United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit February 12, 2007
___________________________
Charles R. Fulbruge III
No. 06-40292 Clerk
___________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
VERSUS
SANTIAGO DOMINGUEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of Texas, McAllen
7:05-CR-767
Before DAVIS and STEWART, Circuit Judges, and CRONE, District Judge.1
W. EUGENE DAVIS, Circuit Judge:
Santiago Dominguez appeals his sentence after his conviction
for being illegally present in the United States following a
prior deportation. The principal issue presented for decision is
whether the district court erred by increasing the defendant’s
offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A) based on a
finding that his earlier Florida conviction for aggravated
battery was a crime of violence. Finding no error, we affirm.
I.
Dominguez was charged by indictment with being illegally
1
District Judge for the Eastern District of Texas, sitting by designation.
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present in the United States following a prior deportation, in
violation of 8 U.S.C. § 1326. Dominguez pleaded guilty in
exchange for a Government recommendation of a two-level reduction
for acceptance of responsibility.
The presentence report (PSR) assigned Dominguez a base
offense level of eight. U.S.S.G. § 2L1.2(a). The PSR
recommended that Dominguez’s offense level be increased 16 levels
because his deportation occurred after his conviction of a crime
of violence (COV). The PSR also recommended a two-level
reduction for acceptance of responsibility. Dominguez’s total
offense level of 22, combined with his criminal history category
of II, yielded a recommended guidelines range of 46-57 months in
prison.
Dominguez filed objections to the PSR challenging the 16-
level enhancement under § 2L1.2(b)(1)(A)(ii), requesting the
third level for acceptance of responsibility, and asserting that
any sentence over two years in prison would violate Apprendi v.
New Jersey, 530 U.S. 466 (2000). The district court overruled
Dominguez’s Apprendi objection and his challenge to the 16-level
enhancement. The court granted Dominguez the third level for
acceptance of responsibility and a two-level reduction for early
disposition, resulting in a total offense level of 19 and a
guidelines range of 33-41 months in prison. The district court
sentenced Dominguez to 33 months in prison, to be followed by a
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two-year term of supervised release. Dominguez filed a timely
notice of appeal.
II.
Dominguez argues that the district court erred in imposing
the 16-level enhancement because his Florida conviction did not
constitute a COV. This court reviews de novo the district
court’s interpretation of the Sentencing Guidelines. United
States v. Sarmiento-Funes, 374 F.3d 336, 338 (5th Cir. 2004).
Section 2L1.2(b)(1)(A)(ii) provides for a 16-level increase when
a defendant was previously deported after a conviction for a COV.
A COV, as defined in the commentary, includes various enumerated
offenses, including “aggravated assault,” and also includes “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)).
Thus, Dominguez’s prior conviction qualifies as a COV if it meets
either definition. We need not consider whether his conviction
qualifies as the enumerated offense of aggravated assault,
because we conclude that the offense “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)).
The Florida aggravated battery statute makes it a second-
degree felony for any individual “who, in committing battery:
1. Intentionally or knowingly causes great bodily harm, permanent
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disability, or permanent disfigurement; or 2. Uses a deadly
weapon.” FLA. STAT. ANN. § 784.045(1)(a) (1998). An individual
commits a battery by (1) “[a]ctually and intentionally touch[ing]
or strik[ing] another person against the will of the other” or by
(2) “[i]ntentionally caus[ing] bodily harm to another person.”
FLA. STAT. ANN. § 784.03(1)(a) (1998). The charging instrument in
Dominguez’s case alleged that on a certain date, Dominguez (named
in the information as Francisco Zuniga)2 “did unlawfully and
intentionally touch or strike Omar Acosta against his will with a
deadly weapon, to-wit: a knife.” The charging document tracks
the language of §§ 784.03(1)(a)(1) and 784.045(1)(a)(2). The
district court found that based on the charging information and
the statutes, Dominguez had committed an intentional offense that
qualified as a COV.
