        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                       __________

                                     No. 15-41688
                                      __________
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
UNITED STATES OF AMERICA,                                               May 12, 2017
                                                                       Lyle W. Cayce
             Plaintiff-Appellee,                                            Clerk

v.

RAUL MARTINEZ-RODRIGUEZ,

             Defendant-Appellant.
                          _____________________

                  Appeal from the United States District Court
                       for the Southern District of Texas
                             _____________________

Before JONES and OWEN, Circuit Judges, and ENGELHARDT, District
Judge. ∗

KURT D. ENGELHARDT, District Judge:
      Martinez-Rodriguez appeals his sentence, contending that the district
court erred by treating his prior conviction for the offense of causing injury to
a child, under Texas Penal Code § 22.04(a)(3), as an aggravated felony on
account of it being a crime of violence. Martinez-Rodriguez argues that
§ 22.04(a), which can be violated by act or omission, is neither categorically a
crime of violence nor a divisible statute. Therefore, he posits, the modified




      * District Judge of the Eastern District of Louisiana, sitting by designation.
                                 No. 15-41688

categorical approach should not have been used at sentencing to narrow his
prior conviction under the Texas state statute.
      I.    FACTUAL AND PROCEDURAL HISTORY
      On August 12, 2015, Martinez-Rodriguez was charged with knowingly
being present in the United States after deportation, without having obtained
consent to re-enter the country from the Attorney General or from the
Secretary of Homeland Security, in violation of 8 U.S.C. § 1326(a) and (b).
Martinez-Rodriguez ultimately entered a guilty plea, without a plea
agreement, and, on December 15, 2015, was sentenced to 30 months
imprisonment.
      In the presentence report (PSR) prepared by the United States Probation
Office in anticipation of sentencing, the probation officer recommended that
Martinez-Rodriguez receive an enhancement under § 2L1.2(b)(1)(C) (2014),
which calls for an eight-point increase in offense level “[i]f the defendant was
deported, or unlawfully remained in the United States, after . . . a conviction
for an aggravated felony. . . .” As noted, the probation officer made this
recommendation based Martinez-Rodriguez’s 2008 conviction for causing
injury to a child under Texas Penal Code § 22.04(a)(3) – an offense
characterized in the PSR as a crime of violence and thus an aggravated felony.
ROA.98-100 (PSR ¶¶ 12, 22). Attached to the PSR were the judgment of a state
district court in Travis County, Texas, sentencing Mr. Martinez-Rodriquez to
three years of prison for the prior conviction, ROA.107-109, as well as plea-
related documents, ROA.110-113, and the indictment. ROA.114. The
indictment charged that Martinez-Rodriquez did “intentionally and knowingly
cause bodily injury to [a named victim], a child 14 years of age or younger, by
grabbing [the named victim] by the arm and throwing her to the floor.”
ROA.114.


