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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 12-41425                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                   May 22, 2014
                                                                           Lyle W. Cayce
                                                  Plaintiff - Appellee          Clerk
v.

SANTOS TULIO HERRERA–ALVAREZ,

                                                  Defendant - Appellant




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




Before DAVIS, GARZA, * and DENNIS, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
      The United States Sentencing Guidelines provide for a sentencing
enhancement applicable to certain federal defendants who are convicted of
being unlawfully present in the United States after a previous removal or
deportation in violation of 8 U.S.C. § 1326 and who have previously been
convicted of a “crime of violence,” U.S. Sentencing Guidelines (U.S.S.G.)
§ 2L1.2(b)(1)(A)(ii), which includes various enumerated offenses and any
offense “that has as an element the use, attempted use, or threatened use of
physical force against the person of another,” id. § 2L1.2 cmt. (B)(iii). In this


      *   Judge Garza concurs in judgment only.
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                                 No. 12-41425
appeal, we consider whether the Louisiana offense of aggravated battery under
Louisiana Revised Statutes section 14:34 qualifies as a crime of violence under
§ 2L1.2 of the federal Sentencing Guidelines, justifying a sixteen-level
enhancement to Defendant–Appellant Santos Tulio Herrera–Alvarez’s federal
sentence. To determine whether a past conviction qualifies as a “crime of
violence,” we use what is known as the “categorical approach” set forth in
Taylor v. United States, 495 U.S. 575 (1990).        To apply the categorical
approach, we inquire, based solely upon the elements of the statute forming
the basis for the defendant’s prior conviction, whether the offense qualifies as
a crime of violence. Id. That is, we inquire whether the offense is comprised
of each of the elements of a “generic” crime enumerated in § 2L1.2—here,
aggravated assault—or, alternatively, whether the offense necessarily
requires a finding that the defendant used, attempted to use, or threatened to
use physical force against the person of another. See Descamps v. United
States, 133 S. Ct. 2276 (2013); Taylor, 495 U.S. at 579. “The purpose of the
categorical approach is to avoid the practical difficulties and fairness problems
that would arise if courts were permitted to consider the facts behind prior
convictions which would potentially require federal courts to relitigate a
defendant’s prior conviction in any case where the government alleged that the
defendant’s actual conduct fit the definition of a predicate offense.” Patel v.
Mukasey, 526 F.3d 800, 802 (5th Cir. 2008) (citation, quotation marks, and
alteration omitted). If we determine that the statute of conviction covers
conduct that does not categorically qualify as a crime of violence, but the
statute is divisible—meaning that it sets forth multiple separate offenses or
sets forth one or more elements of an offense in the alternative—then we apply
a variant of the categorical approach known as the “modified categorical
approach.” Descamps, 133 S. Ct. at 2281. Under the modified categorical
approach, we may look beyond the statute to a limited class of documents, such
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                                 No. 12-41425
as indictments and jury instructions, made or used in adjudicating the
defendant’s guilt to determine which statutory alternative applies to the
defendant’s conviction. See id. We then apply the Taylor approach to assess
whether the offense, as narrowed, is categorically broader than an enumerated
offense or whether it has as an element the use, attempted use, or threatened
use of physical force. See id.
      For the reasons that follow, we conclude that an offense defined by
Louisiana Revised Statutes section 14:34, as narrowed pursuant to the
modified categorical approach, qualifies as a crime of violence under § 2L1.2
because it has as an element the use, attempted use, or threatened use of force
against the person of another. Because section 14:34 criminalizes aggravated
batteries committed by administering poison, which does not necessarily entail
the use of destructive or violent physical force, see United States v. Villegas–
Hernandez, 468 F.3d 874, 879 (5th Cir. 2006), the statute as a whole does not
categorically qualify as a crime of violence. However, in the present case, by
referencing the charging document in Herrera–Alvarez’s prior conviction, we
may narrow the statute of conviction under the modified categorical approach
