PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4363
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARTIN BARCENAS-YANEZ, a/k/a Juan Yanaee Cruz, a/k/a Ricardo
Rocha-Gusman,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:14-cr-00005-RJC-1)
Argued: May 11, 2016 Decided: June 21, 2016
Before MOTZ and FLOYD, Circuit Judges, and DAVIS, Senior Circuit
Judge.
Vacated and remanded by published opinion. Senior Judge Davis
wrote the opinion, in which Judge Motz and Judge Floyd joined.
ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.
Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee. ON BRIEF: Ross Hall
Richardson, Executive Director, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant.
Jill Westmoreland Rose, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
DAVIS, Senior Circuit Judge:
Having pled guilty to illegally reentering the United
States in violation of 8 U.S.C. § 1326, Appellant Martin
Barcenas-Yanez appeals the 60-month sentence imposed by the
district court. The length of the sentence was driven in
significant part by the district court’s conclusion that
Barcenas-Yanez’s 1997 aggravated assault conviction under Texas
Penal Code § 22.02(a) constituted a predicate “crime of
violence” under the reentry sentencing guideline, U.S.S.G.
§ 2L1.2(b)(1)(A). We hold, to the contrary, that a conviction
under § 22.02(a) is not categorically a crime of violence. We
therefore vacate the judgment and remand for resentencing.
Barcenas-Yanez, a native and citizen of Mexico, illegally
entered the United States during the early 1990s and spent the
majority of the decade living and working in Texas. While in
Texas, Barcenas-Yanez was convicted of several state offenses
including, of relevance to the present appeal, aggravated
assault with a deadly weapon in violation of Texas Penal Code
§ 22.02(a)(2), stemming from a bar fight.
Under the terms of the Texas statute relevant to this
appeal, Barcenas-Yanez committed the Texas offense of aggravated
assault in that he committed “simple assault” when he
“intentionally, knowingly, or recklessly cause[d] bodily injury
to another,” Tex. Penal Code § 22.01(a)(1), and that simple
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assault offense was elevated to aggravated assault because,
during the assault, he “use[d] or exhibit[ed] a deadly weapon.”
§ 22.02(a)(2). 1 After serving three years in state prison,
Barcenas-Yanez was deported to Mexico. As early as 2003,
however, he illegally reentered the United States, making his
way to North Carolina.
In 2006, Barcenas-Yanez was convicted of driving under the
influence and assault in a North Carolina state court. In
December 2013, while Barcenas-Yanez was serving a term of
probation, the Department of Homeland Security discovered his
presence in North Carolina. A grand jury returned the instant
indictment charging him with knowingly and unlawfully reentering
the United States while under a preexisting order of deportation
in violation of 8 U.S.C. § 1326(a) and (b)(2).
In due course, Barcenas-Yanez pled guilty as charged in the
indictment. In preparation for sentencing, a probation officer
prepared a Presentence Investigation Report (“PSR”), which
concluded that, because Barcenas-Yanez “was previously deported
after being convicted of a crime of violence, Aggravated Assault
with a Deadly Weapon,” his offense level should be increased by
1The actual charging document alleged that Barcenas-Yanez
“intentionally and knowingly cause[d] serious bodily injury to
[the victim] by beating him about the face and head with a cue
stick, that by the manner of its use and intended use was
capable of causing death and serious bodily injury.” J.A. 46.
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16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A). With the 16-
level enhancement, Barcenas-Yanez’s advisory guidelines range
was 77 to 96 months’ imprisonment.
Barcenas-Yanez objected to the PSR’s conclusion that his
1997 conviction for aggravated assault qualified as a “crime of
violence” for purposes of U.S.S.G. § 2L1.2(b)(1)(A), arguing
that, because the mens rea element of Texas’s aggravated assault
statute sweeps more broadly than that of the “generic”
definition of aggravated assault (by permitting a conviction for
“reckless[ly] caus[ing] bodily injury to another”), a conviction
under § 22.02(a) does not categorically constitute a crime of
violence. The government did not oppose the objection, and the
probation officer revised the PSR, replacing the recommended 16-
level enhancement with a recommended 4-level enhancement under
U.S.S.G. § 2L1.2(b)(1)(D). Under the new calculation, the
advisory guidelines range was significantly reduced to 24 to 30
months; the government did not object to the revised PSR.
At the sentencing hearing, somewhat to the parties’
surprise, the district court stated that it had “a hard time
figuring out why a 16-level adjustment” was not appropriate.
J.A. 28. Relying on an unpublished Tenth Circuit decision,
United States v. Arellano-Sandoval, 506 F. App’x 827 (10th Cir.
