United States v. Gabino Osorio ( 2018 )


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  •      Case: 16-20681      Document: 00514482327         Page: 1    Date Filed: 05/22/2018
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    No. 16-20681
    Fifth Circuit
    FILED
    May 22, 2018
    UNITED STATES OF AMERICA,                                                Lyle W. Cayce
    Clerk
    Plaintiff - Appellee
    v.
    GABINO MEDINA OSORIO, also known as Gabino Medina, also known as
    Gambino Medina, also known as Gabino Osorie Medina, also known as
    Gabino Osorio Medina,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 4:16-CR-79-1
    Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.
    PER CURIAM:*
    Gabino Medina Osorio pled guilty to illegal reentry after a prior removal.
    The district court determined that his 1994 aggravated assault conviction was
    for a “crime of violence” under 18 U.S.C. § 16(b). On appeal, Medina Osorio
    argues that Section 16(b) is unconstitutionally vague and that his aggravated
    assault conviction is not a crime of violence under Section 16(b). Though the
    * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH
    CIR. R. 47.5.4.
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    Supreme Court recently agreed Section 16(b) was too vague insofar as it
    required deportation, this court even more recently has held that Section
    16(b)’s vagueness does not affect its use under the discretionary Sentencing
    Guidelines. We reform the judgment in one respect and AFFIRM.
    FACTUAL AND PROCEDURAL BACKGROUND
    In July 2011, police in Houston, Texas, arrested Gabino Medina Osorio.
    He admitted to being a citizen of Mexico illegally in the United States after
    being previously removed, thereby violating 8 U.S.C. § 1326. He pled guilty
    without a plea agreement to a violation of 8 U.S.C. § 1326(a) and (b)(2).
    The pre-sentencing report (“PSR”) applied the 2015 United States
    Sentencing Guidelines. Medina Osorio’s Section 1326 conviction received a
    base offense level of eight pursuant to Guidelines Section 2L1.2. The PSR also
    recommended an enhancement for his 1994 conviction for aggravated assault
    under Texas Penal Code § 22.02(a). The final PSR determined that the 1994
    conviction was a crime of violence under 18 U.S.C. § 16, which meant that it
    was an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(f) and Guidelines
    Section 2L1.2(b)(1)(C), warranting an eight-level enhancement.          Medina
    Osorio objected to this categorization. Medina Osorio’s criminal history put
    him in Category IV. Taking into account his base level of eight, an eight-level
    enhancement, and a three-level reduction for acceptance of responsibility, his
    advisory Guidelines range was 24–30 months.
    At the sentencing hearing in the United States District Court for the
    Southern District of Texas, Medina Osorio argued that his 1994 conviction for
    aggravated assault did not warrant an eight-level enhancement. The district
    court disagreed, concluding the offense was a crime of violence under Section
    16(b) and thus an aggravated felony. The Government requested an upward
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    variance. The district court agreed and imposed a sentence of 71 months.
    Medina Osorio timely appealed.
    DISCUSSION
    Medina Osorio challenges his eight-level sentencing enhancement. The
    relevant enhancement in Section 2L1.2(b)(1)(C) provides for an increase of
    eight levels if the predicate offense is an aggravated felony under 8 U.S.C.
    § 1101(a)(43). Aggravated felonies include “crimes of violence,” defined as
    (a) an offense that has as an element the use, attempted use, or
    threatened use of physical force against the person or property of
    another, or
    (b) any other offense that is a felony and that, by its nature,
    involves a substantial risk that physical force against the person
    or property of another may be used in the course of committing the
    offense.
    18 U.S.C. § 16. Medina Osorio argues first that Section 16(b) as incorporated
    into the Guidelines is unconstitutionally vague. He also argues that even if we
    disagree with him on vagueness, his 1994 conviction did not satisfy the
    definition of Section 16(b), so it did not warrant the enhancement. Last, he
    argues that even if resentencing is not warranted, his judgment should be
    corrected because Section 16(b) as incorporated into Section 1326(b)(2) is
    unconstitutionally vague.
