United States of America, Plaintiff-appellee, v. Efren Villegas-hernandez, Defendant-appellant, 468 F.3d 874 (5th Cir. 2006)

Defendant-Appellant Efren Villegas-Hernandez (Villegas-Hernandez) contends that the district court erred in applying an eight-level sentence enhancement because his prior Texas conviction for assault is not a "crime of violence" as defined for this purpose by the United States Sentencing Guidelines. We agree. Accordingly, we VACATE his sentence and REMAND for resentencing.

FACTS AND PROCEEDINGS BELOW

On October 25, 2004, Border Patrol agents found Villegas-Hernandez in Cameron County, Texas and determined him to be a citizen of Mexico who had entered the United States illegally. Villegas-Hernandez had been deported from the United States on May 13, 2003, after pleading guilty to assault in Texas state court.¹ 

On February 23, 2005, Villegas-Hernandez pleaded guilty to violating 8 U.S.C. § 1326(a) and (b),²  which proscribe knowingly and unlawfully being present in the United States after having been "denied admission, excluded, deported, or removed" following certain convictions.

For violations within section 1326, sentencing guideline 2L1.2(b) (1) (C) provides for an eight-level enhancement if the violation follows a conviction for an "aggravated felony."³  Application Note 3(A) for guideline 2L1.2 states that " [f]or purposes of subsection (b) (1) (C), `aggravated felony' has the meaning given that term in section 101(a) (43) of the Immigration and Nationality Act (8 U.S.C. § 1101(a) (43))." 8 U.S.C. § 1101(a) (43) in its various subparagraphs lists multiple offenses that constitute an aggravated felony. The only one relevant to this appeal is subparagraph (F), which provides that an aggravated felony includes "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year."⁴  18 U.S.C. § 16 provides:

"The term `crime of violence' means—

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 16 (2000).

Citing guideline 2L1.2(b) (1) (C), the presentence report (PSR) recommended adding eight levels to Villegas-Hernandez's total offense level, based on categorizing Villegas-Hernandez's Texas assault conviction as an aggravated felony. Villegas-Hernandez objected to this treatment of his assault conviction and further objected that 8 U.S.C. § 1326 was facially unconstitutional. After two sentencing hearings addressing Villegas-Hernandez's concerns, the district court overruled his objections and adopted the PSR's enhancement recommendation, rendering Villegas-Hernandez's guideline total offense level thirteen⁵  and range for imprisonment eighteen to twenty-four months.

On June 23, 2005, the district court sentenced Villegas-Hernandez to twenty-one months of imprisonment and three years of supervised release.

DISCUSSION

Villegas-Hernandez, in his timely appeal, argues that the district court erred in treating his Texas assault conviction as an "aggravated felony" under U.S.S.G. § 2L1.2(b) (1) (C) because the Texas assault offense for which he was convicted is not a "crime of violence" as defined by 18 U.S.C. § 16, and therefore is not an "aggravated felony" under 8 U.S.C. § 1101(a) (43) (F). Subsections 16(a) and 16(b) offer alternative definitions for crime of violence. Thus, the propriety of Villegas-Hernandez's sentence enhancement turns on whether his Texas conviction for assault meets either the definition of crime of violence in subsection 16(a) or the definition in subsection 16(b). We discuss each of these provisions in turn.

The Texas assault conviction constitutes a crime of violence under subsection 16(a) if it "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." When deciding whether a prior conviction is a crime of violence because it has as an element the use of force, we use the categorical approach established in Taylor v. United States, 495 U.S. 575, 602, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990). United States v. Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir. 2005). Under that approach, this court must analyze an offense's statutory definition and not the defendant's underlying conduct. Id.

Villegas-Hernandez's prior conviction was under Texas Penal Code § 22.01(a), which provides:

"A person commits an offense if the person:

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;

(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or

(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative." TEX. PEN.CODE ANN. § 22.01(a) (Vernon 2003).

