United States v. Hernandez-Rodriguez

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 9, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-51429
_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JESUS HERNANDEZ-RODRIGUEZ,

Defendant-Appellant.
_________________________________________________________________

Appeal from the United States District Court
for the Western District o Texas
USDC No. 2:05-CR-124-ALL
_________________________________________________________________

Before JOLLY, DAVIS, and WIENER, Circuit Judges.

PER CURIAM:

Jesus Hernandez-Rodriguez appeals from the sentence imposed

upon his conviction for illegal reentry in violation of 8 U.S.C. §

1326(a). He contends that the district court erred in finding that

his conviction under Texas Penal Code § 22.05(b)(1) triggered the

16-level crime-of-violence adjustment under the sentencing

guideline § 2L1.2(b)(1)(A)(ii). Hernandez-Rodriguez also argues

that, in the light of Apprendi v. New Jersey, 530 U.S. 466 (2000),

his § 1326 sentence was limited to a maximum two years of

imprisonment. For the forthcoming reasons, we AFFIRM the judgment

of the district court.
I

Jesus Hernandez-Rodriguez pled guilty before a magistrate

judge to illegal reentry. The district court adopted the

magistrate judge’s recommendation and accepted the guilty plea.

The probation officer who prepared the presentence report (“PSR”)

assigned Hernandez-Rodriguez a base offense level of eight pursuant

to the United States Sentencing Guidelines § 2L1.2. His offense

level was increased by 16 levels, under § 2L1.2(b)(1)(A)(ii)

because of his prior conviction for a crime of violence. According

to the PSR, Hernandez-Rodriguez pled guilty in 1996 to the crime of

“deadly conduct” in Houston, Texas.

The PSR awarded a three-level decrease for acceptance of

responsibility, resulting in a total offense level of 21. It

determined Hernandez-Rodriguez’s criminal history category to be

IV, subjecting him to an advisory guidelines range of 57 to 71

months of imprisonment.

At sentencing, Hernandez-Rodriguez objected to the 16-level

increase on the grounds that his conviction for deadly-conduct did

not qualify as a “crime of violence” under § 2L1.2(b)(1)(A)(ii).

The district court overruled this objection but, on motion from

Hernandez-Rodriguez, it departed downward to an offense level of 19

based on a finding of cultural assimilation. See U.S. v.

Rodriguez-Montelongo, 263 F.3d 429, 433-444 (5th Cir. 2001)

(holding that the district court had discretion to consider a

downward departure on the basis of defendant’s demonstrated

2
cultural assimilation). This departure resulted in a guidelines

sentencing range of 46 to 57 months. The district court sentenced

Hernandez-Rodriguez to 48 months of imprisonment, followed by three

years of supervised release. He timely appealed.

This case presents the question whether the district court

properly construed Hernandez-Rodriguez’s Texas deadly-conduct

conviction as a crime of violence for purposes of §

2L1.2(B)(1)(A)(ii) 16-level sentence enhancement. This court

applies de novo review when considering this legal issue. See

United States v. Izaguirre-Flores, 405 F.3d 270, 272 (5th Cir.),

cert. denied, 126 S. Ct. 253 (2005).

Section 2L1.2 of the Guidelines provides that the offense

level for unlawfully entering or remaining in the United States

shall be increased by 16 levels if the defendant has a prior

conviction for a “crime of violence.” See § 2L1.2(b)(1)(A)(ii).

The commentary to § 2L1.2 defines “crime of violence” as: (1) any

specified enumerated offense or (2) “any 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, comment. (n.(1)(B)(iii)). Neither party contends that the

deadly-conduct offense could be characterized as one of the

enumerated offenses; thus, the 16-level increase is warranted only

if Hernandez-Rodriguez’s Texas deadly-conduct offense qualifies as

a crime of violence because it has as an element “the use,

3
attempted use, or threatened use of physical force against the

person of another.” See United States v. Rodriguez-Rodriguez, 388

F.3d 466, 467 (5th Cir. 2004) (internal quotation marks and

citation omitted).

“When determining whether a prior offense is a crime of

violence because it has as an element the use, attempted use, or

threatened use of force, district courts must employ the

categorical approach established in Taylor v. United States, 495

U.S. 575, 602 (1990).” United States v. Bonilla-Mungia, 422 F.3d

316, 320 (5th Cir.), cert. denied, 126 S. Ct. 819 (2005); United

States v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2004) (en

banc), cert. denied, 125 S. Ct. 932 (2005). “If a statute contains

multiple, disjunctive subsections, courts may look beyond the

statute to certain conclusive records made or used in adjudicating

guilt in order to determine which particular statutory alternative

applies to the defendant’s conviction.” United States v. Gonzalez-

Chavez, 432 F.3d 334, 337 (5th Cir. 2005) (internal quotation marks

and citation omitted). “These records are generally limited to the

‘charging document, written plea agreement, transcript of the plea

colloquy, and any explicit factual finding by the trial judge to

which the defendant assented.’” Id. at 337-38 (citing Shepard v.

United States, 544 U.S. 13, 16 (2005)).

Texas law defines the crime of deadly conduct in pertinent

part as follows:

4
(a) A person commits an offense if he
recklessly engages in conduct that places
another in imminent danger of serious bodily
injury.

