     Case: 11-50184     Document: 00511709513         Page: 1     Date Filed: 12/29/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                        December 29, 2011
                                     No. 11-50184
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

JOSE NAHUM RIVAS,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 2:09-CR-1606-1


Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Defendant-Appellant Jose Nahum Rivas pleaded guilty to one count of
illegal re-entry after deportation and was sentenced to 51 months in prison. His
sentence was increased based on an incident that resulted in convictions under
Washington law for third-degree assault and “Felony Harassment – Domestic
Violence.” Rivas contends that neither of the Washington offenses was a crime
of violence.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50184

      Because Rivas raises the claims for the first time on appeal, we review
only for plain error. See United States v. Ramirez, 557 F.3d 200, 205 (5th Cir.
2009). To prevail, Rivas must show an error that is “clear and obvious, rather
than subject to reasonable debate.” Puckett v. United States, 556 U.S. 129, 129
S. Ct. 1423, 1429 (2009); United States v. Ellis, 564 F.3d 370, 377-78 (5th Cir.
2009). He also must show that the error affected his substantial rights. Puckett,
129 S. Ct. at 1429. If he makes these showings, we have the discretion to correct
the error if it “seriously affects the fairness, integrity or public reputation of
judicial proceedings.” Id. at 1429 (internal quotation marks, alteration, and
citation omitted).
      The relevant definition of “crime of violence” in this case is the residual
definition of U.S.S.G. § 2L1.2, comment. (n.(1)(B)(iii)), which is an “offense under
federal, state, or local law that has as an element the use, attempted use, or
threatened use of physical force against the person of another.” As this residual
definition is indistinguishable from the “has as an element” residual definitions
set forth in § 4B1.2(a)(1) and 18 U.S.C. § 16(a), we may rely on authorities
discussing those definitions. Under the residual definition of crime of violence,
“the use of physical force must be a fact that is necessary for the prosecution to
secure a conviction.” United States v. Velasco, 465 F.3d 633, 638 (5th Cir. 2006).
“[T]he phrase ‘physical force’ means violent force – that is, force capable of
causing physical pain or injury to another person.” Johnson v. United States,
130 S. Ct. 1265, 1271 (2010) (discussing the catch-all definition found in 18
U.S.C. § 16(a)).
      Rivas contends, and the government concedes, that the third-degree
assault conviction under WASH. REV. CODE § 9A.36.031(1)(f) was not a crime of
violence because it required only “criminal negligence.” Cf. Leocal v. Ashcroft,
543 U.S. 1, 9-10 (2004) (holding that negligence does not satisfy the physical
force requirement for a crime of violence under 18 U.S.C. § 16). We need not
decide this issue however, because we affirm on the ground that the district

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                                  No. 11-50184

court did not commit plain error by treating Rivas’s alternate conviction for
harassment under WASH. REV. CODE § 9A.46.020(1) as a crime of violence.
      Section 9A.46.020(1) provides that a person commits harassment if he
knowingly threatens either to cause bodily injury, to cause physical damage to
property, to subject a person “to physical confinement or restraint;
or . . .[m]aliciously to do any other act which is intended to substantially harm
the person threatened or another with respect to his or her physical or mental
health or safety; and [that he] places the person threatened in reasonable fear
that the threat will be carried out.” § 9A.46.020(1). Rivas argues only that
“bodily injury” is not an element of violent force and thus does not render a
violation a crime of violence. He relies on United States v. Villegas-Hernandez,
468 F.3d 874, 879 (5th Cir. 2006), in which we held that a Texas statute
penalizing the infliction of bodily harm did not have as an element the requisite
use of violent force required to render it a crime of violence. Villegas-Hernandez,
however, did not concern a threat of harm accompanied by placing the victim in
a reasonable fear of harm. See Villegas-Hernandez, 468 F.3d at 878.
      The government asserts that only a threat of violent force would satisfy
the Washington statute’s requirement that the victim be placed in a reasonable
fear of harm and, accordingly, that a threat of violent force is an implicit but
necessary element of the Washington harassment crime. There is support for
the government’s position. In United States v. Mohr, 554 F.3d 604, 610 (5th Cir.
2009), we decided that a South Carolina stalking offense was a crime of violence.
The stalking statute did not explicitly require the use of force but defined
stalking as “a pattern of words . . . or a pattern of conduct that . . . is intended
to cause and does cause a targeted person and would cause a reasonable person
in the targeted person’s position to fear” death, assault, bodily injury, criminal
sexual contact, kidnaping, or property damage. See id. at 608 (quoting former
S.C. CODE ANN. § 16-3-1700(B)(2002), now S.C. CODE ANN. § 16-3-1700(C)(2005)).
We reasoned that “words or conduct that are intended to cause and do cause

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                                  No. 11-50184

reasonable fear of death, assault, injury etc., pose at least as much risk of
physical injury as the ‘threatened use of force’ [that] automatically qualifies the
offense as a crime of violence.” Id. In an analogous context, the Eleventh Circuit
explicitly embraced the reasoning put forth by the government, finding it
“inconceivable that any act which causes the victim to fear death or great bodily
harm would not involve the use or threatened use of physical force.” United
States v. Lockley, 632 F.3d 1238, 1245 (11th Cir. 2011).
      As this appeal involves only plain-error review, we are not required to
decide conclusively whether the Washington harassment offense is a crime of
violence under the residual definition.      This is because the government’s
argument and our examination of the law reveal that Rivas’s claim is at least
“subject to reasonable debate.” As such, he has not shown an error that is clear
or obvious. See Puckett, 129 S. Ct. at 1429; Ellis, 564 F.3d at 377-78. As Rivas
has not shown plain error, the judgment of the district court is AFFIRMED.




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