United States v. Riva

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit February 17, 2006

Charles R. Fulbruge III
Clerk
No. 05-10059

UNITED STATES OF AMERICA,

Plaintiff-Appellee

VERSUS

RONALD H. RIVA, III,

Defendant-Appellant

Appeal from the United States District Court
For the Northern District of Texas

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Defendant-Appellant, Ronald H. Riva, appeals his sentence imposed

on a guilty-plea for unlawful possession of a firearm. Appellant

argues that the district court erred by enhancing his sentence

under U.S.S.G. § 4B1.2(a) based on its conclusion that his prior

Texas conviction for unlawful restraint of a person less than 17

years of age1 was a “crime of violence”. Because we agree with the

1
The Texas unlawful restraint statute provides: “(a) A person
commits an offense if he intentionally or knowingly restrains
another person...(c) An offense under this section is a Class A
district court that this offense is a “crime of violence,” we

affirm Riva’s sentence.

I.

Ronald H. Riva, III, pleaded guilty to an indictment charging

him with possession of a firearm by a convicted felon. 18 U.S.C.

§ 922(g)(1). The presentence report (“PSR”) recommended that the

district court enhance Riva’s sentence pursuant to U.S.S.G. § 2K2.1

because Riva had been previously convicted of two crimes of

violence—unlawful restraint of a person less than 17 years of age

and aggravated assault. Riva objected to the PSR, arguing that his

Texas unlawful restraint conviction was not a crime of violence

under U.S.S.G. § 4B1.2. The district court overruled the

objection, adopted the findings of the PSR, and sentenced him to 96

months imprisonment and three years supervised release. This

appeal follows.

II.

In reviewing a sentence under the sentencing guidelines, we

review the interpretation or application of the guidelines de novo.

misdemeanor except that the offense is: (1) a state jail felony
if the person restrained was a child younger than 17 years of age;
or (2) a felony of the third degree if: (A) the actor recklessly
exposes the victim to a substantial risk of serious bodily
injury...” TEX. PEN. CODE ANN. § 20.02(a) (Vernon 2002).
“‘Restrain’ means to restrict a person’s movements without consent,
so as to interfere substantially with the person’s liberty by
moving the person from one place to another or by confining the
person. Restraint is ‘without consent’ if it is accomplished by:
(A) force, intimidation, or deception.” TEX. PEN. CODE ANN. 20.01
(Vernon 2002).

2
United States v. Charles, 301 F.3d 309, 312-13 (5th Cir. 2002)(en

banc).

Riva was sentenced under § 2K2.1(a)(2) of the Sentencing

Guidelines, which provides for a base offense level of 24 if a

defendant has at least two prior felony convictions for crimes of

violence. That section adopts the definition of “crime of

violence” as provided in U.S.S.G. § 4B1.2 and its commentary.2

2
Section 4B1.2(a) defines “crime of violence” as:

[A]ny 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 person
of another, or

(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of
physical injury to another.

U.S.S.G. § 4B1.2(a) (emphasis added).

The commentary further provides:

“Crime of violence” includes murder, manslaughter,
kidnapping, aggravated assault, forcible sex offenses,
robbery, arson, extortion, extortionate extension of
credit, and burglary of a dwelling. Other offenses are
included as “crimes of violence” if (A) that offense has
as an element the use, attempted use, or threatened use
of physical force against the person of another, or (B)
the conduct set forth (i.e., expressly charged) in the
count of which the defendant was convicted involved use
of explosives (including any explosive material or
destructive device) or, by its nature, presented a
serious potential risk of physical injury to another.
U.S.S.G. § 4B1.2 (application note 1).

3
 The Government concedes that subsection (a)(1) of § 4B1.2 is

inapplicable because “use of force” is not an element of the Texas

crime of unlawful restraint. See TEXAS PEN. CODE ANN. § 20.02 (Vernon

2002). Thus, the issue we must decide is whether unlawful

restraint of a person less than 17 years of age is a crime of

violence under the residual clause of § 4B1.2(a)(2) because it

“otherwise involves conduct that presents a serious potential risk

of physical injury to another.” U.S.S.G. § 4B1.2(a)(2).