This court employs a categorical approach in determining
whether an offense qualifies as a COV under § 2L1.2. See United
States v. Chapa-Garza, 243 F.3d 921, 924 (5th Cir. 2001)
(addressing enhancement for prior aggravated-felony conviction).
We examine the elements of the offense, rather than the facts
underlying the conviction or the defendant’s actual conduct, to
determine whether an offense meets the definition of a COV.
United States v. Calderon-Pena, 383 F.3d 254, 257-58 (5th Cir.
2
The parties do not dispute that Dominguez is the same individual as that named in the state
court information.
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2004)(en banc), cert. denied, 543 U.S. 1076 (2005). If the
statute of conviction contains a series of disjunctive elements,
“a court may look to the indictment or jury instructions, for the
limited purpose of determining which of a series of disjunctive
elements a defendant’s conviction satisfies.” Id. at 258
(internal quotation marks and citation omitted).
As noted above, Dominguez’s indictment alleged that he
“intentionally touch[ed] or str[uck] [the victim] against his
will with a deadly weapon.” Thus, the elements of the offense
committed by Dominguez are that he intentionally (1) touched or
struck the victim (2) with a deadly weapon (3) against the
victim’s will. Id.; §§ 784.03(1)(a)(1), 784.045(1)(a)(2).
As Dominguez notes, the Florida offense does not require the
use or attempted use of force. This court has defined the
“force” necessary to make an offense a COV as “‘synonymous with
destructive or violent force.’” United States v. Landeros-
Gonzales, 262 F.3d 424, 426 (5th Cir. 2001) (citation omitted).
Under the subsection with which Dominguez was charged, an
individual could commit an aggravated battery by merely touching
someone with a deadly weapon, without any resulting physical
injury, and this does not qualify as a use of force. See United
States v. Sanchez-Torres, 136 F. App’x 644, 647-48 (5th Cir.
2005)(Washington fourth-degree assault statute does not qualify
as COV because it could be committed by an “offensive touching”);
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Rodriguez v. State, 263 So. 2d 267, 268 (Fla. Dist. Ct. App.
1972)(defining aggravated battery as including an offensive
touching).
However, the touching of an individual with a deadly weapon
creates a sufficient threat of force to qualify as a crime of
violence. Dominguez asserts that aggravated battery with a
deadly weapon does not include a threatened use of force because
the Florida statute does not include the word “force” or require
the use of physical force. This argument is misguided. Under
the elements test, the Government must prove that the offense 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)). The fact that the statute does not include as an
element the actual use of force does not preclude a conclusion
that the offense is a COV; the threatened use of force is
sufficient. Moreover, the absence of the word “force” is not
relevant; Dominguez fails to point to any case law in which this
court has viewed the presence or absence of this word in a
statute as dispositive.
This court has not addressed the precise question whether an
offense such as the one committed by Dominguez includes as an
element a threatened use of force if it is performed with a
deadly weapon. The court has held that the Texas offense of
deadly conduct, which required the firing of a weapon in the
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direction of an individual, has as an element the threatened use
of force against the person of another. United States v.
Hernandez-Rodriguez, ___ F.3d ___, 2006 WL 2861123, at *2-*3 (5th
Cir. Oct. 9, 2006)(No. 05-51429).
This court also considered an Illinois aggravated-battery
statute, which required in relevant part that the defendant
“intentionally or knowingly causes great bodily harm, or
permanent disability or disfigurement” through the use of a
deadly weapon. United States v. Velasco, ___ F.3d ___, 2006 WL
2729670, at *3 (5th Cir. Sept. 26, 2006)(No. 05-10451). This
court held that such an offense constituted a COV because the
defendant necessarily used a deadly weapon against another. Id.
at *4. The court distinguished between mere firearm-possession
cases, noting that a use of the weapon was necessary to create a
COV and that “[i]n order to ‘use’ a weapon to cause bodily harm,
one must, at the very least, threaten the use of physical force.”
