United States v. Martin Barcenas-Yanez
2016 U.S. App. LEXIS 11213
| 4th Cir. | 2016Background
- Martin Barcenas-Yanez, a Mexican national, was convicted in Texas (1997) of aggravated assault under Tex. Penal Code § 22.02(a)(2) (simple assault elevated by use/exhibition of a deadly weapon) and later deported.
- He illegally reentered the United States and was indicted under 8 U.S.C. § 1326 for unlawful reentry; he pleaded guilty.
- Probation initially recommended a 16-level sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(A) because his Texas aggravated-assault conviction was treated as a prior "crime of violence," producing a guidelines range of 77–96 months.
- Defense objected that § 22.02(a) is broader than the generic aggravated-assault offense because Texas permits a reckless mens rea; the PSR was revised to a 4-level enhancement (24–30 months), but the district court applied the modified categorical approach and imposed the 16-level enhancement, sentencing to 60 months.
- On appeal, the Fourth Circuit reviewed de novo whether the Texas conviction categorically qualified as a "crime of violence" under U.S.S.G. § 2L1.2 and whether the statute is divisible such that the modified categorical approach could be used.
Issues
| Issue | Plaintiff's Argument (Barcenas-Yanez) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether Tex. Penal Code § 22.02(a) categorically qualifies as an aggravated-assault "crime of violence" under U.S.S.G. § 2L1.2 | § 22.02(a) is broader than the generic offense because it allows conviction on a reckless mens rea, so it does not categorically qualify | § 22.02(a) can be read as divisible and, via the modified categorical approach, the court may use charging/Shepard documents to show the conviction rested on intentional/knowing conduct | Held: Not categorical; inclusion of recklessness makes the statute broader than the generic offense. |
| Whether § 22.02(a) is divisible (permitting the modified categorical approach) | The statute is indivisible because juries need not unanimously agree on a particular mens rea; thus the modified categorical approach is inapplicable | The statute is divisible; courts may consult charging documents and state-court practice to identify the statutory alternative used | Held: Indivisible — Texas law does not require jury unanimity as to mens rea, so the modified categorical approach cannot be used. |
| Whether Shepard-approved documents may be consulted to decide divisibility | Divisibility must be determined from the statute and state law on jury unanimity; consulting Shepard documents to answer divisibility is improper | The court may consult charging documents and state-court practice to determine divisibility | Held: The modified categorical approach cannot be used to decide whether the modified categorical approach applies; Shepard documents cannot resolve divisibility here. |
| Whether the Fourth Circuit should follow Fifth Circuit pre-Descamps precedent holding § 22.02 divisible | Argues for following Texas law and the court of criminal appeals’ unanimity rulings showing indivisibility | Cites Fifth Circuit authority finding divisibility in similar contexts | Held: Fourth Circuit respectfully disagrees with Fifth Circuit precedent (Guillen-Alvarez) and follows Texas Court of Criminal Appeals (Landrian) that mens rea unanimity is not required, rendering § 22.02 indivisible. |
Key Cases Cited
- Descamps v. United States, 133 S. Ct. 2276 (2013) (limits use of the modified categorical approach to divisible statutes)
- United States v. Aparicio-Soria, 740 F.3d 152 (4th Cir. 2014) (standard of review and principles for prior-conviction analysis under guidelines)
- United States v. Cabrera-Umanzor, 728 F.3d 347 (4th Cir. 2013) (categorical approach and when modified categorical approach applies)
- United States v. Fuertes, 805 F.3d 485 (4th Cir. 2015) (divisibility depends on whether jurors must agree on alternative elements)
- United States v. Vinson, 805 F.3d 120 (4th Cir. 2015) (divisibility analysis requires alternate elements creating matching categories)
- United States v. Garcia-Jimenez, 807 F.3d 1079 (9th Cir. 2015) (recklessness generally places state aggravated-assault statutes outside the federal generic definition)
- United States v. Guillen-Alvarez, 489 F.3d 197 (5th Cir. 2007) (pre-Descamps holding that Texas aggravated-assault statute was divisible; Fourth Circuit respectfully disagrees)
- Landrian v. State, 268 S.W.3d 532 (Tex. Crim. App. 2008) (Texas Court of Criminal Appeals: jury unanimity as to mens rea not required for § 22.02 convictions)
Result: Judgment vacated and case remanded for resentencing because § 22.02(a) is not categorically a "crime of violence" and is indivisible for purposes of the modified categorical approach.