United States v. Herrera-Alvarez

• Citation: 753 F.3d 132
• Decision Date: 22 May 2014
• Docket Number: No. 12–41425.,12–41425.
• Parties: UNITED STATES of America, Plaintiff–Appellee v. Santos Tulio HERRERA–ALVAREZ, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

753 F.3d 132

UNITED STATES of America, Plaintiff–Appellee

v.Santos Tulio HERRERA–ALVAREZ, Defendant–Appellant.

No. 12–41425.

United States Court of Appeals, Fifth Circuit.

May 22, 2014.

John Richard Berry, Assistant U.S. Attorney, Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff–Appellee.

Marjorie A. Meyers, Federal Public Defender, Federal Public Defender's Office, Southern District of Texas, Houston, TX, for Defendant–Appellant.

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

Before DAVIS, GARZA,^* and DENNIS, Circuit Judges.

JAMES L. DENNIS, Circuit Judge:

The United States Sentencing Guidelines provide for a sentencing enhancement applicable to certain federal defendants who are convicted of being unlawfully present in the United States after a previous removal or deportation in violation of 8 U.S.C. § 1326 and who have previously been convicted of a “crime of violence,” U.S. Sentencing Guidelines (U.S.S.G.) § 2L1.2(b)(1)(A)(ii), which includes various enumerated offenses and any offense “that has as an element the use, attempted use, or threatened use of physical force against the person of another,” id. § 2L1.2 cmt. (B)(iii). In this appeal, we consider whether the Louisiana offense of aggravated battery under Louisiana Revised Statutes section 14:34 qualifies as a crime of violence under § 2L1.2 of the federal Sentencing Guidelines, justifying a sixteen-level enhancement to Defendant–Appellant Santos Tulio Herrera–Alvarez's federal sentence. To determine whether a past conviction qualifies as a “crime of violence,” we use what is known as the “categorical approach” set forth in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). To apply the categorical approach, we inquire, based solely upon the elements of the statute forming the basis for the defendant's prior conviction, whether the offense qualifies as a crime of violence. Id. That is, we inquire whether the offense is comprised of each of the elements of a “generic” crime enumerated in § 2L1.2—here, aggravated assault—or, alternatively, whether the offense necessarily requires a finding that the defendant used, attempted to use, or threatened to use physical force against the person of another. See Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013); Taylor, 495 U.S. at 579, 110 S.Ct. 2143. “The purpose of the categorical approach is to avoid the practical difficulties and fairness problems that would arise if courts were permitted to consider the facts behind prior convictions which would potentially require federal courts to relitigate a defendant's prior conviction in any case where the government alleged that the defendant's actual conduct fit the definition of a predicate offense.” Patel v. Mukasey, 526 F.3d 800, 802 (5th Cir.2008) (citation, quotation marks, and alteration omitted). If we determine that the statute of conviction covers conduct that does not categorically qualify as a crime of violence, but the statute is divisible—meaning that it sets forth multiple separate offenses or sets forth one or more elements of an offense in the alternative—then we apply a variant of the categorical approach known as the “modified categorical approach.” Descamps, 133 S.Ct. at 2281. Under the modified categorical approach, we may look beyond the statute to a limited class of documents, such as indictments and jury instructions, made or used in adjudicating the defendant's guilt to determine which statutory alternative applies to the defendant's conviction. See id. We then apply the Taylor approach to assess whether the offense, as narrowed, is categorically broader than an enumerated offense or whether it has as an element the use, attempted use, or threatened use of physical force. See id.

For the reasons that follow, we conclude that an offense defined by Louisiana Revised Statutes section 14:34, as narrowed pursuant to the modified categorical approach, qualifies as a crime of violence under § 2L1.2 because it has as an element the use, attempted use, or threatened use of force against the person of another. Because section 14:34 criminalizes aggravated batteries committed by administering poison, which does not necessarily entail the use of destructive or violent physical force, see United States v. Villegas–Hernandez, 468 F.3d 874, 879 (5th Cir.2006), the statute as a whole does not categorically qualify as a crime of violence. However, in the present case, by referencing the charging document in Herrera–Alvarez's prior conviction, we may narrow the statute of conviction under the modified categorical approach to exclude the possibility that Herrera–Alvarez was convicted of aggravated battery committed by means of poisoning. We conclude that, thus narrowed, the offense for which Herrera–Alvarez was convicted under Louisiana Revised Statutes section 14:34 necessarily had as an element the use, attempted use, or threatened use of force against the person of another and therefore qualifies as a crime of violence under § 2L1.2. Accordingly, we affirm.