Both Villegas-Hernandez and the government agree that 22.01(a) (1) of the Texas Penal Code, a Class A misdemeanor, constitutes the relevant assault definition in this case. To convict under 22.01(a) (1), the government must prove that the defendant "intentionally, knowingly, or recklessly cause [d] bodily injury to another . . . ." The government contends that 22.01(a) (1)'s requirement that a defendant cause bodily injury incorporates a requirement to show the intentional use of force, such that Villegas-Hernandez's prior assault conviction satisfies 16(a)'s definition of crime of violence. We disagree for the following reasons.

First, as we have previously explained in relation to 16(b), the term "force" has a specific meaning and, when "used in the statutory definition of a `crime of violence,' is `synonymous with destructive or violent force.'" United States v. Landeros-Gonzales, 262 F.3d 424, 426 (5th Cir. 2001) (quoting United States v. Rodriguez-Guzman, 56 F.3d 18, 20 n. 8 (5th Cir. 1995), which explained that, in the context of burglary, force means "more than the mere asportation of some property of the victim").

Second, under 16(a)'s clear language, use of force must be "an element" of the offense, another term for which we have previously delineated a specific meaning:

"In our current legal terminology, an element is ` [a] constituent part of a claim that must be proved for the claim to succeed.' Black's Law Dictionary 538 (7th ed. 1999). . . . If any set of facts would support a conviction without proof of that component, then the component most decidedly is not an element—implicit or explicit—of the crime." United States v. Vargas-Duran, 356 F.3d 598, 605 (5th Cir. 2004) (en banc).

Thus, an assault offense under section 22.01(a) (1) satisfies subsection 16(a)'s definition of a crime of violence only if a conviction for that offense could not be sustained without proof of the use of "destructive or violent" force.

The bodily injury required by section 22.01(a) (1) is "physical pain, illness, or any impairment of physical condition." TEX. PEN.CODE ANN. § 1.07(a) (8). Such injury could result from any of a number of acts, without use of "destructive or violent force", making available to the victim a poisoned drink while reassuring him the drink is safe, or telling the victim he can safely back his car out while knowing an approaching car driven by an independently acting third party will hit the victim. To convict a defendant under any of these scenarios, the government would not need to show the defendant used physical force against the person or property of another. Thus, use of force is not an element of assault under section 22.01(a) (1), and the assault offense does not fit subsection 16(a)'s definition for crime of violence.⁶ 

This court had previously held that an assault offense under section 22.01(a) (1) "has, as an element, the use . . . of physical force" under 18 U.S.C. § 921(a) (33) (A) (ii) so as to meet that section's definition of "misdemeanor crime of domestic violence" and thus constitute a predicate offense for purposes of 18 U.S.C. § 922(g) (9). See United States v. Shelton, 325 F.3d 553, 557, 561 (5th Cir. 2003) (stating that "because" Texas Penal Code § 22.01(a) (1) "requires bodily injury it includes as an element the use of physical force"). In Shelton, a panel of this court relied largely on the panel opinion in United States v. Vargas-Duran, 319 F.3d 194 (5th Cir. 2003). Shelton, 325 F.3d at 558, 561.⁷  The Vargas-Duran panel had concluded that Texas's intoxication assault offense, Texas Penal Code § 49.07,⁸  included use of force as an element by virtue of its requirement of causation of serious bodily injury and was hence a crime of violence under U.S.S.G. (2001) § 2l.1.2(b) (1) (A) (ii), note 1(B) (ii) (I) (stating definition almost identical to section 16(a)). Vargas-Duran, 319 F.3d at 196. After Shelton, however, Vargas-Duran was taken en banc. 336 F.3d 418 (5th Cir. 2003). In the en banc opinion we held the opposite namely:

"There is . . . a difference between a defendant's causation of an injury and the defendant's use of force. Consequently, Vargas-Duran's use of force was simply not a fact necessary to support his conviction for intoxication assault." Vargas-Duran, 356 F.3d 598, 606 (5th Cir. 2004).

