United States v. Guadalupe Torres-Jaime , 821 F.3d 577 ( 2016 )

Case: 15-40208 Document: 00513475803 Page: 1 Date Filed: 04/21/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-40208
Fifth Circuit
FILED
April 21, 2016
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
GUADALUPE TORRES-JAIME,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before CLEMENT, GRAVES, and COSTA, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
Guadalupe Torres-Jaime (“Torres-Jaime”) challenges the district court’s
sixteen-level “crime of violence” sentencing enhancement pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(ii) based on his prior Georgia aggravated assault conviction.
Torres-Jaime urges us to find—in direct contrast to Fifth Circuit decisions
holding otherwise—that his conviction under Georgia Code § 16-5-21(a)(2) 1
does not constitute a § 2L1.2 enumerated crime of violence. We AFFIRM the
judgment of the district court.
1 This subsection is now numbered § 16-5-21(b)(2). See GA. CODE § 16-5-21 (2015). This opinion
continues to refer to § 16-5-21(a)(2), the designation of the statute as it existed at the time of Torres-
Jaime's conviction.
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I.
In October 2014, Guadalupe Torres-Jaime pleaded guilty, without the
benefit of a written plea agreement, to a single count of illegal re-entry after
deportation. The Presentence Investigation Report determined Torres-Jaime’s
total offense level to be twenty-one, which included a sixteen-level
enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) because Torres-Jaime’s
2014 Georgia felony conviction for aggravated assault qualified as a “crime of
violence” within § 2L1.2. His total offense level of twenty-one, when combined
with his criminal history category of III, yielded a recommended guidelines
range of forty-six to fifty-seven months’ imprisonment.
Torres-Jaime objected to the sixteen-level enhancement, arguing that
his prior Georgia aggravated assault offense was not a crime of violence under
the Guidelines. The district court overruled Torres-Jaime’s objection,
downwardly departed, and sentenced him to thirty-two months’ imprisonment.
Torres-Jaime timely appealed.
II.
We consider this single issue: whether Torres-Jaime’s aggravated
assault conviction under Georgia Code § 16-5-21(a)(2) constitutes an
enumerated crime of violence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). We
review the district court’s interpretation or application of the Guidelines de
novo and its factual findings for clear error. United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Section 2L1.2 of the Sentencing Guidelines provides that the offense
level for unlawfully entering or remaining in the United States shall be
increased by sixteen levels if the defendant has a prior conviction for a crime
of violence. See § 2L1.2(b)(1)(A)(ii). The commentary to § 2L1.2 defines “crime
of violence” as (1) any specific enumerated offense, including “aggravated
assault” or (2) “any other offense under federal, state, or local law that has as
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an element the use, attempted use, or threatened use of physical force against
the person of another.” § 2L1.2, comment. (n.1(B)(iii)).
We use different tests “when analyzing whether a particular offense
amounts to a [crime of violence], and the test used depends on whether the
offense is an enumerated one or has physical force as an element.” United
States v. Moreno-Florean, 542 F.3d 445, 449 (5th Cir. 2008). Because the state
crime at issue is the enumerated offense of “aggravated assault,” we apply a
“common sense” approach that looks to the “generic, contemporary meaning”
of an offense listed in § 2L1.2 to assess whether the offense of conviction
amounts to an enumerated offense. United States v. Esparza-Perez, 681 F.3d
228, 229 (5th Cir. 2012). To determine this “plain, ordinary meaning,” we look
to various sources including the Model Penal Code, Professor LaFave’s
Substantive Criminal Law treatise, modern state statutes, and legal
dictionaries. United States v. Mungia-Portillo, 484 F.3d 813, 816 (5th Cir.
2007); see Esparza-Perez, 681 F.3d at 229. “When comparing the state
conviction with the generic, contemporary meaning of the crime, we examine
the elements of the statute of conviction rather than the specifics of the
defendant’s conduct. We look only to the particular subdivision of the statute
under which the defendant was convicted.” United States v. Fierro-Reyna, 466
F.3d 324, 327 (5th Cir. 2006) (citation omitted).
