FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10216
Plaintiff-Appellee,
D.C. No.
v. 4:16-cr-00223-JSW-1
AARON DAVID PEREZ,
Defendant-Appellant. ORDER AND
AMENDED OPINION
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted June 14, 2018
Submission Vacated July 11, 2018
Resubmitted July 3, 2019
San Francisco, California
Filed July 11, 2019
Amended July 25, 2019
Before: Eugene E. Siler,* Richard A. Paez,
and Sandra S. Ikuta, Circuit Judges.
*
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 UNITED STATES V. PEREZ
Order;
Opinion by Judge Ikuta
SUMMARY**
Criminal Law
Affirming a sentencing determination by the district
court, the panel held that battery resulting in serious bodily
injury, in violation of section 243(d) of the California Penal
Code, qualifies as a “crime of violence” as defined in
§ 4B1.2(a)(1) of the United States Sentencing Guidelines.
COUNSEL
Jerome E. Matthews (argued) and Elizabeth McKenna,
Assistant Federal Public Defender; Steven G. Kalar, Federal
Public Defender; Office of the Federal Public Defender,
Oakland, California; for Defendant-Appellant.
Susan B. Gray (argued), Assistant United States Attorney; J.
Douglas Wilson, Chief, Appellate Division; United States
Attorney’s Office, San Francisco, California; for Plaintiff-
Appellee.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. PEREZ 3
ORDER
The opinion filed July 11, 2019, is hereby amended as
follows: on page 6 of the slip opinion, the sentence spanning
lines 5 through 10 is removed and replaced with the
following:
Clarifying this definition, the Supreme Court
explained that “the force necessary to
overcome a victim’s physical resistance is
inherently ‘violent’ in the sense contemplated
by Johnson.” Stokeling v. United States, 139
S. Ct. 544, 553 (2019).
On page 13, line 26, of the slip opinion, following the
citation, the following sentence is inserted:
Moreover, so long as the force used was
sufficient to overcome a victim’s resistance
(as in the scenario where a thief pushed a
victim in order to grab her purse) it would
meet the definition of “violent force” for
purposes of the generic federal definition of
crime of violence. See Stokeling, 139 S. Ct.
at 555.
4 UNITED STATES V. PEREZ
OPINION
IKUTA, Circuit Judge:
Aaron Perez’s appeal of his sentence for being a felon in
possession of a firearm and ammunition raises the question
whether a prior state conviction for battery resulting in
serious bodily injury, in violation of section 243(d) of the
California Penal Code, qualifies as a “crime of violence” as
defined in § 4B1.2(a)(1) of the United States Sentencing
Guidelines. We conclude that it does. For the reasons set
forth below and in our concurrently-filed memorandum
disposition, United States v. Perez, ___ F. App’x ___ (9th
Cir. 2019), we affirm.
I
In May 2016, Perez was convicted of a single count of
being a felon in possession of a firearm and ammunition in
violation of 18 U.S.C. § 922(g)(1). According to the
presentence report, Perez had a lengthy criminal history,
including a conviction for felony battery resulting in serious
bodily injury in violation of California Penal Code section
243(d).
In light of this prior conviction, the presentence report
determined that Perez had a base offense level of 20, which
is applicable if “the defendant committed any part of the
instant offense subsequent to sustaining one felony conviction
of either a crime of violence or a controlled substance
offense.” U.S. Sentencing Guidelines Manual § 2K2.1(a)(4)
(U.S. Sentencing Comm’n 2016). After taking into account
various adjustments, the presentence report concluded that
Perez had an adjusted offense level of 19 and a criminal
UNITED STATES V. PEREZ 5
history category of VI, resulting in an advisory Guidelines
range of 63 to 78 months. The presentence report
recommended a downward variance to a below-Guidelines
sentence of 46 months.
At sentencing, the district court concluded that Perez’s
conviction under section 243(d) qualified as a crime of
violence as defined in U.S.S.G. § 4B1.2. It imposed a
sentence of 61 months’ imprisonment, followed by three
years of supervised release. On appeal, Perez challenges the
court’s determination that section 243(d) is a crime of
violence. The district court had jurisdiction under 18 U.S.C.
§ 3231. We have jurisdiction under 28 U.S.C. § 1291.
II
Whether a prior conviction qualifies as a crime of
violence is a question of law that this court reviews de novo.