to exclude the possibility that Herrera–Alvarez was convicted of aggravated
battery committed by means of poisoning. We conclude that, thus narrowed,
the offense for which Herrera–Alvarez was convicted under Louisiana Revised
Statutes section 14:34 necessarily had as an element the use, attempted use,
or threatened use of force against the person of another and therefore qualifies
as a crime of violence under § 2L1.2. Accordingly, we affirm.
                                       I.
      Santos Tulio Herrera–Alvarez pleaded guilty to illegal reentry under 8
U.S.C. § 1326(a) & (b)(2). He received a sixteen-level enhancement to his
sentence for his 2010 Louisiana conviction for felony aggravated battery under
Louisiana Revised Statutes section 14:34. The criminal information for that
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                                 No. 12-41425
offense alleged in pertinent part that on April 26, 2009, Herrera–Alvarez “did,
willfully and unlawfully commit an aggravated battery with a dangerous
weapon, to-wit: a knife, on one Nicholas Marrogain, in violation of the
provisions of R.S. 14:34.” (Emphasis omitted.) Under Louisiana law, “[b]attery
is the intentional use of force or violence upon the person of another; or the
intentional administration of a poison or other noxious liquid or substance to
another.” LA. REV. STAT. § 14:33. “Aggravated battery is a battery committed
with a dangerous weapon.” Id. § 14:34. A dangerous weapon is “any gas, liquid
or other substance or instrumentality, which, in the manner used, is calculated
or likely to produce death or great bodily harm.” Id. § 14:2(3). The district
court determined that section 14:34 constitutes a crime of violence within the
meaning of § 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines and enhanced
Herrera–Alvarez’s sentence accordingly. With the enhancement, Herrera–
Alvarez’s Guidelines range was 46 to 57 months of imprisonment, and the
district court imposed the below-guidelines sentence of 41 months of
imprisonment plus three years of supervised release. Herrera–Alvarez did not
object to the enhancement.
                                       II.
      “[T]he government bears the burden of establishing a factual predicate
justifying [a sentencing] adjustment, here that [the] offense constitutes a crime
of violence.” United States v. Bonilla, 524 F.3d 647, 655 (5th Cir. 2008) (citing
United States v. Rabanal, 508 F.3d 741, 743 (5th Cir. 2007)). The parties agree
that the issue on appeal was not preserved below and that plain error governs.
While we are not bound by the parties’ concessions and we alone determine the
proper standard of review, see United States v. Vontsteen, 950 F.2d 1086, 1091
(5th Cir. 1992) (en banc) (holding, in a plain error case, that “no party has the
power to control our standard of review . . . . [and that] the reviewing court
must determine the proper standard on its own”) (emphasis omitted) (citation
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                                       No. 12-41425
omitted), a review of the record confirms that Herrera–Alvarez did not object
to the sentencing enhancement in the district court. Where, as here, the
defendant fails to object to a sentencing enhancement in the district court, our
review is for plain error only. See FED. R. CRIM. P. 52(b); Puckett v. United
States, 556 U.S. 129, 135 (2009).
                                            III.
       This Court has previously held that the Louisiana offense of aggravated
battery under Louisiana Revised Statutes section 14:34 is a crime of violence
under federal statutes and Sentencing Guidelines provisions other than
Sentencing Guidelines § 2L1.2, the provision at issue in this case. See United
States v. Moore, 635 F.3d 774, 777 (5th Cir. 2011) (holding that Louisiana
aggravated battery qualifies as a crime of violence under Sentencing
Guidelines § 4B1.2(a), the career offender sentencing enhancement); United
States v. Rasco, 123 F.3d 222, 227-28 (5th Cir. 1997) (holding that Louisiana
aggravated battery was a “serious violent felony” for purposes of the three-
strikes law, 18 U.S.C. § 3559(c)). As an initial matter, we consider whether
those precedents are controlling in the instant case.
       In the past, we have stated generally that “[b]ecause of the similarities
between U.S.S.G. §§ 2L1.2(b)(1)(A), 4B1.2(a), 4B1.4(a), and 18 U.S.C. § 924(e),”
we often treat cases dealing with these provisions “interchangeably.” United
States v. Moore, 635 F.3d 774, 776 (5th Cir. 2011). However, we do not treat
our categorical approach precedents as interchangeable if there is a salient
statutory distinction among the statutes or Guidelines provisions at issue or if
the precedents are otherwise distinguishable. 1 Our opinions in Moore and


