UNITED STATES of America, Plaintiff-Appellee v. Luis HERNANDEZ-HERNANDEZ, Defendant-Appellant.
No. 15-40480.
United States Court of Appeals, Fifth Circuit.
March 17, 2016.
Luis Hernandez-Hernandez appeals his 16-level “crime of violence” enhancement under § 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines based upon a prior conviction for assaulting a federal officer and inflicting bodily injury, in violation of 18
Katherine Lisa Haden, Asst. U.S. Atty., Renata Ann Gowie, Asst. U.S. Atty., U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
Marjorie A. Meyers, Federal Public Defender, Philip G. Gallagher, Assistant Federal Public Defender, Houston, TX, for Defendant-Appellant.
Before JONES and SMITH, Circuit Judges, and BOYLE,* District Judge.
* District Judge of the Northern District of Texas, sitting by designation.
I.
Hernandez pleaded guilty to illegal reentry following a conviction for an aggravated felony, in violation of 8
II.
In deciding whether Hernandez’s conviction under § 111 constitutes a crime of violence, we look to the specific Guidelines provision from which the 16-level enhancement derives— § 2L1.2(b)(1)(A)(ii). That provision calls for a 16-level increase to the base offense level for illegal reentry if the defendant was previously convicted for a crime of violence and the prior conviction receives criminal history points. United States v. Ceron, 775 F.3d 222, 227 (5th Cir. 2014) (citing U.S.S.G. § 2L1.2(b)(1)(A)(ii)). To qualify for the enhancement under § 2L1.2(b)(1)(A)(ii), the crime of conviction must fall within one of two discrete categories of offenses. The first is a list of enumerated offenses, none of which apply here. The other, applicable to Hernandez’s conviction, is a “catch-all” provision,2 which defines a crime of violence as an “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.” Ceron, 775 F.3d at 227 (citing U.S.S.G. § 2L1.2, cmt. n. 1(B)(iii)).
To trigger the 16-level enhancement under the catch-all definition, “the intentional use of force must be a constituent part of a claim that must be proved for the claim to succeed.” United States v. Calderon-Pena, 383 F.3d 254, 260 (5th Cir. 2004) (en banc) (quoting United States v. Vargas-Duran, 356 F.3d 598, 605 (5th Cir. 2004) (en banc)).3 “If any set of facts would support a conviction without proof of [the intentional use of force], then the [intentional use of force] most decidedly is not an element—implicit or explicit—of the crime.” Calderon-Pena, 383 F.3d at 260 (quoting Vargas-Duran, 356 F.3d at 605) (emphasis added). In other words, if the crime upon which the enhancement is based can be proven without evidence that the defendant intentionally used force against the person of another, then the offense does not qualify as a crime of violence under § 2L1.2(b)(1)(A)(ii). United States v. Velasco, 465 F.3d 633, 638 (5th Cir. 2006).
So our task here is to determine whether Hernandez’s conviction under § 111(b) “necessarily require[d] a finding that [Hernandez] used, attempted to use,
A statute is divisible when it “sets forth multiple separate offenses or sets forth one or more elements of an offense in the alternative,” not all of which may qualify as a crime of violence. Id. at 134. Once a statute is deemed divisible, the task for the court—under the modified categorical approach—is to determine “which [of the statute’s alternative bases for committing the crime] formed the basis of the defendant’s conviction.” Descamps, 133 S.Ct. at 2284 (citation omitted). This entails looking beyond the statute to certain “extra-statutory” records to isolate the actual elements underlying the defendant’s conviction and then assessing—from the narrowed elements—whether the defendant’s crime constitutes a crime of violence under the applicable enhancement provision. Here we examine § 2L1.2’s use of force provision. The permissible “extra-statutory” records, known as Shepard4 documents, include the “charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Ceron, 775 F.3d at 227 (quoting United States v. Elizondo-Hernandez, 755 F.3d 779, 781 (5th Cir. 2014)). Once the elements comprising the underlying conviction have been identified, the court applies the categorical approach to the crime of conviction to ascertain whether that offense necessarily “has as an element the use, attempted use, or threatened use of physical force against the person of another.” Herrera-Alvarez, 753 F.3d at 137.