United States v. Rivera-Muniz, 854 F.3d 1047, 1048–49 (9th
Cir. 2017). In order to determine whether a conviction
qualifies as a crime of violence as defined in U.S.S.G.
§ 4B1.2(a)(1), we apply the categorical approach set forth in
Taylor v. United States, 495 U.S. 575, 600–02 (1990).
“Under this categorical approach, if the state statute of
conviction criminalizes more conduct than the federal generic
offense, then the state offense is not categorically included in
the definition of the federal generic offense.” Rodriguez-
Castellon v. Holder, 733 F.3d 847, 853 (9th Cir. 2013). If the
state statute of conviction criminalizes the same conduct or
less conduct than the federal generic offense, then it qualifies
6 UNITED STATES V. PEREZ
as a generic federal offense. Barragan-Lopez v. Holder,
705 F.3d 1112, 1115 (9th Cir. 2013).1
In determining “whether a state statute meets a generic
definition appearing in the Guidelines,” we may consider the
interpretation of the statute provided by state courts. United
States v. Laurico-Yeno, 590 F.3d 818, 822 & n.2 (9th Cir.
2010). “When the state statute’s greater breadth is not
apparent from the language of the statute itself, a defendant
must point to ‘cases in which the state courts in fact did apply
the statute in the special (nongeneric) manner’ to show the
statute applies to conduct outside the federal definition.” Id.
at 822 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183,
193 (2007)). There must be “a realistic probability, not a
theoretical possibility” that the State would apply its statute
in such a manner. Duenas-Alvarez, 549 U.S. at 193. A
court’s “focus on the minimum conduct criminalized by the
state statute is not an invitation to apply ‘legal imagination’
to the state offense.” Moncrieffe v. Holder, 569 U.S. 184,
191 (2013) (quoting Duenas-Alvarez, 549 U.S. at 193).
We first construe the generic federal definition of “crime
of violence” provided by U.S.S.G. § 4B1.2(a)(1). This
section defines “crime of violence” as “any offense under
federal or state law, punishable by imprisonment for a term
exceeding one year, that—(1) has as an element the use,
attempted use, or threatened use of physical force against the
1
If the state statute of conviction is not categorically included in the
definition of the federal generic offense, and the state statute is divisible,
courts may employ a modified categorical approach. See Descamps v.
United States, 570 U.S. 254, 263 (2013). This approach is not applicable
here.
UNITED STATES V. PEREZ 7
person of another . . . . ” U.S.S.G. § 4B1.2(a)(1).2 In
interpreting this language, the Supreme Court defined
“physical force” to mean “violent force—that is, force
capable of causing physical pain or injury to another person.”
Johnson v. United States, 559 U.S. 133, 140 (2010).
Clarifying this definition, the Supreme Court explained that
“the force necessary to overcome a victim’s physical
resistance is inherently ‘violent’ in the sense contemplated
by Johnson.” Stokeling v. United States, 139 S. Ct. 544,
553 (2019). Further, the use of force must be intentional,
requiring “active employment” and a “higher degree of intent
than negligent or merely accidental conduct.” Leocal v.
Ashcroft, 543 U.S. 1, 9 (2004). “The bedrock principle of
Leocal is that to constitute a federal crime of violence an
offense must involve the intentional use of force against the
2
The key language in this definition—“the use, attempted use, or
threatened use of physical force against the person of another”—is used
in a number of statutes and Guidelines sections, including 18 U.S.C.
§ 16(a) (defining “crime of violence”), the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e)(2)(B)(i) (defining the term “violent felony”);
and U.S.S.G. § 2L1.2 app. 2 (establishing a sentencing enhancement for
prior crimes of violence). We are guided by our prior interpretations of
this statutory language, regardless of the context in which it appears. See
United States v. Chandler, 743 F.3d 648, 650 (9th Cir. 2014), cert.
granted, judgment vacated on other grounds, 135 S. Ct. 2926 (2015)
(holding that our analysis of the definition of crime of violence in the
Sentencing Guidelines guides our interpretation of “violent felony” in the
ACCA because “there is no meaningful distinction between the
definitions”); United States v. Narvaez-Gomez, 489 F.3d 970, 976 (9th
Cir. 2007) (holding that “the relevant definitions under § 16(a) and
U.S.S.G. § 2L1.2 are identical”); Ortega-Mendez v. Gonzales, 450 F.3d
1010, 1019 (9th Cir. 2006) (stating that § 4B1.2 “is identical in all
material respects to § 16(a)”); see also United States v. Novak, 476 F.3d
1041, 1051 (9th Cir. 2007) (en banc) (noting that “courts generally
interpret similar language in different statutes in a like manner when the
two statutes address a similar subject matter”).
