UNITED STATES оf America, Plaintiff-Appellee v. Guadalupe TORRES-JAIME, Defendant-Appellant.
No. 15-40208.
United States Court of Appeals, Fifth Circuit.
April 21, 2016.
821 F.3d 577
Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, Assistant Federal Public Defender, Laura Fletcher Leavitt, Federal Public Defender‘s Office, Houston, TX, for Defendant-Appellant.
Before CLEMENT, GRAVES, and COSTA, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
Guadalupe Torres-Jaime (“Torres-Jaime“) challenges the district court‘s sixteen-level “crime of violence” sentencing enhancement pursuant to
I.
In October 2014, Guadalupe Torres-Jaime pleaded guilty, without the benefit
Torres-Jaime objected to the sixteen-level enhancement, arguing that his prior Georgia aggravated assault offense was not a crime of violence under the Guidelines. The district court overruled Torres-Jaime‘s objection, downwardly departed, and sentenced him to thirty-two months’ imprisonment. Torres-Jaime timely appealed.
II.
We consider this single issue: whether Torres-Jaime‘s aggravated assault conviction under
Section 2L1.2 of the Sentencing Guidelines provides that the offense level for unlawfully entering or remaining in the United States shall be increased by sixteen levels if the defendant has a prior conviction for a crime of violence. See
We use different tests “when analyzing whether a particular offеnse amounts to a [crime of violence], and the test used depends on whether the offense is an enumerated one or has physical force as an element.” United States v. Moreno-Florean, 542 F.3d 445, 449 (5th Cir. 2008). Because the state crime at issue is the enumerated offense of “aggravated assault,” we apply a “common sense” approach that looks to the “generic, contemporary meaning” of an offense listed in
If the defendant was convicted under a statute that is “narrower than the generic crime” or that mirrors the generic definition with only “minor variations,” the enhancement may stand. United States v. Herrera, 647 F.3d 172, 176 (5th Cir. 2011). But if the statute of conviction “encompasses prohibited behavior that is not within the plain, ordinary meaning of the enumerated offense, the conviction is not a crime of violence as a matter of law.” Esparza-Perez, 681 F.3d at 230 (internal quotation marks omitted).
Moreover, under the common sense approach, “if the statute of conviction contains a series of disjunctive elements, this court may look beyond the statute to certain records made or used in adjudicating guilt to determine which subpart of the statute formed the basis of the conviction.” Moreno-Florean, 542 F.3d at 449; see Mungia-Portillo, 484 F.3d at 815. Qualifying records “are ‘generally limited to the charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.‘” United States v. Herrera-Alvarez, 753 F.3d 132, 138 (5th Cir. 2014) (quoting Shepard v. United States, 544 U.S. 13, 16, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005)). If such Shepard-compliant documents cannot narrow the conviction, we determine whether the “least culpable act constituting a violation of that statute” necessarily entails the use of force or constitutes the enumerated offense. United States v. Gonzalez-Ramirez, 477 F.3d 310, 315-16 (5th Cir. 2007).
The State‘s indictment charged Torres-Jaime with violating
- With intent to murder, to rape, or to rob;
- With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; or
- A person or persons without legal justification by discharging a firearm from within a motor vehicle toward a person or persons.
Here, the indictment charges a violation of
In exploring this critical determination, we look to Torres-Jaime‘s Shepard-approved charging document. See Shepard, 544 U.S. at 25; United States v. Rodriguez, 711 F.3d 541, 549 n. 8 (5th Cir. 2013). The State of Georgia indictment charged Torres-Jaime with aggravated assault and alleged that:
On August 8, 2013, Torres-Jaime “did unlawfully make an assault upon the person of Marten Tzun, driver[,] and Leidi Latin-Garcia, passenger[,] with his 2000 Chevrolet Express Van, an instrument which when used offensively against a person is likely to result in
serious bodily injury by repeatedly ramming into Marten Tzun‘s 2006 Nissаn Pathfinder with said Chevrolet Express Van....”
The judgment indicates that Torres-Jaime pleaded guilty to “[a]ggravated assault” and was given an eight-year felony sentence, which was probated.
Our analysis leads us, first, to conclude that the description of Torres-Jaime‘s conduct, as quoted above, unquestionably tracks the aggravated assault language of
Having narrowed Torres-Jaime‘s conviction, we return to the question of whether Torres-Jaime‘s aggravated assault conviction constitutes a crime of violence for purposes of
We do not agree, especially having already determined that the conduct described in Torres-Jaime‘s indictment places his conviction squarely under
We have held in a series of unpublished decisions thаt the Georgia offense of aggravated assault is a crime of violence under
In Gonzalez-Flores, the defendant argued that his Georgia aggravated assault cоnviction did not constitute a crime of violence under
In Soto-Romero, the defendant argued that his Georgia aggravated assault conviction was not a crime of violence under
In Hyrtado, the defendant argued that his Georgia aggravated assault convictions were not crimes of violence under
Reviewing the issue under the plain error standard of review, we stated that we had “not previously addressed whether the statute of conviction,
Torres-Jaime urges that we disregard the foregoing unpublished opinions because the issue was reviewed for plain error in Soto-Romero and Hyrtado, because none of the decisions indicate whether the court addressed the issues raised in the instant appeal, and because none of the opinions provide analysis for the conclusions reached. That is not the case.