Moreover, in Vargas-Duran the en banc court, id. at 605 n. 10, specifically cited with approval, as supporting its "ruling on the `element requirement' of" section 2L1.2(b) (1) (A) (ii), note 1(B) (ii) (I), the Second Circuit's decision in Chrzanoski v. Ashcroft, 327 F.3d 188 (2d Cir. 2003), holding that the offense of assault in the third degree under Connecticut General Statutes § 53a-61(a) (1) was not a crime of violence under section 16(a). The Connecticut statute provided that "A person is guilty of assault in the third degree when (1) with intent to cause physical injury to another person, he causes such injury to such person or to a third person." With respect to whether under the statute use of physical force against the person of another is an element of the offense, the Connecticut statute is not materially different from Texas Penal Code § 22.01(a) at issue here.⁹  The Chrzanoski Court recognized, as the en banc court did in Vargas-Duran, that for purposes of section 16(a) " [a]n element of a crime is a fact that must be proven beyond a reasonable doubt to obtain a conviction." Chrzanoski at 192. Chrzanoski specifically considered and rejected the government's argument "that force is implicit in the statute's requirement of intentional causation of physical injury," id. at 193, and held instead that "the intentional causation of injury does not necessarily involve the use of force." Id. at 195. The en banc court in Vargas-Duran specifically stated its agreement with that holding of Chrzanoski,¹⁰  and went on to hold, 356 F.3d at 606, that the defendant's "use of force was simply not a fact necessary to support his conviction" for violating the statute (which required that his conduct "cause serious bodily injury to another," Tex. Pen.Code § 49.07).

Chrzanoski's analysis of the ways in which the Connecticut third degree assault statute could be violated without the defendant's use of force are likewise fully applicable to Tex. Pen.Code § 22.01(a) (1), viz:

"Given the elements of section 53a-61(a) (1) under Connecticut law, it seems an individual could be convicted of intentional assault in the third degree for injury caused not by physical force, but by guile, deception, or even deliberate omission . . . . Moreover, human experience suggests numerous examples of intentionally causing physical injury without the use of force, such as a doctor who deliberately withholds vital medicine from a sick patient. In sum, while there are undoubtedly many ways in which force could be used to commit third degree assault under Connecticut law, the plain language of the statute does not make use of force an explicit or implicit element of the crime. Rather, its language is broad enough to cover myriad other schemes, not involving force, whereby physical injury can be caused intentionally." Id., 327 F.3d at 195-96.¹¹ 

In United States v. Calderon-Pena, 383 F.3d 254, 260 (5th Cir. 2004), the en banc court reaffirmed the Vargas-Duran en banc holding that for purposes of the "has as an element the use . . . of physical force" language of U.S.S.G. § 2L1.2, Application Note 1(B) (ii) (I) (2001), "if any set of facts would support a conviction without proof of that component, then the component most decidedly is not an element— implicit or explicit—of the crime."

Because the en banc opinion in Vargas-Duran comes after Shelton, which is itself a panel opinion, and because of Shelton's heavy reliance on the panel opinion in Vargas-Duran which was later reversed en banc, we feel compelled to decide whether Tex. Pen.Code § 22.01(a) (1) "has as an element the use, attempted use, or threatened use of physical force against the person or property of another" within the meaning of section 16(a) on the basis of the principles set down in Vargas-Duran and Calderon-Pena rather than in reliance on Shelton. On this basis we conclude that although section 22.01(a) (1) requires that the defendant "intentionally, knowingly, or recklessly cause [s] bodily injury to another," that section may be violated by the defendant so causing such injury by means other than the actual, attempted, or threatened "use of physical force against the person of another," and hence does not have such use of force as an element and does not fall within section 16(a).¹² 

