United States v. Santos Herrera-Alvarez

Case: 12-41425 Document: 00512639789 Page: 1 Date Filed: 05/22/2014

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-41425 United States Court of Appeals

Fifth Circuit

FILED

UNITED STATES OF AMERICA, May 22, 2014

Lyle W. Cayce

Plaintiff - Appellee Clerk

v.

SANTOS TULIO HERRERA–ALVAREZ,

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before DAVIS, GARZA, * and DENNIS, Circuit Judges.

JAMES L. DENNIS, Circuit Judge:

The United States Sentencing Guidelines provide for a sentencing

enhancement applicable to certain federal defendants who are convicted of

being unlawfully present in the United States after a previous removal or

deportation in violation of 8 U.S.C. § 1326 and who have previously been

convicted of a “crime of violence,” U.S. Sentencing Guidelines (U.S.S.G.)

§ 2L1.2(b)(1)(A)(ii), which includes various enumerated offenses and any

offense “that has as an element the use, attempted use, or threatened use of

physical force against the person of another,” id. § 2L1.2 cmt. (B)(iii). In this

* Judge Garza concurs in judgment only.

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appeal, we consider whether the Louisiana offense of aggravated battery under

Louisiana Revised Statutes section 14:34 qualifies as a crime of violence under

§ 2L1.2 of the federal Sentencing Guidelines, justifying a sixteen-level

enhancement to Defendant–Appellant Santos Tulio Herrera–Alvarez’s federal

sentence. To determine whether a past conviction qualifies as a “crime of

violence,” we use what is known as the “categorical approach” set forth in

Taylor v. United States, 495 U.S. 575 (1990). To apply the categorical

approach, we inquire, based solely upon the elements of the statute forming

the basis for the defendant’s prior conviction, whether the offense qualifies as

a crime of violence. Id. That is, we inquire whether the offense is comprised

of each of the elements of a “generic” crime enumerated in § 2L1.2—here,

aggravated assault—or, alternatively, whether the offense necessarily

requires a finding that the defendant used, attempted to use, or threatened to

use physical force against the person of another. See Descamps v. United

States, 133 S. Ct. 2276 (2013); Taylor, 495 U.S. at 579. “The purpose of the

categorical approach is to avoid the practical difficulties and fairness problems

that would arise if courts were permitted to consider the facts behind prior

convictions which would potentially require federal courts to relitigate a

defendant’s prior conviction in any case where the government alleged that the

defendant’s actual conduct fit the definition of a predicate offense.” Patel v.

Mukasey, 526 F.3d 800, 802 (5th Cir. 2008) (citation, quotation marks, and

alteration omitted). If we determine that the statute of conviction covers

conduct that does not categorically qualify as a crime of violence, but the

statute is divisible—meaning that it sets forth multiple separate offenses or

sets forth one or more elements of an offense in the alternative—then we apply

a variant of the categorical approach known as the “modified categorical

approach.” Descamps, 133 S. Ct. at 2281. Under the modified categorical

approach, we may look beyond the statute to a limited class of documents, such

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as indictments and jury instructions, made or used in adjudicating the

defendant’s guilt to determine which statutory alternative applies to the

defendant’s conviction. See id. We then apply the Taylor approach to assess

whether the offense, as narrowed, is categorically broader than an enumerated

offense or whether it has as an element the use, attempted use, or threatened

use of physical force. See id.

For the reasons that follow, we conclude that an offense defined by

Louisiana Revised Statutes section 14:34, as narrowed pursuant to the

modified categorical approach, qualifies as a crime of violence under § 2L1.2

because it has as an element the use, attempted use, or threatened use of force

against the person of another. Because section 14:34 criminalizes aggravated

batteries committed by administering poison, which does not necessarily entail

the use of destructive or violent physical force, see United States v. Villegas–

Hernandez, 468 F.3d 874, 879 (5th Cir. 2006), the statute as a whole does not

categorically qualify as a crime of violence. However, in the present case, by

referencing the charging document in Herrera–Alvarez’s prior conviction, we

may narrow the statute of conviction under the modified categorical approach

to exclude the possibility that Herrera–Alvarez was convicted of aggravated

battery committed by means of poisoning. We conclude that, thus narrowed,

the offense for which Herrera–Alvarez was convicted under Louisiana Revised

Statutes section 14:34 necessarily had as an element the use, attempted use,

or threatened use of force against the person of another and therefore qualifies

as a crime of violence under § 2L1.2. Accordingly, we affirm.