    I.      Constitutional vagueness of Section 16(b)
    To challenge his eight-level enhancement, Medina Osorio renews the
    argument first made at sentencing that Section 16(b) is unconstitutionally
    vague.    Because Section 16(b) is unconstitutionally vague, Medina Osorio
    continues, the district court erred in using that definition to hold that his 1994
    conviction was an aggravated felony under Section 1101(a)(43)(F), which is
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    what warranted the eight-level enhancement under Guidelines Section
    2L1.2(b)(1)(C).    In the district court, the Government cited authority that
    Section 16(b) was not vague. Since its original brief on appeal, the Government
    has also argued that the Guidelines are not subject to vagueness challenges.
    Uncertainties at the time of sentencing have largely been eliminated.
    The Supreme Court has held that Section 16(b) as incorporated in the removal
    provisions of the Immigration and Nationality Act is unconstitutionally vague.
    Sessions v. Dimaya, 
    138 S. Ct. 1204
    , 1223 (2018). That Court had also held
    that the Guidelines themselves are not subject to a vagueness challenge.
    Beckles v. United States, 
    137 S. Ct. 886
    , 890 (2017).         The Beckles Court
    emphasized an important distinction between Guidelines and vague statutes:
    because the Guidelines simply guide the discretion of the sentencing court as
    it chooses an appropriate sentence, they do not present the due process
    concerns of lack of notice to those who might break the law. 
    Id. at 892.
             The final question is how Dimaya and Beckles are to be read together.
    Yet again, we have a resolution of that issue. Another panel of the court held
    that because Beckles determined that the Guidelines are not subject to
    vagueness challenges, neither is the language of a statute that is incorporated
    by reference into the Guidelines. United States v. Godoy, 17-10838, 
    2018 WL 2207909
    , at *5 (5th Cir. May 14, 2018). Even after Dimaya, then, the language
    of Section 16(b) is as usable as a definition for the Guidelines as it would have
    been had the language been, figuratively, cut and pasted into them. 
    Id. at *7.
    We thus reject Medina Osorio’s vagueness argument.
    II.     The 1994 conviction as a crime of violence
    Medina Osorio argues that even if Section 16(b) is still relevant under
    the Guidelines, the eight-level enhancement contained in Guidelines Section
    2L1.2(b)(1)(C) should not have been applied because his conviction did not
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    satisfy the requirements of Section 16(b)’s definition. The Government bears
    the burden of proving by a preponderance of the evidence that the conviction
    qualifies for an enhancement. See United States v. Herrera-Solorzano, 
    114 F.3d 48
    , 50 (5th Cir. 1997).          This court reviews the district court’s
    determination of whether a conviction is a predicate offense de novo. United
    States v. Medina-Anicacio, 
    325 F.3d 638
    , 643 (5th Cir. 2003).
    To determine if a conviction is a predicate offense under the Guidelines,
    this court applies the categorical approach, looking at the elements of the prior
    state law offense rather than facts specific to the conviction. See United States
    v. Conde-Castaneda, 
    753 F.3d 172
    , 175 (5th Cir. 2014) (citing Descamps v.
    United States, 
    133 S. Ct. 2276
    , 2281 (2013)). If a statute is divisible, meaning
    that it includes alternative elements, a modified categorical approach is
    applied. Mathis v. United States, 
    136 S. Ct. 2243
    , 2248–49 (2016).
    Elements are components of the offense’s legal definition that require
    jury unanimity. 
    Id. at 2248.
    These are to be distinguished from means, which
    are the various factual bases for committing an offense. 
    Id. at 2249.
    If a
    statute is divisible, then under the modified categorical approach, a court
    determines which elements applied to the defendant’s conviction by examining
    the charging instrument, plea agreement, or plea colloquy. 
    Id. (citing Shepard
    v. United States, 
    544 U.S. 13
    , 26 (2005)). If a particular statute is not divisible,
    then the court determines “whether the least culpable act constituting a
    violation of that statute constitutes” a predicate offense. United States v.
    Moreno-Florean, 
    542 F.3d 445
    , 449 (5th Cir. 2008) (quoting United States v.
