United States v. Fredis Reyes-Contreras , 910 F.3d 169 ( 2018 )

Case: 16-41218 Document: 00514742967 Page: 1 Date Filed: 11/30/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
November 30, 2018
Lyle W. Cayce
No. 16-41218 Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
FREDIS ALBERTO REYES-CONTRERAS,
Also Known as Alberto Contreras-Romero,
Defendant–Appellant.
Appeal from the United States District Court
for the Southern District of Texas
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No. 16-41218
Before STEWART, Chief Judge, JONES, SMITH, DENNIS, OWEN, ELROD,
SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO,
DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges. *
JERRY E. SMITH, Circuit Judge, joined by JONES, OWEN, ELROD,
SOUTHWICK, HAYNES, WILLETT, HO, DUNCAN, ENGELHARDT, and
OLDHAM, Circuit Judges: ∗∗
Fredis Reyes-Contreras pleaded guilty of illegal reentry. Because he had
been convicted of voluntary manslaughter in Missouri, the district court
applied a sentencing enhancement for a crime of violence (“COV”). Well rep-
resented by the Federal Public Defender, Reyes-Contreras appealed to chal-
lenge the enhancement. Burdened by binding caselaw that required us to
declare that killing a person with a baseball bat is not a COV, the panel vacated
for resentencing. 1 The court granted the government’s petition for rehearing
en banc, thus vacating the panel opinion. 2 Finding it necessary to overrule
several of our precedents, we now affirm the judgment of conviction and
sentence.
I.
Reyes-Contreras was deported in 2012 and was apprehended in 2016
immediately upon reentry from Mexico. He admitted to being a citizen of Hon-
duras and pleaded guilty, without a plea agreement, of being found in the
United States unlawfully after having been deported, in violation of 8 U.S.C.
§ 1326(a) and (b) (2012).
* Judge Prado, a member of the panel, retired on April 2, 2018.
∗∗
Chief Judge Stewart and Judges Dennis, Graves, Higginson, and Costa concur in
Parts I through IV and in the judgment. The opinion’s analysis under Shepard v. United
States, 544 U.S. 13 (2005), results in the conclusion that Reyes-Contreras’s prior offense
under Missouri law is equivalent to generic manslaughter, which resolves the case. These
judges would end the analysis there and hence would not reach the opinion’s remaining parts.
1 United States v. Reyes-Contreras, 882 F.3d 113 (5th Cir. 2018).
2 United States v. Reyes-Contreras, 892 F.3d 800 (5th Cir. 2018); 5TH CIR. R. 41.3.
2
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Reyes-Contreras had two Missouri convictions in 2006: one for voluntary
manslaughter in the first degree and a second for armed criminal action. The
presentence report assigned a base offense level of 8 under U.S. SENTENCING
GUIDELINES MANUAL (“U.S.S.G.”) § 2L1.2(a) (2015) 3 and, deeming the volun-
tary manslaughter conviction to be a COV, applied a sixteen-level enhance-
ment under U.S.S.G. § 2L1.2(b)(1)(A)(ii). 4
With respect to the manslaughter conviction, the indictment states that
Reyes-Contreras struck the victim with a baseball bat, causing death. Al-
though he was charged with second-degree murder, a Class A felony, Reyes-
Contreras pleaded guilty of voluntary manslaughter, a Class B felony. The
plea includes neither an elaboration of the facts nor the subsection of convic-
tion. Because the Missouri manslaughter statute criminalizes generic man-
slaughter as well as knowingly assisting another in self-murder, Reyes-
Contreras asserted that the statute is indivisible and overbroad under Mathis
v. United States, 136 S. Ct. 2243 (2016). 5
3 Section 2L1.2 is the guideline for (as it is entitled) “Unlawfully Entering or Remain-
ing in the United States.” Since the 2015 version that applies to Reyes-Contreras, § 2L1.2
has been substantially rewritten and no longer includes the reference to “a crime of violence”
that appears in the 2015 version at § 2L1.2(b)(1)(A)(ii). Instead, the amended guideline gen-
erally refers to the length of sentence that was imposed instead of the nature of the crime.
See U.S.S.G. § 2L1.2(b)(2) (2018). The exception is that the subsection addressing misde-
meanor offenses includes “crimes of violence.” Id. § 2L1.2(b)(2)(E).
4Two levels were subtracted for acceptance of responsibility, and a third level for
timely acceptance was deducted at sentencing, leaving a net base offense level of 21. The
presentence report assigned four criminal history points: three for the Missouri convictions
and one for a 2001 conviction that was later subtracted because it was more than ten years
old. That yielded a Category II criminal history. The resulting guideline range was 41 to 51
months’ imprisonment. The district court sentenced Reyes-Contreras to 41 months.
5 Reyes-Contreras preserved his objection to the enhancement, so our review is
de novo. United States v. Rodriguez, 711 F.3d 541, 548 (5th Cir. 2013) (en banc).
3
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II.
A.
The Sentencing Guidelines, U.S.S.G. § 2L1.2(b)(1)(A)(ii), call for a
sixteen-level enhancement for “a crime of violence.” The Commentary to sub-
section (b)(1) contains a “[d]efinitions” segment, Application Note 1(B)(iii),
which defines “[c]rime of violence” to encompass both an enumerated list of
crimes, including “manslaughter,” and “any other offense . . . that has as an
element the use, attempted use, or threatened use of physical force against the
person of another.” Our main task is to decide whether Reyes-Contreras’s state
conviction is for a COV under one or both of those definitions.
To qualify as an enumerated crime, the statute of conviction must match
the generic offense―here, manslaughter. Mathis, 136 S. Ct. at 2247; Taylor v.
United States, 495 U.S. 575, 598 (1990). 6 Under that so-called “categorical
approach,” the court should “ignor[e] the particular facts of the case” and
instead should ask whether the elements of the crime of conviction and the
elements of the generic crime are sufficiently similar. Mathis, 136 S. Ct. at
2248 (citation omitted). That requires us first to identify the crime of convic-
tion. Where a defendant pleads guilty, the elements are those things he nec-
essarily admits in his plea. Id.
If a statute is divisible, meaning that it describes separate offenses with
distinct elements, we employ the “modified categorical approach,” which dir-
ects us to look only to a limited set of documents to determine which subsection
of the statute was the basis for conviction. Shepard v. United States, 544 U.S.
6 Although Mathis and Taylor, as well as some of the other decisions that we discuss
herein, are decided under the sentence-enhancement provisions of the Armed Career Crim-
inal Act, 18 U.S.C. § 924(e), and not U.S.S.G. § 2L1.2 dealing with unlawful reentry, similar
language appears in each context and has been construed congruently. “[W]e treat cases
dealing with these provisions interchangeably.” United States v. Moore, 635 F.3d 774, 776
(5th Cir. 2011) (per curiam).