I.

Santos Tulio Herrera–Alvarez pleaded guilty to illegal reentry under 8

U.S.C. § 1326(a) & (b)(2). He received a sixteen-level enhancement to his

sentence for his 2010 Louisiana conviction for felony aggravated battery under

Louisiana Revised Statutes section 14:34. The criminal information for that

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offense alleged in pertinent part that on April 26, 2009, Herrera–Alvarez “did,

willfully and unlawfully commit an aggravated battery with a dangerous

weapon, to-wit: a knife, on one Nicholas Marrogain, in violation of the

provisions of R.S. 14:34.” (Emphasis omitted.) Under Louisiana law, “[b]attery

is the intentional use of force or violence upon the person of another; or the

intentional administration of a poison or other noxious liquid or substance to

another.” LA. REV. STAT. § 14:33. “Aggravated battery is a battery committed

with a dangerous weapon.” Id. § 14:34. A dangerous weapon is “any gas, liquid

or other substance or instrumentality, which, in the manner used, is calculated

or likely to produce death or great bodily harm.” Id. § 14:2(3). The district

court determined that section 14:34 constitutes a crime of violence within the

meaning of § 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines and enhanced

Herrera–Alvarez’s sentence accordingly. With the enhancement, Herrera–

Alvarez’s Guidelines range was 46 to 57 months of imprisonment, and the

district court imposed the below-guidelines sentence of 41 months of

imprisonment plus three years of supervised release. Herrera–Alvarez did not

object to the enhancement.

II.

“[T]he government bears the burden of establishing a factual predicate

justifying [a sentencing] adjustment, here that [the] offense constitutes a crime

of violence.” United States v. Bonilla, 524 F.3d 647, 655 (5th Cir. 2008) (citing

United States v. Rabanal, 508 F.3d 741, 743 (5th Cir. 2007)). The parties agree

that the issue on appeal was not preserved below and that plain error governs.

While we are not bound by the parties’ concessions and we alone determine the

proper standard of review, see United States v. Vontsteen, 950 F.2d 1086, 1091

(5th Cir. 1992) (en banc) (holding, in a plain error case, that “no party has the

power to control our standard of review . . . . [and that] the reviewing court

must determine the proper standard on its own”) (emphasis omitted) (citation

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omitted), a review of the record confirms that Herrera–Alvarez did not object

to the sentencing enhancement in the district court. Where, as here, the

defendant fails to object to a sentencing enhancement in the district court, our

review is for plain error only. See FED. R. CRIM. P. 52(b); Puckett v. United

States, 556 U.S. 129, 135 (2009).

III.

This Court has previously held that the Louisiana offense of aggravated

battery under Louisiana Revised Statutes section 14:34 is a crime of violence

under federal statutes and Sentencing Guidelines provisions other than

Sentencing Guidelines § 2L1.2, the provision at issue in this case. See United

States v. Moore, 635 F.3d 774, 777 (5th Cir. 2011) (holding that Louisiana

aggravated battery qualifies as a crime of violence under Sentencing

Guidelines § 4B1.2(a), the career offender sentencing enhancement); United

States v. Rasco, 123 F.3d 222, 227-28 (5th Cir. 1997) (holding that Louisiana

aggravated battery was a “serious violent felony” for purposes of the three-

strikes law, 18 U.S.C. § 3559(c)). As an initial matter, we consider whether

those precedents are controlling in the instant case.