Velasco, 2006 WL 2729670, at *4; see United States v. Medina-
Anicacio, 325 F.3d 638, 644 (5th Cir. 2003)(simple possession of
a deadly weapon not COV). Velasco is, of course,
distinguishable; the Florida statute in question does not require
any injury to result from the intentional striking or touching
with a deadly weapon.
In United States v. Treto-Martinez, 421 F.3d 1156, 1157
(10th Cir. 2005), cert. denied, 126 S. Ct. 1089 (2006), the
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defendant had a prior Kansas conviction for aggravated battery
against a law enforcement officer. Under state law, the offense
of aggravated battery could be generally committed either by
intentionally causing bodily harm to another person with a deadly
weapon or by intentionally causing physical contact with another
person “in a rude, insulting or angry manner with a deadly
weapon.” Id. at 1158; KAN. STAT. ANN. § 21-3414(a)(1)(B),
(a)(1)(C). The charging documents did not specify the subsection
being charged, and Treto-Martinez argued that physical contact in
a rude, insulting, or angry manner did not constitute a use of
force. Treto-Martinez, 421 F.3d at 1159. The Tenth Circuit
disagreed, concluding that
a person who touches a police officer with a deadly
weapon in “a rude, insulting or angry manner,” has at
the very least “threatened use of physical force” for
purposes of § 2L1.2(b)(1)(A). Even if the physical
contact does not produce bodily injury, the manner in
which the physical contact with a deadly weapon must
occur to violate the Kansas statute clearly has as an
element the “threatened use of physical force.” Causing
physical contact with a deadly weapon in “a rude,
insulting or angry manner,” if not sufficient in itself
to constitute actual use of physical force under
§ 2L1.2(b)(1)(A), could always lead to more substantial
and violent contact, and thus it would always include
as an element the “threatened use of physical force.”
Physical contact with a deadly weapon under this
statute will always constitute either actual or
threatened use of physical force.
Treto-Martinez, 421 F.3d at 1160.
Although Dominguez’s state conviction did not involve a
police officer or a crime that requires that the contact occur in
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a rude, insulting or angry manner, the analysis is the same.
Although an intentional touching with a deadly weapon under
Florida law may not in itself cause injury, it could lead to more
violent contact, or could at least put the victim on notice of
the possibility that the weapon will be used more harshly in the
future, thereby constituting a threatened use of force. See also
United States v. Lerma, 158 F. App’x 3, 4 (9th Cir. 2005)(placing
an individual in a “reasonable apprehension of imminent physical
injury” with a deadly weapon is COV); United States v. Drummond,
240 F.3d 1333, 1337 (11th Cir. 2001)(New York crime of menacing
required intentionally placing another in fear of death or
physical injury through the use of a deadly weapon and
constituted a COV); cf. United States v. Perez-Vargas, 414 F.3d
1282, 1285-86 (10th Cir. 2005)(no COV in statute prohibiting,
among other behaviors, criminal negligence causing bodily injury
with a deadly weapon).
Under the rationale of Treto-Martinez, then, we hold that
Dominguez’s conviction for aggravated battery under the specific
subsection of Florida law qualifies as a COV because it has as an
element at least a threatened use of force.
III.
Dominguez contends that the 33-month term of imprisonment
imposed in his case exceeds the statutory maximum sentence
allowed for the § 1326(a) offense charged in his indictment. He
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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 light of Apprendi.
Dominguez’s argument is foreclosed by Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998), in which the Supreme
Court held that treatment of prior convictions as sentencing
factors in § 1326(b)(1) and (2) was constitutional. Although
Dominguez contends that a majority of the Supreme Court would now
consider Almendarez-Torres to be incorrectly decided in light of
Apprendi,, “[t]his court has repeatedly rejected arguments like
the one made by [Dominguez] 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). Dominguez concedes as much, but he raises the argument
to preserve it for further review.
IV.
For the foregoing reasons, Dominguez’s sentence is AFFIRMED.
AFFIRMED.
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