Case: 16-40700      Document: 00514124838         Page: 1    Date Filed: 08/21/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                      No. 16-40700                              FILED
                                                                          August 21, 2017

UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellee

v.

JUAN CARLOS HERRERA-SERRANO,

              Defendant - Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 1:15-CR-1205-1


Before STEWART, Chief Judge, and JONES and CLEMENT, Circuit Judges.
PER CURIAM:*
       Appellant Juan Carlos Herrera-Serrano pled guilty to illegal reentry
after deportation following an aggravated felony conviction. The district court
increased Herrera-Serrano’s offense level by 16 levels because he was deported
following a conviction for a crime of violence, namely his state-court conviction
for murder without intent while committing a felony.                  The district court
overruled Herrera-Serrano’s objection to the enhancement and sentenced him
to 46 months of imprisonment and three years of supervised release. Because


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-40700
his state murder conviction qualifies as an offense characterized by the use,
attempted use, or threatened use of physical force, the district court correctly
applied U.S.S.G. § 2L1.2 and its sentencing judgment is AFFIRMED.
                              BACKGROUND
      Herrera-Serrano pled guilty without the benefit of a plea agreement to
illegal reentry after deportation following an aggravated felony conviction, in
violation of 8 U.S.C. § 1326(a) and (b)(2).     Herrera-Serrano had a prior
Minnesota conviction for unintentional murder while committing a felony. At
rearraignment, Herrera-Serrano admitted that he was convicted of murder in
2007, deported in 2014, and found unlawfully present in the United States in
2015. The presentence report (“PSR”) applied a 16-level crime of violence
enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). Based on his total
offense level of 21 and his criminal history category of III, the PSR calculated
an advisory guidelines range of 46 to 57 months of imprisonment.
      Herrera-Serrano objected and the district court overruled his objection
to the 16-level crime of violence enhancement for his prior murder conviction.
After adopting the PSR’s factual findings and Guideline calculations, the
district court sentenced Herrera-Serrano to 46 months of imprisonment and
three years of supervised release. Herrera-Serrano timely appealed.
                                DISCUSSION
      On appeal, Herrera-Serrano contends that the district court reversibly
erred in applying the 16-level crime of violence enhancement pursuant to
U.S.S.G § 2L1.2(b)(1)(A)(ii) based on his prior unintentional murder
conviction. Herrera-Serrano argues that his prior conviction under Minn. Stat.
§ 609.19.2(1) does not have as an element the use, attempted use, or
threatened use of physical force against the person of another.        Herrera-
Serrano further asserts that his Minnesota unintentional murder offense is not
generic murder and thus is not an enumerated crime of violence under § 2L1.2.
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                                 No. 16-40700
      This court reviews the district court’s sentencing decision for
reasonableness. United States v. Anderson, 

, 354 (5th Cir. 2009).
Whether a prior offense qualifies as a crime of violence under the Guidelines
is reviewed de novo. United States v. Rodriguez, 

, 548 (5th Cir.
2013) (en banc). “We may affirm an enhancement on any ground supported by
the record.” United States v. Garcia-Gonzalez, 

, 314 (5th Cir.
2013).
      Under the 2015 edition of the Sentencing Guidelines, a defendant
convicted of illegal reentry receives a 16-level enhancement if he was
previously deported after a felony conviction for a crime of violence for which
he was assessed criminal history points. § 2L1.2(b)(1)(A)(ii). Crime of violence
is defined in pertinent part as “any of the following offenses under federal,
state, or local law: murder, manslaughter, . . . aggravated assault, . . . or 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.” § 2L1.2, cmt n.1(B)(iii). A crime of violence under § 2L1.2 can be
found in one of the enumerated offenses or by referencing that the offense of
conviction “has as an element the use, attempted use, or threatened use of
physical force against the person of another.” United States v. Herrera-Alvarez,

, 137 (5th Cir. 2014).
      Further, if the underlying statute of conviction is “divisible,” the federal
court may consider whether the alternative crimes described in the statute are
separately crimes of violence. The methodology for this inquiry was explained
by the Supreme Court in Mathis v. United States, 