In the past, we have stated generally that “[b]ecause of the similarities

between U.S.S.G. §§ 2L1.2(b)(1)(A), 4B1.2(a), 4B1.4(a), and 18 U.S.C. § 924(e),”

we often treat cases dealing with these provisions “interchangeably.” United

States v. Moore, 635 F.3d 774, 776 (5th Cir. 2011). However, we do not treat

our categorical approach precedents as interchangeable if there is a salient

statutory distinction among the statutes or Guidelines provisions at issue or if

the precedents are otherwise distinguishable. 1 Our opinions in Moore and

1 See United States v. Andino–Ortega, 608 F.3d 305, 310-12 (5th Cir. 2010) (concluding

that because two federal “crime of violence provisions,” 18 U.S.C. § 16(b) and § 2L1.2 of the

Sentencing Guidelines, defined “crime of violence” differently, this Court’s precedent dealing

with § 16(b) was “clearly not controlling” with respect to an issue arising under § 2L1.2(b));

accord, e.g., United States v. Rede–Mendez, 680 F.3d 552, 556 n.2 (6th Cir. 2012) (explaining

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Rasco, though probative, are not controlling in this case. At issue in Moore was

whether the defendant’s Louisiana conviction for aggravated battery with a

motor vehicle was a COV for the purpose of § 4B1.2(a), the career offender

Guideline. 635 F.3d at 776-77. We held that Louisiana aggravated battery

was a crime of violence for the purpose of the residual clause of the career

offender Guideline because it involved conduct that presented “‘a serious

potential risk of physical injury to another’” and it was “‘purposeful, violent,

and aggressive.’” Id. at 777 (quoting U.S.S.G. § 4B1.2(a)). Section 2L1.2, by

contrast, has no comparable residual clause. Moore is therefore

distinguishable from the present case. See Andino–Ortega, 608 F.3d at 310-

12; Rede–Mendez, 680 F.3d at 556 n.2. Our opinion in Rasco is also

distinguishable. There, the defendant did not argue that the offense did not

entail the use, attempted use, or threatened use of physical force. 123 F.3d at

227-28; see Br. of Def.-Appellant 33-34, United States v. Rasco, No. 96-31054,

1997 WL 33617659 (5th Cir. Feb. 10, 1997). In Rasco we did not purport to

resolve whether section 14:34 satisfied the “use of force” prong of § 3559(c)’s

crime of violence definition, and that question was not before the panel. Our

passing statement regarding the use of force under section 14:34 in Rasco is

therefore not controlling here. See, e.g., Thomas v. Tex. Dep’t of Criminal

Justice, 297 F.3d 361, 370 n.11 (5th Cir. 2002) (“Where an opinion fails to

address a question squarely, we will not treat it as binding precedent.”).

While our opinions in Moore and Rasco are probative of whether the

Louisiana offense of aggravated battery qualifies as a crime of violence under

§ 2L1.2, they are not determinative. We therefore turn to the merits of the

that crime of violence precedents interpreting Sentencing Guideline § 4B1.2, 18 U.S.C. § 16,

and 18 U.S.C. § 924(e) “are probative to an interpretation of U.S.S.G. § 2L1.2” if the

precedents are analyzing the same definition of “crime of violence” but that “[c]ases analyzing

the residual clauses, by contrast, are not pertinent”) (citation omitted).

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question presented, whether the Louisiana offense of aggravated battery set

forth in Louisiana Revised Statutes section 14:34 qualifies as a crime of

violence under § 2L1.2 of the Sentencing Guidelines.

IV.

When considering whether a defendant’s prior conviction constitutes a

crime of violence as defined in § 2L1.2 of the Sentencing Guidelines, we use the

“categorical approach” derived from Taylor v. United States, 495 U.S. 575

(1990), and set forth most recently in the Supreme Court’s opinion in Descamps

v. United States, 133 S. Ct. 2276 (2013). See, e.g., United States v. Carrillo–

Rosales, 536 F. App’x 478, 480-81 (5th Cir. 2013) (per curiam) (unpublished)

(applying categorical analysis of Descamps to assess whether a prior conviction

is a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii) of the federal

Sentencing Guidelines). “Although it is a question of federal law whether an

offense constitutes a crime of violence under § 2L1.2, we look to state law to

determine the offense’s nature and whether its violation is a crime of violence

under federal law.” United States v. Martinez–Flores, 720 F.3d 293, 297 (5th

Cir. 2013) (original alterations and quotation marks omitted).