Delving just below the opinions’ surfaces (i.e., considering the Fifth Circuit precedent and sources cited therein), the reasoning for those decisions can be extrapolated from their сitations to Professor LaFave‘s treatise, Santiesteban-Hernandez, and Sanchez-Ruedas. See Soto-Romero, 491 Fed. Appx. at 482; Gonzalez-Flores, 228 Fed. Appx. at 491. In Santiesteban-Hernandez, we stated that the sources of generic, contemporary meaning for the enumerated offenses include treatises. 469 F.3d at 379. According to 2 W.R. LaFave & A. Scott, Substantive Criminal Law, § 16.3 (2d ed.2015),
[t]he principal question concerning the crime of assault [is] whether it is to be limited to the situation of the attempted battery (requiring an actual intent to cause a physical injury, not just an apprehension of such an injury); or whether it should include, in addition, the civil-assault situation of the intentionally-caused apprehension of injury.
The treatise further provides that “[t]he weight of authority, fortified by the modern trend, is to include the latter situation as well as the formеr in the scope of the crime of assault.” 2 W.R. LaFave & A. Scott, Substantive Criminal Law, § 16.3
Our analyses in those prior decisions also rested, in part, on Sanchez-Ruedas. See Soto-Romero, 491 Fed. Appx. at 482; Gonzalez-Flores, 228 Fed. Appx. at 491. In Sanchez-Ruedas, we held that the “subtle difference” between the Model Penal Code‘s mens rea attaching to the “serious bodily injury requirement” and the California statute‘s focus on the defendant‘s intentional conduct, and not the ultimate result, was insufficient to remove the California statute from the commonly defined term “aggravated assault.”3 452 F.3d at 414. We explained that the California statutе at issue proscribed “‘willfully or purposefully’ attempting ‘violent injury’ (which California defines as ‘the least touching‘) committed by any means of force likely to produce great bodily injury.” Id. (quoting People v. Colantuono, 7 Cal.4th 206, 26 Cal.Rptr.2d 908, 865 P.2d 704, 709 (1994)). “Thus, in California, the defendant need not specifically intend great bodily injury, but need only intentionally engage in conduct that will likely produce that.” Sanchez-Ruedas, 452 F.3d at 414 (citing Colantuono, 26 Cal. Rptr.2d 908, 865 P.2d at 709 (providing that although, under the California assault statute, the defendant “must intentionally engage in conduct that will likely produce injurious consequences, the prosecution need not prove a specific intent to inflict a particular harm“)). Thus, in Gonzalez-Flores and Soto-Romero we concluded that the Georgia statute‘s focus on the defendant‘s intentional conduct as opposed to his intended result would not preclude the offense of conviction from falling within the contemporary, ordinary meaning of aggravated assault. See Soto-Romero, 491 Fed. Appx. at 482; Gonzalez-Flores, 228 Fed. Appx. at 491.
Torres-Jaime, however, points to our recent published opinion in Hernandez-Rodriguez, 788 F.3d 193 (5th Cir. 2015), as intervening authority and urges us to find that case instructive here. We do not.
In Hernandez-Rodriguez, the defendant challenged a sixteen-level
In so holding, we rejected the government‘s argument that the intent to cause bodily injury could be inferred from the use of a dangerous weapon that, in the manner used, was likely to produce death or bodily harm because Louisiana law did not require that the defendant specifically intend the result. Id. at 199. We also rejected the government‘s argument that the differences between the Louisiana statute and the Model Penal Code were minor such that the Louisiana statute still fell within the generic, contemporary meaning of aggravated assault. Id. at 199-200. We acknowledged that, in Sanchez-Ruedas, we concluded that the difference between the California statute‘s focus on intentional conduct and the Model Penal Code‘s focus on the intentional result did not remove the California statute from the generic, contemporary meaning of aggravated assault. Id. But, we distinguished the Louisiana aggravated battery statute at issue in Hernandez-Rodriguez from the California offense of assault with a deadly weapon at issue in Sanchez-Ruedas by noting that the California statute had not been interpreted as broadly as the Louisiana statute. Id. at 200.