If the defendant was convicted under a statute that is “narrower than
the generic crime” or that mirrors the generic definition with only “minor
variations,” the enhancement may stand. United States v. Herrera, 647 F.3d
172, 176 (5th Cir. 2011). But if the statute of conviction “encompasses
prohibited behavior that is not within the plain, ordinary meaning of the
enumerated offense, the conviction is not a crime of violence as a matter of
law.” Esparza-Perez, 681 F.3d at 230 (internal quotation marks omitted).
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Moreover, under the common sense approach, “if the statute of conviction
contains a series of disjunctive elements, this court may look beyond the
statute to certain records made or used in adjudicating guilt to determine
which subpart of the statute formed the basis of the conviction.” Moreno-
Florean, 542 F.3d at 449; see Mungia-Portillo, 484 F.3d at 815. Qualifying
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.’” United States v. Herrera-Alvarez,
753 F.3d 132, 138 (5th Cir. 2014) (quoting Shepard v. United States, 544 U.S.
13, 16 (2005)). If such Shepard-compliant documents cannot narrow the
conviction, we determine whether the “least culpable act constituting a
violation of that statute” necessarily entails the use of force or constitutes the
enumerated offense. United States v. Gonzalez-Ramirez, 477 F.3d 310, 315–16
(5th Cir. 2007).
The State’s indictment charged Torres-Jaime with violating Georgia
Code § 16-5-21. Under Georgia law, a person commits an aggravated assault
when he assaults:
(1) With intent to murder, to rape, or to rob;
(2) With a deadly weapon or with any object, device, or instrument which,
when used offensively against a person, is likely to or actually does result
in serious bodily injury; or
(3) A person or persons without legal justification by discharging a
firearm from within a motor vehicle toward a person or persons.
GA. CODE § 16-5-21(a) (2013). In order to commit an aggravated assault under
Georgia law, a person must also commit the offense of simple assault. Guyse
v. State, 690 S.E.2d 406, 409 (Ga. 2010). A person commits a simple assault
when he either “(1) [a]ttempts to commit a violent injury to the person of
another; or (2) [c]ommits an act which places another in reasonable
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apprehension of immediately receiving a violent injury.” GA. CODE § 16-5-20(a)
(2015).
Here, the indictment charges a violation of § 16-5-21, but does not specify
the particular simple assault subsection, § 16-5-20(a)(1) or § 16-5-20(a)(2),
under which Torres-Jaime was convicted. Torres-Jaime asserts that the court
must analyze it as an aggravated assault under subpart (a)(2) of Georgia’s
simple assault statue because this is the “least culpable act constituting a
violation of the statute.” See Gonzalez-Ramirez, 477 F.3d at 315–16. The
Government maintains, however, that Torres-Jaime’s indictment reflects the
subsection language of § 16-5-20(a)(1), attempting to “commit a violent injury.”
In exploring this critical determination, we look to Torres-Jaime’s
Shepard-approved charging document. See Shepard, 544 U.S. at 25; United
States v. Rodriguez, 711 F.3d 541, 549 n.8 (5th Cir. 2013). The State of Georgia
indictment charged Torres-Jaime with aggravated assault and alleged that:
On August 8, 2013, Torres-Jaime “did unlawfully make an assault
upon the person of Marten Tzun, driver[,] and Leidi Latin-Garcia,
passenger[,] with his 2000 Chevrolet Express Van, an instrument
which when used offensively against a person is likely to result in
serious bodily injury by repeatedly ramming into Marten Tzun’s
2006 Nissan Pathfinder with said Chevrolet Express Van . . . .”
The judgment indicates that Torres-Jaime pleaded guilty to “[a]ggravated
assault” and was given an eight-year felony sentence, which was probated.
Our analysis leads us, first, to conclude that the description of Torres-
Jaime’s conduct, as quoted above, unquestionably tracks the aggravated
assault language of § 16-5-21(a)(2). Accordingly, we look only to subsection
(a)(2) to determine whether the statute of conviction should be classified as a
crime of violence. See Esparza-Perez, 681 F.3d at 231. Additionally, the
language of Torres-Jaime’s indictment expressed above more closely tracks the
language for simple assault under § 16-5-20(a)(1). To reiterate, Torres-Jaime
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was charged with “mak[ing] an assault upon the [victims] . . . with his 2000
Chevrolet Express Van” that was “likely to result in serious bodily injury.” It
is true that this qualifying record does not expressly specify the statutory
subsection; but, it does demonstrate the manner in which Torres-Jaime acted,
by repeatedly ramming his vehicle into that of his victims, and suggests what
his mens rea may have been. Thus, it appears that his aggravated assault
charge falls under subpart (1) of the statute, i.e., that Torres-Jaime “attempted
to commit a violent injury to the person of another,” rather than subpart (2),
which requires the commission of “an act which places another in reasonable
apprehension of immediately receiving a violent injury.”