2013), and its own determination that § 22.02(a) is divisible,
the district court applied the modified categorical approach and
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concluded that, because Barcenas-Yanez was specifically charged
with “intentionally and knowingly caus[ing] serious bodily
injury,” the applicable elements of § 22.02(a) matched those of
the generic aggravated assault offense enumerated as a “crime of
violence” under U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii). J.A. 27–35;
see id. at 31 (observing that the charging document in the 1997
case “seems to read reckless right out of the conviction”).
After determining that the 16-level crime of violence
enhancement was appropriate, the district court calculated
Barcenas-Yanez’s advisory guidelines range at 77 to 96 months.
Ultimately, the court sentenced Barcenas-Yanez to a variant
sentence of 60 months’ imprisonment.
Barcenas-Yanez filed this timely appeal, contending that
the district court erred in using the modified categorical
approach to determine that his 1997 conviction for aggravated
assault under § 22.02(a) constituted a crime of violence for
purposes of U.S.S.G. § 2L1.2(b)(1)(A). We review de novo
whether a district court erred in determining that a defendant’s
prior conviction qualifies as a crime of violence for purposes
of the reentry guideline. United States v. Aparicio-Soria, 740
F.3d 152, 154 (4th Cir. 2014) (en banc).
U.S. Sentencing Guideline § 2L1.2, the reentry guideline,
“advises federal district judges to increase by twelve or
sixteen the offense level of a defendant convicted of unlawfully
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entering or remaining in the United States if that defendant has
a prior felony conviction for a ‘crime of violence.’” Id.
(quoting U.S.S.G. § 2L1.2(b)(1)(A)). The commentary to the
reentry guideline defines “crime of violence” as certain
enumerated offenses, such as “[m]urder, manslaughter,
kidnapping, [and] 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.” U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii).
At sentencing, the district court correctly determined that
a violation of § 22.02(a) could potentially qualify as a crime
of violence because “aggravated assault” is one of the
enumerated offenses listed in the commentary to the reentry
guideline. Consequently, the court correctly viewed its task as
determining whether “the elements of [a § 22.02(a) violation]
‘correspond[] in substance’ to” those of the generic definition
of aggravated assault. United States v. Cabrera-Umanzor, 728
F.3d 347, 350 (4th Cir. 2013) (second alteration in original)
(quoting Taylor v. United States, 495 U.S. 575, 599 (1990)).
In so doing, courts must look exclusively to “the elements
of the prior offense rather than the conduct underlying the”
particular conviction. Id. This categorical analysis is
tweaked, however, if the statute of conviction is “divisible”--
meaning that the statute’s elements are set out in the
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alternative, providing for multiple versions of the same crime.
Id. In the case of a divisible statute, the court employs a
modified categorical approach and is permitted to “consult
certain approved ‘extra-statutory materials . . . to determine
which statutory phrase was the basis for the conviction.’” Id.
(quoting Descamps v. United States, 133 S. Ct. 2276, 2285
(2013)). The Supreme Court has explained that the modified
categorical approach “serves a limited function” and that the
approved extra-statutory materials, or Shepard documents, may
only be consulted when a statute “list[s] potential offense
elements in the alternative, render[ing] opaque which element
played a part in the defendant’s conviction” and not when the
statute merely defines the offense broadly. Id. (quoting
Descamps, 133 S. Ct. at 2283).
Here, like the district court, the parties first focus on
whether the inclusion of recklessness as a mental state
sufficient to satisfy § 22.02(a)’s mens rea element takes the
statute out of the ambit of the “generic” aggravated assault
offense, which is a categorical crime of violence. We think
that the district court and the parties are correct on that
score; inclusion of a mere reckless state of mind renders the
statute broader than the generic offense. See United States v.
Garcia-Jimenez, 807 F.3d 1079, 1086 (9th Cir. 2015) (“That a
substantial majority of U.S. jurisdictions require more than
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extreme indifference recklessness to commit aggravated assault
is a compelling indication that the federal generic definition
of aggravated assault also requires more than that mental
state.”). Therefore, and again as the district court correctly
perceived, the dispositive question becomes whether the Texas
legislature, in setting out alternative means of satisfying the
mens rea element of the Texas statute, rendered the statute
divisible such that the state law can be said to have created
two offenses, one involving a reckless mens rea, the other
involving a knowing or intentional mens rea. We hold, applying
settled Circuit precedent, that the answer to this latter query
is “no.”
Texas law prohibits simple and aggravated assault. Tex.
