Case: 11-50090 Document: 00511854088 Page: 1 Date Filed: 05/14/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 14, 2012
No. 11-50090 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FELIPE DE JESUS ESPARZA-PEREZ, a/k/a FELIPE JESUS ESPARZA,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
Before GARZA, DENNIS, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:
Defendant Felipe De Jesus Esparza-Perez pleaded guilty to a one-count
indictment charging him with attempting to reenter the United States
unlawfully after removal, in violation of 8 U.S.C. § 1326. At sentencing, the
district court enhanced Esparza-Perez’s offense level by sixteen levels based on
its conclusion that Esparza-Perez’s prior Arkansas conviction for aggravated
assault was a conviction for a crime of violence within the meaning of section
2L1.2(b)(1)(A)(ii) of the United States Sentencing Guidelines. Esparza-Perez
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No. 11-50090
challenges that conclusion,1 which we review de novo. United States v. Guillen-
Alvarez, 489 F.3d 197, 198 (5th Cir. 2007). For the reasons that follow, we
vacate Esparza-Perez’s sentence.
“For violations of 8 U.S.C. § 1326, section 2L1.2(b)(1)(A)(ii) of the
Sentencing Guidelines provides for a sixteen-level increase to a defendant’s base
offense level when the defendant was previously deported following a conviction
for a felony that is a crime of violence.”2 Guillen-Alvarez, 489 F.3d at 198-99.
That phrase, in turn, goes beyond self-explication, and we turn to the Sentencing
Guidelines commentary, which defines a crime of violence as (1) any offense in
a list of enumerated offenses, which includes “aggravated assault,” 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.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).3 Different tests are used “when
analyzing whether a particular offense amounts to a [crime of violence], and the
test used depends on whether the offense is an enumerated one or has physical
force as an element.” United States v. Moreno-Florean, 542 F.3d 445, 449 (5th
Cir. 2008) (citing United States v. Mendoza-Sanchez, 456 F.3d 479, 481-82 (5th
Cir. 2006)).4
1
Esparza-Perez also challenges the reasonableness of his sentence due to the lack of
a fast-track program in his jurisdiction. As Esparza-Perez properly concedes, this argument
is foreclosed by United States v. Gomez-Herrera, 523 F.3d 554, 563 (5th Cir. 2008), and he
raises the argument only to preserve it.
2
“If the defendant previously was deported, or unlawfully remained in the United
States, after . . . a conviction for a felony that is . . . a crime of violence . . . increase by 16 levels
if the conviction receives criminal history points under Chapter Four . . . .” U.S.S.G. §
2L1.2(b)(1)(A)(ii) (emphasis in original).
3
The commentary to § 2L1.2 is binding and is equivalent in force to the Guidelines
language itself as long as the language and the commentary are not inconsistent. United
States v. Rayo-Valdez, 302 F.3d 314, 318 n.5 (5th Cir. 2002) (citations omitted).
4
The government has conceded that under our en banc decision in United States v.
Calderon-Pena, Esparza-Perez’s prior Arkansas conviction does not have as an element the
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In determining whether the state crime at issue here is the enumerated
offense of “aggravated assault,” we look to the “generic, contemporary” meaning
of aggravated assault, employing a “common sense approach” that looks to the
Model Penal Code, the LaFave and Scott treatises, modern state codes, and
dictionary definitions. United States v. Iniguez-Barba, 485 F.3d 790, 791 (5th
Cir. 2007). “When comparing the state conviction with the generic,
contemporary meaning of the crime, we examine the elements of the statute of
conviction rather than the specifics of the defendant’s conduct. We look only to
the particular subdivision of the statute under which the defendant was
convicted.” United States v. Fierro-Reyna, 466 F.3d 324, 327 (5th Cir. 2006)
(citing United States v. Fernandez-Cusco, 447 F.3d 382, 385 (5th Cir. 2006)).