Having narrowed Torres-Jaime’s conviction, we return to the question of
whether Torres-Jaime’s aggravated assault conviction constitutes a crime of
violence for purposes of § 2L1.2(b)(1)(a)(ii). Notably, Torres-Jaime does not
challenge any determination that a conviction for aggravated assault with a
deadly weapon under § 16-5-21(a)(2), where the predicate assault is committed
under § 16-5-20(a)(1), constitutes a crime of violence for purposes of
§ 2L1.2(b)(1)(a)(ii). Instead, his argument on appeal is grounded in subpart (2)
of the Georgia assault statute (as incorporated into the aggravated assault
statute), which, he contends, proscribes conduct outside the common,
contemporary definition of “aggravated assault.” More specifically, he asserts
that, under § 16-5-20(a)(2), unlike the Model Penal Code’s definition of
aggravated assault, the Georgia offense of aggravated assault with a deadly
weapon does not require an intent to injure. Torres-Jaime argues that the
Georgia offense does not constitute generic aggravated assault because it does
not require proof that the defendant intentionally or knowingly caused or
attempted to cause bodily injury. See Dunagan v. State, 502 S.E.2d 726, 730
(Ga. 1998), overruled on other grounds by Parker v. State, 507 S.E.2d 744 (Ga.
1998) (holding that to prove the use of a deadly or offensive weapon that put
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the victim in a reasonable apprehension of immediately receiving a violent
injury, the State must prove the intent to commit the act of using a deadly or
offensive weapon, not an intent to make the victim apprehensive).
We do not agree, especially having already determined that the conduct
described in Torres-Jaime’s indictment places his conviction squarely under §
16-5-20(a)(1). Thus, we need not consider Torres-Jaime’s arguments, requiring
that we shift our focus to the “least culpable” means of committing aggravated
assault under Georgia law. But, even if we did consider them, his arguments
are still unavailing.
We have identified the Model Penal Code as our “primary source for the
ordinary meaning” of aggravated assault. United States v. Hernandez-
Rodriguez, 788 F.3d 193, 197 (5th Cir. 2015). The Model Penal Code defines
“aggravated assault” as occurring when a person “‘attempts to cause serious
bodily injury to another, or causes such injury purposely, knowingly or
recklessly under circumstances manifesting extreme indifference to the value
of human life’” or “‘attempts to cause or purposely or knowingly causes bodily
injury to another with a deadly weapon.’” Id. (quoting MODEL PENAL CODE §
211.1(2)(a), (b)). “Deadly weapon” is defined by the Model Penal Code as “any
firearm or other weapon, device, instrument, material or substance, whether
animate or inanimate, which in the manner it is used or is intended to be used
is known to be capable of producing death or serious bodily injury.” MODEL
PENAL CODE § 210.0(4). “Looking also to other approved sources, we have noted
that ‘[t]he generic, contemporary meaning of aggravated assault is an assault
carried out under certain aggravating circumstances,’ and that ‘[a]ssault, in
turn, requires proof that the defendant either caused, attempted to cause, or
threatened to cause bodily injury or offensive contact to another person.’”
Hernandez-Rodriguez, 788 F.3d at 197 (quoting Esparza-Perez, 681 F.3d at 231
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(citing, inter alia, Black’s Law Dictionary 130 (9th ed. 2009); Wayne R. LaFave,
2 Substantive Criminal Law § 16.3 (2d ed. 2014))).
We have held in a series of unpublished decisions that the Georgia
offense of aggravated assault is a crime of violence under § 2L1.2. See United
States v. Soto-Romero, 491 F. App’x 481, 482 (5th Cir. 2012); United States v.