    Gonzalez-Ramirez, 
    477 F.3d 310
    , 315–16 (5th Cir. 2007)).
    Both parties agree that Medina Osorio’s 1994 aggravated assault
    conviction requires examining two Texas statutes, one for the base offense of
    simple assault and another for the aggravating factors.
    Under Texas law, an assault occurs when a person
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    (1) intentionally, knowingly, or recklessly causes bodily injury to
    another, including the person’s spouse; or
    (2) intentionally or knowingly threatens another with imminent
    bodily injury, including the person’s spouse; or
    (3) intentionally or knowingly causes physical contact with
    another when the person knows or should reasonably believe that
    the other will regard the conduct as offensive or provocative.
    TEX. PENAL CODE § 22.01(a) (West 1993).
    An assault is aggravated when a person
    (1) causes serious bodily injury to another, including the person’s
    spouse;
    (2) threatens with a deadly weapon or threatens to cause bodily
    injury [to specified employees, including peace officers], when the
    person knows or has been informed the person assaulted is [one of
    the specified public employees]:
    (A) while the [specified public employee] is lawfully discharging an
    official duty; or
    (B) in retaliation for or on account of an exercise of official power
    or performance of an official duty as a [specified public employee];
    or
    (3) causes bodily injury to a participant in a court proceeding when
    the person knows or has been informed the person assaulted is a
    participant in a court proceeding:
    (A) while the injured person is lawfully discharging an official
    duty; or
    (B) in retaliation for or on account of the injured person’s having
    exercised an official power or performed an official duty as a
    participant in a court proceeding; or
    (4) uses a deadly weapon.
    
    Id. § 22.02(a).
          The parties agree that Section 22.01 contains three different offenses for
    simple assault. Applying the modified-categorical approach, the parties also
    agree that Medina Osorio was previously convicted of bodily-injury assault
    under Section 22.01(a)(1) with an additional aggravating factor under Section
    22.02. Because the parties agree that the statute containing the aggravating
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    factors is indivisible, the case turns on whether the least culpable conduct
    constituting an offense under the statute is a crime of violence under Section
    16(b). The parties agree that the least culpable offense is recklessly causing
    bodily injury to a peace officer.
    The district court concluded that Medina Osorio’s 1994 aggravated
    assault conviction was a crime of violence under Section 16(b). Because his
    conviction was for a crime of violence, which is an aggravated felony under
    Section 1101(a)(43)(F), it applied the eight-level enhancement in Guidelines
    Section 2L1.2(b)(1)(C). Medina Osorio challenges this determination, and the
    Government maintains that the conviction is for a crime of violence either
    under Section 16(b) or at least under Section 16(a).
    Under Section 16(b), a felony offense that “by its nature, involves a
    substantial risk that physical force against the person or property of another
    may be used in the course of committing the offense” is a crime of violence. 18
    U.S.C. § 16(b). The requisite force under Section 16 is “destructive or violent
    force.” United States v. Villegas-Hernandez, 
    468 F.3d 874
    , 879 (5th Cir. 2006)
    (citation omitted). The risk of the use of force does not have to occur in every
    offense. United States v. Galvan-Rodriguez, 
    169 F.3d 217
    , 219 (5th Cir. 1999).
    Rather, the analysis asks whether there is “a strong probability” that the
    application of physical force will occur during the commission of the particular
    crime. 
    Id. The strong
    probability or “[t]he ‘substantial risk’ in § 16(b) relates
    to the use of force, not to the possible effect of a person’s conduct.” Leocal v.
    Ashcroft, 
    543 U.S. 1
    , 10 n.7 (2004).
    Medina Osorio argues that the bodily-injury assault on a peace officer in
    Texas can be committed through the reckless, indirect causation of injury and
    thus without the use of the violent or destructive physical force that Section
    16(b) requires. The Government responds that though reckless assault on a
    peace officer may be committed without violence, the nature of confronting a
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    peace officer makes the risk of the use of physical force more likely. The
    Government cites several Texas aggravated assault cases in which a
    confrontation with a peace officer involved the defendant’s use of physical
    force.