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      At sentencing, the district court overruled Martinez-Rodriguez’s written
objection to the treatment of his prior conviction as an aggravated felony. As a
result of that treatment, the court ultimately fashioned a sentence within a
guideline range that reflected an enhancement under USSG § 2L1.2(b)(1)(C)
and convicted and sentenced him under 8 U.S.C. § 1326(b)(2), on that same
basis. Martinez-Rodriguez now appeals, placing before us the issue of whether
Texas Penal Code § 22.04(a) is a divisible statute – a question previously
answered in the affirmative by this Court in Perez-Munoz v. Keisler, 507 F.3d
357 (5th Cir. 2007).
      II.   DISCUSSION
      The 2014 version of § 2L1.2(b)(1)(C) at issue herein, see ROA.98 (PSR
¶ 10), provides that a defendant’s offense level shall be increased by eight
levels if the defendant was deported after an aggravated felony conviction, see
§ 2L1.2(b)(1)(C) (2014). Section 1326(b)(2) permits, inter alia, a maximum
sentence of 20 years when an alien has been previously removed after an
aggravated felony conviction. See 8 U.S.C. § 1326(b)(2). For purposes of both
§ 2L1.2 and § 1326(b)(2), the term “aggravated felony” has the meaning set
forth in 8 U.S.C. § 1101(a)(43). See § 2L1.2, comment. (n.3(A)) (2014); United
States v. Castaneda-Lozoya, 812 F.3d 457, 459 (5th Cir. 2016). Whether an
offense qualifies as an aggravated felony is purely a legal question, reviewed
by this Court de novo, Patel v. Mukasey, 526 F.3d 800, 802 (5th Cir. 2008), as
are interpretations of the Guidelines themselves. United States v. Conner,
537 F.3d 480, 489 (5th Cir. 2008).
      Under § 1101(a)(43), the term “aggravated felony” is defined, in
pertinent part, as the crime-of-violence offense set forth in 18 U.S.C. § 16 for
which a prison term of at least one year has been imposed. 8 U.S.C.
§ 1101(a)(43)(F). Section 16 defines a “crime of violence” as either “(a) an


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offense that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another,” or “(b) any other
offense that is a felony and that, by its nature, involves a substantial risk that
physical force against the person or property of another may be used in the
course of committing the offense.” 18 U.S.C. §16(a), (b).
      To determine whether a prior conviction constitutes a generic offense,
such as a crime of violence and thus an aggravated felony, this court generally
employs the categorical approach – the focus of which is on the elements of the
offenses, not the underlying facts of the prior conviction. See United States v.
Hinkle, 832 F.3d 569, 572 (5th Cir. 2016); see also Franco-Casasola v. Holder,
773 F.3d 33, 36 (5th Cir. 2014) (discussing “how to determine whether a prior
offense qualifies as an aggravated felony,” beginning with the categorical
approach). So long as the relevant statutes state a single, or indivisible, set of
elements, application of the categorical approach is a rote exercise. See Mathis,
136 S. Ct. at 2248. Courts simply line up the elements of the two offenses to
determine whether they match. Id. If the elements of the prior offense are the
same or narrower than those of the generic offense, then it qualifies for
whatever consequences under federal law attach to the generic offense. Id.
However, if its elements are broader, then the prior offense is not treated as
an equivalent to the generic offense. Id.; see also Gomez-Perez v. Lynch,
829 F.3d 323, 326-27 (5th Cir. 2016) (applying the categorical approach in a
case involving the Immigration and Nationality Act).
      If a statute sets forth elements in an alternative or disjunctive structure,
it is considered divisible, and a second approach is available to the courts. See
Descamps v. United States, 133 S. Ct. 2276, 2283-84 (2013). Known as the
modified categorical approach, this approach allows a court to pare down a
prior conviction under a divisible statute by consulting certain materials such


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as, in the case of a plea bargain, “the statutory definition, charging document,
written plea agreement, transcript of plea colloquy, and any explicit factual
finding by the trial judge to which the defendant assented.” See Shephard v.
United States, 544 U.S. 13, 16 (2005). Thus, unlike the categorical approach
which concerns elements only, underlying facts are relevant to the modified
categorical approach.
      In Mathis v. United States, the Supreme Court provided guidance on
when a statute is divisible and, thus, when the modified categorical approach
is available. 136 S. Ct. 2243, 2248-54 (2016). It clarified that the approach is
to be applied only to statutes that list alternative elements and not to statutes
that list alternative means of satisfying elements. Id. The distinction between
the elements and means is critical to the divisibility of a statute. See id. at 2256
(“The task for a sentencing court faced with an alternatively phrased statute
is thus to determine whether its listed items are elements or means.”). “The
test to distinguish means from elements is whether a jury must agree.” United
States v. Howell, 838 F.3d 489, 497 (5th Cir. 2016). “Elements must be agreed
upon by a jury. When a jury is not required to agree on the way that a
particular requirement of an offense is met, the way of satisfying that
requirement is a means of committing an offense not an element of the offense.”
Hinkle, 832 F.3d at 575. Ultimately, “the court has no call to decide which of . . .
alternative[ ] [means] was at issue in [an] earlier prosecution.” Mathis,
136 S. Ct. at 2256.
      According to Mathis, a determination of means versus elements is often
easy to make, as federal courts are to follow definitive state court decisions on
the issue. Id. at 2256 (“When a ruling of that kind exists, a sentencing judge
need only follow what it says.”). In prior opinions, this Court has recognized
that “[t]he Mathis decision is controlling regarding the methodology of the