       1 See United States v. Andino–Ortega, 608 F.3d 305, 310-12 (5th Cir. 2010) (concluding
that because two federal “crime of violence provisions,” 18 U.S.C. § 16(b) and § 2L1.2 of the
Sentencing Guidelines, defined “crime of violence” differently, this Court’s precedent dealing
with § 16(b) was “clearly not controlling” with respect to an issue arising under § 2L1.2(b));
accord, e.g., United States v. Rede–Mendez, 680 F.3d 552, 556 n.2 (6th Cir. 2012) (explaining
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Rasco, though probative, are not controlling in this case. At issue in Moore was
whether the defendant’s Louisiana conviction for aggravated battery with a
motor vehicle was a COV for the purpose of § 4B1.2(a), the career offender
Guideline. 635 F.3d at 776-77. We held that Louisiana aggravated battery
was a crime of violence for the purpose of the residual clause of the career
offender Guideline because it involved conduct that presented “‘a serious
potential risk of physical injury to another’” and it was “‘purposeful, violent,
and aggressive.’” Id. at 777 (quoting U.S.S.G. § 4B1.2(a)). Section 2L1.2, by
contrast,    has    no   comparable       residual     clause.      Moore      is   therefore
distinguishable from the present case. See Andino–Ortega, 608 F.3d at 310-
12; Rede–Mendez, 680 F.3d at 556 n.2.                   Our opinion in Rasco is also
distinguishable. There, the defendant did not argue that the offense did not
entail the use, attempted use, or threatened use of physical force. 123 F.3d at
227-28; see Br. of Def.-Appellant 33-34, United States v. Rasco, No. 96-31054,
1997 WL 33617659 (5th Cir. Feb. 10, 1997). In Rasco we did not purport to
resolve whether section 14:34 satisfied the “use of force” prong of § 3559(c)’s
crime of violence definition, and that question was not before the panel. Our
passing statement regarding the use of force under section 14:34 in Rasco is
therefore not controlling here. See, e.g., Thomas v. Tex. Dep’t of Criminal
Justice, 297 F.3d 361, 370 n.11 (5th Cir. 2002) (“Where an opinion fails to
address a question squarely, we will not treat it as binding precedent.”).
       While our opinions in Moore and Rasco are probative of whether the
Louisiana offense of aggravated battery qualifies as a crime of violence under
§ 2L1.2, they are not determinative. We therefore turn to the merits of the


that crime of violence precedents interpreting Sentencing Guideline § 4B1.2, 18 U.S.C. § 16,
and 18 U.S.C. § 924(e) “are probative to an interpretation of U.S.S.G. § 2L1.2” if the
precedents are analyzing the same definition of “crime of violence” but that “[c]ases analyzing
the residual clauses, by contrast, are not pertinent”) (citation omitted).