Gonzalez-Flores, 228 F. App’x 491, 491–92 (5th Cir. 2007); see also United
States v. Hyrtado, 551 F. App’x 161, 162 (5th Cir. 2014) (analyzing whether the
Georgia offense of aggravated assault was a crime of violence under U.S.S.G.
§ 2K2.1). Unpublished opinions, although not precedential, may be considered
persuasive authority. See Ballard v. Burton, 444 F.3d 391, 401 & 401 n.7 (5th
Cir. 2006). We are persuaded that each decision, upon comparison of the
Georgia crime and the generic crime under the common sense approach,
confirms that Torres Jaime’s conviction qualifies as a crime of violence under
§ 2L1.2.
In Gonzalez-Flores, the defendant argued that his Georgia aggravated
assault conviction did not constitute a crime of violence under
§ 2L1.2(b)(1)(A)(ii). 228 F. App’x at 491. We used a “common sense approach,”
and “h[e]ld that the generic, contemporary meaning of the offense of
aggravated assault includes the intentionally-caused apprehension of injury, 2
W.R. LaFave & A. Scott, Substantive Criminal Law, § 16.3 (2d ed. 2005), and
that Gonzalez’s Georgia offense f[ell] within that generic, contemporary
meaning.” Id. (citing United States v. Santiesteban-Hernandez, 469 F.3d 376,
378–79 (5th Cir. 2006), abrogated on other grounds by Rodriguez, 711 F.3d at
554–55; United States v. Sanchez-Ruedas, 452 F.3d 409, 411, 414 (5th Cir.
2006)).
In Soto-Romero, the defendant argued that his Georgia aggravated
assault conviction was not a crime of violence under § 2L1.2(b)(1)(A)(ii) because
it was not an enumerated offense and it did not implicate § 2L1.2’s “use of
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force” prong. 491 F. App’x at 482. Under plain error review, we again held that
“[u]sing a ‘common sense approach,’ . . . the generic, contemporary meaning of
the offense of aggravated assault includes the intentionally-caused
apprehension of injury,” and concluded “that Soto-Romero’s Georgia offense
f[ell] within that generic, contemporary meaning.” Id. (citing Santiesteban-
Hernandez, 469 F.3d at 378–79; Sanchez-Ruedas, 452 F.3d at 411, 414). 2
In Hyrtado, the defendant argued that his Georgia aggravated assault
convictions were not crimes of violence under U.S.S.G. § 2K2.1. 551 F. App’x
at 161. For an offense to qualify as a crime of violence under § 2K2.1, it must
either “(1) contain as a statutory element the use, attempted use, or threatened
use of physical force against the person of another; (2) belong to the list of
enumerated offenses; (3) or fall under the residual clause of [U.S.S.G.]
§ 4B1.2(a)(2) by presenting a serious risk of physical injury to another.” See
Hyrtado, 551 F. App’x at 162 (internal quotations marks omitted). The list of
enumerated offenses includes “aggravated assault.” U.S.S.G. § 4B1.2,
comment. (n.1.).
Reviewing the issue under the plain error standard of review, we stated
that we had “not previously addressed whether the statute of conviction, Ga.
Code § 16-5-21(a)(2), [wa]s a [crime of violence].” Hyrtado, 551 F. App’x at 162.
After reviewing the statute, we concluded that any differences between the
statute and the “generic, contemporary definition of ‘aggravated assault’” were
“immaterial” and therefore Hyrtado’s convictions were crimes of violence
because they belonged to the list of enumerated offenses. Id. (citing Esparza-
Perez, 681 F.3d at 231–32; United States v. Rojas-Gutierrez, 510 F.3d 545, 549
2 Notably, the charging language of Torres-Jaime’s indictment parallels the charging language
in Soto-Romero, which stated that the defendant “did unlawfully make an assault upon the [victim]
. . . with an object, device and instrument, to wit: a beer bottle, which when used offensively against a
person is likely to and actually did result in serious bodily injury.” There, we held, as we hold here,
that the Georgia offense of aggravated assault is a crime of violence under § 2L1.2.
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n.5 (5th Cir. 2007)). We alternatively concluded that the convictions were
crimes of violence under the residual clause of § 4B1.2, comment. (n.1). Id.
