Case: 15-41375      Document: 00513919699         Page: 1    Date Filed: 03/21/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit
                                      No. 15-41375                               FILED
                                                                           March 21, 2017

UNITED STATES OF AMERICA,
                                                                            Lyle W. Cayce
                                                                                 Clerk

              Plaintiff–Appellee,

v.

CANDIDO PEREZ-CONDE,

              Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:15-CR-743-1


Before REAVLEY, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Perez-Conde pleaded guilty to reentering the country illegally after
having been deported. He appeals the district court’s imposition of an 8-level
enhancement under U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(C). We
affirm.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                  No. 15-41375
                                        I
      Perez-Conde, a citizen of Mexico, pleaded guilty to reentering the United
States illegally following deportation in violation of 8 U.S.C. § 1326. Applying
the 2014 version of the United States Sentencing Guidelines, the district court
imposed an 8-level enhancement for a prior conviction for assault and
sentenced Perez-Conde to 27 months of imprisonment.
      Section 2L1.2 of the Guidelines provides a base level offense of 8 for
unlawfully    entering     or   remaining   in   the   United    States.   Under
§ 2L1.2(b)(1)(A)(ii), the base offense level is increased by 16 levels if the
defendant was previously deported following a conviction for a “crime of
violence.” The Guidelines commentary defines “crime of violence” as it applies
in § 2L1.2(b)(1)(A)(ii), enumerating a number of specific offenses that qualify,
including aggravated assault, as well as other offenses that have “as an
element the use, attempted use, or threatened use of physical force against the
person of another.” 1
      Perez-Conde had two prior convictions under North Carolina law:
assault with a firearm upon a governmental officer and attempted assault
inflicting serious bodily injury. 2 The presentence report (PSR) concluded that
Perez-Conde’s prior conviction for assault with a firearm upon a governmental
officer was a “crime of violence” either because it qualified as an “aggravated
assault,” which is specifically enumerated as a crime of violence, or because it
had as an element the use, attempted use, or threatened use of physical force
against another person. 3 As a crime of violence under § 2L1.2(b)(1)(A)(ii), it
qualified for a 16-level enhancement. The PSR concluded that Perez-Conde’s



      1U.S. SENTENCING GUIDELINES MANUAL (U.S.S.G.) § 2L1.2 cmt. n.1(B)(iii) (U.S.
SENTENCING COMM’N 2014).
     2 N.C. GEN. STAT. § 14-34.2; 

     3 See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).

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                                        No. 15-41375
other prior conviction, attempted assault inflicting serious bodily injury, could
be committed through “culpable negligence” under North Carolina law and,
therefore, that this conviction did not qualify as a crime of violence but did
constitute a “conviction for any other felony” under § 2L1.2(b)(1)(D), which
would result in a 4-level enhancement. Applying the greatest enhancement,
as directed by the Guidelines, 4 the PSR recommended a 16-level sentencing
enhancement.
      Perez-Conde filed written objections to the PSR, contending that assault
with a firearm upon a governmental officer under North Carolina General
Statutes      § 14-34.2     “is   not   an   enumerated     offense   under    U.S.S.G
§ 2L1.2(b)(1)(A)(ii), comment n.1(B)(iii) or otherwise a crime of violence.”
Specifically, Perez-Conde argued that § 14-34.2 includes a less culpable mens
rea than generic aggravated assault such that a conviction under the North
Carolina statute cannot qualify as a crime of violence under § 2L1.2(b)(1)(A)(ii).
He also objected that the state statute “does not have as an element the use of
force because a defendant can be convicted under that statute absent an
intentional use of force.”
      At sentencing, the Government agreed that the 16-level enhancement
was “not appropriate,” but recommended that the court instead apply an 8-
level enhancement for deportation after being convicted of an “aggravated
felony.” 5 As used in § 2L1.2(b)(1)(C), “aggravated felony” is given the meaning
provided by 8 U.S.C. § 1101(a)(43).              Section 1101(a)(43)(F) defines an
aggravated felony as “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.” 18 U.S.C. § 16 in turn defines “crime of violence” as:



      4   § 2L1.2(b)(1).
      5   See § 2L1.2(b)(1)(C).
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                                      No. 15-41375
       (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.

