United States v. Eder Mendez-Henriquez
2017 U.S. App. LEXIS 1669
| 5th Cir. | 2017Background
- Defendant Eder Vladimir Mendez-Henriquez pleaded guilty to illegal reentry after removal; PSR relied on a 2008 California conviction under Cal. Penal Code § 246 (maliciously and willfully discharging a firearm at an occupied motor vehicle) as a predicate for a 16-level § 2L1.2 enhancement.
- § 246 criminalizes discharging a firearm at various targets (e.g., inhabited dwelling, occupied building, occupied motor vehicle); Mendez was charged specifically for shooting at an occupied motor vehicle.
- The Guidelines’ relevant definition treats a “crime of violence” as one that (inter alia) “has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iii).
- The district court applied the 16-level enhancement; Mendez objected, arguing § 246 is not a COV because (1) the statute is indivisible or (if divisible) the offense lacks the required element, and (2) the statute does not require intent to use force against a person.
- The Fifth Circuit considered divisibility (Mathis), mens rea/volitional requirement (Voisine), and prior circuit precedents (Vargas-Duran, Howell) to decide whether shooting at an occupied motor vehicle qualifies as a COV.
- Court of Appeals affirmed: § 246 is divisible; Mendez’s conviction (shooting at an occupied motor vehicle) involves volitional conduct and subsumes a threatened use of force against a person, so it qualifies as a COV for the § 2L1.2 enhancement.
Issues
| Issue | Plaintiff's Argument (Mendez) | Defendant's Argument (Gov't) | Held |
|---|---|---|---|
| 1. Is Cal. Penal Code § 246 divisible? | § 246 lists alternative means, not separate elements, so indivisible. | The targets are alternative elements, so divisible. | Divisible: the charging doc targeted an occupied motor vehicle, permitting modified categorical analysis. |
| 2. Does § 246 require a mens rea that precludes “use of force”? | § 246 need not show intent to use force against a person; Vargas-Duran suggests intentional use required. | Voisine shows “use” covers reckless or knowing volitional conduct; § 246’s “maliciously and willfully” is volitional. | Post-Voisine: only volitional (non-accidental) conduct is required; § 246 meets that standard. |
| 3. Does shooting at an occupied motor vehicle have as an element "use, attempted use, or threatened use of physical force against the person of another"? | The statute’s jury instructions require only willful/malicious shooting at an occupied vehicle — not proof of force against a person — so it lacks that element. | Shooting at an occupied vehicle necessarily subsumes a threatened use of force against persons inside; California’s language (“occupied”) fulfills the element. | Held that shooting at an occupied motor vehicle (under § 246) constitutes the threatened use of physical force against a person and is a COV. |
| 4. Remedy if enhancement improper | N/A (Mendez sought reversal of enhancement). | N/A (Gov't urged affirmance). | Enhancement affirmed; sentence affirmed. |
Key Cases Cited
- Voisine v. United States, 136 S. Ct. 2272 (Sup. Ct.) ("use of force" covers reckless as well as intentional volitional conduct)
- Mathis v. United States, 136 S. Ct. 2243 (Sup. Ct.) (divisibility and the modified categorical approach analysis)
- Leocal v. Ashcroft, 543 U.S. 1 (Sup. Ct.) (accidental conduct excluded from "use of force")
- Shepard v. United States, 544 U.S. 13 (Sup. Ct.) (limits on documents usable under modified categorical approach)
- United States v. Vargas-Duran, 356 F.3d 598 (5th Cir.) (pre-Voisine view that "use" required intentional availing of force)
- United States v. Howell, 838 F.3d 489 (5th Cir.) (post-Voisine application; "use" indifferent to mens rea so long as volitional)
- United States v. Curtis, 645 F.3d 937 (7th Cir.) (shooting at occupied vehicle can qualify as COV in many circumstances)
- United States v. Estrella, 758 F.3d 1239 (11th Cir.) (held similar statute not a COV; court emphasized avoiding converting property offenses into COVs)
- United States v. Alfaro, 408 F.3d 204 (5th Cir.) (shooting at a building held not a COV)