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                                 No. 12-41425
question presented, whether the Louisiana offense of aggravated battery set
forth in Louisiana Revised Statutes section 14:34 qualifies as a crime of
violence under § 2L1.2 of the Sentencing Guidelines.
                                      IV.
      When considering whether a defendant’s prior conviction constitutes a
crime of violence as defined in § 2L1.2 of the Sentencing Guidelines, we use the
“categorical approach” derived from Taylor v. United States, 495 U.S. 575
(1990), and set forth most recently in the Supreme Court’s opinion in Descamps
v. United States, 133 S. Ct. 2276 (2013). See, e.g., United States v. Carrillo–
Rosales, 536 F. App’x 478, 480-81 (5th Cir. 2013) (per curiam) (unpublished)
(applying categorical analysis of Descamps to assess whether a prior conviction
is a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii) of the federal
Sentencing Guidelines). “Although it is a question of federal law whether an
offense constitutes a crime of violence under § 2L1.2, we look to state law to
determine the offense’s nature and whether its violation is a crime of violence
under federal law.” United States v. Martinez–Flores, 720 F.3d 293, 297 (5th
Cir. 2013) (original alterations and quotation marks omitted).
      Because § 2L1.2 defines “crime of violence” in two different ways—with
reference to a list of enumerated offenses (the “‘enumerated offense’ prong”)
and with reference to any other offense that “has as an element the use,
attempted use, or threatened use of physical force against the person of
another” (the “‘use of force’ prong”), we of necessity use slightly different
methodologies to determine whether a prior offense constitutes a crime of
violence under each respective definition. See, e.g., United States v. Mendoza–
Sanchez, 456 F.3d 479, 481-82 (5th Cir. 2006); see also Martinez–Flores, 720
F.3d at 295 (applying same crime-of-violence methodology after the Supreme




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Court issued its opinion in Descamps). 2          Our two methodologies are both
iterations of the elements-based categorical approach set forth in Taylor and
its progeny, with each looking to different sources of guidance.               See, e.g.,
Descamps, 133 S. Ct. at 2281. Under the “enumerated offense” prong, we
conduct a “common-sense” categorical approach, looking to various sources—
such as “the Model Penal Code, the LaFave and Scott treatises, modern state
codes, and dictionary definitions”—to define each crime by its “generic,
contemporary meaning.” E.g., Moreno–Florean, 542 F.3d at 449 (citation and
quotation marks omitted). Under the “use of force” prong, we analyze whether
the offense has as an element the use, attempted use, or threatened use of
physical force. Id. The “force” necessary under this provision must rise to the
level of “destructive or violent force”; mere “offensive touching” with a deadly
weapon is insufficient. United States v. Dominguez, 479 F.3d 345, 348 (5th Cir.
2007).    Under both approaches, we determine the elements to which a
defendant pleaded guilty by analyzing the statutory definition of the offense,
not the defendant’s underlying conduct. See, e.g., Descamps, 133 S. Ct. at 2281;
see also, e.g., Patel, 526 F.3d at 802 (“The purpose of the categorical approach
is to avoid the practical difficulties and fairness problems that would arise if
courts were permitted to consider the facts behind prior convictions which
would potentially require federal courts to relitigate a defendant’s prior
conviction in any case where the government alleged that the defendant’s
actual conduct fit the definition of a predicate offense.”).
      If we determine that the statute of conviction as a whole does not
categorically qualify as a crime of violence, but the statute is divisible, then we
apply a variant of the categorical approach—the “modified categorical