    In resolving the issue, we first note that recklessness is a sufficient mens
    rea for a crime of violence under Section 16. United States v. Sanchez-Espinal,
    
    762 F.3d 425
    , 431 (5th Cir. 2014). Similarly, hypotheticals about ways that
    bodily-injury assault may be committed without force are not dispositive.
    “Being able to imagine unusual ways the crime could be committed without
    the use of physical force does not prevent it from qualifying as a crime of
    violence under § 16(b).” Perez-Munoz v. Keisler, 
    507 F.3d 357
    , 364 (5th Cir.
    2007) abrogated on other grounds by 
    Mathis, 136 S. Ct. at 2243
    . Instead, this
    court looks to the context of the specific offense at issue to determine whether
    it involves a “strong probability” of the use of physical force. 
    Sanchez-Espinal, 762 F.3d at 431
    .
    In Sanchez-Espinal, we determined whether a conviction for aggravated
    criminal contempt qualified as a crime of violence under Section 16(b). 
    Id. at 430.
    The statute of conviction made it a crime to “cause physical injury to a
    victim for whose benefit an order of protection ha[d] been previously issued
    against the defendant.” 
    Id. at 431.
    We held that the offense was a crime of
    violence under Section 16(b). 
    Id. In making
    this determination, we considered
    the context for the offense. 
    Id. These protective
    orders were often issued in
    domestic violence or family offense cases in which tension in the relationship
    between the victim and the defendant already existed.              
    Id. Further, a
    defendant committing this offense would be knowingly violating the court’s
    order. 
    Id. at 431–32.
          “These elements — a discordant history between the
    victim and the defendant leading to a court order of protection, which the
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    defendant knowingly violates” — supported finding that the offense, “by its
    nature, entails a high probability that physical force will be used.” 
    Id. at 432.
           We also held that the same was true for convictions for “‘intentionally,
    knowingly, or recklessly caus[ing] bodily injury to another,’ committed against
    a household or family member, or person in a dating relationship with the
    defendant.” United States v. Gonzalez-Longoria, 
    831 F.3d 670
    , 678 (5th Cir.
    2016) (en banc) (citation omitted), cert. denied, No. 16-6259, 
    2018 WL 2186220
    (U.S. May 14, 2018), abrogated in part by 
    Dimaya, 138 S. Ct. at 1223
    . Our en
    banc decision, released before the Supreme Court in Beckles held that the
    Guidelines were not subject to vagueness challenges, remains relevant to
    applying the Guidelines. We held that the offense, like the one in Sanchez-
    Espinal, involved “a substantial risk that, in the course of its commission, force
    will be used against another.” 
    Id. at 678.
           As to assaults on peace officers, an assailant must know that the target
    is a peace officer, and the peace officer must be “lawfully discharging an official
    duty.” TEX. PENAL CODE § 22.02(a)(2). This, like the offense in Sanchez-
    Espinal, requires the defendant to flout the officer’s authority and necessarily
    involves a risk of a violent confrontation with the officer.
    Medina Osorio identifies several cases arising under this provision
    where the use of requisite force allegedly was not present. 1 These cases do not
    compel a contrary conclusion. For example, he discusses an instance of bodily-
    injury assault on a peace officer where the defendant kicked the rear window
    of a police cruiser, which later shattered and injured the police officer standing
    in front of it. Riley v. State, No. 03-10-00229-CR, 
    2011 WL 5335387
    , at *1, *5
    1In addition to these three cases, Medina Osorio cited Seaton v. Texas, 
    385 S.W.3d 85
    (Tex. App.—San Antonio 2012, pet. ref’d). There, though, the aggravating factor was for an
    assault committed “by a public servant acting under color of the servant’s office or
    employment.” 
    Id. at 88
    (quoting TEX. PENAL CODE ANN. § 22.02(b)(2)(A)). Our focus here is
    on assault on a peace officer, not assault by a peace officer.
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    (Tex. App.—Austin Nov. 4, 2011, pet. ref’d) (mem. op., not designated for
    publication). There, though, it appeared that the use of force (the kicking of
    the window) was intentional, while the resulting injury to the police officer was
    only reckless. 