, 2248–49
(2016), where the Court distinguished between “various means of committing
the offense,” which evidence a “non-divisible” statute, and “alternative
elements of each offense” embodied by the statute, which is a “divisible” statute


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because “a jury must agree” on the elements. United States v. Howell, 

, 497 (5th Cir. 2016).
        If a statute is divisible, though it does not on its face qualify as a crime
of violence pursuant to § 2L1.2, federal courts may employ a modified
categorical approach and rely on a limited class of documents from the
underlying conviction to determine which alternative elements formed the
conviction’s basis. Shepard v. United States, 

, 16, 20–21 (2005).
        Here, the Minnesota statute provides that a person is guilty of
unintentional murder in the second degree if he or she:
        (1) causes the death of a human being, without intent to effect the
            death of any person, while committing or attempting to commit
            a felony offense other than criminal sexual conduct in the first
            or second degree with force or violence or a drive-by shooting.

Minn. Stat. § 609.19.2(1). Because this statute does not “define what
constitutes ‘a felony offense,’” State v. Anderson, 

, 698 (Minn.
2003), we consult “authoritative sources of state law,” 

, and learn that Minnesota limits the application of § 609.19.2(1) to
killings resulting from felonies that involve a “special danger to human life.”
State v. Smoot, 

, 851–52 (Minn. Ct. App. 2007); 

–01. More importantly, Minnesota requires the jury to be
instructed as to the elements of the underlying felony. “While the state is not
required to prove that the defendant intended to effect the death of the victim,
it must prove that the defendant committed the predicate felony.” State v.
Charles, 

, 430 (Minn. Ct. App. 2001) (citing State v. Cole,

, 51 (Minn. 1996)).          Consequently, the statute is divisible
because the underlying felony offense and its elements must be proven to the
jury.



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                                   No. 16-40700
      Herrera-Serrano’s principal objection to the statute’s divisibility lies in
citing two cases in which he claims two predicate offenses were referenced in
a single § 609.19.2(1) count. 

; 

. In Anderson, however, the only issue before the court was dismissal of
an indictment, and in Cole there is likewise no information about how the
offense was charged or whether jury unanimity was required for proof of the
underlying felony offenses. Neither case overrides our divisibility conclusion.
      Herrera-Serrano was charged with, and pled guilty to: “unlawfully,
wrongfully caus[ing] the death of a human being, [the victim], without intent
to effect the death of any person, while committing or attempting a felony
offense, assault in the first degree.”
      From this charge, it is a short step to decide that the offense of conviction
has as an element the use of physical force against the person of the victim.
§ 2L1.2, cmt n.1(B)(iii). The crime of first degree assault in Minnesota is based
on an assault that “inflicts great bodily harm.” Minn. Stat. § 609.221, subd.1.
An assault is defined, in pertinent part, as “the intentional infliction of or
attempt to inflict bodily harm upon another.” Minn. Stat. § 609.02, subd. 10.
“Great bodily harm” is just that: inter alia, bodily injury that creates a high
probability of death, or causes serious permanent disfigurement. Minn. Stat.
§ 609.02, subd. 8. And the Minnesota statutes clearly require the harm to be
inflicted with purpose, knowledge, or belief that the result specified will occur.
Minn. Stat. § 609.02, subd. 9(3), (4). It is no surprise then that our sister circuit
has held that Minnesota assault of the third-degree, Minn. Stat. § 609.223
subd. 1, has as an element the use of force. Roberts v. Holder, 

,
931 (8th Cir. 2014). Similarly, this court recently held that intentional,
knowing, or reckless causing of bodily injury to another (the Texas offense of
domestic abuse by impeding breathing or circulation) has as an element the
use of force. 

–03; See also United States v. Castleman,
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, 1414 (2014) (“‘physical force’ is simply ‘force exerted by and
through concrete bodies.’”). We therefore conclude that the Minnesota offense
of conviction has as an element the use of physical force.
      For all these reasons, Herrera-Serrano’s base offense level was properly
enhanced because of his prior crime of violence, and we need not discuss the
government’s alternative theories for upholding the sentence. AFFIRMED.




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