4
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13, 25−26 (2005). We then compare the elements of that subsection to the
elements of the generic crime. But if a statute lists means of committing a
single offense, it is indivisible and must be taken as a whole instead of using
the facts of the offense to narrow the statute. Descamps v. United States,
570 U.S. 254, 272−74 (2013).
B.
At the time of conviction, the Missouri voluntary-manslaughter statute
read as follows 7:
1. A person commits the crime of voluntary manslaughter if he:
(1) Causes the death of another person under circum-
stances that would constitute murder in the second degree
under subdivision (1) of subsection 1 of section 565.021, ex-
cept that he caused the death under the influence of sudden
passion arising from adequate cause; or
(2) Knowingly assists another in the commission of self-
murder.
2. The defendant shall have the burden of injecting the issue of
influence of sudden passion arising from adequate cause under
subdivision (1) of subsection 1 of this section.
3. Voluntary manslaughter is a class B felony.
MO. REV. STAT. § 565.023. Missouri second-degree murder has the following
elements 8:
1. A person commits the crime of murder in the second degree
if he:
(1) Knowingly causes the death of another person or,
with the purpose of causing serious physical injury to an-
other person, causes the death of another person . . . .
7Reyes-Contreras was convicted under the 1984 version. Minor linguistic amend-
ments were enacted in 2017, updating “crime” to “offense,” changing “he” to “he or she,” and
adding “the offense of” before “voluntary manslaughter” in section 3.
8 This statute was similarly amended in 2017, changing “crime” to “offense” and “he”
to “he or she.”
5
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Id. § 565.021.
III.
The parties do not dispute that voluntary manslaughter as defined in
Subdivision (1) of Subsection 1 of Section 565.023 9 is a COV meeting the ele-
ments of generic manslaughter. Reyes-Contreras, however, contends that the
statute is indivisible and cannot be generic because Subdivision (2) criminal-
izes assisting another in self-murder. He further asserts that Subdivision (2)
lacks, as an element, the use of force, so it does not qualify under the alternate
definition of a COV.
Reyes-Contreras sufficiently preserved and briefed the issue of divisi-
bility, and the panel addressed it in detail, 882 F.3d at 119−20, “conclud[ing]
that Missouri’s manslaughter statute is divisible,” id. at 119. Although that
issue is still properly before us, we do not understand Reyes-Contreras to be
emphasizing it now. In any event, we maintain our holding that the statute is
divisible under Mathis, 136 S. Ct. at 2256−57, and we reinstate and incor-
porate that part of the panel opinion.
IV.
We must decide whether the basis of Reyes-Contreras’s conviction was
generic manslaughter under Subdivision (1) of the divisible Subsection 1. If,
instead, he was convicted under Subsection 1 as a whole or under only Subdi-
vision (2) of Subsection 1, the enhancement cannot apply unless Subdivi-
sion (2) is generic or “has as an element the use . . . of . . . force.” U.S.S.G.
§ 2L1.2 cmt. 1(B)(iii); see, e.g., United States v. Neri-Hernandes, 504 F.3d 587,
9 The subparts of Section 565.023 are mildly confusing. Subsection 1 of Section
565.023 contains Subdivision (1) and Subdivision (2). When we refer separately to
“Subdivision (1)” or “Subdivision (2),” we mean one of the two constituent parts of
Subsection 1.
6
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589 n.2 (5th Cir. 2007).
A.
As we have said, Shepard directs us to employ the “modified categorical
approach” and to look to “a limited class of documents,” such as the indictment,
jury instructions, and plea agreements and colloquies to determine the crime
of conviction. Mathis, 136 S. Ct. at 2249 (citing Shepard, 544 U.S. at 26).
Those sources may be used not to locate facts supporting a COV enhancement,
but only “as a tool to identify the elements of the crime of conviction.” Id.
at 2253 (citation omitted); see also Descamps, 570 U.S. at 263−64.
Reyes-Contreras’s indictment mentions only second-degree murder and
armed criminal action, with no indication of a lesser-included offense or of
manslaughter as a separate offense. Count One, with which we are concerned,
says that Reyes-Contreras “knowingly or with the purpose of causing serious
physical injury to [the victim] caused [his death] by striking him with a
baseball bat.” That is insufficient to identify the crime of conviction.
B.
In deciding whether Reyes-Contreras was convicted under Subdivi-
sion (1) or Subdivision (2), we are mindful of the general rule that we cannot
use an indictment to narrow the statute of conviction if the indictment is for a
crime different from the crime stated in the judgment of conviction. See United
States v. Turner, 349 F.3d 833, 836 (5th Cir. 2003). The general rule in Turner
was explained further in Neri-Hernandes, 504 F.3d at 590, and United States
v. Bonilla, 524 F.3d 647, 652 (5th Cir. 2008). In Neri-Hernandes, 504 F.3d
at 590, we stated broadly that “the district court cannot use the indictment to
pare down the statute of conviction to determine under which subsection [the
defendant] pleaded guilty” if he never pleaded to the crime in the indictment.
Accord Bonilla, 524 F.3d at 652.
7
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Importantly, for purposes of Reyes-Contreras’s appeal, there is an excep-
tion where the plea references a lesser-included offense, allowing the indict-
ment to clarify any ambiguity in the plea. For example, in United States v.
Martinez-Vega, 471 F.3d 559, 563 (5th Cir. 2006), we looked to an indictment
charging a crime different from the crime stated in the judgment because the
defendant pleaded to “the lesser charge contained in the Indictment.” Thus,
the indictment was used to clarify to which crime the judgment referred.
Similarly, in United States v. Hernandez-Borjas, 641 F. App’x 367, 369 (5th
Cir. 2016) (per curiam), the indictment charged a crime different from the
crime of conviction. But, relying on Martinez-Vega, we looked to the indict-
ment. Id. at 372 (quoting Martinez-Vega, 471 F.3d at 562). Though the
indictment did not spell out a lesser-included offense, its language tracked the
elements of a particular subsection and provided the necessary context to show
that only one lesser-included offense was possible. Thus, “the indictment [was]
relevant to ascertain the meaning of ‘the lesser included offense.’” Id.
Neither Reyes-Contreras’s indictment nor his plea explicitly refers to a
lesser-included offense. It is nonetheless evident, based on the language in the
indictment, that he was charged under Subdivision (1) 10 and not Subdivi-
sion (2). 11 And just as obviously, he pleaded guilty of violating Subdivision (1)
and not Subdivision (2).