III.
We conduct a de novo review of a district court’s determination that a conviction constitutes a crime of violence. United States v. Flores-Gallo, 625 F.3d 819, 821 (5th Cir. 2010). “Guideline commentary is given controlling weight if it is not plainly erroneous or inconsistent with the guidelines.” Id. at 821 (quoting Velasco, 465 F.3d at 637).
The parties do not dispute that § 111 as a whole criminalizes “a broader swath of conduct” than the conduct covered by § 2L1.2(b)(1)(A)(ii)’s use of force provision. Descamps, 133 S.Ct. at 2281. But the parties agree, and our cases confirm, that § 111 is divisible. See United States v. Ramirez, 233 F.3d 318, 321 (5th Cir. 2000), overruled on other grounds by United States v. Cotton, 535 U.S. 625, 629-31, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). Our precedent establishes that § 111 encompasses “three separate offenses” including: “(1) simple assault; (2) more serious
The version of § 1115 in place at the time of Hernandez’s 2005 conviction provided in pertinent part:
§ 111. Assaulting, resisting, or impeding certain officers or employees
(a) In general.—Whoever—
(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties; ... shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and in all other cases, be fined under this title or imprisoned not more than 8 years, or both.
(b) Enhanced penalty.—Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shall be fined under this title or imprisoned not more than 20 years, or both.
18
Because § 111 is a divisible statute, the modified categorical approach permits us to consult the Shepard documents to determine which of the alternative statutory phrases formed the basis for Hernandez’s 2005 § 111 conviction. The available Shepard documents include the indictment, judgment, and plea agreement. The indictment charges that Hernandez “did knowingly and forcibly assault Kevin Estrada, a United States Bureau of Prisons Correctional Officer ... while the officer was engaged in and on account of the performance of official duties, inflicting bodily injury upon the officer ... in violation of Title 18 United States Code, Section 111(a)(1) and (b).” The written Plea Agreement and Statement of Facts Relevant to Sentencing reflects the following agreed factual basis for Hernandez’s guilty plea:
On June 9, 2003, defendant-inmate LUIS HERNANDEZ-HERNANDEZ was walking through, a metal detector near the entrance of a housing unit within the United States Penitentiary—High Security in Florence, Colorado. Defendant was contacted by Senior Officer
Officer Estrada attempted to restrain defendant; defendant became further enraged and engaged Officer Estrada in physical combat. Defendant “bit” the arm of Officer Estrada. With assistance from other corrections officers, Officer Estrada was able to restrain defendant and place him into handcuffs.
The parties agree that the Government’s evidence would establish that Officer Estrada received some bodily injury as a result of defendant’s assault.
The judgment in the 2005 case reflects that Hernandez was convicted of “Assault on a Correctional Officer” in violation of § 111(a)(1) and (b) and was sentenced to 84 months in custody.
From the foregoing Shepard documents, it is a simple matter to deduce that Hernandez’s conviction was under § 111(b), the more serious felony provision of the statute.6 First, the citation to § 111(a)(1) and (b) in the indictment and judgment indicates that subpart (b) was the operative statutory provision.7 Further, Hernandez’s admission in the written plea papers that he “forcefully” “struck” and “bit” the corrections officer and that these actions caused “bodily injury” to the officer, demonstrate that his conviction fell under subpart (b) as opposed to (a). In contrast to subpart (b), neither of the offenses described in subpart (a) of § 111—misdemeanor or felony—requires proof of both assaultive conduct and bodily injury for a conviction. Williams, 602 F.3d at 317 (quoting Gagnon, 553 F.3d at 1027) (describing the misdemeanor provision of § 111(a) as requiring proof of a forcible act without the intent to cause physical contact and the felony portion of (a) requiring proof of a forcible act with the intent to commit a felony or resulting in physical contact). Section 111(b), from the plain language of the statute, requires proof of both assaultive conduct and bodily injury to sustain a conviction.8 See United States v. Juvenile Female, 566 F.3d 943, 946-47 (9th Cir. 2009) (agreeing with seven other circuits that § 111(b) describes an “assault involving a deadly or dangerous weapon or resulting in bodily injury”) (collecting cases). Both assaultive conduct and bodily injury are charged in Hernandez’s indictment. Finally, Hernandez’s 84-month sentence reflected in the judgment accompanied by a citation to § 111(a)(1) and (b) further supports our conclusion that Hernandez’s conviction was based on § 111(b).