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modified categorical approach, and we must apply its holdings, even when they
are contrary to prior precedent of this court.” See Hinkle, 832 F.3d at 574
(applying methodology addressed in Mathis to a Guidelines issue); see also
Gomez-Perez v. Lynch, 829 F.3d 323, 328 n. 5 (5th Cir. 2016) (recognizing that
Mathis overruled certain prior cases insofar as they found a particular “statute
to be divisible and subject to the modified categorical approach”).
      As noted by the parties in this case, the Fifth Circuit has previously held
that causing injury to a child under Texas Penal Code § 22.04(a) is not
categorically a crime of violence for purposes of the aggravated felony
enhancement of § 2L1.2, because such offenses may be committed by both acts
and omissions. See United States v. Gracia-Cantu, 302 F.3d 308, 310, 312-13
(5th Cir. 2002). Furthermore, as noted, this court analyzed § 22.04(a) in Perez-
Munoz v. Keisler, applying the modified categorical approach. 507 F.3d 357,
358-59, 361-62 (5th Cir. 2007). In doing so, the Perez-Munoz court found that
the Texas statute was divisible because it involved multiple offenses,
specifically because it criminalized both acts and omissions causing injury to a
child. Id. at 362; see also Carmona-Castillo v. Mukasey, 300 F. App’x 287, 288
(5th Cir. 2008) (observing that § 22.04(a) was divisible because it defined
multiple offenses). Since the Descamps and Mathis decisions, however, it is
now clear that an elements-focused analysis is the only approved method for
determining the divisibility of the statute.
      Now, guided by the Mathis decision in particular, the Court must revisit
Texas Penal Code § 22.04(a), to consider whether its listed items, namely
committing an offense by act or by omission, are alternative elements of an
offense or alternative means of commission. We find that the Texas Court of
Criminal Appeals has answered this precise question by concluding that the
Texas Legislature intended the “act or omission” language in § 22.04(a) to


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“constitute the means of committing the course of conduct element of injury to
a child” rather than elements of the offense “about which a jury must be
unanimous.” Jefferson v. State, 289 S.W.3d 305. 312 (Tex. Crim. App. 2006);
see also Villanueva v. State, 227 S.W.3d 744, 749 (Tex. Crim. App. 2007)
(holding, for purposes of double jeopardy, that the act and omission
components of Tex. Penal Code § 22.04(a) “were simply two means of alleging
and/or proving the same offense . . . .”). Accordingly, our analysis must rest
upon those definitive state law decisions. Therefore, we too conclude that
§ 22.04(a) is an indivisible statute, as a result of its alternative components
being means and not elements. As such, the modified categorical approach
should have played no role in the district court’s sentencing decision.
Furthermore, because the offense of causing injury to a child is broader under
the Texas statute than a crime of violence, the sentencing court erred when,
without the benefit of Mathis, it considered more than statutory elements to
discern the means by which Martinez-Rodriguez committed the offense, for
purposes of enhancement under USSG § 2L1.2(b)(1)(C) (2014) and sentencing
under 8 U.S.C. § 1326(b)(2).
      III.   CONCLUSION
      For the foregoing reasons, we VACATE Martinez-Rodriguez’s sentence
and REMAND for resentencing in accordance with this opinion.




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