In determining whether a prior conviction is a “crime of

violence” under the residual clause of § 4B1.2(a)(2), this court

takes a categorical approach and may only look to the relevant

statute and in certain circumstances to the conduct alleged in the

charging document. United States v. Charles, 301 F.3d 309, 313-14

(5th Cir. 2002). Under Charles, a prior conviction is considered

a crime of violence under the residual clause “only if, from the

fact of the indictment, the crime charged or the conduct charged

presents a serious potential risk of injury to a person. Injury to

another need not be a certain result, but it must be clear from the

indictment that the crime itself or the conduct specifically

charged posed this serious potential risk.” Id. at 314. When a

statute provides a list of alternative methods of committing an

offense, we may look to the charging papers to determine by which

method the crime was committed in a particular case. See United

States v. Calderon-Pena, 383 F.3d 254, 258 (5th Cir. 2004); United

States v. Bonilla-Mungia,422 F.3d 316, (5th Cir. 2005).

4
 The information to which Riva pleaded guilty charged that he

“intentionally and knowingly by force, intimidation, and deception,

[did] restrain Sage Wheatley, a child younger than 17 years of age,

without her consent, by restricting the movements of the said Sage

Wheatley, to wit, by locking her in a closet, against the peace and

dignity of the State.” Appellant argues that United States v.

Houston, 364 F.3d 243 (5th Cir. 2004) applies in the instant case.

In Houston we held that “[i]f an indictment is silent as to the

offender’s actual conduct, we must proceed under the assumption

that his conduct constituted the least culpable act satisfying the

count of conviction.” Id. at 246. See also United States v.

Insaulgarat, 378 F.3d 456, 467 (5th Cir. 2004). The Texas unlawful

restraint statute is written disjunctively, and the offense can be

committed by restraining a person by force, intimidation, or

deception. As indicated above, however, the information to which

Riva pleaded guilty charged Riva conjunctively by alleging that he

restrained another person by force, intimidation, and deception.

Appellant argues that because prosecutors generally charge offenses

in the conjunctive but prove them in the disjunctive, the bill of

information does not reveal whether appellant pleaded guilty to

restraining a person by force, intimidation, or deception.

Appellant further contends that under the least culpable means

approach set forth in Houston, this court must assume that Riva

locked a child under the age of 17 in a closet by using deception.

5
The Government, on the other hand, argues that the information

charged Riva with restraining a child by force, intimidation, and

deception and that when Riva pleaded guilty to the information, he

admitted that he used all three methods. Even if we assume that

Riva’s argument is correct, and that under the “least culpable

means” analysis the restraint was accomplished by deception, we are

still persuaded that unlawfully restraining a child under the age

of 17 by confining her is a crime of violence.3

Riva maintains that while locking a child under the age of 17

in a closet by means of deception could cause a serious potential

risk of physical injury, it does not necessarily implicate that

risk.4 We disagree.5 We agree with the Government that a serious

3
Although not raised by the parties, we note that the Texas
statute for unlawful restraint of a child under the age of 17 can
also be accomplished disjunctively by either 1) moving the person
from one place to another or 2)confining the person. As discussed
above, we may look to the conduct in the indictment to determine
which disjunctive element the defendant committed. See Calderon-
Pena, 383 F.3d at 258. The allegation of the information charging
Riva with locking a child in a closet, makes it clear that the
state charged Riva with confining the child rather than moving her
from one place to another.
4
Appellant cites several cases to support his argument,
including United States v. Houston, 364 F.3d 243(5th Cir. 2004)and
United States v. Insaulgarat, 378 F.3d 456 (5th Cir. 2004).
However, the reasoning in those cases does not apply in the instant
case. In Houston, we held that statutory rape, under a least
culpable means analysis, would not necessarily be a crime of
violence because “sexual intercourse between a 20 year old male and
female a day under 17, free of aggravating circumstances such as
the victim’s lack of consent or the offender’s use of violence,
does not present a serious potential risk of physical injury....”
364 F.3d at 248 (emphasis added). Insaulgarat involved a
conviction for aggravated stalking. In that case, we found that
the conviction could be for phone calls or suicide threats, which

6
potential risk of injury is created when a child is confined

without his or her consent. Children are more vulnerable than

adults, and a child locked in a closet is at risk for dehydration,

malnourishment, infection, and physical injuries in escape

attempts.