Because § 2L1.2 defines “crime of violence” in two different ways—with

reference to a list of enumerated offenses (the “‘enumerated offense’ prong”)

and with reference to any other offense that “has as an element the use,

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

another” (the “‘use of force’ prong”), we of necessity use slightly different

methodologies to determine whether a prior offense constitutes a crime of

violence under each respective definition. See, e.g., United States v. Mendoza–

Sanchez, 456 F.3d 479, 481-82 (5th Cir. 2006); see also Martinez–Flores, 720

F.3d at 295 (applying same crime-of-violence methodology after the Supreme

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Court issued its opinion in Descamps). 2 Our two methodologies are both

iterations of the elements-based categorical approach set forth in Taylor and

its progeny, with each looking to different sources of guidance. See, e.g.,

Descamps, 133 S. Ct. at 2281. Under the “enumerated offense” prong, we

conduct a “common-sense” categorical approach, looking to various sources—

such as “the Model Penal Code, the LaFave and Scott treatises, modern state

codes, and dictionary definitions”—to define each crime by its “generic,

contemporary meaning.” E.g., Moreno–Florean, 542 F.3d at 449 (citation and

quotation marks omitted). Under the “use of force” prong, we analyze whether

the offense has as an element the use, attempted use, or threatened use of

physical force. Id. The “force” necessary under this provision must rise to the

level of “destructive or violent force”; mere “offensive touching” with a deadly

weapon is insufficient. United States v. Dominguez, 479 F.3d 345, 348 (5th Cir.

2007). Under both approaches, we determine the elements to which a

defendant pleaded guilty by analyzing the statutory definition of the offense,

not the defendant’s underlying conduct. See, e.g., Descamps, 133 S. Ct. at 2281;

see also, e.g., Patel, 526 F.3d at 802 (“The purpose of the categorical approach

is to avoid the practical difficulties and fairness problems that would arise if

courts were permitted to consider the facts behind prior convictions which

would potentially require federal courts to relitigate a defendant’s prior

conviction in any case where the government alleged that the defendant’s

actual conduct fit the definition of a predicate offense.”).

If we determine that the statute of conviction as a whole does not

categorically qualify as a crime of violence, but the statute is divisible, then we

apply a variant of the categorical approach—the “modified categorical

2 If the offense qualifies as a crime of violence under one prong, we need not also

consider whether it falls under the other. See Flores–Gallo, 625 F.3d at 821.

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approach.” Descamps, 133 S. Ct. at 2281. However, for the modified

categorical approach to apply, the defendant must have been convicted under

a truly divisible statute—i.e., one that “comprises multiple, alternative

versions of the crime”—before it is proper to engage in the modified categorical

approach. Id. at 2284. Under the modified categorical approach, we may

“consult a limited class of documents, such as indictments and jury

instructions, to determine which alternative formed the basis of the

defendant’s prior conviction. The court can then do what the categorical

approach demands: compare the elements of the crime of conviction (including

the alternative element used in the case) with the elements of the generic

crime,” id. at 2281, or, as the case may be, assess whether the crime of

conviction has as an element the use, attempted use, or threatened use of

physical force. Those records are “generally limited to . . . the charging

document, written plea agreement, transcript of plea colloquy, and any explicit

factual finding by the trial judge to which the defendant assented.” Shepard

v. United States, 544 U.S. 13, 16 (2005). “By reviewing the extra-statutory

materials approved in those cases, courts c[an] discover ‘which statutory

phrase’ contained within a statute listing ‘several different’ crimes, ‘covered a

prior conviction.’” Descamps, 133 S. Ct. at 2285 (citations omitted).