Torres-Jaime urges that we disregard the foregoing unpublished
opinions because the issue was reviewed for plain error in Soto-Romero and
Hyrtado, because none of the decisions indicate whether the court addressed
the issues raised in the instant appeal, and because none of the opinions
provide analysis for the conclusions reached. That is not the case.
Delving just below the opinions’ surfaces (i.e., considering the Fifth
Circuit precedent and sources cited therein), the reasoning for those decisions
can be extrapolated from their citations to Professor LaFave’s treatise,
Santiesteban-Hernandez, and Sanchez-Ruedas. See Soto-Romero, 491 F. App’x
at 482; Gonzalez-Flores, 228 F. App’x at 491. In Santiesteban-Hernandez, we
stated that the sources of generic, contemporary meaning for the enumerated
offenses include treatises. 469 F.3d at 379. According to 2 W.R. LaFave & A.
Scott, Substantive Criminal Law, § 16.3 (2d ed. 2015),
[t]he principal question concerning the crime of assault [is]
whether it is to be limited to the situation of the attempted battery
(requiring an actual intent to cause a physical injury, not just an
apprehension of such an injury); or whether it should include, in
addition, the civil-assault situation of the intentionally-caused
apprehension of injury.
The treatise further provides that “[t]he weight of authority, fortified by
the modern trend, is to include the latter situation as well as the former in the
scope of the crime of assault.” 2 W.R. LaFave & A. Scott, Substantive Criminal
Law, § 16.3 (2d ed. 2015). Consequently, we concluded in Gonzalez-Flores and
Soto-Romero that the generic, contemporary meaning of aggravated assault
included the intentionally caused apprehension of injury. See Soto-Romero, 491
F. App’x at 482; Gonzalez-Flores, 228 F. App’x at 491.
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Our analyses in those prior decisions also rested, in part, on Sanchez-
Ruedas. See Soto-Romero, 491 F. App’x at 482; Gonzalez-Flores, 228 F. App’x
at 491. In Sanchez-Ruedas, we held that the “subtle difference” between the
Model Penal Code’s mens rea attaching to the “serious bodily injury
requirement” and the California statute’s focus on the defendant’s intentional
conduct, and not the ultimate result, was insufficient to remove the California
statute from the commonly defined term “aggravated assault.” 3 452 F.3d at
414. We explained that the California statute at issue proscribed “‘willfully or
purposefully’ attempting ‘violent injury’ (which California defines as ‘the least
touching’) committed by any means of force likely to produce great bodily
injury.” Id. (quoting People v. Colantuono, 865 P.2d 704, 709 (Cal. 1994)).
“Thus, in California, the defendant need not specifically intend great bodily
injury, but need only intentionally engage in conduct that will likely produce
that.” Sanchez-Ruedas, 452 F.3d at 414 (citing Colantuono, 865 P.2d at 709(providing that although, under the California assault statute, the defendant
“must intentionally engage in conduct that will likely produce injurious
consequences, the prosecution need not prove a specific intent to inflict a
particular harm”)). Thus, in Gonzalez-Flores and Soto-Romero we concluded
that the Georgia statute’s focus on the defendant’s intentional conduct as
opposed to his intended result would not preclude the offense of conviction from
falling within the contemporary, ordinary meaning of aggravated assault. See
Soto-Romero, 491 F. App’x at 482; Gonzalez-Flores, 228 F. App’x at 491.
3 The California statute read: “Any person who commits an assault upon the person of another
with a deadly weapon or instrument other than a firearm or by any means of force likely to produce
great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years,
or in a county jail not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or
by both the fine and imprisonment.” See Sanchez-Ruedas, 452 F.3d at 413 (footnote omitted). “Assault”
was defined as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the
person of another.” See id. at 413 n.4.
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Torres-Jaime, however, points to our recent published opinion in
Hernandez-Rodriguez, 788 F.3d 193 (5th Cir. 2015), as intervening authority
and urges us to find that case instructive here. We do not.
In Hernandez-Rodriguez, the defendant challenged a sixteen-level
§ 2L1.2(b)(1)(A)(ii) enhancement to his offense level based upon his prior
Louisiana conviction for aggravated battery, which could be committed by,
inter alia, intentionally administering poison. 788 F.3d at 194, 196. The
defendant argued that the Louisiana statute was broader than the generic,
contemporary definition of aggravated assault because the Louisiana offense
was one of general intent, while the generic offense of aggravated assault
required a showing of specific intent. Because the criminal intent under
Louisiana law attached to the defendant’s conduct (i.e., the intentional use of
force or administration of poison) rather than to the result of that conduct (i.e.,
causing bodily injury), and the opposite was true of the generic offense, he
argued that his conviction did not qualify as a crime of violence. Id. at 197.
