Guidelines’ residual clause (§ 4B1.2(a)(2)) | Howell argued residual clause is unconstitutionally vague (post-Johnson) | Government did not press preservation of this issue; urged alternate nonconstitutional grounds | Held: Court did not reach the vagueness question because § 4B1.2(a)(1) independently supports the enhancement; appeal affirmed on that ground |
Key Cases Cited
- United States v. Espinoza, 733 F.3d 568 (5th Cir.) (prior Fifth Circuit decision construing Texas § 22.01 offenses under residual clause)
- United States v. Garcia-Arellano, 522 F.3d 477 (5th Cir. 2008) (judicial confession may be considered under Shepard to identify crime of conviction)
- United States v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004) (discussed meaning of "use" of force in Guidelines context)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (explaining categorical vs. modified categorical approach)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishing elements from means; guidance on statute divisibility)
- United States v. Castleman, 134 S. Ct. 1405 (2014) (interpreting "use" of force in domestic-violence misdemeanor context)
- Voisine v. United States, 136 S. Ct. 2272 (2016) (holding reckless misdemeanor assaults qualify under statutory "use of physical force" definition)