UNITED STATES оf America, Plaintiff-Appellee, v. Edwin Israel LEAL-RAX, Defendant-Appellant.
No. 14-40019.
United States Court of Appeals, Fifth Circuit.
Dec. 5, 2014.
844
Before DAVIS, WIENER, and HAYNES, Circuit Judges.
PER CURIAM:*
Edwin Israel Leal-Rax was convicted of being found illegally in the United States fоllowing a previous deportation. Over his objection, the district court applied a 16-level enhancement based on Leal-Rax‘s 2008 Utah conviction for aggravated assault, which the court deemed a crime of violence. His Guidelines sentencing range was 37 to 46 months of imprisonment, and the court sentenced him to 37 months of imprisonment. He filed a timely notice of appеal, arguing that his 2008 Utah conviction cannot support the 16-level crime of violence enhancement. For the reasons set out below, we VACATE the 16-level crime of violence enhancement and REMAND for resentencing consistent with this opinion.
I. FACTS AND PROCEEDINGS
Leal-Rax pleaded guilty to being an alien found knowingly and unlawfully present in the United States after deportation, in violation of
A document created by the Utah state court listing the minutes, change of plea, sentence, judgment, and commitment for the 2008 conviction indicated that Leаl-Rax pleaded guilty of the third-degree felony offense of aggravated assault and was sentenced to an indeterminate term of imprisonment not to exceed five years. The sentence was suspended, and he was required to serve 30 days in prison and was placed on probation for 36 months. The information charging Leal-Rax alleged that he committed aggravated assault by “us[ing] a dangerous weapon or other means or force likely to produce death or serious bodily injury.” A probable cause affidavit incorporated into the information alleged that a police officer observed Leal-Rax “holding a 2x4 wooden board and yelling at” the victim, who “stated that the defendant kicked in the front door of the residence and hit him several times with a 2x4.”
Leal-Rax objected to the 16-level adjustment, arguing, among other things, that the Utah aggravated assault statute was overbroad because it could be violated without causing serious bodily injury and could be violated without use of a deadly or dangerous weapon when serious bodily injury is not caused. Moreover, the statute did not necessarily contain the use of force as an еlement of the offense.
On appeal, Leal-Rax contends that the district court erred by concluding that his Utah conviction of aggravated assault was a crime of violence warranting the 16-level adjustment to his offense level. He arguеs that the Utah aggravated assault statute fails to satisfy the generic definition of aggravated assault and does not necessarily have as an element the use, attempted use, or threatened use of physical force. We agree.
II. Standard of Review
This court generally reviews a district court‘s interpretation or application of the Guidelines de novo and its factual findings for clear error.1 Because Leal-Rax objected to the crime of violence adjustment, his contentions should be reviewed de novo.2
III. Analysis
Section 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines calls for a 16-level increase in a defendant‘s base offense level if he previously was removed after being convicted of a crime of violence and the conviction receives criminal history points. The application notes to § 2L1.2 provide:
“Crime of violence” means any of the following offenses under federal, state, or local law: Murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.3
It is not necessary for the offense to qualify as an enumerated offense and also have the requisite use of force in order for it to be a crime of violence.4 Thus, Leal-Rax‘s Utah aggravated assault offense qualifies for the enhancement if it either amounts to an enumerated offense or necessarily has as an element the use, attempted use, or threatened use of physical force.
A. Categorical Approach
This court analyzes whether a past conviction is a crime of violence under the Guidelines by applying a categorical approach, which examines “the elements of the statute of conviction rather than a defendant‘s specific conduct.”5 Because this court looks to the statute of conviction rather than the facts of the crime, this court “must presume that the cоnviction
If the state statute of conviction is divisible, however, this court may consult allegations in a charging instrument to which a defendant pleaded guilty.8 This consultation is allowed “only for the limited purpose of ascertaining which of the disjunctive elements the charged conduct implicated.”9
B. Generic Aggravated Assault
This court uses “a common sense” approach when determining whether a state conviction qualifies as an enumerаted offense.10 Under the commonsense approach, this court decides whether a violation of the statute of conviction constitutes the enumerated offense as it is understood in its “ordinary, contemporary, [and] common meaning.”11 The “primary source for the generic contemporary meaning of aggravated assault is the Model Penal Code.”12 The “statute of сonviction need not perfectly correlate with the Model Penal Code; ‘minor differences’ are acceptable.”13 The Model Penal Code provides:
A person is guilty of aggravated assault if he:
(a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or
(b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon.14
“The generic, contemporary meaning of aggravated assault is an assault carried out under certain aggravating circumstances.”15 “Assault, in turn, requires proof that the defendant either caused, attempted to cause, or threatened to cause bodily injury or offensive contact to another person.”16
The mens reа required for aggravated assault under the Model Penal Code is extreme recklessness.17 However, this court has held that ordinary recklessness was sufficient to place a state aggravated assault offense within the Guidelines definition, as long as the state statute other-
The two most common factors raising an assault to an aggravated assault are “the causation of serious bodily injury and the use of a deadly weapon.”19 “Physical force in the context of § 2L1.2 requires force capable of causing pain or injury to another person.”20 Offensive touching, without more, does not constitute the type of violent force typically associated with the generic offense of aggravated assault.21 However, “the touching of an individual with a deadly weapon creates a sufficient threat of force to qualify as a crime of violence.”22 Moreover, a defendant need not actually employ force; the threatened use of force is sufficient.23 This court has “not recognized any distinction between a dangerous weapon and a deadly one,”24 so the reference to a “dangerous weapon” in Leal-Rаx‘s state charging document is of no concern.
