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
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.
"[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. See FED.R.CRIM.P. 52(b); Puckett v. United States, 556 U.S. 129,
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.
While our opinions in Moore and Rasco are probative of whether the Louisiana offense of aggravated battery qualifies as a crime of violence under § 2L1.2, they are not determinative. We therefore turn to the merits of the question presented, whether the Louisiana offense of aggravated battery set forth in Louisiana Revised Statutes section 14:34 qualifies as a crime of violence under § 2L1.2 of the Sentencing Guidelines.
When considering whether a defendant's prior conviction constitutes a crime of violence as defined in § 2L1.2 of the Sentencing Guidelines, we use the "categorical approach" derived from Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and set forth most recently in the Supreme Court's opinion in Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). See, e.g., United States v. Carrillo-Rosales, 536 Fed.Appx. 478, 480-81 (5th Cir.2013) (per curiam) (unpublished) (applying categorical analysis of Descamps to assess whether a prior conviction is a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii) of the federal Sentencing Guidelines). "Although it is a question of federal law whether an offense constitutes a crime of violence under § 2L1.2, we look to state law to determine the offense's nature and whether its violation is a crime of violence under federal law." United States v. Martinez-Flores, 720 F.3d 293, 297 (5th Cir.2013) (original alterations and quotation marks omitted).
Because § 2L1.2 defines "crime of violence" in two different ways — with reference to a list of enumerated offenses (the "`enumerated offense' prong") and with reference to any other offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another" (the "`use of force' prong"), we of necessity use slightly different methodologies to determine whether a prior offense constitutes a crime of violence under each respective definition. See, e.g., United States v. Mendoza-Sanchez, 456 F.3d 479, 481-82 (5th Cir.2006); see also Martinez-Flores, 720 F.3d at 295 (applying same crime-of-violence methodology after the Supreme Court issued its opinion in Descamps).
If we determine that the statute of conviction as a whole does not categorically qualify as a crime of violence, but the statute is divisible, then we apply a variant of the categorical approach — the "modified categorical approach." Descamps, 133 S.Ct. at 2281. However, for the modified categorical approach to apply, the defendant must have been convicted under a truly divisible statute — i.e., one that "comprises multiple, alternative versions of the crime" — before it is proper to engage in the modified categorical approach. Id. at 2284. Under the modified categorical approach, we may "consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction. The court can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime," id. at 2281, or, as the case may be, assess whether the crime of conviction has as an element the use, attempted use, or threatened use of physical force. Those 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." Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). "By reviewing the extra-statutory materials approved in those cases, courts c[an] discover `which statutory phrase' contained within a statute listing `several different' crimes, `covered a prior conviction.'" Descamps, 133 S.Ct. at 2285 (citations omitted).
As an initial matter, we agree with Herrera-Alvarez that Louisiana Revised Statutes section 14:34 as a whole criminalizes conduct that would not entail the "use, attempted use, or threatened use of force." U.S.S.G. § 2L1.2 cmt. (1)(B)(iii). Under § 2L1.2, "the `force' necessary to make an offense a COV [is] synonymous with `destructive or violent force'"; "offensive touching" is insufficient. Dominguez, 479 F.3d at 348 (citing, inter alia, United States v. Sanchez-Torres, 136 Fed.Appx. 644, 647-48 (5th Cir.2005) (holding Washington fourth-degree assault statute does not qualify as a crime of violence because it could be committed by an "offensive touching")); see Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (holding, in a case arising under the Armed Career Criminal Act, that "in the context of a statutory definition of `violent felony,' the phrase `physical force' means violent force — that is, force capable of causing physical pain or injury to another person"). "However, the touching of an individual with a deadly weapon creates a sufficient threat of force to qualify as a crime of violence." Dominguez, 479 F.3d at 348.
Reading the relevant statutes together, the Louisiana offense of aggravated battery set forth in section 14:34 consists of the following elements: (1) "a battery," LA.REV.STAT. § 14:34 — namely, (a) "the intentional use of force or violence upon the
Likewise, Louisiana's section 14:34 criminalizes conduct broader than that contemplated in § 2L1.2 because it covers poisoning without necessarily requiring the use of violent or destructive physical force. See LA.REV.STAT. § 14:33(b) (defining "battery" as "the intentional administration of a poison or other noxious liquid or substance to another"); id. § 14:2(3) (defining "dangerous weapon" to include a "gas, liquid, or other substance, ... which, in the manner used, is calculated or likely to produce death or great bodily harm"); State v. Smith, 907 So.2d 192, 193, 197-98 (La.Ct.App.2005) (upholding conviction of aggravated battery under section 14:34 for intentionally spraying victim with chemicals from a crop-duster plane). As in Villegas-Hernandez, a perpetrator under Louisiana's section 14:34 could simply administer a poison or other substance without necessarily using "destructive or violent force." Dominguez, 479 F.3d at 348; see Villegas-Hernandez 468 F.3d at 879.