The conclusion that Reyes-Contreras was convicted under Subdivi-
sion (1) flows unavoidably from MISSOURI REVISED STATUTES § 565.025.2(2), 12
which delineates Subdivision (1) voluntary manslaughter as a lesser-included
“[C]ircumstances that would constitute murder in the second degree.” MO. REV.
10
STAT. ANN. § 565.023.1(1).
11 “[A]ssist[ing] . . . self-murder.” Id. § 565.023.1(2).
12 This section was transferred to § 565.029 in 2017.
8
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offense of second-degree murder. It does not likewise list voluntary man-
slaughter as a whole or under Subdivision (2). The panel thus concluded,
882 F.3d at 121−22, that “[i]t is clear from Missouri law that [Subdivision] (1)
is the only possible offense in the judgment” and that “the use of ‘first degree’
in the judgment seems to indicate an intention to narrow down” the crime of
conviction. 13
As the panel further recognized, however, under our well-established
rule of orderliness, 14 Bonilla bars that common-sense reasoning. In Bonilla,
we held that
[b]ecause the criminal information[ 15] charges a crime of which Bo-
nilla was not convicted, it cannot be used to “pare down the statute
of conviction to determine under which subsection [Bonilla]
pleaded guilty.” United States v. Neri-Hernandes, 504 F.3d 587,
590 (5th Cir. 2007); see United States v. Gonzalez-Ramirez, 477
F.3d 310, 315 (5th Cir. 2007) (reaching same conclusion when de-
fendant pleaded guilty to attempted kidnapping but indictment
charged only aggravated kidnapping); see also United States v.
Turner, 349 F.3d 833, 836 (5th Cir. 2003) (holding that, in the
context of USSG § 4B1.2, “a district court may not rely on a charg-
ing document without first establishing that the crime charged
was the same crime for which the defendant was convicted”).
13 The Federal Public Defender admitted, at en banc oral argument, that there is no
plausible basis for considering “first degree” to mean “Subdivision (2),” and we decline to treat
the express language of the judgment as an insignificant ink blot. Another reason for narrow-
ing the crime of conviction is that the Missouri indictment contained a second count, “Armed
Criminal Action,” and the judgment so reflected “Armed Criminal Action (Ungraded Felony).”
The armed criminal action charge expressly incorporated the key allegations from the first
count, i.e., that Reyes-Contreras “knowingly or with the purpose of causing serious physical
injury . . . caused the death of Jose Madrigal by striking him with a baseball bat.” This
commonality between the first and second counts is another valid reason for the district court
to use the indictment’s allegations to pare down the manslaughter conviction to
Subdivision (1).
14“[O]nly an intervening change in the law (such as by a Supreme Court case) permits
a subsequent panel to decline to follow a prior Fifth Circuit precedent.” United States v.
Alcantar, 733 F.3d 143, 145 (5th Cir. 2013) (citation omitted).
15 We treat the criminal information in Bonilla (under New York law) as equivalent
to the indictment under Missouri law.
9
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Therefore, the district court could not consider the criminal infor-
mation to establish that Bonilla’s offense qualified as a crime of
violence.
Bonilla, 524 F.3d at 652−53. The corresponding footnote offered further
explanation:
The government relies on . . . United States v. Martinez-Vega,
471 F.3d 559 (5th Cir. 2006) . . . , but this case is distinguishable.
In Martinez-Vega, we held that a judgment . . . showed that he was
convicted of “the lesser charge contained in the indictment.” Id.
at 563 . . . . Because the lesser charge was made clear from the
judgment, and was found by the court as actually being charged in
the original indictment, the applicant could not carry his “burden
of demonstrating plain error.” Id. In this case, we have a certifi-
cate of disposition that does not refer back to a lesser offense in the
original indictment. . . . Further, extending Martinez-Vega to this
situation would unnecessarily bring it into conflict with Neri-
Hernandez and Gonzalez-Ramirez.
Id. at 653 n.4.
This court’s decision in Bonilla defies ordinary logic and is error. Most
importantly, it disobeys Supreme Court precedent. Writing for the Court in
Shepard, 544 U.S. at 16, Justice Souter described the question as “whether a
sentencing court can look to police reports or complaint applications to deter-
mine whether an earlier guilty plea necessarily admitted, and supported a con-
viction for, generic burglary.” The Court closed with the following summary:
We hold that enquiry under the [Armed Career Criminal Act]
to determine whether a plea of guilty to burglary defined by a non-
generic statute necessarily admitted elements of the generic of-
fense is limited to the terms of the charging document, the terms
of a plea agreement or transcript of colloquy between judge and
defendant in which the factual basis for the plea was confirmed by
the defendant, or to some comparable judicial record of this
information.
Id. at 26.
The Shepard Court was wary of undermining the categorical approach
10
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by entertaining “subsequent evidentiary enquiries into the factual basis for the
earlier conviction.” Id. at 20. It extended to guilty-plea cases (such as Reyes-
Contreras’s) its reasoning in Taylor, which imposed the categorical approach
for jury convictions: “Taylor is clear that any enquiry beyond statute and
charging document must be narrowly restricted to implement the object of the
statute and avoid evidentiary disputes.” Id. at 23 n.4 (citing Taylor, 495 U.S.
at 602).
Nothing about Reyes-Contreras’s sentence enhancement even remotely
runs afoul of Shepard, which spoke to avoiding inquiry into whether the min-
ute details of a burglary (whether it involved entry into anything but a struc-
ture) amounted to generic burglary. No investigation of “brute facts,” Mathis,
136 S. Ct. at 2248, is implicated here: Defense counsel acknowledges that the
crime was a killing by baseball bat. There is not―as there was in Shepard―an
argument over the details of the crime, which, in any event, we are instructed
to ignore.
The only “enquiry beyond” is to examine the judgment to understand
that, as the panel explained and we have quoted above, “the use of ‘first degree’
in the judgment seems to indicate an intention to narrow down” the crime of
conviction. Reyes-Contreras, 882 F.3d at 122. It is surely true that Shepard—
by which we are firmly bound—restricts the universe of documents that courts
may consider from a guilty-plea case. But scrutinizing police reports and com-
plaint applications is a far cry from merely referring to the indictment and
actual judgment for the conviction. Nothing in Shepard or Taylor requires us
to act as robots and to ignore the necessary implications from the formal docu-
ments in the file of a judgment of conviction. 16
16 We are in good company in approving of the use of both the charging document
11
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We thus return to Bonilla as the main culprit for this part of the analysis,
remembering that it held that “[b]ecause 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.’” 17 The language from Bonilla quoted above, 524 F.3d at 652−53 & n.4,
is unsustainable. To the extent of that holding and reasoning, Bonilla is
overruled.