The district court imposed an 8-level enhancement. Perez-Conde objected,
arguing that 18 U.S.C. § 16(b) was unconstitutionally vague because the
Supreme Court’s reasoning in Johnson v. United States 6 applied equally to
§ 16(b). The district court overruled this objection and sentenced Perez-Conde
to 27 months of imprisonment.
                                             II
       The parties dispute whether the standard of review applicable to the
district court’s imposition of the 8-level enhancement is de novo or plain error
review. “If preserved for appeal, the district court’s characterization of a prior
offense as an aggravated felony or as a crime of violence is a question of law
that we review de novo.” 7 If not preserved, the plain error standard applies. 8
“[A]n argument is preserved when the basis for objection presented below gave
the district court the opportunity to address the gravamen of the argument
presented on appeal.” 9 Perez-Conde filed written objections to the proposed



       6  

, 2563 (2015) (holding that the residual clause of the Armed Career
Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague). Perez-Conde
specifically objected as follows:
        We’d like to object to the plus-8, specifically, that the Section 16(b), that the
        Government is relying on is similar to the . . . residual clause, and that under
        Johnson, that particular clause has been unconstitutional, so we would make the
        same argument that that analysis would also apply in this situation and for those
        reasons, the plus-8 would be inappropriate at this time.
        7 United States v. Narez-Garcia, 

, 149 (5th Cir. 2016).
        8 United States v. Jaurez, 

, 253-54 (5th Cir. 2010).
        9 

(quoting United States v. Garcia-Perez, 

,

281-82 (5th Cir. 2015)).
                                             4
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                                      No. 15-41375
16-level enhancement under § 2L1.2(b)(1)(A), arguing that his North Carolina
assault with a firearm conviction could not be classified as a crime of violence
under the Guidelines because it did not fall within the generic meaning of
aggravated assault and did not contain an element of use of force. He objected
at the sentencing hearing to the 8-level enhancement under a different
subsection, § 2L1.2(b)(1)(C), on the ground that 18 U.S.C. § 16(b) was
unconstitutionally vague. He did not, however, object that his prior conviction
for assault with a firearm upon a governmental officer does not qualify as an
“aggravated felony.” We therefore review for plain error. 10
       “We find plain error when (1) there was an error or defect; (2) the legal
error was clear or obvious, rather than subject to reasonable dispute; and (3)
the error affected the defendant’s substantial rights.” 11              An error affects
substantial rights if it “affected the outcome of the district court proceedings.” 12
If all three elements are satisfied, “we may exercise our discretion to correct
the error if it ‘seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.’” 13
                                            III
       We first address Perez-Conde’s argument that the 8-level sentencing
enhancement for a prior “aggravated felony” conviction does not apply because
18 U.S.C. § 16(b) is unconstitutionally vague. Perez-Conde argued that the
reasoning in the Supreme Court’s decision in Johnson v. United States, which




       10 See 

at 150 (reviewing a sentencing enhancement for plain error
because the defendant “did not object to the enhancement on the specific ground he now
raises on appeal”).
       11 

.
       12 Puckett v. United States, 

, 135 (2009) (quoting United States v. Olano,

, 734 (1993)).
       13 United States v. John, 

, 285 (5th Cir. 2010) (quoting 

)).
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                                       No. 15-41375
held similar, but not identical, language in the Armed Career Criminal Act 14
was unconstitutionally vague, applies to the definition of crime of violence in
§ 16(b). 15 After Perez-Conde filed his opening brief, this court, sitting en banc
in United States v. Gonzalez-Longoria, held that the reasoning in Johnson did
not lead to the conclusion that the crime of violence definition included within
§ 16(b) is unconstitutionally vague. 16 The argument is thus foreclosed in this
circuit. 17
                                              IV
       Perez-Conde argues that his prior conviction under North Carolina
General Statutes § 14-34.2 for assault with a firearm upon a governmental
officer is not an “aggravated felony” under § 2L1.2(b)(1)(C) because it is not a
“crime of violence” as defined in 18 U.S.C. § 16(b) and therefore that the district
erred in imposing an 8-level enhancement. To qualify as a crime of violence
under § 16(b), an offense must be a felony “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 Perez-Conde correctly
notes that our court has construed § 16(b) to mean “that section 16(b) applies
only when the nature of the offense is such that there is a substantial likelihood
that the perpetrator will intentionally employ physical force against another's
person or property in the commission thereof.                   [This] approach requires
recklessness as regards a substantial risk that intentional force will be utilized