Upon review, we concluded that the least culpable means of committing
aggravated battery under Louisiana law, which involved the administration of
poison, involved conduct beyond the scope of the generic, contemporary
meaning of aggravated assault. Id. at 198. We determined that the Louisiana
offense did not require the infliction of serious bodily injury or the intent to
inflict serious injury while the Model Penal Code “require[d] specific intent to
cause bodily injury.” Id. Moreover, with respect to the deadly weapon
alternative, the defendant, under the Model Penal Code, had to either “attempt
to cause” or “purposely or knowingly cause” bodily injury. Id.
In so holding, we rejected the government’s argument that the intent to
cause bodily injury could be inferred from the use of a dangerous weapon that,
in the manner used, was likely to produce death or bodily harm because
Louisiana law did not require that the defendant specifically intend the result.
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Id. at 199. We also rejected the government’s argument that the differences
between the Louisiana statute and the Model Penal Code were minor such that
the Louisiana statute still fell within the generic, contemporary meaning of
aggravated assault. Id. at 199–200. We acknowledged that, in Sanchez-
Ruedas, we concluded that the difference between the California statute’s focus
on intentional conduct and the Model Penal Code’s focus on the intentional
result did not remove the California statute from the generic, contemporary
meaning of aggravated assault. Id. But, we distinguished the Louisiana
aggravated battery statute at issue in Hernandez-Rodriguez from the
California offense of assault with a deadly weapon at issue in Sanchez-Ruedas
by noting that the California statute had not been interpreted as broadly as
the Louisiana statute. Id. at 200.
Several distinctions between Hernandez-Rodriguez and the present case
result in its inapplicability here. First, Torres-Jaime provides no evidence that
the Georgia statute is interpreted and applied as broadly as the Louisiana
statute that we examined in Hernandez-Rodriguez—i.e., such that the Georgia
statute would apply to the “administration of a noxious substance” committed
without intended physical force. We find such an application unlikely because
even considering the Georgia statute most broadly, it allows only for the “act
of using an instrument offensively.” Thus, there is no reason to believe that the
“non-violent administration of poison” would qualify as the offensive use of an
instrument under Georgia’s statute (the statutory language of § 16-5-21(b)(2),
which reads “[w]ith a deadly weapon or with any object, device, or
instrument”). Rather than controlling the present case, Hernandez-Rodriguez
is more analogous to our holding in Esparza-Perez, which determined that
there were material differences between the Model Penal Code and Arkansas’s
aggravated assault statute—which made it a crime to purposely engage in
conduct that creates a substantial danger, under circumstances that
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“manifest[] extreme indifference to the value of human life.” See Esparza-
Perez, 681 F.3d at 232. Here, the statute when read in combination with the
dangerous weapon requirement establishes sufficiently similar criminal intent
to satisfy the common sense test; any differences between the statutes amount
to minor variations that do not preclude a finding of equivalence.
Accordingly, we hold that Torres-Jaime’s conviction for Georgia
aggravated assault qualifies as a crime of violence under § 2L1.2.
III.
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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GREGG COSTA, Circuit Judge, dissenting:
The strong interest in uniform application of the law means that we
should usually follow unpublished decisions. But the difference between
published and unpublished decisions must mean something. Otherwise, we
should just “publish” everything and give all opinions the weight of binding
authority. 1
This case does not require fleshing out the full contours of when the
desire for consistency that should ordinarily lead us to follow unpublished
decisions should give way to the interest in getting the law right. For it
involves a situation in which a departure from nonprecedential authority
should not be controversial: when a key legal premise of those unpublished
decisions is revealed to be demonstrably false. That is the case here with
respect to our prior, unpublished rulings which incorrectly assumed that the
Georgia assault statute requires intentionally causing apprehension of violent
injury.
