USA v. Fabian Flores-Gallo

Filing

UNPUBLISHED OPINION FILED. [09-40882 Affirmed ] Judge: EHJ , Judge: TMR , Judge: CH Mandate pull date is 10/26/2010 for Appellant Fabian Flores-Gallo [09-40882]

USA v. Fabian Flores-Gallo

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 5, 2010 N o . 09-40882 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. F A B I A N FLORES-GALLO, a ls o known as Fabian Flores-Gallos, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 7:09-CR-527-1

B e fo r e JONES, Chief Judge, and REAVLEY and HAYNES, Circuit Judges. P E R CURIAM:* F a b ia n Flores-Gallo appeals the district court's application of a sixteenle v e l "crime of violence" enhancement pursuant to § 2L1.2(b)(1)(A)(ii) of the U.S. S e n te n c in g Guidelines. Flores-Gallo pleaded guilty to being unlawfully present in the United States following deportation. The Presentence Report

r e c o m m e n d e d a sixteen-level "crime of violence" enhancement based on FloresG a llo 's two prior convictions in Kansas for aggravated battery. Over Flores-

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

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No. 09-40882 G a llo 's objections, the district court found that the Kansas aggravated battery o ffe n s e was a "crime of violence" for sentencing purposes and imposed the e n h a n c e m e n t . For the following reasons, we AFFIRM. W e review the district court's characterization of a prior offense as a crime o f violence de novo. United States v. Sanchez-Ruedas, 452 F.3d 409, 412 (5th C ir . 2006). "Guideline commentary is given controlling weight if it is not plainly e r r o n e o u s or inconsistent with the guidelines." United States v. Velasco, 465 F .3 d 633, 637 (5th Cir. 2006). S e c t io n 2L1.2 of Sentencing Guidelines calls for a sixteen-level increase to t h e base offense level if the defendant was previously deported after a conviction fo r a "crime of violence." U.S. SENTENCING GUIDELINES MANUAL

§ 2L1.2(b)(1)(A)(ii) (2009). v io le n c e " as

The commentary to § 2L1.2 defines a "crime of

a n y of the following offenses under federal, state, or local law: m u rd er, manslaughter, kidnapping, aggravated assault, forcible sex o ffe n s e s . . . statutory rape, sexual abuse of a minor, robbery, arson, e x t o r t io n , extortionate extension of credit, burglary of a dwelling, or a n y other offense under federal, state, or local law that has as an e le m e n t the use, attempted use, or threatened use of physical force a g a in s t the person of another. § 2L1.2 cmt. n.1(B)(iii). Thus, for one of Flores-Gallo's convictions to be

c o n s id e r e d a "crime of violence" for sentencing purposes, it must be an offense w h ic h either belongs to the list of enumerated offenses, or has as an element the u s e , attempted use, or threatened use of force. Velasco, 465 F.3d at 637.

Because we find that the section of the Kansas statute to which Flores-Gallo p le a d e d guilty has as an element of the threatened use of force, we need not r e a c h whether it fits within the enumerated offenses. T h is court employs a categorical approach to the question of whether a p r io r offense is a "crime of violence" because it has as an element the use of force. Taylor v. United States, 495 U.S. 575, 602, 110 S. Ct. 2143, 2160 (1990); United 2

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No. 09-40882 S ta te s v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2004) (en banc). "Under the c a t e g o r ic a l approach set forth in [Taylor], a district court looks to the elements o f a prior offense, rather than to the facts underlying the conviction, when c la s s ify in g a prior offense for sentence enhancement purposes." United States v . Garza-Lopez, 410 F.3d 268, 273 (5th Cir. 2005). Where, as here, a statute is d is ju n c t iv e , the court may look to conclusive records made or used in a d ju d ic a t in g guilt to determine which part of the statute applies to the d e fe n d a n t . Id. at 274. Generally, these records include the "charging document, w r it t e n plea agreement, transcript of plea colloquy, and any explicit factual fin d in g by the trial court judge to which the defendant assented." Shepard v. U n ite d States, 544 U.S. 13, 16, 125 S. Ct. 1254, 1257 (2005). A lt h o u g h initially charged under § 21-3414(a)(1)(A) of the Kansas a g g r a v a t e d battery statute, Flores-Gallo pleaded guilty on two separate o c c a s io n s to violating subsection (1)(B) of the statute. The statute provides in r e le v a n t part: (a ) Aggravated battery is: (1 )(A ) Intentionally causing great bodily harm to another p e r s o n or disfigurement of another person; or (B) intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily h a r m , disfigurement or death can be inflicted; or (C) intentionally causing physical contact with another person w h e n done in a rude, insulting or angry manner with a deadly w e a p o n , or in any manner whereby great bodily harm, d is fig u r e m e n t or death can be inflicted. K AN. STAT. ANN. § 21-3414. Subsection (1)(B) prohibits two types of conduct. The first type prohibits "intentionally causing bodily harm to another person w it h a deadly weapon." § 21-3414(a)(1)(B). Alternatively, the second type p r o h ib it s "intentionally causing bodily harm to another person . . . in any 3