      2  If the offense qualifies as a crime of violence under one prong, we need not also
consider whether it falls under the other. See Flores–Gallo, 625 F.3d at 821.
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approach.”      Descamps, 133 S. Ct. at 2281.      However, for the modified
categorical approach to apply, the defendant must have been convicted under
a truly divisible statute—i.e., one that “comprises multiple, alternative
versions of the crime”—before it is proper to engage in the modified categorical
approach. Id. at 2284. Under the modified categorical approach, we may
“consult a limited class of documents, such as indictments and jury
instructions, to determine which alternative formed the basis of the
defendant’s prior conviction.    The court can then do what the categorical
approach demands: compare the elements of the crime of conviction (including
the alternative element used in the case) with the elements of the generic
crime,” id. at 2281, or, as the case may be, assess whether the crime of
conviction has as an element the use, attempted use, or threatened use of
physical force.   Those records are “generally limited to . . . the charging
document, written plea agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant assented.” Shepard
v. United States, 544 U.S. 13, 16 (2005). “By reviewing the extra-statutory
materials approved in those cases, courts c[an] discover ‘which statutory
phrase’ contained within a statute listing ‘several different’ crimes, ‘covered a
prior conviction.’” Descamps, 133 S. Ct. at 2285 (citations omitted).
                                       A.
      As an initial matter, we agree with Herrera–Alvarez that Louisiana
Revised Statutes section 14:34 as a whole criminalizes conduct that would not
entail the “use, attempted use, or threatened use of force.” U.S.S.G. § 2L1.2
cmt. (1)(B)(iii). Under § 2L1.2, “the ‘force’ necessary to make an offense a COV
[is] synonymous with ‘destructive or violent force’”; “offensive touching” is
insufficient.   Dominguez, 479 F.3d at 348 (citing, inter alia, United States v.
Sanchez–Torres, 136 F. App’x 644, 647-48 (5th Cir. 2005) (holding Washington
fourth-degree assault statute does not qualify as a crime of violence because it
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                                 No. 12-41425
could be committed by an “offensive touching”)); see Johnson v. United States,
559 U.S. 133, 140 (2010) (holding, in a case arising under the Armed Career
Criminal Act, that “in the context of a statutory definition of ‘violent felony,’
the phrase ‘physical force’ means violent force—that is, force capable of causing
physical pain or injury to another person”). “However, the touching of an
individual with a deadly weapon creates a sufficient threat of force to qualify
as a crime of violence.” Dominguez, 479 F.3d at 348.
      Reading the relevant statutes together, the Louisiana offense of
aggravated battery set forth in section 14:34 consists of the following elements:
(1) “a battery,” LA. REV. STAT. § 14:34—namely, (a) “the intentional use of force
or violence upon the person of another” or (b) “the intentional administration
of a poison or other noxious liquid or substance to another,” id. § 14:33—(2)
that is “committed with a dangerous weapon,” id. § 14:34, which is defined as
(a) “any gas, liquid or other substance or instrumentality” (b) “which, in the
manner used, is calculated or likely to produce death or great bodily harm,” id.
§ 14:2(3). We agree with Herrera–Alvarez that his prior Louisiana conviction
for aggravated battery does not qualify as a “crime of violence” under the “force
or violence” prong of § 2L1.2 because the Louisiana definition of battery
includes the administration of poison, which does not necessarily entail the use
of physical force. See United States v. Villegas–Hernandez, 468 F.3d 874, 879
(5th Cir. 2006) (holding that the Texas crime of simple assault, TEX. PEN. CODE
§ 22.01(a), is not a crime of violence that has as an element the use, attempted
use, or threatened use of physical force because a conviction could be sustained
under that section, inter alia, the defendant merely “ma[de] available to the
victim a poisoned drink while reassuring him the drink is safe,” which would
not entail “destructive or violent physical force”). Under the reasoning of
Villegas–Hernandez, the harmful effect of the poison itself is not sufficient to


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                                      No. 12-41425
furnish the destructive or violent physical force that the “use of force” prong of
§ 2L1.2 demands. See id.
       Likewise, Louisiana’s section 14:34 criminalizes conduct broader than
that contemplated in § 2L1.2 because it covers poisoning without necessarily
requiring the use of violent or destructive physical force. See LA. REV. STAT.
§ 14:33(b) (defining “battery” as “the intentional administration of a poison or
other noxious liquid or substance to another”); id. § 14:2(3) (defining
“dangerous weapon” to include a “gas, liquid, or other substance, . . . which, in
the manner used, is calculated or likely to produce death or great bodily
harm”); State v. Smith, 907 So. 2d 192, 193, 197-98 (La. Ct. App. 2005)
(upholding conviction of aggravated battery under section 14:34 for
intentionally spraying victim with chemicals from a crop-duster plane). As in
Villegas–Hernandez, a perpetrator under Louisiana’s section 14:34 could
simply administer a poison or other substance without necessarily using
“destructive or violent force.”        Dominguez, 479 F.3d at 348; see Villegas–
Hernandez 468 F.3d at 679. 3 In summary, Louisiana Revised Statutes section
14:34 as a whole does not necessarily include, as an element, the use,
attempted use, or threatened use of destructive or violent physical force as
required under the “use of force” prong of § 2L1.2 of the Sentencing Guidelines.
We therefore turn to the modified categorical approach.