(b) A person commits an offense if he
knowingly discharges a firearm at or in the
direction of:

(1) one or more individuals; or

(2) a habitation, building, or vehicle and is
reckless as to whether the habitation,
building, vehicle is occupied.

(c) Recklessness and danger are presumed if
the actor knowingly pointed a firearm at or in
the direction of another whether or not the
actor believed the firearm to be loaded.

TEX. PENAL CODE ANN. § 22.05 (Vernon 2003). The indictment indicates,

and the parties agree, that Hernandez-Rodriguez was convicted of

violating § 22.05(b)(1).1

III

Hernandez-Rodriguez argues that, because a conviction under §

22.05(b)(1) can be obtained by merely discharging a firearm in the

general direction of a person rather than at the person, the use of

1
Prior to 1994, § 22.05(b) created the presumption of
recklessness currently found at § 22.05(c). See United States v.
White, 258 F.3d 374, 382-83 (5th Cir. 2001). This court held that
an offense under § 22.05(b), as it previously existed, was not a
domestic crime of violence for purposes of 18 U.S.C. §
921(a)(33)(A)(ii) because it did not require the threatened use of
a deadly weapon against another person. White, 258 F.3d at 383.
White is distinguishable from the instant case, however, because §
22.05(b) as it existed at the time of White required only that the
defendant have “knowingly pointed a firearm at or in the direction
of another ....” Id. at 381 (emphasis added). The revised version
of § 22.05(b) requires that the defendant have actually discharged
the firearm. TEX. PENAL CODE ANN. § 22.05 (Vernon 2003).

5
force is not a requisite element of the offense. He analogizes to

this court’s decision in United States v. Alfaro, 408 F.3d 204 (5th

Cir.), cert. denied, 126 S. Ct. 271 (2005). In Alfaro, this court

considered whether a conviction under VA. CODE ANN. § 18.2-279, for

shooting into an occupied dwelling, qualified as a crime of

violence for purposes of § 2L1.2. Alfaro, 408 F.3d at 208-09.

This court found that the offense was not a crime of violence

because “a defendant could violate th[e] statute merely by shooting

a gun at a building that happens to be occupied without actually

shooting, attempting to shoot, or threatening to shoot another

person.” Id. at 209.

Alfaro is distinguishable from this case. The Virginia

statute outlawed discharging a firearm inside or at an occupied

building in such a manner as to endanger the life of another

person. See § 18.2-279; Alfaro, 408 F.3d at 208-09. Following the

categorical approach, the court in Alfaro focused on the fact that

the Virginia statute “did not require the use, the threatened use,

or attempted use of force against the person of another.” Id. at

209 (emphasis in original).

The Virginia statute in Alfaro is more analogous to TEX. PENAL

CODE ANN. § 22.05(b)(2), which outlaws discharging a firearm at or

in the direction of a habitation, building, or vehicle with

reckless disregard for whether the structure is occupied.

Hernandez-Rodriguez, however, was convicted under § 22.05(b)(1),

which requires that a defendant discharge a firearm at or in the

6
direction of one or more individuals. Thus, the Texas statute,

unlike that in Alfaro, requires that a firearm be discharged at or

in the direction of another person. Alfaro is not controlling

here.

Hernandez-Rodriguez maintains that an offense under §

22.05(b)(1) is not a crime of violence because “if the defendant

knowingly chooses to shoot not at an individual, but merely in the

individual’s direction, he is decidedly not using force against the

person of another.” This argument is unavailing. An offense

qualifies as a crime of violence if it includes as an element “the

use, attempted use, or threatened use of physical force against the

person of another.” § 2L1.2, comment. (n.(1)(B)(iii)) (emphasis

added). Whereas the knowing pointing of a firearm at another “when

done in obvious jest would not necessarily constitute threatened

use of a deadly weapon,” White, 258 F.3d at 384, it is

unreasonable to conclude that the purposeful discharge of that

weapon in the direction of a person would not “import[] ‘[a]

communicated intent to inflict physical or other harm.’” Id. at

383 (quoting BLACK’S LAW DICTIONARY 1480 (6th ed. 1990)). This element

of a conscious choice to discharge a firearm in the direction of an

individual would constitute a real threat of force against his

person.2 The offense of deadly conduct, as defined in TEX. PENAL CODE

2
Because the statute requires proof of “knowing” conduct as
an element of the offense, there is no possibility of conviction on
the basis of reckless or negligent behavior. See Brief for the
United States at 8.

7
ANN. § 22.05(b)(1), therefore constitutes a crime of violence for

purposes of sentence enhancement under § 2L1.2(b).

Hernandez-Rodriguez also challenges the constitutionality of

§ 1326(b)’s treatment of prior felony and aggravated felony

convictions as sentencing factors rather than elements of the

offense that must be found by a jury in the light of Apprendi v.

New Jersey, 530 U.S. 466 (2000). This argument is foreclosed by

Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998).

“This court has repeatedly rejected arguments like the one made by

[Hernandez-Rodriguez] and has held that Almendarez-Torres remains

binding despite Apprendi.” United States v. Garza-Lopez, 410 F.3d

268, 276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).

For the foregoing reasons, the judgment of the district court

AFFIRMED.