I.

Santos Tulio Herrera–Alvarez pleaded guilty to illegal reentry under 8 U.S.C. § 1326(a) & (b)(2). He received a sixteen-level enhancement to his sentence for his 2010 Louisiana conviction for felony aggravated battery under Louisiana Revised Statutes section 14:34. The criminal information for that offense alleged in pertinent part that on April 26, 2009, Herrera–Alvarez “did, willfully and unlawfully commit an aggravated battery with a dangerous weapon, to-wit: a knife, on one Nicholas Marrogain, in violation of the provisions of R.S. 14:34.” (Emphasis omitted.) Under Louisiana law, “[b]attery is the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.” La.Rev.Stat. § 14:33. “Aggravated battery is a battery committed with a dangerous weapon.” Id.§ 14:34. A dangerous weapon is “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(3). The district court determined that section 14:34 constitutes a crime of violence within the meaning of § 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines and enhanced Herrera–Alvarez's sentence accordingly. With the enhancement, Herrera–Alvarez's Guidelines range was 46 to 57 months of imprisonment, and the district court imposed the below-guidelines sentence of 41 months of imprisonment plus three years of supervised release. Herrera–Alvarez did not object to the enhancement.

II.

“[T]he government bears the burden of establishing a factual predicate justifying [a sentencing] adjustment, here that [the] offense constitutes a crime of violence.” United States v. Bonilla, 524 F.3d 647, 655 (5th Cir.2008) (citing United States v. Rabanal, 508 F.3d 741, 743 (5th Cir.2007)). The parties agree that the issue on appeal was not preserved below and that plain error governs. While we are not bound by the parties' concessions and we alone determine the proper standard of review, see United States v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir.1992) ( en banc ) (holding, in a plain error case, that “no party has the power to control our standard of review.... [and that] the reviewing court must determine the proper standard on its own”) (emphasis omitted) (citation omitted), a review of the record confirms that Herrera–Alvarez did not object to the sentencing enhancement in the district court. Where, as here, the defendant fails to object to a sentencing enhancement in the district court, our review is for plain error only. SeeFed.R.Crim.P. 52(b); Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009).

III.

This Court has previously held that the Louisiana offense of aggravated battery under Louisiana Revised Statutes section 14:34 is a crime of violence under federal statutes and Sentencing Guidelines provisions other than Sentencing Guidelines § 2L1.2, the provision at issue in this case. See United States v. Moore, 635 F.3d 774, 777 (5th Cir.2011) (holding that Louisiana aggravated battery qualifies as a crime of violence under Sentencing Guidelines § 4B1.2(a), the career offender sentencing enhancement); United States v. Rasco, 123 F.3d 222, 227–28 (5th Cir.1997) (holding that Louisiana aggravated battery was a “serious violent felony” for purposes of the three-strikes law, 18 U.S.C. § 3559(c)). As an initial matter, we consider whether those precedents are controlling in the instant case.

In the past, we have stated generally that “[b]ecause of the similarities between U.S.S.G. §§ 2L1.2(b)(1)(A), 4B1.2(a), 4B1.4(a), and 18 U.S.C. § 924(e),” we often treat cases dealing with these provisions “interchangeably.” United States v. Moore, 635 F.3d 774, 776 (5th Cir.2011). However, we do not treat our categorical approach precedents as interchangeable if there is a salient statutory distinction among the statutes or Guidelines provisions at issue or if the precedents are otherwise distinguishable.¹ Our opinions in Moore and Rasco, though probative, are not controlling in this case. At issue in Moore was whether the defendant's Louisiana conviction for aggravated battery with a motor vehicle was a COV for the purpose of § 4B1.2(a), the career offender Guideline. 635 F.3d at 776–77. We held that Louisiana aggravated battery was a crime of violence for the purpose of the residual clause of the career offender Guideline because it involved conduct that presented “ ‘a serious potential risk of physical injury to another’ ” and it was “ ‘purposeful, violent, and aggressive.’ ” Id. at 777 (quoting U.S.S.G. § 4B1.2(a)). Section 2L1.2, by contrast, has no comparable residual clause. Moore is therefore distinguishable from the present case. See Andino–Ortega, 608 F.3d at 310–12;Rede–Me...