       3 That is not to say that a poison or other harmful chemical could never be applied
with violent physical force. Cf. State v. Mayeaux, 570 So. 2d 185, 192 (La. Ct. App. 1990)
(upholding conviction under section 14:34 for soliciting co-conspirator’s attack on victim by
throwing acid into her face, blinding her and causing severe burns). But under the
categorical approach, we are tasked with inquiring whether the requisite violent force must
necessarily be present in every case.

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                                             B.
       As set forth above, under the modified categorical approach, if a statute
contains multiple, disjunctive subsections, we may look beyond the statute to
certain conclusive records made or used in adjudicating guilt to determine
which particular statutory alternative applies to the defendant’s conviction.
See Descamps, 133 S. Ct. at 2281, 2283-86; Shepard, 544 U.S. at 16. We first
consider whether the statute of conviction is disjunctive. See Descamps, 133
S. Ct. at 2281, 2283-86.          “Aggravated battery” is defined as “a battery
committed with a dangerous weapon,” LA. REV. STAT. § 14:34, and “battery” is
defined in the disjunctive: namely, “the intentional use of force or violence upon
the person of another; or the intentional administration of a poison or other
noxious liquid or substance to another,” id. § 14:33 (emphasis added). Section
14:34, by incorporating section 14:33’s disjunctive definition of “battery,” in
effect criminalizes two distinct offenses—an aggravated battery committed by
the intentional administration of poison or other noxious liquid or substance
and an aggravated battery committed by the intentional use of force or violence
upon the person of another. Section 14:34 is therefore disjunctive.
       Next, we look to the “charging document, written plea agreement,
transcript of plea colloquy,” and so on, to narrow down the statute between the
disjunctive subsections. Shepard, 544 U.S. at 16. 4 Based on the state charging



       4 A criminal information may be properly considered as a charging document under
Shepard, but only if the criminal information charges the defendant with a crime of which
he or she was actually convicted. Compare, e.g., Bonilla, 524 F.3d at 652-53 (“Because 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. Therefore, the district court could not consider the criminal information to establish
that Bonilla’s offense qualified as a crime of violence.”) (citations, quotation marks, and
alterations omitted), with, e.g., United States v. Ramirez, 731 F.3d 351, 354 (5th Cir. 2013)
(using criminal information for modified categorical approach), United States v. Ortiz-Gomez,
562 F.3d 683, 685 (5th Cir. 2009) (same), and Perez-Munoz v. Keisler, 507 F.3d 357, 359 (5th
Cir. 2007) (same). Herrera–Alvarez acknowledges that he was convicted of the same crime
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                                  No. 12-41425
document, we ascertain that Herrera–Alvarez was convicted under the latter
offense under section 14:34.     The criminal information charging Herrera–
Alvarez with aggravated battery alleged in pertinent part that on April 26,
2009, Herrera–Alvarez “did, willfully and unlawfully commit an aggravated
battery with a dangerous weapon, to-wit: knife, on one Nicholas Marrogain, in
violation of the provisions of R.S. 14:34.” (Emphasis omitted.) This charging
information allows us to narrow down the elements of the offense of which
Herrera–Alvarez was convicted under section 14:34. Because the information
specifies that Herrera–Alvarez was convicted of the offense using a knife, we
can rule out the possibility that Herrera–Alvarez was convicted under the
“poison” prong of the definition of “battery” set forth in section 14:33. We can
also rule out the possibility that he was convicted of using a “gas, liquid, or
other substance” constituting a “dangerous weapon” under section 14:2(3).
Thus, under the modified categorical approach, we may narrow down the
elements of the offense of which Herrera–Alvarez was convicted as follows: (1)
“a battery,” LA. REV. STAT. § 14:34—namely, “the intentional use of force or
violence upon the person of another,” id. § 14:33—(2) that is “committed with
a dangerous weapon,” id. § 14:34, which here means (a) “any . . .
instrumentality” that (b) “in the manner used, is calculated or likely to produce
death or great bodily harm,” id. § 14:2(3).
      We therefore repeat our categorical analysis and consider whether the
offense, as narrowed, criminalizes conduct that does not involve the use,
attempted use, or threatened use of force. See Descamps, 133 S. Ct. at 2281
(explaining that if the court can narrow the statute of conviction pursuant to
the modified categorical approach, we “can then do what the categorical


set forth in the criminal information. We may properly consider that document under
Shepard and Bonilla.