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No. 09-40882 m a n n e r whereby great bodily harm, disfigurement or death can be inflicted." Id. None of the "conclusive records" to which a court may refer indicates to which p a r t of (1)(B) Flores-Gallo pleaded guilty. Therefore, we assume for this inquiry t h a t "his conduct constituted the least culpable act satisfying the count of c o n v ic t io n ." United States v. Houston, 364 F.3d 243, 247 (5th Cir. 2004). A c c o r d in g ly , we examine whether the second type of prohibited conduct c o u ld be prosecuted without proof of the "use, attempted use, or threatened use o f physical force against the person of another." § 2L1.2 n.1(B)(iii); see also U n ite d States v. Vargas-Duran, 356 F.3d 598, 605 (5th Cir. 2004) (en banc) (in t e r n a l quotation marks omitted) ("[I]n order for § 2L1.2 to apply, the in t e n t io n a l use of force must be a constituent part of a claim that must be proved fo r the claim to succeed."). The elements of the second type of conduct prohibited b y subsection (1)(B) of the Kansas statute are: (1) intentionally (2) causing bodily h a r m (3) to another person (4) in any manner whereby great bodily harm, d is fig u r e m e n t or death can be inflicted. KAN. STAT. ANN. § 21-3414(a)(1)(B). Kansas courts have defined "bodily harm" and "great bodily harm" as follows: B o d ily harm has been defined as any touching of the victim against t h e victim's will, with physical force, in an intentional hostile and a g g r a v a t e d manner. The word "great" distinguishes the bodily h a r m necessary in the offense of aggravated battery from slight, t r iv ia l, minor or moderate harm, and as such it does not include m e r e bruises, which are likely to be sustained in simple battery. S ta te v. Livingston, 35 P.3d 918, 922 (Kan. 2001) (internal citation, brackets, and q u o t a t io n marks omitted). The Government argues that since Kansas common law defines "bodily h a r m " as touching with "physical force," the statute by definition has as an e le m e n t the use of "physical force." Flores-Gallo counters that this court should lo o k to federal law--not common law--for the definition of "physical force" and c it e s the Supreme Court's recent opinion in Johnson v. United States for the

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No. 09-40882 p r o p o s it io n that "physical force" means "violent force--that is, force capable of c a u s in g physical pain or injury to another person." 130 S. Ct. 1265, 1271 (2010) (e m p h a s is omitted). He posits that the Kansas statute can be violated without t h e use of such force, such as by locking someone in the car on a hot day or g iv in g them the wrong medicine. We agree with Flores-Gallo that "physical fo r c e " in the context of defining a "crime of violence" for the purposes of c o n s t r u in g the Sentencing Guidelines requires "force capable of causing physical p a in or injury to another person." However, we agree with the Government that s u b s e c t io n (1)(B) of the Kansas aggravated battery statue requires as a c o n s t it u e n t element at least the threatened use of "physical force" that is s u ffic ie n t for a "crime of violence." F ir s t , contrary to the implicit suggestion of Flores-Gallo, the element of " b o d ily harm" as used in (1)(B) embodies more than mere offensive touching. Under the common law definition of "physical force" for the crime of battery, the o ffe n s e requires that the defendant touch the victim. Johnson, 130 S. Ct. at 1 2 7 0 (citing 2 W. LAFAVE & A. SCOTT, SUBSTANTIVE CRIMINAL LAW § 7.15(a), p . 301 (1986 and Supp. 2003); BLACK'S LAW DICTIONARY 173 (9th ed. 2009); 3 W. B LACKSTONE, COMMENTARIES *120). It is clear from the statute as a whole that m e r e touching alone is not sufficient to sustain a violation of (1)(B), because that c o n d u c t is expressly prohibited by (1)(C). KAN. STAT. ANN. § 21-3414(a)(1)(C) (r e a c h in g conduct that "intentionally caus[es] physical contact with another p e r s o n when done in a rude, insulting or angry manner with a deadly weapon, o r in any manner whereby great bodily harm, disfigurement or death can be in flic t e d " ). If we were to read (1)(B) as covering mere touching, we would render (1 )(C ) superfluous, violating the "'cardinal principle of statutory construction' t h a t 'a statute ought, upon the whole, to be so constructed that, if it can be p r e v e n t e d , no clause, sentence, or word shall be superfluous, void, or in s ig n ific a n t .'" TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S. Ct. 441, 449 (2001) 5