In barring use of the indictment, Bonilla relied on Neri-Hernandes. But
that decision, too, is flawed in at least one significant respect. The panel in
Neri-Hernandes pointed to Turner in holding that “the district court cannot
use the indictment to pare down the statute of conviction to determine under
which subsection [the defendant] pleaded guilty.” Neri-Hernandes, 504 F.3d
at 590 (discussing Turner, 349 F.3d at 836).
Turner uses language that can easily be misapplied, as it was in Neri-
Hernandes. It is important to understand the context of Turner: The defen-
dant was indicted for “burglary of a habitation” (a categorical COV) but pleaded
guilty of a lesser-included offense, “burglary of a building” (not a categorical
COV). The sentencing court enhanced by using the indictment. We vacated,
holding that “a district court may not rely on a charging document without first
establishing that the crime charged was the same crime for which the defen-
dant was convicted.” Turner, 349 F.3d at 836 (quotation omitted).
Turner presumably would be proper under Shepard if Turner were
(here, the indictment) and the judgment. The Sixth Circuit held that it is “fair and reasona-
ble” to draw “permissible inferences from . . . prototypical Shepard documents” even where,
as here, the indictment and plea or judgment are somewhat inconsistent. United States v.
Patterson, 878 F.3d 215, 219 (6th Cir.), cert. denied, 138 S. Ct. 273 (2017).
17Bonilla, 524 F.3d at 652 (quoting Neri-Hernandes, 504 F.3d at 590, and citing
United States v. Gonzalez-Ramirez, 477 F.3d 310, 315 (5th Cir. 2007), and Turner, 349 F.3d
at 836).
12
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limited to the uncontroversial proposition that where a defendant pleads to an
offense different from the one that was charged, the charge in the indictment
cannot be, alone, the operative predicate for the categorical approach. But the
Turner panel made sweeping statements that do not comport with a correct
use of the categorical approach. The court said that “the indictment is not
applicable to the analysis of whether the conviction was [a COV].” Id. “Unless
something outside of the indictment or judgment of conviction is considered,
[the] burglary conviction cannot be considered a [COV].” Id. “Under the scen-
ario presented here, reliance on the indictment is inappropriate.” Id. at 837.
In Shepard, 544 U.S. at 26, the Court flatly declared the opposite of Tur-
ner’s broad statements by permitting consideration of “the terms of the charg-
ing document . . . [or] some comparable judicial record of this information.”
That obviously means the court can make reasonable use of the indictment,
together with the judgment, to identify the crime of conviction. To the extent
that Neri-Hernandes imposes a contrary reading of Shepard, Neri-Hernandes
is overruled. 18 And to the extent that Turner excludes the indictment or
judgment from the category of permitted “comparable judicial record[s],” it
likewise is overruled.
In summary, we reiterate our holding that MISSOURI REVISED STATUTES
§ 565.023.1 is divisible. Based on that predicate, we hold that Subdivision (1)
is generic manslaughter and formed the basis of Reyes-Contreras’s conviction.
It is a COV on which the sentencing enhancement was properly based.
18 The overruled portion of Neri-Hernandes consists of the two complete paragraphs
appearing at 504 F.3d at 590, which address the defendant’s assertion “that the district court
erred in looking to the indictment (the charging document) . . . to determine the subsection
. . . under which he was convicted because [he] pleaded to a different offense from that for
which he was indicted . . . .”
13
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V.
A.
Even if we had not held that Section 565.023.1 is divisible and that Sub-
division (1) is generic manslaughter and formed the basis of the conviction, the
statute as a whole can support the enhancement if Subdivision (2) is generic
manslaughter or if it has as an element the use of force. We pretermit a
decision on whether Subdivision (2) is generic manslaughter, a question that
the district court did not consider. Proceeding directly to the use-of-force issue,
we hold, in the alternative, 19 that if Section 565.023.1 is indivisible, Subdivi-
sion (2) has as an element the use of force under a proper understanding of
Supreme Court precedent. The result—which we explain—is that the en-
hancement for a COV is legally correct for an independent reason, regardless
of divisibility. On that additional basis, we separately affirm.
B.
Assisting in self-murder does not require the use of force as this court
heretofore has understood it. 20 Thus, we have held that for the use of force to
be an element, force must be a “constituent part of a claim that must be proved
for the claim to succeed” in every case charging that offense. United States v.
Vargas-Duran, 356 F.3d 598, 605 (5th Cir. 2004) (en banc) (quoting BLACK’S
LAW DICTIONARY 538 (7th ed. 1999)); see also United States v. Calderon-Pena,
383 F.3d 254, 257 (5th Cir. 2004) (en banc) (per curiam) (“[T]he statute of
19 “This circuit follows the rule that alternative holdings are binding precedent and
not obiter dictum.” Texas v. United States, 809 F.3d 134, 178 n.158 (5th Cir. 2015) (quoting
United States v. Potts, 644 F.3d 233, 237 n.3 (5th Cir. 2011)), aff’d by an equally divided
Court, 136 S. Ct. 2271 (2016) (per curiam).
20 The government suggests plain-error review applies because Reyes-Contreras did
not preserve that objection. But the district court did not impose the enhancement on that
ground, so there was no basis for an objection. Reyes-Contreras’s arguments regarding the
use of force anticipate our authority to affirm on any basis found in the record, and we review
them de novo.
14
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conviction, not the defendant’s underlying conduct, is the proper focus.”
(citations omitted)).
Citing Vargas-Duran, 356 F.3d at 599, Reyes-Contreras defines “use of
force” as requiring the deployment of destructive or violent force as distin-
guished from causing bodily injury through indirect means. The government
takes the position that indirect force is sufficient. It urges that United States
v. Castleman, 572 U.S. 157, 162−68 (2014), overruled Fifth Circuit precedent
requiring destructive or violent force by interpreting the use-of-force clause in
18 U.S.C. § 921(a)(33)(A)(ii) to encompass the common-law definition, which
includes offensive touching and indirect applications of force.
1.
Castleman interpreted a statutory provision in the context of domestic
violence and distinguished its broad definition of “force” in that context from
its use in other statutes. 21 The Court clarified that its opinion was tailored to
domestic violence and was not meant to cast doubt on circuit court opinions
construing the meaning of COVs in other arenas. 22 Yet the Court spoke more
broadly in emphasizing that the fact “[t]hat the harm occurs indirectly, rather
than directly . . . , does not matter.” Castleman, 572 U.S. at 171. The question
for us is whether the direct-indirect distinction, inapplicable to domestic
disputes, is otherwise valid.