       14 18 U.S.C. § 924(e)(2)(B)(i) (defining “violent felony” as “any crime punishable by
imprisonment for a term exceeding one year . . . that . . . has as an element the use,
attempted use, or threatened use of physical force against the person of another”).
       15 

, 2563 (2015).
       16 

, 677 (5th Cir. 2016) (en banc), petition for cert. filed, (U.S. Sept. 29,

2016) (No. 16-6259).
       17 We recognize that Perez-Conde preserves this issue for possible further review.
       18 18 U.S.C. § 16(b).

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                                     No. 15-41375
by the defendant to effectuate commission of the offense.” 19               Perez-Conde
contends that the mens rea element of § 14-34.2 can be satisfied by “culpable
negligence” and, therefore, that the offense cannot qualify as a crime of
violence.
      Assuming, without deciding, that the district court did err in classifying
an offense under § 14-34.2 as a crime of violence, we conclude that any error
did not affect Perez-Conde’s substantial rights.            Perez-Conde’s other prior
conviction, for attempted assault inflicting serious bodily injury under § 14-
32.4, qualifies as a crime of violence under § 16(b) and thus as an aggravated
felony under the Guidelines. Perez-Conde cannot show an error that affected
his substantial rights because he would have received the same 8-level
enhancement, and therefore he would have been subject to the same
Guidelines range and sentence had the district court imposed the enhancement
under the attempted assault conviction. 20             We recognize that the PSR
concluded Perez-Conde’s prior conviction for attempted assault did not
constitute a crime of violence because the offense could be committed through
negligence.   It appears, however, that the PSR did not analyze the prior
conviction as an attempt offense, as described below.                We may affirm a
sentencing enhancement on any ground supported by the record. 21
      We use a categorical approach to determine whether a defendant’s prior
conviction constitutes a “crime of violence” under 18 U.S.C. § 16(b). 22 “This
means that the particular facts of the defendant’s prior conviction do not
matter.” 23 The proper inquiry is whether the elements of a defined offense




      19 United States v. Chapa-Garza, 

, 925 (5th Cir. 2001).
      20 See United States v. Garcia-Gonzalez, 

, 317 (5th Cir. 2013).
      21 

      22 United States v. Echeverria-Gomez, 

, 974 (5th Cir. 2010) (per curiam).
      23 

.

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                                       No. 15-41375
constitute a crime of violence under § 16(b). 24 “Only if the ‘defendant’s prior
conviction is under a statute that identifies several separate offenses, some
violent and others not,’ will we ‘apply the modified categorical method and look
to [the indictment] to determine “which statutory phrase was the basis for the
conviction.”’” 25
       Section 14-32.4 provides that “any person who assaults another person
and inflicts serious bodily injury is guilty of a Class F felony.” 26 “Serious bodily
injury” is defined under the statute and includes “bodily injury that creates a
substantial risk of death, or that causes serious permanent disfigurement,
coma, a permanent or protracted condition that causes extreme pain, or
permanent or protracted loss or impairment of the function of any bodily
member or organ, or that results in prolonged hospitalization.” 27
       North Carolina common law recognizes two definitions of assault. 28 The
first defines assault as “an overt act or attempt, with force or violence, to do
some immediate physical injury to the person of another, which is sufficient to
put a person of reasonable firmness in fear of immediate physical injury.” 29
The second defines assault as “a show of violence accompanied by reasonable
apprehension of immediate bodily harm or injury on the part of the person
assailed which causes him to engage in a course of conduct which he would not
otherwise have followed.” 30 Under North Carolina law, the elements of an
attempt to commit a crime are: “(1) [a]n intent to commit [the substantive



       24 

627 F.3d at 975 (quoting United States v. Hughes, 

,
674 (5th Cir. 2010)).
       26 N.C. GEN. STAT. § 14-32.4(a).
       27 

v. Floyd, 

, 464-65 (N.C. 2016).
       29 State v. Jones, 

, 922 (N.C. 2000) (quoting State v. Porter, 

, 721 (N.C. 1995)).
       30 

(quoting State v. Roberts, 

, 305 (N.C. 1967)).

