United States v. Hernandez-Rodriguez, 14–40321.

• Decision Date: 05 June 2015
• Docket Number: No. 14–40321.,14–40321.
• Citation: 788 F.3d 193
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Gerardo HERNANDEZ–RODRIGUEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

788 F.3d 193

UNITED STATES of America, Plaintiff–Appellee

v.Gerardo HERNANDEZ–RODRIGUEZ, Defendant–Appellant.

No. 14–40321.

United States Court of Appeals, Fifth Circuit.

June 5, 2015.

Jeffery Alan Babcock, Anna Elizabeth Kalluri, Renata Ann Gowie, Assistant U.S. Attorneys, U.S. Attorney's Office, Houston, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Federal Public Defender, Laura Fletcher Leavitt, Assistant Federal Public Defender, Federal Public Defender's Office, Houston, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before CLEMENT, PRADO, and ELROD, Circuit Judges.

Opinion

EDWARD C. PRADO, Circuit Judge:

Defendant–Appellant Gerardo Hernandez–Rodriguez appeals the district court's application of a sixteen-level “crime of violence” sentencing enhancement based on his prior Louisiana aggravated battery conviction. Addressing the question we left open in United States v. Herrera–Alvarez, 753 F.3d 132, 142 n. 5 (5th Cir.2014), we conclude that the least culpable means of committing aggravated battery under Louisiana law involves conduct beyond the scope of the generic, contemporary meaning of “aggravated assault.” We therefore vacate Hernandez–Rodriguez's sentence and remand for resentencing.

I. FACTUAL AND PROCEDURAL BACKGROUND

In November 2013, Hernandez–Rodriguez pleaded guilty to one count of illegal reentry. The Presentence Investigation Report (PSR) assessed a base offense level of eight, then added a sixteen-level sentence enhancement on the ground that Hernandez–Rodriguez's 2006 Louisiana conviction for aggravated battery qualified as a crime of violence within the meaning of U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2L1.2(b)(1)(A)(ii).¹

Hernandez–Rodriguez objected to the sixteen-level enhancement, arguing that his prior Louisiana conviction for aggravated battery did not constitute a crime of violence under the Guidelines. The district court overruled Hernandez–Rodriguez's objection, adopted the PSR, and assessed a within-Guidelines sentence of forty-one months of imprisonment.² Hernandez–Rodriguez timely appealed.

II. JURISDICTION

The district court had jurisdiction over the original criminal proceedings pursuant to 18 U.S.C. § 3231. We have jurisdiction to review the district court's judgment and sentence pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

III. DISCUSSION

The only issue presented in this appeal is whether Hernandez–Rodriguez's Louisiana aggravated battery conviction constitutes a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). As Hernandez–Rodriguez preserved error, we review this question of law de novo. See United States v. Mungia–Portillo, 484 F.3d 813, 815 (5th Cir.2007).

A. The Crime of Violence Framework

Section 2L1.2(b)(1)(A)(ii) mandates a sixteen-level increase to a defendant's base offense level when the defendant previously has been deported following “a conviction for a felony that is ... a crime of violence.” The commentary to the Guidelines, in turn, defines “crime of violence” as (1) any offense in a list of enumerated offenses, including “aggravated assault,” or (2) “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.” U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii).³

“This court uses different tests when analyzing whether a particular offense 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). We apply a categorical approach derived from Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to determine whether the offense of conviction contains as an element the use of force.⁴ Moreno–Florean, 542 F.3d at 449. To this end, we “examine the elements of the offense, rather than the facts underlying the conviction or the defendant's actual conduct.”United States v. Carrasco–Tercero, 745 F.3d 192, 195 (5th Cir.2014) (internal quotation marks omitted).

