     Case: 12-40838      Document: 00512495979         Page: 1    Date Filed: 01/10/2014




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

                                                                                    FILED
                                      No. 12-40838                           January 10, 2014
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk


                                                 Plaintiff-Appellee
v.

SERGIO CALZADA-ORTEGA,

                                                 Defendant-Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:12-CR-253-1


Before JOLLY, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Sergio Calzada-Ortega pled guilty to being found unlawfully present in
the United States following deportation in violation of 8 U.S.C. § 1326(a)
and (b). At sentencing, Calzada’s offense level was increased by 16 levels based
on a prior Wisconsin conviction for substantial battery the district court
concluded constituted a crime of violence.              U.S.S.G. § 2L1.2(b)(1)(A)(ii).
Calzada challenges the 16-level enhancement, arguing his prior Wisconsin
conviction does not constitute a crime of violence under the Sentencing


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-40838
Guidelines. We agree and therefore VACATE the sentence and REMAND for
resentencing.
                     FACTS AND PROCEDURAL HISTORY
      Calzada was sentenced following a guilty plea to being unlawfully
present in the United States following deportation. 8 U.S.C. § 1326(a), (b). The
presentence report (PSR) recommended that Calzada’s base offense level of
eight be increased by 16 levels based on a prior Wisconsin state court
conviction for “substantial battery – intend bodily harm,” and concluded that
it was a crime of violence.         U.S.S.G. § 2L1.2(b)(1)(A)(ii).     The PSR also
recommended     he    receive   a     three-level   reduction    for   acceptance    of
responsibility, resulting in a total offense level of 21.         The recommended
criminal history score placed him in a criminal history category of III,
producing a sentencing guidelines range of 46-57 months. Calzada filed an
objection to the 16-level enhancement, arguing that his conviction for
substantial battery in Wisconsin did not meet the definition of a crime of
violence. The district court overruled the objection and imposed a bottom-of-
the-guidelines sentence of 46 months. Calzada filed a timely notice of appeal.