As set forth above, under the modified categorical approach, if a statute contains multiple, disjunctive subsections, we may look beyond the statute to certain conclusive records made or used in adjudicating guilt to determine which particular statutory alternative applies to the defendant's conviction. See Descamps, 133 S.Ct. at 2281, 2283-86; Shepard, 544 U.S. at 16, 125 S.Ct. 1254. We first consider whether the statute of conviction is disjunctive. See
Next, we look to the "charging document, written plea agreement, transcript of plea colloquy," and so on, to narrow down the statute between the disjunctive subsections. Shepard, 544 U.S. at 16, 125 S.Ct. 1254.
We therefore repeat our categorical analysis and consider whether the offense, as narrowed, criminalizes conduct that does not involve the use, attempted use, or threatened use of force. See Descamps, 133 S.Ct. at 2281 (explaining that if the court can narrow the statute of conviction pursuant to the modified categorical approach, we "can then do what the categorical
We conclude that that the Louisiana crime of aggravated battery under section 14:34, as narrowed under the modified categorical approach to exclude poisoning, is a crime of violence because it necessarily contains, as an element, the use, attempted use, or threatened use of force. Louisiana aggravated battery requires both physical contact and the use of a dangerous weapon "which, in the manner used, is calculated or likely to produce death or great bodily harm." LA.REV.STAT. § 14:2(3); see Dominguez, 479 F.3d at 348 (holding that the "touching of an individual with a deadly weapon creates a sufficient threat of force to qualify as a crime of violence"); cf. Rede-Mendez, 680 F.3d at 556, 558 (holding that because New Mexico's simple assault statute did not necessarily require the use of force or physical force, but could instead be satisfied by "insulting language," the addition of the "use of a deadly weapon" element to the aggravated assault statute did not necessarily transform the offense into a crime of violence and noting that an offense could qualify as a crime of violence "when the touching is accompanied by a deadly weapon ... and the use of a deadly weapon ... transform[s] a lesser degree of force into the necessary `violent force'").
Herrera-Alvarez argues that under Louisiana law, aggravated assault may be committed by physical contact which is "merely offensive," which is insufficient to render the offense a crime of violence, citing the Louisiana Supreme Court's opinions in State v. Dauzat, 392 So.2d 393, 396 (La. 1980), and State v. Schenck, 513 So.2d 1159, 1165 (La.1987), in which the court stated that the element of "use of force or violence upon the person of another" may be satisfied by physical contact that is "injurious or merely offensive." Neither Dauzat nor Schenck supports Herrera-Alvarez's argument in favor of reversal. In both cases, the Louisiana Supreme Court was discussing the physical contact required for simple battery, not aggravated battery. See Dauzat, 392 So.2d at 396 & n. 3; Schenck, 513 So.2d at 1165 (approving conviction for simple battery). Herrera-Alvarez was charged with aggravated battery, which "is a battery committed with a dangerous weapon," LA.REV. STAT. § 14:34, which, as pared down pursuant to the modified categorical approach, as discussed above, is defined as "any ... instrumentality ... which, in the manner used, is calculated or likely to produce death or great bodily harm," id. § 14:2(3). This element requires a risk of harm above and beyond merely "offensive touching" because, as Herrera-Alvarez acknowledges, we have held that "the touching of
Herrera-Alvarez further maintains that Louisiana aggravated battery does not require any touching with a weapon because the offense can be committed while the defendant merely possesses the dangerous weapon, citing State v. Howard, 638 So.2d 216, 217 (La.1994) (per curiam). In Howard, the Louisiana Supreme Court upheld the defendant's aggravated battery conviction under section 14:34 against a sufficiency-of-the-evidence challenge. Id. at 216. The defendant was charged with aggravated battery after he grabbed his girlfriend by the shoulders as he attempted to pull her from the back of a vehicle during an argument and the gun that he was holding in one hand accidentally discharged, injuring her. Id. at 217. The court upheld the conviction, reasoning that "[a]ny rational factfinder could have determined ... that the defendant had intentionally used force or violence against the victim with a dangerous weapon when he took his gun in hand, grabbed [the victim] by her shoulders, and attempted to pull her out of the [vehicle]. That the defendant did not specifically intend the much greater degree of harm inflicted on the victim when the gun discharged did not prevent the jury from taking into account those reasonably foreseeable consequences which aggravate the seriousness of a battery offense in assessing the culpability of his act." Id. (citation omitted). The Louisiana Supreme Court's application of section 14:34 in Howard does not take that offense out of the purview of § 2L1.2's "use of force" prong. Just as in Dominguez, when we observed that "the touching of an individual with a deadly weapon creates sufficient threat of force to qualify as a crime of violence," 479 F.3d at 348, in Howard, the Louisiana Supreme Court concluded that the violent force intentionally applied to the victim, accompanied by the use of a deadly weapon that, in the manner used, was likely to cause great bodily injury or death, made the defendant's conduct sufficient to sustain a conviction under section 14:34. See 638 So.2d at 217. We conclude that this is sufficient to qualify the offense as a crime of violence under § 2L1.2's "use of force" prong.
For the foregoing reasons, we conclude that that the Louisiana crime of aggravated battery under section 14:34, as narrowed under the modified categorical approach to exclude poisoning, is a crime of violence under § 2L1.2 of the Sentencing