Going a step further, drawing from the Shepard documents, we identify
Here, because we are dealing with a federal statute, we look to federal law for guidance as to the requirements of § 111(b).10 Unfortunately, § 111 is not a model of clarity and does not specify the level of force required for a violation of § 111(b). Nor does the statute define “bodily injury” as that term is used in § 111(b). Such a definition, if contained in the statute, would likely shed some light on the amount of force required for a conviction under § 111(b) which, in turn, might reveal whether that level of force equals that required by § 2L1.2. For his part, Hernandez argues that the bodily injury element of § 111(b) can be proven without a showing of violent or destructive force and, therefore, that § 111(b) does not categorically qualify as a crime of violence. Hernandez specifically maintains that § 111(b) can be violated by “non-forceful acts” including “simple assault,” “spitting,” or “projecting bodily fluids” onto the person of another. But none of the cases he cites stand for this proposition or even address whether § 111(b) qualifies as a crime of violence under § 2L1.2’s use of force provision.11 The government counters that the definition of “bodily injury” for § 111(b) can be drawn from the Fifth Circuit Pattern Jury Instructions,12 which
First, as noted, § 111(b) is the most serious of the three separate offenses encompassed by the statute, carrying a term of imprisonment of up to 20 years. Section 111(b) is also the only subpart of the three that, by its plain terms, requires proof of forcible conduct as described in subpart (a) and proof that the forcible conduct resulted in the infliction of bodily injury.13 The fact that the bodily injury element is included in § 111(b) but not in (a) indicates that § 111(b) requires a greater baseline showing of force—enough to cause bodily injury—than that required under § 111(a). The bodily injury requirement in (b) further indicates that minimally forceful, albeit repugnant, conduct such as spitting or the projecting of bodily fluids—that Hernandez argues can underlie a § 111(b) violation—is instead covered by subpart (a). The Ramirez case, cited above, involved just such a scenario where an inmate who flung a urine-feces mixture at a corrections officer was convicted under the felony provision of § 111(a). Ramirez, 233 F.3d at 322 (citing a collection of cases involving conduct such as “bumping an Assistant United States Attorney,” “spitting in the face of a mail carrier,” “grabbing a federal wildlife agent’s jacket,” and “poking [an] IRS agent in the chest,” all of which were prosecuted under § 111(a)). The Ramirez court specifically noted the lack of allegations or proof of bodily injury in concluding that the case fell under the felony provision of subpart (a). Id. In sum, the foregoing factors compel the conclusion that a greater baseline level of force is required for convictions under subpart (b) than subpart (a), and that conduct such as spitting and projecting bodily fluids are covered by the latter and not the former.
Finally, we must determine whether the force required to violate § 111(b) necessarily requires a showing of the type of “violent force ... capable of causing physical pain or injury to another person,” and thus constitutes a crime of violence under § 2L1.2’s use of force provision. See Flores-Gallo, 625 F.3d at 822-23 (quoting Johnson, 559 U.S. at 140, 130 S.Ct. 1265). This is not a difficult task. Although the statute itself provides little guidance in this regard, resort to the Fifth Circuit Pattern Jury Instructions, as suggested by the government, provides significant assistance. As already discussed, “bodily injury” is defined under the FCPJI-C as “an injury that is painful and obvious, or is of a type for which medical attention ordinarily would be sought.” Fifth Circuit Pattern
Accordingly, because we find that Hernandez’s crime of conviction under § 111(b) necessarily required a finding that he intentionally used, attempted to use, or threatened to use physical force against the person of another, U.S.S.G. § 2L1.2(b)(1)(A)(ii), we hold that § 111(b) is categorically a crime of violence and AFFIRM the judgment of the district court.