“State-law labels do not control this inquiry because the [crime of violence]
adjustment incorporates crimes with certain elements, not crimes that happen
to have the same label under state law.” United States v. Ramirez, 557 F.3d 200,
205 (5th Cir. 2009) (citing United States v. Gonzalez-Ramirez, 477 F.3d 310, 313
(5th Cir. 2007)). “‘When the statute of conviction encompasses prohibited
behavior that is not within the plain, ordinary meaning of the enumerated
offense,’ the conviction is not a crime of violence as a matter of law.” Fierro-
Reyna, 466 F.3d at 327 (quoting United States v. Izaquirre-Flores, 405 F.3d 270,
276-77 (5th Cir. 2005)).
When considering whether an offense is an enumerated one or has
physical force as an element, if the statute of conviction contains a series of
disjunctive elements, we may look beyond the statute to certain records made or
used in adjudicating guilt to determine which subpart of the statute formed the
basis of the conviction. United States v. Mungia-Portillo, 484 F.3d 813, 815 (5th
Cir. 2007); United States v. Murillo-Lopez, 444 F.3d 337, 339-40 (5th Cir. 2006);
use, attempted use, or threatened use of physical force against the person of another. 383 F.3d
254, 260 (5th Cir. 2004) (en banc) (per curiam).
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see Gonzalez-Ramirez, 477 F.3d at 315. “These records are generally limited to
the charging document, written plea agreement, transcript of the plea colloquy,
and any explicit factual findings by the trial judge to which the defendant
assented.” Murillo-Lopez, 444 F.3d at 340 (internal quotation marks omitted);
accord Mungia-Portillo, 484 F.3d at 815 (citations omitted).
In this case, the parties agree that Esparza-Perez’s prior conviction
occurred pursuant to section 5-13-204 of the Arkansas Code, which, at the time
of the conviction, defined aggravated assault disjunctively as:
(a) A person commits aggravated assault if, under
circumstances manifesting extreme indifference to the
value of human life, he or she purposely:
(1) Engages in conduct that creates a substantial
danger of death or serious physical injury to another
person; or
(2) Displays a firearm in such a manner that creates a
substantial danger of death or serious physical injury to
another person.
Ark. Code § 5-13-204 (2003). Since the statute contains several disjunctive
elements, we look to the charging document to see which subpart formed the
basis of the conviction in order to classify it as a crime of violence under either
the enumerated list test or the physical force as an element test. See Mungia-
Portillo, 484 F.3d at 815.
On November 20, 2007, the State of Arkansas filed a Criminal
Information charging Esparza-Perez with aggravated assault and alleging:
On or about October 27, 2007, in Benton County,
Arkansas, said Defendant did, under circumstances
manifesting extreme indifference to the value of human
life, did [sic] purposely engage in conduct that created
a substantial danger of death or serious physical
injuries to Deputies of the Benton County Sheriff’s
Office when he rammed his vehicle multiple times into
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vehicles occupied by said Deputies against the peace
and dignity of the State of Arkansas.
The Criminal Information’s description of Esparza-Perez’s conduct tracks the
language of Ark. Code § 5-13-204(a)(1). Accordingly, we look only to subsection
(a)(1) to determine whether the statute of conviction should be classified as a
crime of violence. See Mungia-Portillo, 484 F.3d at 815; United States v. Velasco,
465 F.3d 633, 640 (5th Cir. 2006).
Esparza-Perez argues that the district court improperly determined his
prior conviction for aggravated assault to be a crime of violence under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) because the offense set forth in ARK. CODE § 5-13-204(a)(1),
he contends, does not comport with the generic, contemporary understanding of
aggravated assault. “Our primary source for the generic contemporary meaning
of aggravated assault is the Model Penal Code,” United States v. Torres-Diaz,
438 F.3d 529, 536 (5th Cir. 2006), which provides: “A person is guilty of
aggravated assault if he: (a) attempts to cause serious bodily injury to another,
or causes such injury purposely, knowingly or recklessly under circumstances
manifesting extreme indifference to the value of human life . . . .” Model Penal
Code § 211.1(2).