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                                        No. 15-41375
offense], and (2) an overt act done for that purpose, going beyond mere
preparation, but falling short of the completed offense.” 31                  “The crime of
attempt requires an act done with the specific intent to commit the underlying
offense.” 32
       Perez-Conde contends that an offense under § 14-32.4 cannot qualify as
a crime of violence for the same reason that an offense under § 14-34.2
cannot—a defendant can be convicted if he “actually intended to assault the
victim or if he acted with ‘culpable negligence from which intent may be
implied.’” 33 The North Carolina Supreme Court defines “culpable negligence”
as “such recklessness or carelessness, proximately resulting in injury or death,
as imports a thoughtless disregard of consequences or a heedless indifference
to the safety and rights of others.” 34 This court, in an unpublished decision,
has recognized that “culpable negligence,” as employed under North Carolina
law, is “similar to ordinary negligence and lesser than plain recklessness.” 35
Because we have previously held that to qualify as a “crime of violence” under
§ 16(b), an offense must have a mens rea of at least recklessness, 36 Perez-
Conde contends that attempted assault conviction cannot qualify.


       31  

(quoting State v. Powell, 

, 421 (N.C. 1971)); accord State v.
Coble, 

, 46 (N.C. 2000). Although the first common law definition of assault
includes “attempt” within it, perhaps suggesting that attempted assault is not an offense
under North Carolina law, the North Carolina Supreme Court has recognized attempted
assault as an offense under North Carolina law, relying on the second common law definition
of assault. 

-66.
        32 

.
        33 See State v. Padgett, No. COA10-1045, 

, at *3, 

(N.C. Ct. App. July 5, 2011) (unpublished table decision).
        34 

(quoting State v. Weston, 

, 886 (N.C. 1968)).
        35 United States v. Ocampo-Cruz, 561 F. App’x 361, 364 (5th Cir. 2014) (per curiam

unpublished) (concluding that the North Carolina offense of assault with a deadly weapon
inflicting serious injury does not fall within the generic meaning of aggravated assault
warranting a 16-level enhancement under the Guidelines because a defendant could be
convicted under the statute with either an actual intent to inflict injury or culpable or
criminal negligence from which such intent may be implied).
        36 United States v. Chapa-Garza, 

, 927 (5th Cir. 2001).

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                                        No. 15-41375
      We disagree. Under North Carolina law, Perez-Conde must have been
found to have had the specific intent to commit the underlying substantive
offense, 37 which means that he was convicted of having the specific intent to
assault another person and inflict serious bodily injury. He could not have
committed that offense negligently or “culpably negligently.”               The North
Carolina Supreme Court has held, in construing a similar statute, that “‘[a]
person who intends to ‘assault[ ] another person with a deadly weapon and
inflict[ ] serious injury,’ and who does an overt act for that purpose going
beyond mere preparation, but who ultimately fails to complete all the elements
of this offense—for example, by failing to inflict a serious injury—would be
guilty of the attempt rather than the completed offense.” 38
      Section 2L1.2(b)(1) of the Guidelines provides that prior convictions for
enumerated offenses include attempts to commit such offenses. 39                 Perez-
Conde’s prior conviction for attempted assault inflicting serious bodily injury
qualifies as an aggravated felony subject to an 8-level sentencing
enhancement. Because any error did not affect the outcome of the district court
proceedings, Perez-Conde’s substantial rights were not affected. Thus, the
district court did not plainly err.
                                    *        *         *
      For the foregoing reasons, we AFFIRM the judgment of the district court.




      37 See State v. Floyd, 

, 463 (N.C. 2016).
      38 

-64 (quoting N.C. GEN. STAT. § 14-32(b)).
      39 U.S.S.G. § 2L1.2 cmt. n.5.

                                            10