Appellant also argues that because the information did not

charge him with a third-degree felony for recklessly exposing the

victim to a substantial risk of serious physical injury, it follows

that Riva’s offense did not present a serious potential risk of

injury to another and does not qualify as a crime of violence under

the residual clause of U.S.S.G. § 4B1.2(a). Riva’s argument is not

persuasive. For an offense to qualify as a crime of violence, the

Government need only prove that commission of the offense created

do not involve conduct that presents a potential for physical
injury. Insaulgarat, 378 F.3d at 470-71. Unlike the cases
Appellant cites, we are persuaded that any violation of Texas Penal
Code 20.02(c)(1) by confining a person creates a serious potential
risk of physical injury.
5
Other Circuits have also found that similar unlawful restraint
statutes constitute a crime of violence because “by [their] nature,
[they] present[] a serious potential risk of physical injury to
another.” United States v. Nunes, 2005 WL 2108672, F.3d
(11th Cir. 2005). See also United States v. Wallace, 326 F.3d 881,
886-87 (7th Cir. 2003)and United States v. Swanson, 55 Fed. Appx.
761, 762 (7th Cir. 2003) (stating that “[a] risk of violent
confrontation is inherent in a crime...that involves restraining
another person against her will.”) and. Further, other circuits
have found that similar offenses such as kidnapping and false
imprisonment by deception that do not have physical force as an
element present a serious risk of physical injury, and are “crimes
of violence.” See United States v. Zamora, 222 F.3d 756, 764-65
(10th Cir. 2000); United States v. Williams, 100 F.3d 50, 52-3 (9th
Cir. 1997); United States v. Kaplansky, 42 F.3d 320, 324 (6th Cir.
1994)(en banc).

7
a serious potential for physical injury. On the other hand, to

establish the third degree felony under Texas Penal Code §

20.02(c)(2)(a), the state is required to prove that the defendant

exposed the victim to a substantial risk (rather than a potential

risk) to serious physical injury (rather than physical injury).

The fact that the state prosecutors declined to charge Appellant

with the third degree felony offense does not preclude a crime of

violence enhancement for the state jail felony child restraint

offense.

III.

Because we find that unlawful restraint by confinement is a

crime of violence whether accomplished by force, intimidation, or

deception, we affirm Riva’s sentence.

AFFIRMED.

8
DENNIS, Circuit Judge, dissenting:

Because I disagree with the majority’s application of the “least

culpable means” approach, its interpretation of our case law to

hold that a crime is a crime of violence where it does not present

a risk of violence “by its nature,” and its failure to apply our

precedent in this area, I respectfully dissent.

As the majority mentions, the law in our Circuit has applied a

least culpable means analysis to the determination of whether a

particular crime is a crime of violence. Under this analysis, the

court must look to the statute and the indictment and ask whether

there is a possible way in which the charged offense could be

violated without a serious potential risk of physical injury to

another. If there is a hypothetical way the violation could have

occurred without this risk, then the crime is not “by its nature”

a crime of violence. The watershed case in this area of law is

United States v. Charles, an en banc decision which held that the

act of stealing a car and driving it away without the owner’s

consent did not constitute a crime of violence because it did not

“by its nature” give rise to these serious risks. 301 F.3d 309, 314

(5th Cir. 2002). The Charles case has been followed by a number of

others, which uniformly apply the least culpable means analysis.

This analysis is rooted in the wording of the commentary to the

sentencing guidelines, which includes a residual clause making a

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crime a “crime of violence” if it “by its nature, presented a

serious potential risk of physical injury to another.” U.S.S.G. §

4B1.2 (application note 1). While some panels have used the phrase

“necessarily,” I understand it to be synonymous with and derived

from the phrase “by its nature.”

The least culpable means analysis stems from the decision in

Charles, in which we held en banc “that a crime is a crime of

violence under § 4B1.2(a)(2) only if, from the face of the

indictment, the crime charged or the conduct charged presents a

serious potential risk of injury to a person. Injury to another

need not be a certain result, but it must be clear from the

indictment that the crime itself or the conduct specifically

charged posed this serious potential risk.” 301 F.3d at 314. And

in our en banc decision we also held that Application Note 1, by

stipulating that residual clause crimes must “by [their] nature”

present a “serious potential risk of physical injury to another,”

calls for a categorical inclusion or exclusion of crimes and/or

conduct.” Id. Perhaps as significantly, in Charles we

overwhelmingly rejected the arguments of three dissenters who would

have held that motor vehicle theft is a crime of violence based on

their notion that the offense always involves a “serious potential

risk of physical injury” because this language requires only a

finding that there is a “significant possible chance” of physical

injury in each theft, a fact which the three dissenters were

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prepared to take judicial notice or use common sense to find. 301

F.3d at 314-15 (Barksdale, J., dissenting).

