United States v. Juan Castillo-Rivera
2017 U.S. App. LEXIS 5570
| 5th Cir. | 2017Background
- Castillo‑Rivera, a Mexican national, was convicted of illegal reentry; his federal sentence was enhanced under U.S.S.G. § 2L1.2(b)(1)(C) by 8 levels on the ground his 2013 Texas conviction for Unlawful Possession of a Firearm by a Felon (Tex. Penal Code § 46.04) was an "aggravated felony" as "an offense described in" 18 U.S.C. § 922(g)(1).
- The PSR initially recommended a 4‑level enhancement; the government argued for the 8‑level enhancement, Probation adopted that position, and the district court imposed the higher enhancement, resulting in a 34‑month sentence.
- Castillo‑Rivera appealed, arguing § 46.04 is broader than § 922(g)(1) (both because Texas’s definition of “felony” and its definition of “firearm” are broader) and thus does not qualify as an aggravated felony under 8 U.S.C. § 1101(a)(43).
- A three‑judge panel declined to reach the merits, citing binding precedent (Nieto Hernandez); the en banc Fifth Circuit granted rehearing to decide the substantive issue and affirmed the sentence on the merits.
- The court applied the categorical approach and the Supreme Court’s "realistic probability" principle from Gonzales v. Duenas‑Alvarez, requiring a showing (usually by state‑court decisions) that Texas actually applies § 46.04 in the broader ways alleged.
- The en banc majority concluded Castillo‑Rivera failed to show Texas courts have applied § 46.04 (or its definitions) in the nongeneric ways he claimed (no controlling state decisions showing § 46.04 reaches convictions outside § 922(g)(1)), so the 8‑level enhancement stands.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TPC § 46.04’s definition of “felony” makes it broader than 18 U.S.C. § 922(g)(1) so § 46.04 is not an "offense described in" § 922(g)(1) | § 46.04(f) defines "felony" more broadly (includes offenses punishable ≤ or =1 year, other state offenses, etc.), so it covers convictions that § 922(g)(1) does not | Plaintiff failed to show a realistic probability that Texas courts apply § 46.04 to convictions outside § 922(g)(1); textual breadth alone is insufficient without state‑court applications per Duenas‑Alvarez | Held for defendant: no showing of realistic probability; majority affirms enhancement |
| Whether Texas’s definition of “firearm” (TPC § 46.01(3)) is broader than the federal definition (18 U.S.C. § 921(a)(3)) so § 46.04 reaches non‑federal firearms (e.g., airguns) | Texas definition can encompass airguns ("explosion or burning substance" language), and Texas appellate decisions have treated airguns as fitting chapter‑46 firearm definitions | Government: even if textually different, plaintiff must show Texas courts actually apply § 46.04 to such weapons in felon‑possession cases; cited Texas cases do not control § 46.04 application | Held for defendant: state appellate decisions cited (e.g., Boston) do not establish § 46.04 was applied in the nongeneric manner to support realistic probability; majority rejects plaintiff’s showing |
| Proper application of the categorical/realistic‑probability test (Duenas‑Alvarez) here | Plaintiff: where a state statute is facially broader, textual difference suffices; no additional showing should be required | Government and majority: Duenas‑Alvarez requires a realistic‑probability showing (often via state cases) before finding a state statute nongeneric | Held for defendant: realistic‑probability requirement applied; plaintiff failed to meet it |
| Whether prior panel precedent (Nieto Hernandez) forecloses plaintiff’s arguments | Plaintiff argued Nieto Hernandez did not consider the overbreadth arguments and is not binding on questions not decided | Government relied on Nieto Hernandez as controlling; majority initially noted precedent but reached merits en banc and affirmed on those merits | Court did not resolve the procedural rule‑of‑orderliness question; instead decided the merits and affirmed |
Key Cases Cited
- Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (2007) (to show a state statute is overbroad under the categorical approach, a defendant must show a "realistic probability" the state would apply the statute in the nongeneric way)
- Taylor v. United States, 495 U.S. 575 (1990) (elements‑based categorical approach for determining whether a prior conviction matches a federal generic offense)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (divisibility/elements‑means analysis under the categorical approach)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (reinforcing the realistic‑probability requirement and need to show state prosecutions under the nongeneric theory)
- Nieto Hernandez v. Holder, 592 F.3d 681 (5th Cir. 2009) (Fifth Circuit panel previously held TPC § 46.04 fits within the aggravated‑felony definition)
- United States v. Carrasco‑Tercero, 745 F.3d 192 (5th Cir. 2014) (Fifth Circuit required actual state cases to show realistic probability of nongeneric application)