But before addressing Georgia’s “placing another in reasonable
apprehension” assault statute, I first respond to the majority opinion’s initial
holding that such an inquiry is unnecessary because the indictment narrows
Torres-Jamie’s offense to the separate “attempts to commit a violent injury to
the person of another” assault provision. GA. CODE § 16-5-20(a)(1) (2013); Maj.
Op. at 5–7). The indictment does narrow the “aggravated” portion of the state
offense by “unquestionably track[ing]” (Maj. Op. at 5) the statutory language
of committing an assault with an “instrument which, when used offensively
1There is something to be said for this. See generally Anastasoff v. United States, 223
F.3d 898, 899 (8th Cir. 2000), opinion vacated on reh’g en banc, 235 F.3d 1054 (8th Cir. 2000).
But our practice, for better or worse, is to have unpublished decisions that are only persuasive
and published decisions that are binding.
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against a person, is likely to or actually does result in serious bodily injury.”
GA. CODE § 16-5-21(b)(2) (2013). The indictment does not, however, invoke the
language of either alternative in the underlying assault statute: “(1) [a]ttempts
to commit a violent injury to the person of another; or (2) [c]ommits an act
which places another in reasonable apprehension of immediately receiving a
violent injury.” GA. CODE § 16-5-20(a) (2013). The majority opinion
nevertheless finds that the indictment narrows the conviction to the former
because it “more closely tracks” that language, “suggests what his mens rea
may have been,” and thus “appears” to involve the attempt to commit a violent
injury to another. Maj. Op. at 5–6. No authority is cited for this inference-
based approach to the modified categorical inquiry. Such speculation should
not be part of that inquiry, which focuses on whether formal documents from
the state court case help narrow a conviction to the elements the court or jury
was “actually required” to find. Taylor v. United States, 495 U.S. 575, 602
(1990). And inferring which Georgia assault provision was more likely at issue
in Torres-Jamie’s case from the facts—as opposed to elements—recited in the
indictment is what the Supreme Court recently warned against: turning an
“elements-based inquiry into an evidence-based one . . . makes examination of
extra-statutory documents not a tool used in a ‘narrow range of cases’ to
identify the relevant element from a statute with multiple alternatives, but
rather a device employed in every case to evaluate the facts that the judge or
jury found.” Descamps v. United States, 133 S. Ct. 2276, 2287 (2013).
Although its determination that the conviction fell under the intent to
injure provision would be sufficient to reject the appeal, the majority opinion
nonetheless proceeds to spend the bulk of the opinion addressing the possibility
that is not foreclosed by the indictment language: that the state conviction
involved the “reasonable apprehension” assault provision. This brings us to its
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reliance on the unpublished decisions mentioned at the outset. The central
reasoning of the two decisions that actually included any analysis 2 is that “the
generic, contemporary meaning of the offense of aggravated assault includes
the intentionally-caused apprehension of injury.” United States v. Gonzalez-
Flores, 228 F. App’x 491, 491 (5th Cir. 2007); United States v. Soto-Romero, 491
F. App’x 481, 482 (5th Cir. 2012) (using nearly identical language). But
Georgia does not require that the apprehension be intentionally caused. The
Supreme Court of Georgia has held that “[t]he crime of aggravated assault . . .
is established by the reasonable apprehension of harm by the victim of an
assault by a firearm rather than the assailant’s intent to injure. All that is
required is that the assailant intend to commit the act which in fact places
another in reasonable apprehension of injury, not a specific intent to cause
such apprehension.” Smith v. State, 629 S.E.2d 816, 818 (Ga. 2006); see also,
Adams v. State, 667 S.E.2d 186, 190 (Ga. Ct. App. 2008) (“In an aggravated
assault case involving the use of a deadly weapon, all that is required is that
the assailant intend to commit the act which in fact places another in
reasonable apprehension of injury, and not a specific intent to cause such
apprehension.”) (internal quotations omitted); Wroge v. State, 629 S.E.2d 596,
598 (Ga. Ct. App. 2006) (similar).
This difference is significant because the treatise cited by the majority
opinion and the prior unpublished opinions specifies that “Assault as
Intentional Scaring” requires intent to cause apprehension:
2United States v. Hyrtado, in which we reviewed for plain error a crime of violence
sentencing enhancement applied under a different sentencing provision, does not mention
anything about the causing apprehension provision of the Georgia statute. Nor does it
provide any other explanation for why Georgia’s statute fell within the generic definition.