The dissenters’ position has been rejected in all of our

subsequent panel opinions on the subject, which have uniformly

applied the Charles rationale to ask whether the hypothetical least

culpable means of violating the indictment at issue would involve

a serious potential risk of physical injury. See United States v.

Montgomery, 402 F.3d 482, 487-88 (5th Cir. 2005) (holding that we

must ask whether “it was possible to commit the prior offense

without employing conduct that entailed a serious potential risk of

physical injury” and that the crime of retaliation in Texas was not

a crime of violence because “there are numerous ways that this

statute can be violated without posing a significant risk of

physical harm”); United States v. Valenzuela-Quevedo, 407 F.3d 728,

732 (5th Cir. 2005) (holding that it was a crime of violence to

shoot at a car across a highway because even the least culpable

hypothetical where the defendant thought no one was in the vehicle

or near it involved risk of physical injury); United States v.

Houston, 364 F.3d 243, 246 (5th Cir. 2004) (holding that statutory

rape was not a crime of violence because the hypothetical

“consensual sexual intercourse between a 20 year old male and a

female a day under 17" did not present a serious potential risk of

physical injury); United States v. Insaulgarat, 378 F.3d 456, 470

(5th Cir. 2004) (holding that stalking was not a crime of violence

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because the “harassment” alleged could hypothetically have been

accomplished via phone calls under the indictment); United States

v. Turner, 349 F.3d 833, 836 (5th Cir. 2003) (holding that burglary

of a building was not a crime of violence because it could not be

more dangerous than vehicular theft as in Charles).

While there are a few cases that seem to take different

approaches, they are all distinguishable as having special

circumstances. For example, in United States v. Golding, the court

held that unlawful possession of a machine gun was a crime of

violence because Congress had declared in other legislation that

machine guns are a weapon of war inherently involve a risk of

violence. 332 F.3d 838, 842 (2003). This case followed the logic

of United States v. Serna, a pre-Charles case that held that

unlawful possession of a sawed-off shotgun was a crime of violence

because of Congressional pronouncements in other legislation to

that effect. 309 F.3d 859, 863 (5th Cir. 2002). The court in Serna

relied on Congress’s expression in the National Firearms Act that

a sawed-off shotgun is primarily used for violent purposes, this

court’s conclusion in United States v. Jennings that Congress’s

primary reason for criminalizing such weapons is the virtual

inevitability of violence resulting from their unregistered

possession, and the decisions of several other circuits finding

possession of such a sawed off shotgun to be a crime of violence.

While these cases did not apply the least culpable means approach,

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they involved a special situation in which Congress had essentially

decided the issue of whether a crime was a crime of violence

through statements of legislative intent. We have no similar

statements here as to the inherent danger of locking children in

closets, and the general Texas crime of unlawful restraint in this

case was not legislatively designed to specifically address that

danger.

One other potentially inconsistent case is United States v. Ruiz,

where the court held that the crime of escape was a crime of

violence because every escape was inherently a powder-keg scenario.

180 F.3d 675, 677 (5th Cir. 1999). This is another case issued

prior to the watershed Charles decision, and again it is

distinguishable. The panel there found persuasive the Tenth Circuit

view that “every escape scenario is a powder keg, which may or may

not explode into violence and result in physical injury to someone

at any given time, but which always has the serious potential to do

so....” Id. at 677 (quoting United States v. Mitchell, 113 F.3d

1528, 1533 (10th Cir. 1997)). Thus, the courts have, in effect,

found the federal statute aimed specifically at escape crimes to

implicitly contain a policy statement that every federal escape by

law poses a threat of physical injury regardless of the underlying

factual situation. The holding of Ruiz is that all conceivable

ways to violate the escape statute pose a serious potential risk of

physical injury. Accordingly, cases like Ruiz, in which the

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courts, rightly or wrongly, have held that any violation of a

particular statute implementing a Congressional policy per se

creates serious potential risk of physical injury, are not

inconsistent with the general rule applied by the mainstream of our

cases. Instead, Ruiz resolved the question by holding that even

the least culpable means of violating that statute involved a

serious potential risk of physical injury.