In United States v. Rico-Mejia, 859 F.3d 318 (5th Cir. 2017) (on petition
for reh’g), a panel held that Castleman does not abrogate our decisions on the
21 Domestic violence is “a term of art encompassing acts that one might not charac-
terize as ‘violent’ in a nondomestic context.” Castleman, 572 U.S. at 165.
22 “Nothing in today’s opinion casts doubt on these [circuit] holdings, because . . .
‘domestic violence’ encompasses a range of force broader than that which constitutes ‘vio-
lence’ simpliciter.” Castleman, 572 U.S. at 164 n.4.
15
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use of force under the Sentencing Guidelines. “By its express terms, Castle-
man’s analysis is not applicable to the physical force requirement for a [COV]
. . . . Accordingly, Castleman does not disturb this court’s precedent regarding
the characterization of [COVs].” Id. at 322–23. Rico-Mejia therefore effec-
tively cabined Castleman to the domestic-violence arena and perpetuated the
distinction between direct and indirect force in other contexts. See id.
The Fifth Circuit stands alone in restricting the reasoning of Castleman
on direct versus indirect force to misdemeanor crimes of domestic violence.
Every other regional court of appeals―that is to say, the First through Elev-
enth Circuits and the District of Columbia Circuit―has squarely rejected the
direct-indirect distinction, and for good reason. 23 In her opinion concurring in
the judgment in Reyes-Contreras, Judge Jones demonstrated why Rico-Mejia
is error and why Castleman “ought to abrogate our decisions holding that
indirect applications of force are distinct and insufficient.” Reyes-Contreras,
882 F.3d at 126 (Jones, J., concurring). Judge Jones concluded,
When every other circuit interprets a Supreme Court decision
in one way, and we interpret it another, it is worth considering
whether we are mistaken. Rico-Mejia devoted a mere three sen-
tences to distinguishing Castleman, and the opinion did not ac-
knowledge the circuit split. Because this court stands alone in
holding the nonsensical position that murdering someone with poi-
son is not a “[COV],” it is time to take another look.
Id. at 127.
23 See, e.g., United States v. Ellison, 866 F.3d 32 (1st Cir. 2017); United States v. Hill,
832 F.3d 135 (2d Cir. 2016); United States v. Chapman, 866 F.3d 129 (3d Cir. 2017), cert.
denied, 138 S. Ct. 1582 (2018); In re Irby, 858 F.3d 231 (4th Cir. 2017); United States v.
Verwiebe, 874 F.3d 258 (6th Cir. 2017), cert. denied, 139 S. Ct. 63 (2018); Hill v. United States,
877 F.3d 717 (7th Cir. 2017); United States v. Rice, 813 F.3d 704 (8th Cir.), cert. denied,
137 S. Ct. 59 (2016); United States v. Calvillo-Palacios, 860 F.3d 1285 (9th Cir. 2017); United
States v. Ontiveros, 875 F.3d 533 (10th Cir. 2017), cert. denied, 138 S. Ct. 2005 (2018); United
States v. Deshazior, 882 F.3d 1352 (11th Cir. 2018), petition for cert. filed (May 1, 2018)
(No. 17-8766); United States v. Redrick, 841 F.3d 478 (D.C. Cir. 2016), cert. denied, 137 S. Ct.
2204 (2017).
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Judge Jones properly observed that “Justice Sotomayor’s analysis in
Castleman is common sense.” Id. at 126. The other circuits are correct. 24 The
panel decision in Rico-Mejia is incompatible with Castleman, and we expressly
disapprove its conclusion, 859 F.3d at 322−23, that “Castleman does not dis-
turb this court’s precedent regarding the characterization of crimes of violence”
with regard to indirect force. Our disapproval is essentially for the reasons set
forth in Judge Jones’s concurrence in Reyes-Contreras, 882 F.3d at 125−27.
In United States v. Villegas-Hernandez, 468 F.3d 874, 878−83 (5th Cir.
2006), we held that a conviction under TEXAS PENAL CODE § 22.01(a)(1), which
proscribes “intentionally, knowingly, or recklessly caus[ing] bodily injury to
another . . . ,” was not a COV. The panel relied on examples of indirect force
and injury caused by guile, deception, or deliberate omission. Id. at 879. 25 To
the extent that Villegas-Hernandez concluded that indirect use of force is not
“use of physical force,” it is contrary to the examples of indirect force in Cas-
tleman and, as discussed in more detail below, cannot survive Castleman’s con-
clusion that “[i]t is impossible to cause bodily injury without applying force in
the common-law sense.” Castleman, 572 U.S. at 170. 26 We therefore neces-
sarily overrule Part I.A of Villegas-Hernandez, on which Rico-Mejia, 859 F.3d
at 322, relied in part, to the extent that Villegas-Hernandez concluded that
indirect force does not constitute the use of physical force. 27
24 We resist the temptation to pick favorites from among the well-reasoned decisions
of our sister circuits.
25 Castleman does not address whether an omission, standing alone, can constitute
the use of force, and we are not called on to address such a circumstance today.
26 The same is true for two other Fifth Circuit decisions relied on in Rico-Mejia,
859 F.3d at 321, 322: United States v. Johnson, 286 F. App’x 155 (5th Cir. 2008) (per curiam),
and United States v. de la Rosa-Hernandez, 264 F. App’x 446 (5th Cir. 2008) (per curiam).
They are unpublished and therefore not precedent, see 5TH CIR. R. 47.5.4, but we explicitly
overrule them out of an abundance of caution.
27 As discussed infra, we also overrule parts of Vargas-Duran and Calderon-Pena, on
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We hold that, as relevant here, Castleman is not limited to cases of
domestic violence and that for purposes of identifying a conviction as a COV,
there is no valid distinction between direct and indirect force. This disposes of
Reyes-Contreras’s contention that assisting suicide in Missouri cannot be a
COV because such a conviction “can be secured without proof that the defen-
dant actively employed violent force against another.” It is therefore irrelevant
that (in Reyes-Contreras’s words) a conviction “can be sustained when a person
self-inflicts death and the defendant knowingly assists that death by providing
the other person with the means or instructions by which he or she commits
suicide.” 28
In sum, Rico-Mejia’s reasoning that Castleman is confined to the context
of misdemeanor domestic violence confuses two distinct issues. The part of
Castleman that was so confined was the discussion regarding degree of force:
whether the definition of a misdemeanor conviction of domestic violence
which Villegas-Hernandez relies in part. See Villegas-Hernandez, 468 F.3d at 879 n.6,
880−83. It is impractical to set forth all the caselaw that is or might be overruled by our
elimination of the distinction between direct and indirect force. The list includes, inter alia,
the following: United States v. Hernandez-Rodriguez, 788 F.3d 193 (5th Cir. 2015); United
States v. Garcia-Perez, 779 F.3d 278 (5th Cir. 2015); United States v. Herrera-Alvarez,
753 F.3d 132 (5th Cir. 2014); United States v. Resendiz-Moreno, 705 F.3d 203 (5th Cir. 2013);
United States v. Andino-Ortega, 608 F.3d 305 (5th Cir. 2010); United States v. Garcia,
470 F.3d 1143 (5th Cir. 2006); United States v. Valenzuela, 389 F.3d 1305 (5th Cir. 2004);
United States v. Gracia-Cantu, 302 F.3d 308 (5th Cir. 2002); United States v. Chapa-Garza,