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                                  No. 12-41425
approach demands”). As we emphasized above, “the ‘force’ necessary to make
an offense a COV [is] synonymous with ‘destructive or violent force,’” and
“offensive touching” is insufficient. Dominguez, 479 F.3d at 348 (citing, inter
alia, United States v. Sanchez–Torres, 136 F. App’x 644, 647-48 (5th Cir. 2005)
(holding that Washington fourth-degree assault statute does not qualify as
COV because it could be committed by an “offensive touching”)); see Johnson,
559 U.S. at 140 (holding that “in the context of a statutory definition of ‘violent
felony,’ the phrase ‘physical force’ means violent force—that is, force capable of
causing physical pain or injury to another person,” and rejecting the
government’s argument that the common-law definition of the crime of battery,
which “held this element of ‘force’ to be satisfied by even the slightest offensive
touching,” should govern the definition under the Armed Career Criminal Act).
However, we held that “the touching of an individual with a deadly weapon
[does] create[ ] a sufficient threat of force to qualify as a crime of violence.”
Dominguez, 479 F.3d at 348.
      We conclude that that the Louisiana crime of aggravated battery under
section 14:34, as narrowed under the modified categorical approach to exclude
poisoning, is a crime of violence because it necessarily contains, as an element,
the use, attempted use, or threatened use of force. Louisiana aggravated
battery requires both physical contact and the use of a dangerous weapon
“which, in the manner used, is calculated or likely to produce death or great
bodily harm.” LA. REV. STAT. § 14:2(3); see Dominguez, 479 F.3d at 348 (holding
that the “touching of an individual with a deadly weapon creates a sufficient
threat of force to qualify as a crime of violence”); cf. Rede–Mendez, 680 F.3d at
556, 558 (holding that because New Mexico’s simple assault statute did not
necessarily require the use of force or physical force, but could instead be
satisfied by “insulting language,” the addition of the “use of a deadly weapon”
element to the aggravated assault statute did not necessarily transform the
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                                   No. 12-41425
offense into a crime of violence and noting that an offense could qualify as a
crime of violence “when the touching is accompanied by a deadly weapon
. . . and the use of a deadly weapon . . . transform[s] a lesser degree of force into
the necessary ‘violent force’”).
      Herrera–Alvarez argues that under Louisiana law, aggravated assault
may be committed by physical contact which is “merely offensive,” which is
insufficient to render the offense a crime of violence, citing the Louisiana
Supreme Court’s opinions in State v. Dauzat, 392 So. 2d 393, 396 (La. 1980),
and State v. Schenck, 513 So. 2d 1159, 1165 (La. 1987), in which the court
stated that the element of “use of force or violence upon the person of another”
may be satisfied by physical contact that is “injurious or merely offensive.”
Neither Dauzat nor Schenck supports Herrera–Alvarez’s argument in favor of
reversal. In both cases, the Louisiana Supreme Court was discussing the
physical contact required for simple battery, not aggravated battery.            See
Dauzat, 392 So. 2d at 396 & n.3; Schenck, 513 So. 2d at 1165 (approving
conviction for simple battery). Herrera–Alvarez was charged with aggravated
battery, which “is a battery committed with a dangerous weapon,” LA. REV.
STAT. § 14:34, which, as pared down pursuant to the modified categorical
approach, as discussed above, is defined as “any . . . instrumentality . . . which,
in the manner used, is calculated or likely to produce death or great bodily
harm,” id. § 14:2(3). This element requires a risk of harm above and beyond
merely “offensive touching” because, as Herrera–Alvarez acknowledges, we
have held that “the touching of an individual with a deadly weapon creates a
sufficient threat of force to qualify as a crime of violence.” Dominguez, 479
F.3d at 348.
      Herrera–Alvarez further maintains that Louisiana aggravated battery
does not require any touching with a weapon because the offense can be
committed while the defendant merely possesses the dangerous weapon, citing
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                                 No. 12-41425
State v. Howard, 638 So. 2d 216, 217 (La. 1994) (per curiam). In Howard, the
Louisiana Supreme Court upheld the defendant’s aggravated battery
conviction under section 14:34 against a sufficiency-of-the-evidence challenge.
Id. at 216. The defendant was charged with aggravated battery after he
grabbed his girlfriend by the shoulders as he attempted to pull her from the
back of a vehicle during an argument and the gun that he was holding in one
hand accidentally discharged, injuring her. Id. at 217. The court upheld the
conviction, reasoning that “[a]ny rational factfinder could have determined . . .
that the defendant had intentionally used force or violence against the victim
with a dangerous weapon when he took his gun in hand, grabbed [the victim]
by her shoulders, and attempted to pull her out of the [vehicle]. That the
defendant did not specifically intend the much greater degree of harm inflicted
on the victim when the gun discharged did not prevent the jury from taking
into account those reasonably foreseeable consequences which aggravate the
seriousness of a battery offense in assessing the culpability of his act.” Id.
(citation omitted). The Louisiana Supreme Court’s application of section 14:34
in Howard does not take that offense out of the purview of § 2L1.2’s “use of
force” prong. Just as in Dominguez, when we observed that “the touching of
an individual with a deadly weapon creates sufficient threat of force to qualify
as a crime of violence,” 479 F.3d at 348, in Howard, the Louisiana Supreme
Court concluded that the violent force intentionally applied to the victim,
accompanied by the use of a deadly weapon that, in the manner used, was
likely to cause great bodily injury or death, made the defendant’s conduct
sufficient to sustain a conviction under section 14:34. See 638 So. 2d at 217.