551 F. App’x 161, 162 (5th Cir. 2014).
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It is sometimes stated that this type of assault is committed
by an act . . . which reasonably causes another to fear bodily injury.
This statement is not quite accurate, however, for one cannot (in
those jurisdictions which have extended the tort concept of assault
to criminal assault) commit a criminal assault by negligently or
even recklessly or illegally acting in such a way (as with a gun or
car) as to cause another person to become apprehensive of being
struck. There must be an actual intention to cause apprehension
...
W.R. LAFAVE & A. SCOTT, SUBSTANTIVE CRIMINAL LAW, § 16.3(b) (2d ed. 2005)
(emphasis added). Georgia’s assault statute, which prohibits even negligently
causing apprehension of imminent violent injury, is thus an outlier. Given
that even statutes covering the intentional causing of apprehension lie, at best,
on the outer edges of the contemporary meaning of aggravated assault, 3
removing this intent requirement is more than a subtle difference from the
generic crime.
And finding that a difference in requisite intent puts Georgia’s statute
outside the common definition of assault fits with our recent published decision
in United States v. Hernandez-Rodriguez, 788 F.3d 193 (5th Cir. 2015), which
held that Louisiana’s lack of a specific intent to cause injury requirement
makes that offense broader than generic aggravated assault. The majority
opinion is correct that there is no evidence that Georgia’s statute covers
administration of a noxious substance without physical force. Maj. Op. at 13.
3 See MODEL PENAL CODE § 211.1(2) (causing apprehension of imminent injury not a
part of the definition of aggravated assault); compare LAFAVE, supra, at § 16.3 with id. at
§ 16.3(d) (describing a “modern trend” of including intentionally causing apprehension within
criminal assault, but not noting such a trend for aggravated criminal assault)
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But that isn’t the question. The question is whether, as a practical rather than
theoretical matter, the elements of the statute of conviction encompass conduct
that is not within the ordinary meaning of the generic offense. United States
v. Esparza-Perez, 681 F.3d 228, 230 (5th Cir. 2012). The numerous Georgia
decisions, including one from its highest court, demonstrate the Georgia
offense is broader because it covers conduct in which the defendant did not
intend to cause apprehension of harm even though that fear resulted. And this
lack of an intentionality requirement has real world effect, including in a case
like this one in which an automobile was the weapon. See, e.g., Kirkland v.
State, 638 S.E.2d 784, 785–87 (Ga. Ct. App. 2006) (upholding aggravated
assault conviction based on victim’s apprehension of injury from a defendant
trying to flee in his car, with no evidence of intent to injure or cause
apprehension). As for the California statute that we found qualified as
aggravated assault despite a “subtle difference” between it and the standard
mens rea, United States v. Sanchez-Ruedas, 452 F.3d 409, 414 (5th Cir. 2006),
two features of that assault with a deadly weapon statute still place it far closer
to the core of aggravated assault than the Georgia statue at issue here: it
requires a forcible act, 4 and that force must be likely to produce great bodily
injury, not merely apprehension of harm. 5 Id.When Torres-Jamie argued at sentencing that his Georgia conviction
does not warrant the 16-point “crime of violence” enhancement, the district
4 See Esparza-Perez, 681 F.3d at 231–32 (holding that Arkansas’s statute is not within
the common definition of aggravated assault because it “does not require any contact or injury
or attempt or threat of offensive contact or injury.”) (emphasis in original). And Black’s Law
Dictionary includes threatened, attempted, or actual use of force or battery in all its
definitions of assault, and notes that “[i]n popular language, [assault] has always connoted a
physical attack.” Assault, BLACK’S LAW DICTIONARY (10th ed. 2014).
5 See MODEL PENAL CODE § 211.1(2) (including only conduct related to “bodily injury”
in its two types of aggravated assault).
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judge responded, “I think you may be right.” But she understandably felt that
she should follow the three unpublished decisions of a higher court. We should
exercise our greater freedom to reconsider those decisions and reject them
given the faulty premise on which they were based and their inconsistency with
our published decision in ``Hernandez-Rodriguez. I would therefore vacate the
sentence that was based on the 16-point enhancement.
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