243 F.3d 921 (5th Cir. 2001).
28 Reyes-Contreras’s reliance on Curtis Johnson v. United States, 559 U.S. 133 (2010),
and Leocal v. Ashcroft, 543 U.S. 1 (2004), is misplaced. Reyes-Contreras cites Curtis Johnson,
559 U.S. at 139−40, 142, as “relying on dictionaries to define ‘force’ as strength and power,
and ‘violence’ to mean extreme, severe, and strong physical force.” Likewise, Reyes-
Contreras invokes Leocal’s reference, 543 U.S. at 9, to “the ‘use of . . . physical force against
the person of another’ [that] requires the ‘active employment’ of ‘violent, physical’ force” and
to Leocal’s statement, id. at 11, that “the use of physical force against another person . . .
suggests a category of violent, active crimes.” Those passages say a lot about the degree of
force but nothing about whether it is direct or indirect. See Reyes-Contreras, 882 F.3d at 126
(Jones, J., concurring) (“[T]he requisite degree or ‘range’ of force is an issue entirely separate
from whether that force is applied directly or indirectly.”).
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encompasses offensive touching or, instead, requires a level of violent force.
Here there is no dispute—and the government agrees—that a COV under
U.S.S.G. § 2L1.2 “requires a showing of ‘violent force—that is, force capable of
causing physical pain or injury . . . .’” United States v. Hernandez-Hernandez,
817 F.3d 207, 215 (5th Cir. 2016) (citation omitted). But Castleman’s analysis
of whether use of force requires direct or indirect application did not rest on
any distinction regarding the degree of force 29 or on whether it was a case of
domestic violence. 30 That confusion may have misled the panel in Rico-Mejia.
In any event, that is now fixed.
2.
There are more barnacles that need to be scraped from our caselaw ship.
In addition to urging us to perpetuate the distinction between direct and
indirect force, Reyes-Contreras posits that we should keep an equally illogical
“distinction between causing injury and using direct force.” Here the primary
impediments are the en banc decisions in Vargas-Duran and Calderon-Pena
and their progeny. Both yield implausible results. We overrule them now to
the extent that we will explain.
The mischief began with Vargas-Duran, in which the en banc court held
that a Texas conviction of intoxication assault did not qualify as a COV under
U.S.S.G. § 2L1.2 because the intentional use of force was not a necessary com-
ponent of the offense. Instead, a person could violate the statute by accident
or mistake without the intentional use of force. Vargas-Duran, 356 F.3d
at 605−06. The court reasoned that just because the offense resulted in serious
bodily injury, that did not mean that the statute required the defendant to use
29See United States v. Reid, 861 F.3d 523, 528−29 (4th Cir.), cert. denied, 138 S. Ct.
462 (2017).
30 See Villanueva v. United States, 893 F.3d 123, 129 (2d Cir. 2018).
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the force that caused the injury. Id. at 606.
Vargas-Duran is flatly at odds with Voisine v. United States, 136 S. Ct.
2272, 2279 (2016), which held that reckless conduct can constitute the use of
physical force. Voisine reasoned in part that “the word ‘use’ . . . is indifferent
as to whether the actor has the mental state of intention, knowledge, or reck-
lessness with respect to the harmful consequences of his volitional conduct.”
Id. For these purposes, the “use of force” does not require intent because it can
include knowing or reckless conduct. To the extent that Voisine has not
already abrogated the reasoning in Vargas-Duran, 31 we disavow and dis-
approve of Vargas-Duran’s conclusion, 356 F.3d at 599, that “the ‘use’ of force
required that defendant intentionally avail himself of that force.”
And most importantly for present purposes, Vargas-Duran, 356 F.3d
at 606, also errantly declared that “there is . . . a difference between a defen-
dant’s causation of an injury and the defendant’s use of force.” That oft-cited
statement is flatly contrary to Castleman, 572 U.S. at 169, which said that “the
knowing or intentional causation of bodily injury necessarily involves the use
of physical force.” Castleman gets right to the point, squarely rejecting the
notion that “pulling the trigger on a gun is not a ‘use of force’ because it is the
bullet, not the trigger, that actually strikes the victim.” Id. at 171. Now that
we have eliminated the directness-of-force requirement for a COV, we also hold
that Castleman and Voisine do away with Vargas-Duran’s unnatural
31 The abrogation is aptly described in United States v. Burris, 896 F.3d 320, 327
& n.48 (5th Cir. 2018), opinion withdrawn, ___ F.3d ___, 2018 WL 5960775 (5th Cir. Nov. 14,
2018) (per curiam): that “the first part of Vargas-Duran, which had held that ‘using’ force
requires a mental state of intent,” was “effectively abrogated” (though not explicitly abro-
gated) by the adoption of Voisine in United States v. Howell, 838 F.3d 489, 499−501 (5th Cir.
2016), cert. denied, 137 S. Ct. 1108 (2017), and United States v. Mendez-Henriquez, 847 F.3d
214, 220−22 (5th Cir.), cert. denied, 137 S. Ct. 2177 (2017). In its initial panel brief in the
instant case, the government agreed, staking out the position that “Vargas-Duran has been
abrogated by Castleman, Voisine, and decisions by [the Fifth Circuit].”
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separation of causing injury from the use of force, 32 a justification used to
establish that the defendant’s “use of force [was] not an element of the offense
of intoxication assault.” Vargas-Duran, 356 F.3d at 606. 33
A few months after Vargas-Duran, the en banc court built on that mis-
take in Calderon-Pena. The court decided that Texas child endangerment,
TEXAS PENAL CODE § 22.041(c), was not a COV because it lacked force as an
element. The indictment alleged that the defendant placed a child “in immin-
ent danger of bodily injury, namely, by striking a motor vehicle occupied by the
[child] with the Defendant’s motor vehicle.” Calderon-Pena, 383 F.3d at 256.
The court relied on the fact that “the offense of child endangerment does not
require any bodily contact (let alone violent or forceful contact) or any injury
in order for a conviction to lie.” Id. at 260. And “[c]reating a risk of injury,
even when done knowingly or intentionally, is clearly not the same as using or
attempting to use physical force . . . .” Id. at 261 (citations omitted).