8 UNITED STATES V. PEREZ
person or property of another.” Fernandez-Ruiz v. Gonzales,
466 F.3d 1121, 1132 (9th Cir. 2006) (en banc). Accordingly,
for a state crime of conviction to constitute a “crime of
violence” as defined in § 4B1.2(a)(1), it must have as an
element the intentional “use, attempted use, or threatened
use” of violent physical force against another person.
We now consider the state crime of conviction in this
case, section 243(d) of the California Penal Code. Section
243(d) states: “When a battery is committed against any
person and serious bodily injury is inflicted on the person, the
battery is punishable by imprisonment in a county jail not
exceeding one year or imprisonment pursuant to subdivision
(h) of Section 1170 for two, three, or four years.”
Section 242 of the California Penal Code defines
“battery” to mean “any willful and unlawful use of force or
violence upon the person of another.” Cal. Penal Code § 242.
Consistent with long-established interpretations in tort and
criminal law, California courts have concluded that “the least
touching may constitute battery.” People v. Mansfield,
200 Cal. App. 3d 82, 88 (1988) (internal quotation marks and
citation omitted). A battery “need not be violent or severe, it
need not cause bodily harm or even pain, and it need not
leave any mark.” Id. (citation omitted).
Other key terms in section 243(d) also have statutory
definitions. The word “willfully” means “a purpose or
willingness to commit the act, or make the omission referred
to.” Cal. Penal Code § 7; see Laurico-Yeno, 590 F.3d at 821
(holding that the term “willfully” in section 273.5 is “a
synonym for intentionally”). The term “serious bodily
injury” means “a serious impairment of physical condition,
including, but not limited to, the following: loss of
UNITED STATES V. PEREZ 9
consciousness; concussion; bone fracture; protracted loss or
impairment of function of any bodily member or organ; a
wound requiring extensive suturing; and serious
disfigurement.” Cal. Penal Code § 243(f)(4). Accordingly,
section 243(d) criminalizes an intentional use of physical
force that results in serious bodily injury.
In light of these definitions, section 243(d) can be a
categorical match to § 4B1.2(a)(1) only if the use of physical
force that results in serious bodily injury constitutes the use
of violent physical force.
In construing a similar state statute, we concluded that
force that results in an injury requiring medical treatment
constitutes violent physical force. See United States v.
Colon-Arreola, 753 F.3d 841 (9th Cir. 2014). In Colon-
Arreola, we considered whether a defendant’s conviction
under section 243(c)(2) of the California Penal Code was a
“crime of violence” for purposes of U.S.S.G. § 2L1.2, id. at
843–44, which uses the same terminology as § 4B1.2.
Section 243(c) criminalizes a “battery” that is “committed
against a peace officer engaged in the performance of his or
her duties” which results in “an injury. . . inflicted on [the]
victim.” Cal. Penal Code § 243(c).3
3
Section 243(c)(2) provides in full:
When the battery specified in paragraph (1) [a battery
against a specified official meeting certain criteria] is
committed against a peace officer engaged in the
performance of his or her duties, whether on or off
duty, including when the peace officer is in a police
uniform and is concurrently performing the duties
required of him or her as a peace officer while also
employed in a private capacity as a part-time or casual
10 UNITED STATES V. PEREZ
Colon-Arreola first acknowledged our prior decision in
Ortega-Mendez v. Gonzales, which held that battery alone, as
defined in section 242 of the California Penal Code, does not
constitute a crime of violence, because “the statute does not
require the use of violent force.” Colon-Arreola, 753 F.3d at
844 (citing Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016
(9th Cir. 2006)). But we distinguished Ortega-Mendez on the
ground that Ҥ 243(c)(2) requires proof of an element that
§ 242 does not, namely, that an ‘injury is inflicted on [a peace
officer] victim.’” Id. Because the term “injury” is defined as
“any physical injury which requires professional medical
treatment,” Cal. Penal Code § 243(f)(5), we concluded that “a
person cannot be convicted under § 243(c)(2) unless he
willfully and unlawfully applies force sufficient to not just
inflict a physical injury on the victim, but to inflict a physical
injury severe enough that it requires professional medical
treatment.” Colon-Arreola, 753 F.3d at 844–45 (footnote
omitted). Accordingly, we held that section 243(c)(2) “fits
squarely within the term [crime of violence] by requiring the
deliberate use of force that injures another.” Id. at 845
(alteration in original) (quoting Laurico-Yeno, 590 F.3d
at 822).