C. Applicable Utah Statutes
The version of Utah‘s aggravated assault statute in place when Leal-Rax was convicted in 2008,
(1) A person commits aggravated assault if he commits assault as defined in Section 76-5-102 and he:
(a) intentionally causes serious bodily injury to another or;
(b) under circumstances not amounting to a violation of Subsection (1)(a), uses a dangerous weapon as defined in Section 76-1-601 or other means or force likely to produce death or serious bodily injury.
(2) A violation of Subsection (1)(a) is a second degree felony.
(3) A violation of Subsection (1)(b) is a third-degree felony.25
Thus, commission of an aggravated assault under
(a) an attempt, with unlawful force or violence, to do bodily injury to another;
(b) a threat, accompanied by a show of immediate force or violencе, to do bodily injury to another; or
(c) an act, committed with unlawful force or violence, that causes bodily injury to another or creates a substantial risk of bodily injury to another.26
Ordinary recklessness suffices as the mens rea for aggravated assault not involving the intentional infliction of serious bodily injury.27
Thus, the Utah statute applicable in 2008 on its face was divisible between an assault resulting in serious bоdily injury
D. Analysis
The charging information alleged that Leal-Rax “did commit assault as defined in Utah Code 76-5-102 and used a dangerous weapon or other means or force likely to produce death or serious bodily injury.” Because Leal-Rax was charged under the “dangerous weapons or other means or force” prong of the statute,
A careful review of the applicable statutes reveals the least culpable act required for a conviction of aggravated assault under
1. Generic Assault
In United States v. Esparza-Perez, 681 F.3d 228 (5th Cir. 2012), this court analyzed Arkansas‘s aggravated assault statute and determined that it did not satisfy the requirements for the generic offense of aggravated assault.31 This court noted the requirement of the Model Penal Code generic offense that a person must cause or attempt to cause serious bodily injury, then contrasted that requirement with the Arkansas statute, which “requires that a defendant engage in conduct that creates a substantial danger of death or serious physical injury.”32 Creation of a substantial danger “does not require any contact or injury or attempt or threat of offensive contact or injury.”33 This court found that the Arkansas statute differed from the Model Penal Code definition of aggravated assault sufficiently to remove it from that definition.34
Utah, like Arkansas, allows a conviction for assault (distinct from attempt or threat, which are covered in separate and divisible subsections) based on the mere creation of a risk of injury, which is included in the same subsection with “an act ... that causes bodily injury to аnother.”35 For example, in Utah, a defendant was found to have committed assault when he entered a female friend‘s house, “began to
2. Element of Force
Having determined that
3. Conclusion
In sum, the Utah aggravatеd assault statute under which Leal-Rax was convicted,
E. Remedy
We turn now to Leal-Rax‘s remedy. The Government argues that the sentencing error was harmless in this case. We have held that “the harmless error doctrine applies only if the proponent of the sentence convincingly demonstrates both (1) that the district court would have imposed the same sentence had it not made the error, and (2) that it would have done so for the same reasons it gave at thе prior sentencing.”41 We elaborated:
[A]n incorrect Guidelines calculation will usually invalidate the sentence, even when the district court chose to impose a sentence outside the Guidelines range.
Here, it is clear that the district court erred in calculating the Guidelines range. With the 16-level enhancement, Leal-Rax‘s Guidelines rangе was calculated at 37 to 46 months. Without the 16-level enhancement, Leal-Rax would have been subject to a far lesser Guidelines sentencing range, perhaps 12 to 18 months. The record does not show that the district court would have imposed the same sentence regardless of the Guidelines range. Although the district court stated that it believed the 37-month sentence it imposed would satisfy the
IV. CONCLUSION
For the reasons set out above, we VACATE the 16-level crime of violence enhancement and REMAND for resentencing consistent with this opinion.