Comparing the pertinent Arkansas and Model Penal Code provisions
reveals one significant difference. The Model Penal Code requires that a
defendant cause or attempt to cause serious bodily injury to another, whereas
the Arkansas statute requires that a defendant engage in conduct that creates
a substantial danger of death or serious physical injury to another person. See
Holloway v. State, 711 S.W.2d 484, 486 (Ark. Ct. App. 1986) (“It is not based
upon the use of a deadly weapon or the creation of fear, but requires the creation
of substantial danger.”), overruled on other grounds by Doby v. State, 720 S.W.2d
694, 696-97 (Ark. 1986). The issue presented in this case, therefore, looking
beyond Arkansas’ “aggravated assault” designation, is whether purposely
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creating a substantial danger of death or serious physical injury is a “sufficiently
minor” difference from the Model Penal Code definition of the crime so as not to
remove it “from the family of offenses commonly known as aggravated assault”
for purposes of designating it a crime of violence. Mungia-Portillo, 484 F.3d at
817 (citations omitted) (internal quotation marks omitted). We hold that this
difference is not sufficiently minor.
The generic, contemporary meaning of aggravated assault is an assault
carried out under certain aggravating circumstances. See Fierro-Reyna, 466 F.3d
at 328 (noting that Black’s Law Dictionary defines aggravated assault as
“‘criminal assault accompanied by circumstances that make it more severe, such
as the intent to commit another crime or the intent to cause serious bodily
injury, esp[ecially] by using a deadly weapon.’” (alteration in original) (quoting
Black’s Law Dict. 122 (8th ed. 2004)); see also Mungia-Portillo, 484 F.3d at 817
(explaining that Tennessee’s “aggravated assault statute includes the two most
common aggravating factors, the causation of serious bodily injury and the use
of a deadly weapon”). Assault, in turn, requires proof that the defendant either
caused, attempted to cause, or threatened to cause bodily injury or offensive
contact to another person. See, e.g., Model Penal Code § 211.1(1); “Assault,”
Black’s Law Dict. (9th ed. 2009); Wayne R. LaFave, 2 Subst. Crim. L. § 16.3 (2d
ed.).
Esparza-Perez was not convicted of the enumerated offense of aggravated
assault because his Arkansas offense did not require proof of an underlying
assault and therefore does not comport with the generic, contemporary definition
of that crime. The Arkansas statute does not require any contact or injury or
attempt or threat of offensive contact or injury. The absence of any such element
distinguishes the Arkansas statute from the cases cited by the government. See
United States v. Bailey, 2012 WL 10803, at *2 (5th Cir. Jan. 3, 2012); United
States v. Ramirez, 557 F.3d 200, 205-07 (5th Cir. 2009); United States v. Torres-
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Salazar, 300 F. App’x 328, 329-30 (5th Cir. 2008); United States v. Fernandez,
292 F. App’x 301, 304 (5th Cir. 2008); Mungia-Portillo, 484 F.3d at 816-17;
United States v. Guillen-Alvarez, 489 F.3d 197, 200-01 (5th Cir. 2007). Each of
those cases involved an aggravated assault statute requiring that the defendant
actually caused injury to another or attempted or threatened to do so. Thus,
those statutes fall within the common meaning of aggravated assault because
they proscribe an assault carried out under certain aggravating circumstances.
That the Arkansas statute lacks any such element makes it significantly
different from the Model Penal Code definition of aggravated assault, and takes
it outside the common meaning of the term.
Indeed, Esparza-Perez’s conviction does not constitute a crime of violence
as the enumerated offense of “aggravated assault” for essentially the same
reason the government concedes it does not, under existing precedent,
constitute a crime of violence under the residual clause. See U.S.S.G. § 2L1.2
cmt. n.1(B)(iii) (“‘Crime of violence’ means . . . any . . . offense . . . that has as an
element the use, attempted use, or threatened use of physical force against the
person of another”). Assault, as commonly understood, by its nature requires
proof of the use, attempted use, or threatened use of offensive contact against
another person.
Esparza-Perez was not convicted of “aggravated assault” for sentencing
enhancement purposes because his crime of conviction lacks proof of an
underlying assault. Because the government has not shown that such error was
harmless under our precedent, Esparza-Perez’s sentence is VACATED and we
REMAND this case for resentencing.
7