                                    DISCUSSION
      In illegal reentry cases, Section 2L1.2(b)(1)(A)(ii) of the Sentencing
Guidelines provides for a 16-level increase to a defendant’s base offense level
when the defendant was previously deported following a conviction for a felony
that constitutes a crime of violence. An offense qualifies as a crime of violence
if it either falls under one of the enumerated offenses, or the residual clause as
an offense that has as an element the use, attempted use, or threatened use of
physical force. U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Different tests are used to
determine whether a specific offense amounts to a crime of violence depending
on whether the offense is an enumerated one, or has the use of physical force
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as an element. United States v. Esparza-Perez, 681 F.3d 228, 229 (5th Cir.
2012). The district court’s characterization of a prior offense as a crime of
violence is a question of law that we review de novo. Id.
   I.      Crime of Violence Enhancement
        Calzada’s prior conviction arose under Wisconsin Statute § 940.19(2). It
provides that “[w]hoever causes substantial bodily harm to another by an act
done with intent to cause bodily harm to that person or another is guilty of a
Class I felony.” In overruling Calzada’s objection to the 16-level enhancement,
the district court relied on a Seventh Circuit opinion that the same Wisconsin
provision was a crime of violence under Section 4B1.2(a) of the Sentencing
Guidelines. See United States v. Peters, 462 F.3d 716 (7th Cir. 2006). The
definition of a crime of violence in Section 4B1.2(a) is broader than the
definition in Section 2L1.2 because in addition to offenses with the use of
physical force as an element, it includes an offense that “involves conduct that
presents a serious potential risk of physical injury to another.” U.S.S.G. §
4B1.2(a)(2). The court in Peters did not specify whether it considered the
Wisconsin offense a crime of violence under the use of physical force definition
also found in Section 2L1.2, or the additional definition only found in
Section 4B1.2. Peters, 462 F.3d at 719-20. Thus, Peters does not resolve our
issue, which is whether the Wisconsin offense of substantial battery is a crime
of violence pursuant to Section 2L1.2.
          a. Use of physical force clause
        Calzada argues his Wisconsin conviction is not a crime of violence under
the use of physical force clause because it does not include “as an element the
use, attempted use, or threatened use of physical force against the person of
another.” See U.S.S.G § 2L1.2 cmt. n.1(B)(iii). We have concluded that a
similar Texas assault statute was not a crime of violence under the use of
physical force clause because it merely required that the defendant cause
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                                  No. 12-40838
bodily injury to another. See United States v. Villegas-Hernandez, 468 F.3d
874, 882 (5th Cir. 2006). We concluded that the Texas offense could be violated
by means other than the actual, attempted, or threatened use of physical force.
Id. at 887. The Wisconsin statute likewise requires causing substantial bodily
harm to another, which may occur from acts other than the use of physical
force. Because Calzada could be convicted under the Wisconsin statute for
causing substantial bodily harm without the use of physical force, his prior
offense is not a crime of violence under § 2L1.2’s use of force clause.
         b. Enumerated offense
      The Guidelines do not define the enumerated offenses constituting
crimes of violence. This court has adopted “a common sense approach, defining
each crime by its generic, contemporary meaning.” United States v. Martinez-
Flores, 720 F.3d 293, 295 (5th Cir. 2013) (quotation marks omitted). This
approach looks to the Model Penal Code, treatises, modern state codes, and
dictionary definitions. Esparza-Perez, 681 F.3d at 229. “When comparing the
state conviction with the generic, contemporary meaning of the crime, we
examine the elements of the statute of conviction rather than the specifics of
the defendant’s conduct.” Id. at 230 (citation omitted). Finally, we focus on
the minimum conduct criminalized by the state statute in determining
whether a prior conviction qualifies as an aggravated felony. Moncrieffe v.
Holder, 133 S. Ct. 1678, 1684 (2013).
      The government argues Calzada’s offense qualifies as the enumerated
offense of aggravated assault. It contends that the modifier “substantial”
implies a degree of injury sufficiently close to the generic definition of
aggravated assault as to be equivalent to the enumerated offense. One generic
definition of aggravated assault is in the Model Penal Code. It provides that a
person commits the offense when he “attempts to cause serious bodily injury
to another, or causes such injury purposely, knowingly, or recklessly under
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circumstances manifesting extreme indifference to the value of human
life . . . .” MODEL PENAL CODE § 211.1(2)(a). Serious bodily injury is defined
as injury “which creates a substantial risk of death or which causes serious,
permanent disfigurement, or protracted loss or impairment of the function of
any bodily member or organ.” Id. § 210.0(3).
      Wisconsin has a graduated scale of battery offenses beginning with
bodily harm battery, proceeding to substantial bodily harm battery, and
escalating to great bodily harm battery. See WIS. STAT. § 940.19. He argues
that his conviction for the intermediate offense of substantial bodily harm
battery requires a lesser injury than aggravated assault, taking it out of the
common sense definition of aggravated assault. Substantial bodily harm is
defined as “bodily injury that causes a laceration that requires stitches,
staples, or a tissue adhesive; any fracture of a bone; a broken nose; a burn; a
petechia; a temporary loss of consciousness, sight or hearing; a concussion; or
a loss or fracture of a tooth.” WIS. STAT. § 939.22(38). Great bodily harm
battery in Wisconsin, much like the generic definition of aggravated assault,
involves injuries that create a substantial risk of death or cause serious
permanent disfigurement or permanent or protracted loss of a bodily function.
See WIS. STAT. § 940.19(4); § 939.22(14). Calzada argues that the statutory
difference in Wisconsin between substantial and serious bodily injury is
enough to take his conviction out of the common sense definition of aggravated
assault.
      We have evaluated a similar statutory scheme in New Jersey where
assault is differently punished based on gradations of injury. See Martinez-
Flores, 720 F.3d at 295. Martinez-Flores was convicted under New Jersey law
of a third degree offense for causing “significant bodily injury,” defined as
“injury which creates a temporary loss of the function of any bodily member or
organ or temporary loss of any one of the five senses.” Id. at 296 (quoting N.J.
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STAT. ANN. § 2C:11-1d). The New Jersey statute also provided for second
degree aggravated assault involving “serious bodily injury,” defined as injury
which creates “a substantial risk of death or which causes serious, permanent
disfigurement, or a protracted loss or impairment of any function of the body
member or organ.” Id. (quoting N.J. STAT. ANN. §2C:12-1b(1)). We determined
that the intermediate level of assault in New Jersey was intended to include
offenses greater than simple assault, but causing less than the injury required
for aggravated assault. Id. at 298. The difference between significant and
serious bodily injury in New Jersey was enough to remove Martinez-Flores’s
offense from the common sense definition of aggravated assault. Id. at 297-98.
      Similarly, Calzada was convicted of an intermediate battery offense
involving a degree of harm less than serious bodily injury. The Wisconsin
statute is drafted, like New Jersey, to include graduated offenses of battery
making distinctions between substantial and great bodily harm based on the
nature, extent, and duration of the injury inflicted. See id. at 298. Important
to whether an offense constitutes aggravated assault is whether it includes
“the two most common aggravating factors — causation of serious bodily injury
and use of a deadly weapon.” Id. at 298. Substantial battery involves non-
permanent injuries that do not create a substantial risk of death, meaning it
lacks the important aggravating factor of serious bodily injury. Id. at 298-99
(citing BLACK’S LAW DICTIONARY 130 (9th ed. 2009)).             Focusing on the
minimum conduct criminalized by the Wisconsin statute, substantial battery
does not fall within the common sense meaning of aggravated assault. See id.
at 299 (citing Moncrieffe, 133 S. Ct. at 1684). It was error for the district court
to impose the 16-level crime of violence enhancement.




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                                   No. 12-40838
   II.     Harmless Error
         The Government did not argue that error, if it occurred, was harmless.
Nevertheless, having concluded that an error occurred, we will consider its
harmfulness. To prove harmless error, the Government must prove both “(1)
that the district court would have imposed the same sentence had it not made
the error, and (2) that it would have done so for the same reasons it gave at the
prior sentencing.” United States v. Ibarra-Luna, 628 F.3d 712, 714 (5th Cir.
2010). Calzada received a 46 month sentence with the 16-level enhancement.
Absent the 16-level enhancement, his total offense level would have been 13,
with a 21-27 month sentencing range.            At the very least, the 16-level
enhancement provided for a sentence increased by 19 months.
         The district court did not state that it would impose the same sentence
absent the 16-level crime of violence enhancement, and the Government does
not contend the court would have imposed the same sentence if there had been
no error in calculating the guidelines range. Thus, the error cannot be deemed
harmless. See Martinez-Flores, 720 F.3d at 300-01.
         Accordingly, we VACATE the judgment of sentence and REMAND for
resentencing.




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