A.

As an initial matter, we agree with Herrera–Alvarez that Louisiana

Revised Statutes section 14:34 as a whole criminalizes conduct that would not

entail the “use, attempted use, or threatened use of force.” U.S.S.G. § 2L1.2

cmt. (1)(B)(iii). Under § 2L1.2, “the ‘force’ necessary to make an offense a COV

[is] synonymous with ‘destructive or violent force’”; “offensive touching” is

insufficient. Dominguez, 479 F.3d at 348 (citing, inter alia, United States v.

Sanchez–Torres, 136 F. App’x 644, 647-48 (5th Cir. 2005) (holding Washington

fourth-degree assault statute does not qualify as a crime of violence because it

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could be committed by an “offensive touching”)); see Johnson v. United States,

559 U.S. 133, 140 (2010) (holding, in a case arising under the Armed Career

Criminal Act, that “in the context of a statutory definition of ‘violent felony,’

the phrase ‘physical force’ means violent force—that is, force capable of causing

physical pain or injury to another person”). “However, the touching of an

individual with a deadly weapon creates a sufficient threat of force to qualify

as a crime of violence.” Dominguez, 479 F.3d at 348.

Reading the relevant statutes together, the Louisiana offense of

aggravated battery set forth in section 14:34 consists of the following elements:

(1) “a battery,” LA. REV. STAT. § 14:34—namely, (a) “the intentional use of force

or violence upon the person of another” or (b) “the intentional administration

of a poison or other noxious liquid or substance to another,” id. § 14:33—(2)

that is “committed with a dangerous weapon,” id. § 14:34, which is defined as

(a) “any gas, liquid or other substance or instrumentality” (b) “which, in the

manner used, is calculated or likely to produce death or great bodily harm,” id.

§ 14:2(3). We agree with Herrera–Alvarez that his prior Louisiana conviction

for aggravated battery does not qualify as a “crime of violence” under the “force

or violence” prong of § 2L1.2 because the Louisiana definition of battery

includes the administration of poison, which does not necessarily entail the use

of physical force. See United States v. Villegas–Hernandez, 468 F.3d 874, 879

(5th Cir. 2006) (holding that the Texas crime of simple assault, TEX. PEN. CODE

§ 22.01(a), is not a crime of violence that has as an element the use, attempted

use, or threatened use of physical force because a conviction could be sustained

under that section, inter alia, the defendant merely “ma[de] available to the

victim a poisoned drink while reassuring him the drink is safe,” which would

not entail “destructive or violent physical force”). Under the reasoning of

Villegas–Hernandez, the harmful effect of the poison itself is not sufficient to

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furnish the destructive or violent physical force that the “use of force” prong of

§ 2L1.2 demands. See id.

Likewise, Louisiana’s section 14:34 criminalizes conduct broader than

that contemplated in § 2L1.2 because it covers poisoning without necessarily

requiring the use of violent or destructive physical force. See LA. REV. STAT.

§ 14:33(b) (defining “battery” as “the intentional administration of a poison or

other noxious liquid or substance to another”); id. § 14:2(3) (defining

“dangerous weapon” to include a “gas, liquid, or other substance, . . . which, in

the manner used, is calculated or likely to produce death or great bodily

harm”); State v. Smith, 907 So. 2d 192, 193, 197-98 (La. Ct. App. 2005)

(upholding conviction of aggravated battery under section 14:34 for

intentionally spraying victim with chemicals from a crop-duster plane). As in

Villegas–Hernandez, a perpetrator under Louisiana’s section 14:34 could

simply administer a poison or other substance without necessarily using

“destructive or violent force.” Dominguez, 479 F.3d at 348; see Villegas–

Hernandez 468 F.3d at 679. 3 In summary, Louisiana Revised Statutes section

14:34 as a whole does not necessarily include, as an element, the use,

attempted use, or threatened use of destructive or violent physical force as

required under the “use of force” prong of § 2L1.2 of the Sentencing Guidelines.