In addition to its reliance on Shelton, the government leans heavily on the district court's finding of family violence and the conduct underlying Villegas-Hernandez's conviction to support its claim that the prior assault conviction is a crime of violence under subsection 16(a). The government quotes the information charging Villegas-Hernandez:

" [O]n or about the 9TH day of OCTOBER, A.D.2000, and before the making and filing of this Information, in Cameron County, Texas, EFREN HERNANDEZ VILLEGAS, the Defendant, did then and there unlawfully, intentionally, knowingly, or recklessly cause bodily injury to another, namely, ADRIANA HERNANDEZ, a family member, by HITTING ADRIANA HERNANDEZ WITH DEFENDANT'S HAND AND/OR KICKING ADRIANA HERNANDEZ WITH DEFENDANT'S FOOT."

In his plea colloquy, Villegas-Hernandez admitted hitting his wife, although he neither denied nor admitted kicking her.

Under the categorical approach described above, however, conduct underlying an offense may not be employed to meet the definition of crime of violence under subsection 16(a). Accordingly, the government may not rely for this purpose on facts alleged in an indictment or information. This court clarified this matter in United States v. Calderon-Pena, where we considered whether the Texas child endangerment offense included use of force as an element:

"Although the actual conduct described in the indictments could be construed to involve the use of physical force against the person of another, that is irrelevant for purposes of this case. The inquiry under paragraph (I) looks to the elements of the crime, not to the defendant's actual conduct in committing it. This rule springs directly from the language of the `crime of violence' definition itself, which states that a `crime of violence' is an offense that `has as an element' the use of force." 383 F.3d at 257.

We further noted that "under Texas law, the manner and means, even when required to be charged in the indictment, does not constitute an element of the offense." Id. at 258. Rather, inclusion of manner and means serves to satisfy due process concerns related to adequately notifying defendants. Id. Thus, if statutory language is wholly result-oriented, as here, an offense is not a crime of violence under subsection 16(a) simply because an indictment or information describes force being used in a particular commission of that offense.¹³  We do not say here that an indictment is always off-limits; a charging instrument may appropriately be referenced in order to determine which of several statutorily specified or referenced methods of committing an offense (or statutory subdivisions containing different offense definitions or elements) are involved in a given case. See id. at 258.

Subsection 16(b) defines crime of violence as "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 16(b). Subsection 16(b) expressly pertains only to felonies. Therefore, Villegas-Hernandez's assault conviction is a crime of violence as that term is defined by 16(b) only if it constitutes a felony. Because the offense described in Texas Penal Code § 22.01(a) (1) cannot be classified as a felony under either state or federal law, we hold that Villegas-Hernandez's prior conviction does not satisfy 16(b)'s definition for crime of violence.¹⁴ 

Texas law specifically categorizes an assault under § 22.01(a) (1) as a Class A misdemeanor, which may be punished by imprisonment for not more than one year. See TEX. PEN.CODE ANN. § 22.01(b) (Vernon 2003) (classifying assault under section 22.01(a) (1) as a Class A misdemeanor); id. § 12.21 (Class A misdemeanors are punishable by up to one year in prison). Federal law, in turn, makes clear that the lowest class of felony within the federal system must be punishable by more than one year. 18 U.S.C. § 3559(a) (5) (2000) (defining a Class E felony). As such, neither Texas nor federal law permits us to categorize Villegas-Hernandez's assault conviction as a felony.

The government argues that, while the default federal definition of a felony is, as noted above, an offense punishable by more than one year, in this case, assault under 22.01(a) (1) is a felony under federal law because 8 U.S.C. § 1101(a) (43) (F) defines aggravated felony for the purposes of guideline 2L1.2(b) (1) (C) as "a crime of violence (as defined in section 16 of Title 18 . . .) for which the term of imprisonment [is] at least one year." We find this argument unpersuasive.