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No. 09-40882 (c it a t io n omitted). Therefore, the physical force and resulting bodily harm as c o n t e m p la t e d by subsection (1)(B) must be more than the mere physical contact c o v e r e d by (1)(C). T h e Kansas common law definition of "bodily harm" requires that the c o n t a c t be "in an intentional hostile and aggravated manner." Livingston, 35 P .3 d at 922. Hostile is defined as "1. Adverse. 2. Showing ill will or a desire to h a r m . 3. Antagonistic; unfriendly." BLACK'S LAW DICTIONARY 806 (9th ed. 2009). And, aggravated means "made worse or more serious by circumstances such as v io le n c e , the presence of a deadly weapon, or the intent to commit another c r im e ." Id. at 75. Therefore, subsection (1)(B) requires hostile or aggravated, in t e n t io n a l, physical contact that is more than mere touching. Conduct such as t h a t posited by the defendant--locking someone in a car on a hot day, or d e lib e r a t e ly giving someone the wrong medicine--is not covered by (1)(B). B u t , the "bodily harm" is only half of the picture. The statute requires t h a t the harm must be conducted in a "manner whereby great bodily harm, d is fig u r e m e n t or death can be inflicted." § 21-3414(a)(1)(B). So, in order to be c o n v ic t e d under the statute the defendant must with ill will or hostility in t e n t io n a lly use force that is more than mere touching and has the capability o f causing significant injury. The defendant argues that this court has found t h a t the mere risk of serious harm is not, by itself, sufficient to constitute use of p h y s ic a l force. See Larin-Ulloa v. Gonzales, 462 F.3d 456, 466 (5th Cir. 2006). Additionally, he cites case law that "bodily harm" alone will not meet the d e fin it io n of physical force required by § 2L1.2. Vargas-Duran, 356 F.3d at 606 (" [T ]h e fact that the statute requires that serious bodily injury result from [the c o n d u c t ] does not mean that the statute requires that the defendant have used t h e force that caused the injury."). However, we read the "bodily harm" part of t h i s statute as part of the whole, because statutes are not construed in a

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No. 09-40882 vacu u m . Leocal v. Ashcroft, 543 U.S. 1, 125 S. Ct. 377, 382 (2004) ("[W]e

c o n s t r u e language in its context and in light of the terms surrounding it."). H e r e the hostile intent and force used in conjunction with the risk of s ig n ific a n t injury creates an offense which has as an element at least the t h r e a te n e d use of force that is capable of causing physical pain or injury to a n o t h e r person as contemplated by Johnson. Cf. Larin-Ulloa, 462 F.3d at 466 (d is tin g u is h in g offenses requiring that defendant intend to injure or that "the p h y s ic a l contact itself be violent, harmful, offensive, or even non-consensual" w h e n determining that subsection (1)(C) did not constitute a use of physical fo r c e ); United States v. Treto-Martinez, 421 F.3d 1156, 1160 (10th Cir. 2005) (fin d in g that subsection (1)(C) constituted a threatened use of force because "[n]o m a t t e r what the instrumentality of the contact, if the statute is violated by c o n t a c t that can inflict great bodily harm, disfigurement or death, it seems clear t h a t , at the very least, the statute contains as an element the 'threatened use of p h y s ic a l force'"). The hostile elevated level of contact plus the use of an

in s t r u m e n t a lit y that is capable of significant injury is inherently threatening. And, the statute is clear that the possible or threatened conduct involves great b o d ily harm. Accordingly, we find that § 21-3414(a)(1)(B) of the Kansas

a g g r a v a t e d battery statute has as an element at least the threatened use of p h y s ic a l force. Therefore, the application of the sixteen-level enhancement u n d e r § 2L1.2(b)(1)(A)(ii) for a prior conviction for a "crime of violence" was proper. A F F IR M E D .

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