Several distinctions between Hernandez-Rodriguez and the present case result in its inapplicability here. First, Torres-Jaime provides no evidence that the Georgia statute is interpreted and applied as broadly as the Louisiana statute that we examined in Hernandez-Rodriguez—i.e., such that the Georgia statute would apply to the “administration of a noxious substance” committed without intended physical force. We find such an application unlikely because even considering the Georgia statute most broadly, it allows only for the “act of using an instrument offensively.” Thus, there is no reason to believe that the “non-violent administration of poison” would qualify as the offensive use of an instrument under Georgia‘s statute (the statutory language of
Accordingly, we hold that Torres-Jaime‘s conviction for Georgia aggravated assault qualifies as a crime of violence under
III.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
The strong interest in uniform application of the law means that we should usually follow unpublished decisions. But the difference between published and unpublished decisions must mean something. Otherwise, we should just “publish” everything and give all opinions the weight of binding authority.1
This case does not require fleshing out the full contours of when the desire for consistency that should ordinarily lead us to follow unpublished decisions should give way to the interest in getting the law right. For it involves a situation in which a departure from nonprecedential authority should not be controversial: whеn a key legal premise of those unpublished decisions is revealed to be demonstrably false. That is the case here with respect to our prior, unpublished rulings which incorrectly assumed that the Georgia assault statute requires intentionally causing apprehension of violent injury.
But before addressing Georgia‘s “placing another in reasonable apprehension” assault statute, I first respond to the majority opinion‘s initial holding that such an inquiry is unnecessary because the indictment narrows Torres-Jaime‘s offense to the separate “attempts to commit a violent injury to the person of another” assault prоvision.
This difference is significant because the treatise cited by the majority opinion and the prior unpublished opinions specifies that “Assault as Intentional Scaring” requires intent to cause apprehension:
It is sometimes stated that this type of assault is committed by an act ... which reasonably causes another to fear bodily injury. This statement is not quite accurate, however, for one cannot (in those jurisdictions which have extended the tort concept of assault to criminal assault) commit a criminаl assault by negligently or even recklessly or illegally acting in such a way (as with a gun or car) as to cause another person to become apprehensive of being struck. There must be an actual intention to cause apprehension ...
W.R. LAFAVE & A. SCOTT, SUBSTANTIVE CRIMINAL LAW, § 16.3(b) (2d ed.2005) (emphasis added). Georgia‘s assault statute, which prohibits even negligently causing apprehension of imminent violent injury, is thus an outlier. Given that even statutes covering the intentional causing of apprehension lie, at best, on the outer edges of the contemporary meaning of aggravated assault,3 removing this intent requirement is
And finding that a difference in requisite intent puts Georgia‘s statute outside the common definition of assault fits with our recent published decision in United States v. Hernandez-Rodriguez, 788 F.3d 193 (5th Cir. 2015), which held that Louisiana‘s lack of a specific intent to cause injury requirement makes that offense broader than generic aggravated assault. The majority opinion is correct that there is no evidence that Georgia‘s statute covers administration of a noxious substance without physical force. Maj. Op. at 585. But that isn‘t the question. The question is whether, as a practical rather than theoretical matter, the elements of the statute of conviction encompass conduct that is not within the ordinary meaning of the generic offense. United States v. Esparza-Perez, 681 F.3d 228, 230 (5th Cir. 2012). The numerous Georgia decisions, including one from its highest court, demonstratе the Georgia offense is broader because it covers conduct in which the defendant did not intend to cause apprehension of harm even though that fear resulted. And this lack of an intentionality requirement has real world effect, including in a case like this one in which an automobile was the weapon. See, e.g., Kirkland v. State, 282 Ga. App. 331, 638 S.E.2d 784, 785-87 (2006) (upholding aggravated assault conviction based on victim‘s apprehension of injury from a defendant trying to flee in his car, with no evidence of intent to injure or cause apprehension). As for the California statute that we found qualified as aggravated assault despite a “subtle difference” bеtween it and the standard mens rea, United States v. Sanchez-Ruedas, 452 F.3d 409, 414 (5th Cir. 2006), two features of that assault with a deadly weapon statute still place it far closer to the core of aggravated assault than the Georgia statute at issue here: it requires a forcible act,4 and that force must be likely to produce great bodily injury, not merely apprehension of harm.5 Id.
When Torres-Jaime argued at sentencing that his Georgia conviction does not warrant the 16-point “crime of violence” enhancement, the district judge responded, “I think you may be right.” But she understandably felt that she should follow the three unpublished decisions of a higher court. We should exercise our greater freedоm to reconsider those decisions and reject them given the faulty premise on which they were based and their inconsistency with our published decision in Hernandez-Rodriguez. I would therefore vacate the sentence that was based on the 16-point enhancement.