private security guard or patrolman and the person
committing the offense knows or reasonably should
know that the victim is a peace officer engaged in the
performance of his or her duties, the battery is
punishable by a fine of not more than ten thousand
dollars ($10,000), or by imprisonment in a county jail
not exceeding one year or pursuant to subdivision (h) of
Section 1170 for 16 months, or two or three years, or by
both that fine and imprisonment.
Cal. Penal Code § 243(c)(2).
UNITED STATES V. PEREZ 11
We have taken the same approach in two analogous
contexts. In United States v. Laurico-Yeno, we considered
whether a conviction under California Penal Code section
273.5 was a crime of violence under U.S.S.G. § 2L1.2.
590 F.3d at 820. At that time, section 273.5 provided that
“[a]ny person who willfully inflicts upon a person who is his
or her spouse, former spouse, cohabitant, former cohabitant,
or the mother or father of his or her child, corporal injury
resulting in a traumatic condition, is guilty of a felony.” Id.
at 821 (quoting Cal. Penal Code § 273.5(a) (2010)). The
defendant argued that section 273.5 was not a categorical
crime of violence, because it criminalized a battery, which
can be caused “by way of a ‘least’ or slightest touching.” Id.
at 822 (citation omitted). We rejected this argument, holding
that section 273.5 “does not penalize minimal, non-violent
touchings” because it “penalizes the intentional use of force
that results in a traumatic condition.” Id. Because the
defendant had not identified a single conviction under section
273.5 resulting from the use of non-violent force, we
concluded that section 273.5’s “text does not apply to conduct
outside the term ‘crime of violence’ as defined in the
Guidelines,” but rather “fits squarely within the term by
requiring the deliberate use of force that injures another.” Id.
Likewise, in United States v. Lawrence, we examined
a conviction under section 9A.36.021(1)(a) of the
Washington Revised Code to determine whether it was a
crime that “has as an element the use, attempted use, or
threatened use of physical force against the person of
another” for purposes of the Armed Career Criminal Act
(ACCA). 627 F.3d 1281, 1283–84 (9th Cir. 2010) (quoting
18 U.S.C. § 924(e)(2)(B)(i)), overruled on other grounds by
Descamps v. United States, 570 U.S. 254 (2013). Section
9A.36.021(1)(a) provided that a person is guilty of second
12 UNITED STATES V. PEREZ
degree assault if he or she “[i]ntentionally assaults another
and thereby recklessly inflicts substantial bodily harm.”4 Id.
at 1284–85 (quoting Wash. Rev. Code § 9A.36.021(1)(a)).
Under Washington law, “assault” included “unlawful
touching with criminal intent,” much like “battery” under
California law, and therefore would not qualify as a
categorical crime of violence on its own.5 Id. at 1286.
Nevertheless, because section 9A.36.021(1)(a) “requires not
just an intentional assault, but an intentional assault that
results in substantial bodily harm,” the defendant’s conviction
“necessarily require[d] force that [went] beyond the ‘least
touching,’ and represents ‘actual force’ that is violent in
nature.” Id. at 1287 (citations omitted). Given that the
statute required intentional force “so violent as to inflict
substantial bodily harm,” we concluded that section
9A.36.021(1)(a) is categorically a crime of violence. Id. at
1288.
The analysis we applied in Colon-Arreola, Laurico-Yeno,
and Lawrence is equally applicable here. Like section
243(c)(2), section 243(d) “requires proof of an element that
§ 242 does not,” Colon-Arreola, 753 F.3d at 844, namely
4
Section 9A.36.021(1)(a) provides: “A person is guilty of assault in
the second degree if he or she, under circumstances not amounting to
assault in the first degree: (a) Intentionally assaults another and thereby
recklessly inflicts substantial bodily harm.” Wash. Rev. Code
§ 9A.36.021(1)(a).