In comparison, we apply a “common sense” approach that looks to the “generic, contemporary meaning” of an offense listed in § 2L1.2 to assess whether the offense of conviction amounts to that enumerated offense.⁵ United States v. Esparza–Perez, 681 F.3d 228, 229 (5th Cir.2012). To discern this “plain, ordinary meaning,” we rely on sources including the Model Penal Code, Professor LaFave's Substantive Criminal Law treatise, modern state statutes, and dictionaries. Mungia–Portillo, 484 F.3d at 816 ; see also Esparza–Perez, 681 F.3d at 229. “State-law labels do not control this inquiry because the [crime of violence] adjustment incorporates crimes with certain elements, not crimes that happen to have the same label under state law.” Esparza–Perez, 681 F.3d at 230 (alteration in original) (internal quotation marks omitted). 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).⁶

Under both the categorical and common sense approaches, “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. 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.’ ” Herrera–Alvarez, 753 F.3d at 138 (quoting Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) ). If the statute of conviction cannot be narrowed using such Shepard -compliant documents, we must 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).

B. The Louisiana Conviction

The Louisiana statute under which Hernandez–Rodriguez was convicted defines aggravated battery as “a battery committed with a dangerous weapon.” La.Rev.Stat. § 14:34. The criminal code, in turn, defines battery as either (1) “the intentional use of force or violence upon the person of another” or (2) “the intentional administration of a poison or other noxious liquid or substance to another.” Id. § 14:33. The term “ ‘dangerous weapon’ includes any gas, liquid or other substance or instrumentality, which, in the manner used, is calculated or likely to produce death or great bodily harm.” Id. § 14:2(A)(3).

1. The Force Offense Prong

In Herrera–Alvarez, this Court held that a Louisiana conviction for aggravated battery qualifies as a crime of violence under the force offense prong of § 2L1.2, but only if the offense can be narrowed to exclude the poison alternative. See 753 F.3d at 139, 141. We first observed that § 14:34 is disjunctive because it “in effect criminalizes two distinct offenses—an aggravated battery committed by the intentional administration of poison or other noxious liquid or substance and an aggravated battery committed by the intentional use of force or violence upon the person of another.”Id. at 140. Next, we reasoned that because the “force” required to make an offense a crime of violence under the force offense prong of § 2L1.2 is “synonymous with destructive or violent force,” id. at 138 (quoting United States v. Dominguez, 479 F.3d 345, 348 (5th Cir.2007) ) (internal quotation marks omitted), the administration of poison “does not necessarily entail the use of physical force” contemplated by § 2L1.2, id. at 139. As a result, we concluded that if § 14:34 could not be narrowed to exclude the possibility of an aggravated battery committed with poison, then a conviction for that offense could not qualify for the enhancement as a force offense. See id. at 139, 141. Because the record in that case contained a charging instrument—a Shepard -compliant document—reflecting that the defendant had committed the offense using a knife, we were able to rule out the poison alternative and in turn conclude that the conviction comprised a force offense. Id. at 140–41. Critically, this disposition enabled us to reserve judgment on the Government's alternative enumerated offense argument. Id. at 142 n. 5.

The parties here agree that there are no Shepard -compliant documents to identify the subpart of the statute that formed the basis of Hernandez–Rodriguez's conviction. Accordingly, unlike in Herrera–Alvarez , we cannot exclude the possibility that Hernandez–Rodriguez's conviction was based on the administration-of-poison alternative within § 14:34 —“the least culpable act” to violate the statute, Gonzalez–Ramirez, 477 F.3d at 316 —and Hernandez–Rodriguez's conviction thus cannot satisfy the force offense prong.

2. The Enumerated Offense Prong

This does not end our inquiry, however. We must now turn to the question we left open in Herrera–Alvarez and decide, under the common sense approach, whether the “least culpable act constituting a violation” of § 14:34 falls outside of the generic, contemporary meaning of aggravated assault.

Our “primary source” for the ordinary meaning of this offense is the Model Penal Code, United States v. Torres–Diaz, 438 F.3d 529, 536 (5th Cir.2006), which 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

...