We overrule Calderon-Pena’s requirement of bodily contact for a COV.
A compelling application of Castleman is that physical force “extend[s] to cover
those applications of force that are subtle or indirect, rather than only those
embracing ‘bodily contact.’” Calderon-Pena, 383 F.3d at 270 (Smith, J.,
dissenting). “This is a matter of common sense.” Id. Calderon-Pena is over-
ruled to the extent that it requires bodily contact for a COV and makes a dis-
tinction between creating a risk of injury and using or attempting to use phys-
ical force. 34
32We say nothing in regard to negligent use of force or negligently-caused injury. That
is a separate inquiry that is far afield from this case.
33 We do not decide whether the conviction for intoxication assault, TEX. PEN. CODE
§ 49.07, is categorically a COV. That issue plainly is not before us. We address, instead, the
broader implications of the holdings and reasoning in Vargas-Duran.
34 We make no ruling on whether TEXAS PENAL CODE § 22.041(c) is categorically
a COV.
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3.
Reyes-Contreras advances the notion that even if we announce─as we
now have─that the direct-indirect distinction does not survive Castleman, “[a]
prior conviction for knowingly assisting another person’s self-murder does not
satisfy the Guidelines’ force clause because it does not require proof, in every
case, that the defendant used violent physical force against another person,
either directly or indirectly.” (Emphasis omitted.) Indeed, in evaluating a con-
viction, “we must presume that the conviction ‘rested upon [nothing] more than
the least of th[e] acts’ criminalized, and then determine whether even those
acts are encompassed by the generic federal offense.” Moncrieffe v. Holder,
569 U.S. 184, 190−91 (2013) (citation omitted) (quoting Curtis Johnson,
559 U.S. at 137). As Justice Sotomayor emphasized for the Court in Mon-
crieffe, however, the “focus on the minimum contact criminalized by the state
statute is not an invitation to apply ‘legal imagination’ to the state offense;
there must be ‘a realistic probability, not a theoretical possibility, that the
State would apply its statute to conduct that falls outside the generic definition
of a crime.” Id. at 191 (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193
(2007)). 35 “[W]ithout supporting state case law, interpreting a state statute’s
text alone is simply not enough to establish the necessary ‘realistic probabil-
ity.’” United States v. Castillo-Rivera, 853 F.3d 218, 223 (5th Cir.) (en banc)
(quoting Duenas-Alvarez, 549 U.S. at 193), cert. denied, 138 S. Ct. 501 (2017).
Reyes-Contreras points to three cases that, he claims, satisfy Moncrieffe,
Duenas-Alvarez, and Castillo-Rivera. The first plainly qualifies as “legal
35 Here we would say “the use-of-force clause” instead of “the generic definition of a
crime.” The same analysis applies to both. In Duenas-Alvarez, 549 U.S. at 193, the Court
rooted its realistic-probability requirement in the categorical approach itself, not to anything
unique to generic-offense clauses. This court applies the “realistic probability” test to use-of-
force cases just as it does to generic offenses. See United States v. Ceron, 775 F.3d 222, 229
(5th Cir. 2014) (per curiam) (quoting Duenas-Alvarez, 549 U.S. at 193).
22
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imagination,” and Duenas-Alvarez therefore disqualifies it from our analysis.
In that case, a “woman took her own life by following instructions posted on
the Internet,” and a Missouri prosecutor “wanted to pursue voluntary man-
slaughter charges against the person” who wrote the instructions. But no pro-
secutor charged anyone, so no Missouri court applied the statute in this man-
ner. Reyes-Contreras has not shown a “realistic probability” that Missouri
would apply its assisting-suicide statute to posting suicide instructions on the
Internet. That case is therefore irrelevant.
The second and third cases cited by Reyes-Contreras are closer. In one,
a man was charged under Subdivision (2) after entering into a suicide pact and
providing a gun to his friend. A jury acquitted. In Reyes-Contreras’s final
example, the defendants provided the necessary instruments—including a
plastic bag and orange juice laced with drugs—to a family member who wished
to take her own life. See State v. Howard, No. CR496-124FX (Mo. Cir. Ct.,
Newman Cty. 1996). The state court denied a motion to dismiss the indict-
ments. But the state ultimately dropped the charges and gave the defendants
a nolle prosequi. We need not decide whether either example shows “that
[state] courts have actually applied” Subdivision (2), however, because even
assuming they did, both crimes would ultimately satisfy the use-of-force
clause.
The use-of-force clause is satisfied where the state offense “has as an
element the use, attempted use, or threatened use of physical force against the
person of another.” U.S.S.G. § 2L1.2 cmt. 1(B)(iii) (2014). As relevant here,
the clause has two key terms: “use” and “physical force.” The “knowing or
intentional application of [physical] force is a ‘use’ of force.” Castleman,
572 U.S. at 170. And “the phrase ‘physical force’ means violent force—that is,
force capable of causing physical pain or injury to another person.” Curtis
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Johnson, 559 U.S. at 140. Applying those precedents together, then, a person
uses physical force when he knowingly or intentionally applies or employs a
force capable of causing physical pain or injury. And none of this “demand[s]
that the person applying force have the purpose or practical certainty that it
will cause harm, [but merely] the understanding that it is substantially likely
to do so.” Voisine, 136 S. Ct. at 2279.
In the suicide-pact and orange-juice cases, the defendants knowingly
employed deadly instruments (a gun, poison-laced orange juice, and a plastic
bag) with the understanding that those instruments were substantially likely
to cause physical pain, injury, or (as it turns out) death. And Castleman fore-
closes any suggestion that it is not a use of force knowingly to hand poison or
a gun to a suicidal person:
The ‘use of force’ . . . is not the act of sprinkling the poison; it is the
act of employing poison knowingly as a device to cause physical
harm. That the harm occurs indirectly, rather than directly (as
with a kick or punch), does not matter. Under Castleman’s logic,
after all, one could say that pulling the trigger on a gun is not a
‘use of force’ because it is the bullet, not the trigger, that actually
strikes the victim.