    Id. at *4–5.
    As the Supreme Court in Leocal made clear, the
    focus is on the use of force and not its 
    effect. 543 U.S. at 10
    n.7.
    Medina Osorio also cites a case where the defendant was convicted for
    assault on a peace officer after kicking the door of a police car, causing the
    police officer, who was responding to the 911 call, to fall and injure his elbow.
    Rodriguez v. State, No. 13-10-406-CR, 
    2011 WL 345934
    , at *1, *4 (Tex. App.—
    Corpus Christi Feb. 3, 2011, pet. ref’d, untimely filed) (mem. op., not
    designated for publication). Similarly, there it seems the kick was intentional,
    as it was accompanied by a statement from the defendant that “he was not
    going to jail.” 
    Id. at *1.
          In one final case, the defendant was convicted of assault because his
    jerking away from the officer caused the officer to fall. Caldwell v. State, No.
    05-04-01243-CR, 
    2005 WL 1667555
    , at *2 (Tex. App.—Dallas July 18, 2005, no
    pet.) (not designated for publication). The officer was responding to a domestic
    disturbance call. 
    Id. at *1.
    When the officer attempted to make the arrest, the
    defendant struggled with the officer, causing the fall that injured the officer.
    
    Id. at *2.
    Admittedly, this conduct may not reach the level of “destructive or
    violent force” required by Section 16(b). See United States v. Herrera-Alvarez,
    
    753 F.3d 132
    , 141 (5th Cir. 2014). Section 16(b), though, does not require the
    use of force in every instance of the offense. See 
    Galvan-Rodriguez, 169 F.3d at 219
    .    Instead, we examine the offense to determine if there is a strong
    probability of the use of force. 
    Id. Notably, in
    each of these instances, the
    victim’s role as a police officer contributed in some way to the escalation that
    ultimately resulted in the injury.
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    Considering the context of a bodily-injury assault on a police officer, we
    conclude that the offense involves a substantial risk of the use of physical force
    and is thus a crime of violence under Section 16(b). As a result, the district
    court did not err in sentencing Medina Osorio to 71 months.
    III.     Correction of the judgment
    Medina Osorio also argues that Section 16(b) is unconstitutionally vague
    as it is incorporated into Section 1326(b)(2).       Even if resentencing is not
    warranted, he argues that the judgment should be corrected to reflect the
    appropriate statute. The district court’s conclusion that Medina Osorio had
    previously been convicted of a Section 16 crime of violence meant that he was
    subject to the twenty-year statutory maximum contained in Section 1326(b)(2)
    as opposed to the ten-year maximum contained in Section 1326(b)(1).
    We held in Godoy “that Dimaya very clearly speaks to situations where
    a sentencing maximum or minimum is statutorily fixed.” 
    2018 WL 2207909
    ,
    at *8. As a result, a Section 16(b) offense may not be used as the basis of a
    Section 1326(b)(2) conviction. 
    Id. at *9.
             The Government has an alternative argument, namely, that Medina
    Osorio’s conviction is a crime of violence under Section 16(a) because the use
    of force is an element of the offense. The Government concedes that we have
    previously held that the use of force is not an element of the underlying assault
    offense. See 
    Villegas-Hernandez, 468 F.3d at 879
    . The Government asserts
    that this decision was abrogated by the Supreme Court. See Voisine v. United
    States, 
    136 S. Ct. 2272
    , 2279 (2016); United States v. Castleman, 
    134 S. Ct. 1405
    , 1412 (2014). The Government’s abrogation argument also is foreclosed.
    United States v. Rico-Mejia, 
    859 F.3d 318
    , 322–23 (5th Cir. 2017).
    Medina Osorio’s 1994 conviction is not a crime of violence under Section
    16(a).     In Godoy, we reformed the judgment to indicate that Godoy was
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    sentenced under Section 1326(b)(1). We do the same now. As was the case in
    Godoy, and as the parties concede here, this conclusion requires only that the
    judgment be corrected. A remand for resentencing is not necessary.
    We AFFIRM the judgment as REFORMED.
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