Penal Code §§ 22.01, 22.02. As relevant here, 2 a person commits
simple “bodily injury” assault if he “intentionally, knowingly,
or recklessly causes bodily injury to another, including the
person’s spouse.” § 22.01(a)(1). A violation of § 22.01(a)(1)
generally qualifies as a Class A misdemeanor. § 22.01(b). On
the other hand, a person commits aggravated assault, a felony,
§ 22.02(b), if he commits simple assault, as defined in § 22.01,
2
The Texas Penal Code also prohibits two other “distinct
assaultive crimes,” Landrian v. State, 268 S.W.3d 532, 536 (Tex.
Crim. App. 2008), but neither is relevant to the present appeal,
§ 22.01(a)(2)–(3).
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and “uses or exhibits a deadly weapon during the commission of
the assault,” § 22.02(a)(2).
In arguing that the Texas statute is divisible, the
government contends, unremarkably, that we may consider the text
of the statute, together with state court opinions interpreting
the statute. But the government goes much further to argue that
we may also consider, in light of state court practice, any
charging documents it is able to obtain from the state courts,
such as the charging document relied on by the district court in
this case. In still another giant leap, the government even
suggested at oral argument that we may take account of the
description of charging documents contained in unrelated state
court opinions. 3 We decline the government’s invitation to
embark on such a journey, for we have already settled on our
preferred path to divisibility determinations.
Indeed, we have explained this Circuit’s approach to
divisibility analysis with unmistakable clarity:
A statute is indivisible when the jury need not agree
on anything past the fact that the statute was
violated. Any statutory phrase that—explicitly or
implicitly—refers to multiple, alternative means of
3 At oral argument the government acknowledged that under
its approach to divisibility analysis, a statute would sometimes
be deemed divisible and sometimes not, depending on how a local
prosecutor elected to word the charges. We find little in such
a rule to commend itself to us, even were we free to adopt it,
which we are not.
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commission must still be regarded as indivisible if
the jurors need not agree on which method of
committing the offense the defendant used. Thus, mere
use of the disjunctive “or” in the definition of a
crime does not automatically render it divisible.
Only when [the] law requires that in order to convict
the defendant the jury must unanimously agree that he
committed a particular substantive offense contained
within the disjunctively worded statute are we able to
conclude that the statute contains alternative
elements and not alternative means.
United States v. Fuertes, 805 F.3d 485, 498 (4th Cir. 2015)
(alteration in original) (citations and internal quotation marks
omitted); see also United States v. Vinson, 805 F.3d 120, 125
(4th Cir. 2015) (“[W]hether a statute or criminal offense is
divisible depends on the existence of alternate elements and a
matching category—that is, the alternate elements must create at
least one category or form of an offense that matches up to the
elements of the generic federal offense in question.”); Cabrera–
Umanzor, 728 F.3d at 350 (“Where the statute defines the offense
broadly rather than alternatively, the statute is not divisible,
and the modified categorical approach simply ‘has no role to
play.’” (quoting Descamps, 133 S. Ct. at 2285)).
In a holding imbued with an equal measure of unmistakable
clarity, the Texas Court of Criminal Appeals has determined that
jury unanimity as to mens rea is not required for an aggravated
assault conviction under § 22.02(a)(1), (2). Landrian v. State,
268 S.W.3d 532, 537 (Tex. Crim. App. 2008). Accordingly, the
Texas aggravated assault offense created in § 22.02(a) is
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broader than the federal generic “aggravated assault” offense
qualifying under the reentry guideline as supporting an enhanced
sentencing range, is not divisible, and therefore cannot support
the application of a 16-level enhancement under the reentry
guideline. In so holding, we respectfully disagree with the
contrary, pre-Descamps opinion (and its progeny) of the Fifth
Circuit. See United States v. Guillen–Alvarez, 489 F.3d 197,
199 (5th Cir. 2007).
We acknowledge that it is understandably tempting to
examine Shepard-approved documents earlier rather than later in
the sentencing process. As this case demonstrates, however,
when such documents are examined too early, a risk arises that
the divisibility analysis required under Descamps and our
Circuit precedent may be skewed. It should be clear that the
modified categorical approach may not be employed to determine
whether the modified categorical approach may be employed. 4
VACATED AND REMANDED
4 We have fully considered and find no merit in the
government’s alternative arguments that (1) a § 22.02(a)
conviction for aggravated assault constitutes a categorical
crime of violence under the force clause of the reentry
guideline and (2) even with a reckless mens rea element,
violation of the Texas statute constitutes a crime of violence.
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