8 U.S.C. § 1101(a) (43) (F)'s definition of "aggravated felony" has two requirements: First, that the offense meet either of section 16's alternative definitions of crime of violence; and second, that the offense's imprisonment term is at least one year. The government's argument conflates the second requirement with the separate requirements of section 16 itself, which must be independently satisfied.

An offense can meet 16(a)'s definition— and therefore constitute an "aggravated felony" under 1101(a) (43) (F)—regardless of whether it is considered a felony under state or federal law. This is consistent with this court's decision in United States v. Urias-Escobar, 281 F.3d 165 (5th Cir. 2002), where we held that although a prior conviction was labeled as a misdemeanor by state law, it could still be considered an "aggravated felony" under U.S.S.G. 2L1.2. If the offense meets 16(a)'s definition of crime of violence, section 1101(a) (43) (F) still requires that it have at least a one-year imprisonment term. If that second, imprisonment-term requirement is met, the offense will be an "aggravated felony" regardless of alternative definitions of "felony."

If an offense does not meet the requirements of 16(a), however, then it must satisfy 16(b). In 16(b), whether the offense is a felony under state or federal law matters. This is separate from section 1101(a) (43) (F)'s second requirement of at least a one-year imprisonment term.

Because assault under Texas Penal Code § 22.01(a) (1) cannot be described as a felony under either Texas or federal law, we do not address whether subsection 16(b)'s requirement that an offense be a felony looks to federal or state law definitions of felony. Accordingly, this case is distinguishable from Francis v. Reno, 269 F.3d 162 (3d Cir. 2001). In that case, the Third Circuit was forced to determine whether a conviction for vehicular homicide, labeled as a misdemeanor by Pennsylvania law but punishable by more than one year and therefore within the federal default definition of a felony, satisfied section 16's definition of crime of violence. See id. at 169 (noting that the defendant-appellant's prior conviction was "only arguably a felony because of the application of 18 U.S.C. § 3559").

Villegas-Hernandez's prior conviction was not a felony under either state or federal law, and it therefore may not be considered a "crime of violence" as defined in subsection 16(b). Nor does his assault conviction constitute a crime of violence under subsection 16(a), because 22.01(a) (1) does not include use of force as an element. Consequently, Villegas-Hernandez's prior conviction was not an "aggravated felony" under guideline 2L1.2(b) (1) (C), and it was error to apply an eight-level enhancement under that guideline. Villegas-Hernandez preserved this error by objecting at trial.

Without the improper eight-level enhancement, Villegas-Hernandez would have had a total offense level of six,¹⁵  which combined with a criminal history category III, would have led to a two to eight month guideline sentence range. See U.S.S.G. Ch. 5, Pt. A, Sentencing Table. This suffices to show prejudicial error.

Under United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), the guidelines are advisory but not mandatory. This court has held that a district court must nevertheless determine what the appropriate guideline sentence range would be. United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006). If the district court wishes to deviate from that calculated sentence range, it must explain why. As the government concedes, if this court finds the sentencing guideline enhancement constituted error, it must remand Villegas-Hernandez to the district court for resentencing. And this is what we now do.

Villegas-Hernandez also challenges the constitutionality of the "felony" and "aggravated felony" sentencing provisions of 8 U.S.C. § 1326(b) (1) and (2). He argues that statutory provisions 8 U.S.C. § 1326(b) (1) and (2) are unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and should be severed from the statute, requiring his conviction to be reduced to conform with the remaining provision, 8 U.S.C. § 1326(a). His sentence would thus need to be vacated, he argues, and the case remanded for resentencing to no more than one year of supervised release. As we have previously stated, and as the appellant recognizes, this court continues to be bound by the Almendarez-Torres decision. United States v. Bonilla-Mungia, 422 F.3d 316, 318-19 (5th Cir. 2005). We reject this claim of error.

CONCLUSION

We VACATE the defendant-appellant's sentence and REMAND for resentencing.

VACATED and REMANDED.