We therefore turn to the modified categorical approach.

3 That is not to say that a poison or other harmful chemical could never be applied

with violent physical force. Cf. State v. Mayeaux, 570 So. 2d 185, 192 (La. Ct. App. 1990)

(upholding conviction under section 14:34 for soliciting co-conspirator’s attack on victim by

throwing acid into her face, blinding her and causing severe burns). But under the

categorical approach, we are tasked with inquiring whether the requisite violent force must

necessarily be present in every case.

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B.

As set forth above, under the modified categorical approach, if a statute

contains multiple, disjunctive subsections, we may look beyond the statute to

certain conclusive records made or used in adjudicating guilt to determine

which particular statutory alternative applies to the defendant’s conviction.

See Descamps, 133 S. Ct. at 2281, 2283-86; Shepard, 544 U.S. at 16. We first

consider whether the statute of conviction is disjunctive. See Descamps, 133

S. Ct. at 2281, 2283-86. “Aggravated battery” is defined as “a battery

committed with a dangerous weapon,” LA. REV. STAT. § 14:34, and “battery” is

defined in the disjunctive: namely, “the intentional use of force or violence upon

the person of another; or the intentional administration of a poison or other

noxious liquid or substance to another,” id. § 14:33 (emphasis added). Section

14:34, by incorporating section 14:33’s disjunctive definition of “battery,” in

effect criminalizes two distinct offenses—an aggravated battery committed by

the intentional administration of poison or other noxious liquid or substance

and an aggravated battery committed by the intentional use of force or violence

upon the person of another. Section 14:34 is therefore disjunctive.

Next, we look to the “charging document, written plea agreement,

transcript of plea colloquy,” and so on, to narrow down the statute between the

disjunctive subsections. Shepard, 544 U.S. at 16. 4 Based on the state charging

4 A criminal information may be properly considered as a charging document under

Shepard, but only if the criminal information charges the defendant with a crime of which

he or she was actually convicted. Compare, e.g., Bonilla, 524 F.3d at 652-53 (“Because the

criminal information charges a crime of which Bonilla was not convicted, it cannot be used to

pare down the statute of conviction to determine under which subsection Bonilla pleaded

guilty. Therefore, the district court could not consider the criminal information to establish

that Bonilla’s offense qualified as a crime of violence.”) (citations, quotation marks, and

alterations omitted), with, e.g., United States v. Ramirez, 731 F.3d 351, 354 (5th Cir. 2013)

(using criminal information for modified categorical approach), United States v. Ortiz-Gomez,

562 F.3d 683, 685 (5th Cir. 2009) (same), and Perez-Munoz v. Keisler, 507 F.3d 357, 359 (5th

Cir. 2007) (same). Herrera–Alvarez acknowledges that he was convicted of the same crime

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document, we ascertain that Herrera–Alvarez was convicted under the latter

offense under section 14:34. The criminal information charging Herrera–

Alvarez with aggravated battery alleged in pertinent part that on April 26,

2009, Herrera–Alvarez “did, willfully and unlawfully commit an aggravated

battery with a dangerous weapon, to-wit: knife, on one Nicholas Marrogain, in

violation of the provisions of R.S. 14:34.” (Emphasis omitted.) This charging

information allows us to narrow down the elements of the offense of which

Herrera–Alvarez was convicted under section 14:34. Because the information

specifies that Herrera–Alvarez was convicted of the offense using a knife, we

can rule out the possibility that Herrera–Alvarez was convicted under the

“poison” prong of the definition of “battery” set forth in section 14:33. We can

also rule out the possibility that he was convicted of using a “gas, liquid, or

other substance” constituting a “dangerous weapon” under section 14:2(3).