Castleman, 572 U.S. at 171 (alterations omitted). To be sure, the defendants
in Reyes-Contreras’s examples indirectly employed force by knowingly handing
the deadly instruments to suicidal decedents. But under Castleman, as we
have explained, that distinction is irrelevant. 36
36It is no answer to say (as Reyes-Contreras does) that “the means by which the person
commits suicide are out of the defendant’s control when the suicide occurs.” It is true that a
defendant cannot be held liable for an unforeseeable or uncontrollable suicide. Compare, e.g.,
Scheffer v. Washington City, V.M. & G.S.R. Co., 105 U.S. 249, 252 (1881) (stating that un-
foreseeable suicide breaks the chain of causation in a tort suit), and RESTATEMENT (SECOND)
OF TORTS § 448, with 22A AM. JUR. 2D DEATH § 41 (2017) (explaining that “foreseeable” sui-
cide can be actionable in tort). But any concern over foreseeability and control is fully
answered by the text of Subdivision (2), which applies only where the defendant “[k]nowingly
assists another in the commission of self-murder.” MO. REV. STAT. § 565.023.1(2) (emphasis
added). In all cases covered by Subdivision (2), the suicide is not only foreseeable but
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Reyes-Contreras has not shown the requisite “realistic probability.” So
even if Missouri assisted suicide is not generic manslaughter—an issue that
we decline to decide—we hold in the alternative that it satisfies the Guidelines’
requirement of physical force.
VI.
It is high time for this court to take a mulligan on COVs. The well-
intentioned experiment that launched fifteen years ago has crashed and
burned. 37 By requiring sentencing courts and this court to ignore the specifics
of prior convictions well beyond what the categorical approach and Supreme
Court precedent instruct, our jurisprudence has proven unworkable and
unwise. By employing the term “crime of violence,” Congress and the U.S.
Sentencing Commission obviously meant to implement a policy of penalizing
felons for past crimes that are, by any reasonable reckoning, “violent,” hence
the term.
foreseen.
37 And the stakes are high, because U.S.S.G. § 2L1.2 applies as the primary offense-
conduct Guideline in about 25 percent of sentences nationwide. 2017 SOURCEBOOK OF
FEDERAL SENTENCING STATISTICS tbl.17 (2017),
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-
sourcebooks/2017/Table17.pdf. Only § 2D1.1—for “Unlawful Manufacturing, Importing,
Exporting, or Trafficking” of controlled substances—applies as the primary offense-conduct
Guideline more frequently. Id. Considering the significant share of our docket devoted to
sentencing appeals—about 42% of our criminal cases and about 12% of all the cases we
decide—our clarification of what counts as a COV provides much-needed, and long-overdue,
guidance to prosecutors, criminal defendants, district judges, and probation officers.
Compare U.S. COURTS, FEDERAL JUDICIAL CASELOAD STATISTICS 2017 tbl.B-1 (2017),
http://www.uscourts.gov/sites/default
/files/data_tables/fjcs_b1_0331.2017.pdf (listing total number of cases and of criminal cases
in the Fifth Circuit in fiscal year 2017), with 2017 SOURCEBOOK OF FEDERAL SENTENCING
STATISTICS tbl.55 (2017), https://www
.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-
sourcebooks/2017/Table55.pdf (listing the total number of each type of criminal appeals—
challenges to the “sentence only,” to the “sentence and conviction,” to the “conviction only,”
etc.—in the Fifth Circuit in fiscal year 2017).
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As with many legal standards, decisions are difficult at the margins. But
this case is nowhere near the margin. Except as otherwise directed by the
Supreme Court, sentencing should not turn on “reality-defying distinctions.”
United States v. Verwiebe, 874 F.3d 258, 261 (6th Cir. 2017), cert. denied,
139 S. Ct. 63 (2018). The interests of justice and Congress’s commands are not
served by the absurd conclusion that intentionally killing with a baseball bat, 38
and intentionally ramming a vehicle into a car containing a child, 39 are not
COVs. A more realistic approach comports with reason and common sense.
In sum, we hold that MISSOURI REVISED STATUTES § 565.023.1 is divisi-
ble. Using the modified categorical approach, Reyes-Contreras was convicted
under Subdivision (1), which is generic manslaughter, a COV. In the alterna-
tive, even if Section 565.023.1 were not divisible, we hold that the statute as a
whole is a COV because Subdivision (2) satisfies the use-of-force requirement
and thus is independently a COV.
In finding “use of force” for purposes of identifying COVs, the distinction
between direct and indirect force is abolished. Likewise for the now-repudiated
distinction between causing injury and using direct force. We show that the
Missouri assisted-suicide statute satisfies the use-of-force requirement. And
we hold that, even if it did not, there is not the realistic probability of
enforcement.
38 We remind the reader that Reyes-Contreras was arrested after beating his brother-
in-law to death with a bat. A witness saw Reyes-Contreras strike the victim numerous times
on the head with an object that appeared to be a stick. Police discovered two shirts near a
pool of blood, a piece of scalp with black hair, and a dark baseball bat cracked and stained
with blood. “Common sense dictates that murder is categorically a [COV] under the force
clause.” In re Irby, 858 F.3d 231, 237 (4th Cir. 2017) (citing Abramski v. United States,
134 S. Ct. 2259, 2267 (2014)).
39 See Calderon-Pena, 383 F.3d at 256.
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The holdings just announced, true to Supreme Court precedent, are in
conflict with numerous panel and en banc decisions of this court. We therefore
overrule, in whole or in part, as explained herein, the following decisions and
their progeny:
United States v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004) (en banc)
United States v. Calderon-Pena, 383 F.3d 254 (5th Cir. 2004) (en banc)
United States v. Bonilla, 524 F.3d 647 (5th Cir. 2008)
United States v. Neri-Hernandes, 504 F.3d 587 (5th Cir. 2007)
United States v. Villegas-Hernandez, 468 F.3d 874 (5th Cir. 2006)
United States v. Turner, 349 F.3d 833 (5th Cir. 2003)
United States v. Rico-Mejia, 859 F.3d 318 (5th Cir. 2017)
United States v. Johnson, 286 F. App’x 155 (5th Cir. 2008)
United States v. de la Rosa-Hernandez, 264 F. App’x 446 (5th Cir. 2008)
United States v. Hernandez-Rodriguez, 788 F.3d 193 (5th Cir. 2015)
United States v. Garcia-Perez, 779 F.3d 278 (5th Cir. 2015)
United States v. Herrera-Alvarez, 753 F.3d 132 (5th Cir. 2014)
United States v. Resendiz-Moreno, 705 F.3d 203 (5th Cir. 2013)
United States v. Andino-Ortega, 608 F.3d 305 (5th Cir. 2010)
United States v. Garcia, 470 F.3d 1143 (5th Cir. 2006)
United States v. Valenzuela, 389 F.3d 1305 (5th Cir. 2004)
United States v. Gracia-Cantu, 302 F.3d 308 (5th Cir. 2002)
United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001)
* * * * *
Reyes-Contreras’s conviction of voluntary manslaughter under
MISSOURI REVISED STATUTES § 565.023.1 is a crime of violence that calls for a
sixteen-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). The judgment
of conviction and sentence is AFFIRMED.
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