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                                       No. 12-41425
We conclude that this is sufficient to qualify the offense as a crime of violence
under § 2L1.2’s “use of force” prong. 5
                                             V.
       For the foregoing reasons, we conclude that that the Louisiana crime of
aggravated battery under section 14:34, as narrowed under the modified
categorical approach to exclude poisoning, is a crime of violence under § 2L1.2
of the Sentencing Guidelines because it contains, as an element, the use,
attempted use, or threatened use of force. Accordingly, we AFFIRM.




       5  Accordingly, we do not reach the government’s alternative contention that the
Louisiana offense of aggravated battery under section 14:34 qualifies as a crime of violence
under § 2L1.2 because it is equivalent to the enumerated offense of “aggravated assault.” See
Flores–Gallo, 625 F.3d at 821 (noting that if an offense qualifies as a COV under the “use of
force” prong of § 2L1.2, we have discretion not to first consider whether it qualifies as an
enumerated offense); cf., e.g., Bonilla, 524 F.3d at 654 (holding that where a state statute
“encompass[es] criminal acts involving a less culpable mens rea than” the enumerated crime,
it “criminalize[s] conduct broader than the plain and ordinary definition of” the generic
enumerated crime); Uppal v. Holder, 605 F.3d 712, 719 (9th Cir. 2010) (collecting cases that
have “taken note of the distinction between general and specific intent in the assault and
battery contexts” for purposes of the categorical approach); Rede–Mendez, 680 F.3d at 557
(concluding that New Mexico aggravated assault is not equivalent to the generic,
contemporary meaning of aggravated assault because, among other reasons, “[u]nlike the
Model Penal Code or LaFave definitions, the New Mexico statute does not require specific
intent to injure or to frighten the victim. Instead, aggravated assault in New Mexico requires
general criminal intent”).
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