Thus, under the modified categorical approach, we may narrow down the

elements of the offense of which Herrera–Alvarez was convicted as follows: (1)

“a battery,” LA. REV. STAT. § 14:34—namely, “the intentional use of force or

violence upon the person of another,” id. § 14:33—(2) that is “committed with

a dangerous weapon,” id. § 14:34, which here means (a) “any . . .

instrumentality” that (b) “in the manner used, is calculated or likely to produce

death or great bodily harm,” id. § 14:2(3).

We therefore repeat our categorical analysis and consider whether the

offense, as narrowed, criminalizes conduct that does not involve the use,

attempted use, or threatened use of force. See Descamps, 133 S. Ct. at 2281

(explaining that if the court can narrow the statute of conviction pursuant to

the modified categorical approach, we “can then do what the categorical

set forth in the criminal information. We may properly consider that document under

Shepard and Bonilla.

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approach demands”). As we emphasized above, “the ‘force’ necessary to make

an offense a COV [is] synonymous with ‘destructive or violent force,’” and

“offensive touching” is insufficient. Dominguez, 479 F.3d at 348 (citing, inter

alia, United States v. Sanchez–Torres, 136 F. App’x 644, 647-48 (5th Cir. 2005)

(holding that Washington fourth-degree assault statute does not qualify as

COV because it could be committed by an “offensive touching”)); see Johnson,

559 U.S. at 140 (holding that “in the context of a statutory definition of ‘violent

felony,’ the phrase ‘physical force’ means violent force—that is, force capable of

causing physical pain or injury to another person,” and rejecting the

government’s argument that the common-law definition of the crime of battery,

which “held this element of ‘force’ to be satisfied by even the slightest offensive

touching,” should govern the definition under the Armed Career Criminal Act).

However, we held that “the touching of an individual with a deadly weapon

[does] create[ ] a sufficient threat of force to qualify as a crime of violence.”

Dominguez, 479 F.3d at 348.

We conclude that that the Louisiana crime of aggravated battery under

section 14:34, as narrowed under the modified categorical approach to exclude

poisoning, is a crime of violence because it necessarily contains, as an element,

the use, attempted use, or threatened use of force. Louisiana aggravated

battery requires both physical contact and the use of a dangerous weapon

“which, in the manner used, is calculated or likely to produce death or great

bodily harm.” LA. REV. STAT. § 14:2(3); see Dominguez, 479 F.3d at 348 (holding

that the “touching of an individual with a deadly weapon creates a sufficient

threat of force to qualify as a crime of violence”); cf. Rede–Mendez, 680 F.3d at

556, 558 (holding that because New Mexico’s simple assault statute did not

necessarily require the use of force or physical force, but could instead be

satisfied by “insulting language,” the addition of the “use of a deadly weapon”

element to the aggravated assault statute did not necessarily transform the

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offense into a crime of violence and noting that an offense could qualify as a

crime of violence “when the touching is accompanied by a deadly weapon

. . . and the use of a deadly weapon . . . transform[s] a lesser degree of force into

the necessary ‘violent force’”).

Herrera–Alvarez argues that under Louisiana law, aggravated assault

may be committed by physical contact which is “merely offensive,” which is

insufficient to render the offense a crime of violence, citing the Louisiana

Supreme Court’s opinions in State v. Dauzat, 392 So. 2d 393, 396 (La. 1980),

and State v. Schenck, 513 So. 2d 1159, 1165 (La. 1987), in which the court

stated that the element of “use of force or violence upon the person of another”

may be satisfied by physical contact that is “injurious or merely offensive.”

Neither Dauzat nor Schenck supports Herrera–Alvarez’s argument in favor of

reversal. In both cases, the Louisiana Supreme Court was discussing the

physical contact required for simple battery, not aggravated battery. See

Dauzat, 392 So. 2d at 396 & n.3; Schenck, 513 So. 2d at 1165 (approving

conviction for simple battery). Herrera–Alvarez was charged with aggravated

battery, which “is a battery committed with a dangerous weapon,” LA. REV.

