United States v. Santos Herrera-Alvarez
753 F.3d 132
| 5th Cir. | 2014Background
- Defendant Santos Tulio Herrera–Alvarez pleaded guilty to illegal reentry (8 U.S.C. § 1326) and received a 16‑level Sentencing Guidelines enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on a 2010 Louisiana aggravated battery conviction (La. Rev. Stat. § 14:34).
- The Louisiana aggravated battery statute incorporates battery (La. Rev. Stat. § 14:33), which is defined disjunctively as (a) intentional use of force or violence on another or (b) intentional administration of poison/noxious substance; aggravated battery is a battery committed with a dangerous weapon (La. Rev. Stat. § 14:2(3), § 14:34).
- The state charging information alleged Herrera–Alvarez committed aggravated battery with a knife, allowing the court to exclude poisoning/noxious‑substance theories under the modified categorical approach.
- The district court applied the enhancement; Herrera–Alvarez did not object below, so appellate review was for plain error.
- The panel applied the categorical/modified categorical approaches (Taylor/Descamps/Shepard line) to determine whether the narrowed Louisiana offense necessarily includes the "use, attempted use, or threatened use of physical force" required by U.S.S.G. § 2L1.2.
- The court concluded that § 14:34 as a whole is overbroad because it covers poisoning, but as narrowed (knife/dangerous instrument), the offense necessarily involves violent/destructive force and therefore is a "crime of violence," so the enhancement was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether La. Rev. Stat. § 14:34 conviction is a "crime of violence" under U.S.S.G. § 2L1.2 | Gov: Herrera–Alvarez's aggravated battery conviction (with knife) qualifies as a COV and justifies the Guideline enhancement | Herrera–Alvarez: § 14:34 is overbroad because it includes poisoning and "offensive" contact, so it does not necessarily involve violent force | As narrowed by the charging document (knife), § 14:34 necessarily includes the use/threat of violent physical force and qualifies as a COV under § 2L1.2; enhancement affirmed |
| Whether the court may apply the modified categorical approach | Gov: Charging document can be consulted to identify the statutory alternative of conviction | Herrera–Alvarez: Statute's disjunctive phrasing prevents categorical match; conviction might be for poisoning | The statute is divisible (battery defined disjunctively); under Shepard/Descamps the charging information may be used to narrow to the non‑poisoning alternative |
| Whether Louisiana aggravated battery as a whole meets the "use of force" prong | Gov: (alternative) § 14:34 is equivalent to generic aggravated assault | Herrera–Alvarez: Because battery can be poisoning or merely offensive touching, the statute is not categorically violent | Court: § 14:34 as a whole is overbroad (poisoning possible) and thus does not categorically satisfy the "use of force" prong; only the narrowed variant does |
| Standard of review for failure to object below | Gov: enhancement established; plain error standard applies since no timely objection | Herrera–Alvarez: argues statutory overbreadth but did not object below | Court: Plain error review applies; but government bears burden to establish predicate — court found error non‑prejudicial because the record shows the conviction involved a knife and violent force |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (categorical approach for prior‑conviction predicates)
- Descamps v. United States, 570 U.S. 254 (limits modified categorical approach to divisible statutes and Shepard documents)
- Shepard v. United States, 544 U.S. 13 (permissible documents for modified categorical inquiry)
- Johnson v. United States, 559 U.S. 133 ("physical force" means violent force capable of causing pain or injury)
- United States v. Dominguez, 479 F.3d 345 (5th Cir.) (touching with a deadly weapon suffices as violent force)
- United States v. Villegas‑Hernandez, 468 F.3d 874 (5th Cir.) (poisoning may not involve violent physical force for categorical analysis)
- United States v. Moore, 635 F.3d 774 (5th Cir.) (La. aggravated battery treated as COV under different Guideline residual clause)
- United States v. Rasco, 123 F.3d 222 (5th Cir.) (La. aggravated battery was a serious violent felony under three‑strikes context)
- United States v. Bonilla, 524 F.3d 647 (5th Cir.) (government bears burden to establish predicate conviction for sentencing adjustment)