The majority’s decision fails to apply the required hypothetical

least culpable means approach. The majority opinion holds that the

potential risks of dehydration, malnourishment, infection, and

physical injuries in escape attempts make the crime before us a

crime of violence, but it fails to ask whether the crime here could

have been committed under the wording of the indictment in a way

that would have avoided these risks.

Because the defendant pled guilty to an indictment alleging the

use of force, intimidation, and deception, we must consider the

hypothetical ways in which the crime could have been committed

using the least culpable method - deception. See Omari v. Gonzales,

419 F.3d 303, 3-8, n. 10 (5th Cir. 2005)(“Indictments often allege

conjunctively elements that are disjunctive in the corresponding

statute, and this does not require either that the government prove

all of the statutorily disjunctive elements or that a defendant

admit to all of them when pleading guilty.” (citing Valansi, 278

F.3d at 216 n. 10 (5th Cir. 2002); United States v. McCann, 465

-14-
F.2d 147, 162 (5th Cir. 1972)). In addition, in the particular

context of the application of the least culpable means test, where

“an indictment is silent as to the offender’s actual conduct, we

must proceed under the assumption that his conduct constituted the

least culpable act satisfying the count of conviction.” United

States v. Houston, 364 F.3d 243, 246 (5th Cir. 2004). Under the

Omari standard, the prosecutor need prove only one of the three

alleged methods, and here the use of deception is the “least

culpable act satisfying the count of conviction.” And as the

majority admits, the state here has conceded that “use of force” is

not an element of the offense before us - at worst, we would

consider the least culpable means to be intimidation. The state’s

concession has essentially foreclosed any argument that the use of

the conjunctive “and” in the indictment means we can consider the

crime to have been committed using force.

Most of the litany of risks cited by the majority are easily

dismissed under the least culpable means approach. Dehydration,

malnourishment, and infection are all risks only if the crime

proceeds for an extended period. The statute at issue here,

however, does not have a temporal aspect, and the crime of

“intentionally or knowingly restrain[ing] another person” could be

completed in mere seconds. TEXAS PEN. CODE ANN. § 20.02 (Vernon 2002).

The least culpable hypothetical scenario under the indictment would

be that Riva used deception to lock a minor in a closet for a few

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seconds, and then immediately released her. This would result in a

completed crime of unlawful restraint, but no risk of dehydration,

malnourishment, or infection.

The final risk of physical injury cited by the majority is the

risk of injuries during escape attempts. Again, however, there are

hypothetical ways this crime could be completed without such risks.

For example, the defendant could have used deception to persuade

the minor to be locked in the closet by convincing him or her that

the closet was a safe haven from a nonexistent risk such as an

intruder in the house. Under that scenario, there is no risk of an

escape attempt because the child actually desires and consents to

be in the closet. While the child would have given actual consent

to the restraint, it would not be legally effective and the crime

would be complete. The Texas statute defines restraint to be

without consent if it is accomplished by force, intimidation, or

deception; meaning that if any of these methods were used the

actual consent of the child was legally ineffective. TEXAS PEN. CODE

ANN. § 20.01(1) (Vernon 2002). This does not change the fact that

where a child desires to be locked inside a closet because of some

deception, there is no risk of an injurious escape attempt.

It is also important to note that the culpability of this offense

due to the age of the victim is reduced dramatically by the least

culpable means approach. As in Houston, because the age is not

specified, we must posit that the victim is the least culpable age.

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364 F.3d at 246. Under the Texas statute, this least culpable age

could be that the victim was one day under seventeen. TEXAS PEN. CODE

ANN. § 20.02 (Vernon 2002). This substantially mitigates both the

level of culpability and the risks involved in that the child would

be mature enough to avoid injuring herself. At the other extreme,

we could assume that the child was extremely young and therefore

incapable of mounting efforts at escape. In either event, when

coupled with the fact that the crime could be completed in seconds,

the crime here does not by its nature involve a serious potential

risk of physical injury.

Because the majority fails to apply the least culpable means

analysis as defined by our prior decisions and because the crime

alleged in this indictment could hypothetically have been committed

in ways that did not involve a serious potential risk of physical

injury to another, I would hold that the crime before us did not

“by its nature” present these risks and was not a crime of

violence.

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