STAT. § 14:34, which, as pared down pursuant to the modified categorical

approach, as discussed above, is defined as “any . . . instrumentality . . . which,

in the manner used, is calculated or likely to produce death or great bodily

harm,” id. § 14:2(3). This element requires a risk of harm above and beyond

merely “offensive touching” because, as Herrera–Alvarez acknowledges, we

have held that “the touching of an individual with a deadly weapon creates a

sufficient threat of force to qualify as a crime of violence.” Dominguez, 479

F.3d at 348.

Herrera–Alvarez further maintains that Louisiana aggravated battery

does not require any touching with a weapon because the offense can be

committed while the defendant merely possesses the dangerous weapon, citing

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No. 12-41425

State v. Howard, 638 So. 2d 216, 217 (La. 1994) (per curiam). In Howard, the

Louisiana Supreme Court upheld the defendant’s aggravated battery

conviction under section 14:34 against a sufficiency-of-the-evidence challenge.

Id. at 216. The defendant was charged with aggravated battery after he

grabbed his girlfriend by the shoulders as he attempted to pull her from the

back of a vehicle during an argument and the gun that he was holding in one

hand accidentally discharged, injuring her. Id. at 217. The court upheld the

conviction, reasoning that “[a]ny rational factfinder could have determined . . .

that the defendant had intentionally used force or violence against the victim

with a dangerous weapon when he took his gun in hand, grabbed [the victim]

by her shoulders, and attempted to pull her out of the [vehicle]. That the

defendant did not specifically intend the much greater degree of harm inflicted

on the victim when the gun discharged did not prevent the jury from taking

into account those reasonably foreseeable consequences which aggravate the

seriousness of a battery offense in assessing the culpability of his act.” Id.

(citation omitted). The Louisiana Supreme Court’s application of section 14:34

in Howard does not take that offense out of the purview of § 2L1.2’s “use of

force” prong. Just as in Dominguez, when we observed that “the touching of

an individual with a deadly weapon creates sufficient threat of force to qualify

as a crime of violence,” 479 F.3d at 348, in Howard, the Louisiana Supreme

Court concluded that the violent force intentionally applied to the victim,

accompanied by the use of a deadly weapon that, in the manner used, was

likely to cause great bodily injury or death, made the defendant’s conduct

sufficient to sustain a conviction under section 14:34. See 638 So. 2d at 217.

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No. 12-41425

We conclude that this is sufficient to qualify the offense as a crime of violence

under § 2L1.2’s “use of force” prong. 5

V.

For the foregoing reasons, we conclude that that the Louisiana crime of

aggravated battery under section 14:34, as narrowed under the modified

categorical approach to exclude poisoning, is a crime of violence under § 2L1.2

of the Sentencing Guidelines because it contains, as an element, the use,

attempted use, or threatened use of force. Accordingly, we AFFIRM.

5 Accordingly, we do not reach the government’s alternative contention that the

Louisiana offense of aggravated battery under section 14:34 qualifies as a crime of violence

under § 2L1.2 because it is equivalent to the enumerated offense of “aggravated assault.” See

Flores–Gallo, 625 F.3d at 821 (noting that if an offense qualifies as a COV under the “use of

force” prong of § 2L1.2, we have discretion not to first consider whether it qualifies as an

enumerated offense); cf., e.g., Bonilla, 524 F.3d at 654 (holding that where a state statute

“encompass[es] criminal acts involving a less culpable mens rea than” the enumerated crime,

it “criminalize[s] conduct broader than the plain and ordinary definition of” the generic

enumerated crime); Uppal v. Holder, 605 F.3d 712, 719 (9th Cir. 2010) (collecting cases that

have “taken note of the distinction between general and specific intent in the assault and

battery contexts” for purposes of the categorical approach); Rede–Mendez, 680 F.3d at 557

(concluding that New Mexico aggravated assault is not equivalent to the generic,

contemporary meaning of aggravated assault because, among other reasons, “[u]nlike the

Model Penal Code or LaFave definitions, the New Mexico statute does not require specific

intent to injure or to frighten the victim. Instead, aggravated assault in New Mexico requires

general criminal intent”).

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