5
“Washington courts recognize three means of accomplishing an
assault: ‘(1) an attempt, with unlawful force, to inflict bodily injury upon
another [attempted battery]; (2) an unlawful touching with criminal intent
[actual battery]; and (3) putting another in apprehension of harm whether
or not the actor intends to inflict or is capable of inflicting that harm
[common law assault].’” Lawrence, 627 F.3d at 1286 (alterations in
original) (quoting State v. Wilson, 125 Wash. 2d 212, 218 (1994)).
UNITED STATES V. PEREZ 13
that “serious bodily injury is inflicted” on the person of
another, Cal. Penal Code § 243(d). Because “serious bodily
injury” is defined as “a serious impairment of physical
condition,” Cal. Penal Code § 243(f)(4), we must likewise
conclude that a person cannot be convicted under § 243(d)
“unless he willfully and unlawfully applies force sufficient to
not just inflict a physical injury on the victim, but to inflict”
a severe physical injury. Colon-Arreola, 753 F.3d at 844–45
(footnote omitted). As a result, section 243(d) “fits squarely
within the term [crime of violence] by requiring the deliberate
use of force that injures another.” Id. at 845 (alteration in
original) (quoting Laurico-Yeno, 590 F.3d at 820–22).
Perez claims that section 243(d) is not categorically a
crime of violence based on decisions by two state appellate
courts that have “dream[ed] up unusual scenarios,” Lawrence,
627 F.3d at 1287, in which a non-violent act could inflict
substantial bodily injury. In People v. Hopkins, a defendant
argued that he could not be convicted of “assault by means of
force likely to produce great bodily injury” under section 245
of the California Penal Code because section 245 had been
preempted or superseded by a more specific assault provision,
section 243 of the California Penal Code. 78 Cal. App. 3d
316, 319 (1978). The court rejected this argument because
section 243 did not include all the elements of section 245:
section 245 required a specified level of force (i.e., likely to
produce great bodily injury), regardless of the injury that
actually occurred, while section 243 required only that the
force used result in serious bodily injury. Id. at 320–21. To
explain this point, Hopkins stated that, theoretically, a “thief
who pushes an elderly lady to the sidewalk in an effort to
grab her purse, could be convicted of a felony” under section
243 if the victim broke her hip in the fall. Id. at 320–21; see
also People v. Bertoldo, 77 Cal. App. 3d 627, 633 (1978)
14 UNITED STATES V. PEREZ
(rejecting a similar argument). In People v. Mansfield, the
court held that a violation of section 243(d) was not a crime
involving moral turpitude because the requisite mens rea was
only an intent to commit battery, not an intent to cause a
serious bodily injury. 200 Cal. App. 3d at 88. In explaining
its reasoning, the court noted that “one may conceivably
commit a felony battery without committing an aggravated
assault” by means of “a push that results in a fall and
concomitant serious injury,” although it acknowledged that
“serious injury resulting from a simple offensive touching
may not be likely.” Id. at 88 & n.5.
As the description of these state appellate court opinions
should make clear, they involved technical analyses of state
law issues unrelated to the question whether section 243(d)
constitutes a crime of violence, and rested their conclusions
on improbable hypotheticals. Indeed, Mansfield expressly
acknowledged that a scenario in which a non-violent touching
could result in serious bodily injury was unlikely. Id. at 88.
Perez cites no case where the state courts in fact did apply
section 243(d) to a defendant who had engaged in no more
than slight touching. Because the categorical approach
“requires a realistic probability, not a theoretical possibility”
that the State would apply its statute in such a manner, he
fails to meet the threshold set forth in Duenas-Alvarez.
549 U.S. at 193. Moreover, so long as the force used was
sufficient to overcome a victim’s resistance (as in the
scenario where a thief pushed a victim in order to grab her
purse), it would meet the definition of “violent force” for
purposes of the generic federal definition of crime of
violence. See Stokeling, 139 S. Ct. at 555. “We conclude,
therefore, that there is no realistic probability that a person
could be convicted of violating Section [243(d)] without
UNITED STATES V. PEREZ 15
having committed a violent act.” Lawrence, 627 F.3d at
1288.
Because section 243(d) qualifies as a crime of violence
for purposes of § 4B1.2(a), we conclude the district court did
not err in its sentencing determination.
AFFIRMED.