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


                                        No. 13-40114                                FILED
                                                                                June 12, 2014
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk

                                                    Plaintiff - Appellee
v.

ADAN GARCIA-FIGUEROA,

                                                    Defendant - Appellant




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


Before DENNIS and PRADO, Circuit Judges, and BROWN, District Judge. *
NANNETTE JOLIVETTE BROWN, District Judge:
      Defendant Adan Garcia-Figueroa appeals his sentence after conviction
for conspiracy to bring illegal aliens into the United States, bringing illegal
aliens into the United States, and being unlawfully present in the United
States following a prior deportation. Specifically, he challenges the district
court’s application of the United States Sentencing Guidelines (“U.S.S.G.”),
averring that the district court erred in its assessment of a 12-level crime of
violence enhancement, and in its grouping of Garcia-Figueroa’s counts of
conviction. Because we conclude that the district court erred in its application




      *   District Judge of the Eastern District of Louisiana, sitting by designation.
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                                   No. 13-40114
of the grouping guidelines, we VACATE and REMAND the case for re-
sentencing.
                                  BACKGROUND
      On June 5, 2012, border patrol agents arrested Garcia-Figueroa near
Hidalgo, Texas, after Garcia-Figueroa was caught smuggling between 12 and
17 illegal aliens across the Rio Grande in an inflatable raft. On September 6,
2012, Garcia-Figueroa was charged by a three-count superseding indictment
with (1) conspiracy to bring illegal aliens into the United States, (2) bringing
illegal aliens into the United States, and (3) being unlawfully present in the
United States following a prior deportation. Following a three-day jury trial,
Garcia-Figueroa was convicted on all three counts.
      A    probation    officer    compiled    Garcia-Figueroa’s      presentence
investigation report (“PSR”). The PSR grouped Counts 1 and 2 together, but
determined that they were not groupable with Count 3. For Counts 1 and 2,
the PSR assigned a base offense level of 12. U.S.S.G. § 2L1.1(a)(3).
Additionally, the PSR applied three enhancements. First, it included a 3-level
enhancement because the offense involved smuggling between 6 and 24
unlawful aliens. U.S.S.G. § 2L1.1(b)(2)(A). Second, the PSR added a 2-level
enhancement because the defendant committed the offense after a conviction
for a felony immigration and naturalization offense. U.S.S.G. § 2L1.1(b)(3)(A).
Third, the PSR applied a 2-level enhancement for intentionally or recklessly
creating a substantial risk of death or serious bodily injury to another person;
specifically, the PSR noted that Garcia-Figueroa had placed the unlawful
aliens in an overcrowded inflatable raft without life jackets in order to cross
the Rio Grande. U.S.S.G. § 2L1.1(b)(6). Garcia-Figueroa’s adjusted offense
level for Counts 1 and 2 was 19. With respect to Count 3, Garcia-Figueroa’s
base offense level was 8. U.S.S.G. § 2L1.2(a). Additionally, the PSR
recommended that Garcia-Figueroa’s offense level be increased 12 levels
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                                  No. 13-40114
because his deportation occurred after his conviction of a crime of violence
(“COV”). U.S.S.G. § 2L1.2(b)(1)(A)(ii). After applying a multiple-count
adjustment, the PSR assigned Garcia-Figueroa a total offense level of 22.
U.S.S.G. § 3D1.4. With a criminal history category of III, Garcia-Figueroa’s
recommended Guidelines range was 51 to 63 months’ imprisonment.
      Prior to sentencing, Garcia-Figueroa filed objections to the PSR,
challenging the 2-level reckless-endangerment enhancement and the 12-level
COV enhancement, and asserting that Count 3 should be grouped with
Counts 1 and 2. The government also filed an objection, requesting that the
Court assess a 2-level enhancement for obstructing or impeding the
administration of justice because Garcia-Figueroa had given false testimony
at his trial. U.S.S.G. § 3C1.1.
      A sentencing hearing was held on January 23, 2013. The district court
overruled Garcia-Figueroa’s COV objection and grouping objection. With
respect to Garcia-Figueroa’s reckless endangerment objection, the district
court declined to rule on the issue, characterizing it as “academic.” Because
Garcia-Figueroa’s offense level for Count 3 was higher than his offense level
for Counts 1 and 2, the district court reasoned that the total offense level
would be 22 regardless of whether the reckless endangerment enhancement
was applied to the smuggling offense. Finally, regarding the obstruction of
justice enhancement, the district court granted the government’s objection,
finding that Garcia-Figueroa had given perjured, material testimony at trial.
      Following its ruling on the objections, the court determined that
Garcia-Figueroa had a total offense level of 24 and a criminal history
category of III, giving him a Guidelines range of 63 to 78 months. The court
sentenced Garcia-Figueroa to 70 months, within the Guidelines range.
Garcia-Figueroa timely appealed.


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                                       No. 13-40114
                                      DISCUSSION
                                              I.
        On appeal, Garcia-Figueroa first argues that the district court erred in
its assessment of a 12-level COV enhancement based on his prior conviction
in Florida state court for “attempted aggravated battery on [a] law
enforcement officer with a law enforcement officer’s firearm” in violation of
Florida Statute §§ 784.07, 777.04, and 775.0875. U.S.S.G. § 2L1.2(b)(1)(A)(ii)
provides for a 12-level enhancement where “the defendant previously was
deported, or unlawfully remained in the United States, after . . . a conviction
for a felony that is . . . a crime of violence.” A COV is defined in the
commentary to the Guidelines as:
        . . . any of the following offenses under federal, state, or local law: Murder,
        manslaughter, kidnapping, aggravated assault, forcible sex offenses . . . ,
        statutory rape, sexual abuse of a minor, robbery, arson, extortion,
        extortionate extension of credit, burglary of a dwelling, or any other 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.
U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). This court has “interpreted this provision to
mean that a prior offense is a crime of violence if it: ‘(1) has physical force as
an element, or (2) qualifies as one of the enumerated offenses.’” United States
v. Herrera, 647 F.3d 172, 175 (5th Cir. 2011) (quoting United States v.
Gomez–Gomez, 547 F.3d 242, 244 (5th Cir. 2008) (en banc), superseded by
regulation on other grounds, as stated in United States v. Diaz–Corado, 648
F.3d 290, 294 (5th Cir. 2011)). Garcia-Figueroa argues that his prior
conviction for attempted aggravated assault neither has physical force as an
element, nor qualifies as an enumerated offense. Additionally, he contends
that Florida’s definition of “attempt” is too broad to constitute “attempt”
under     the    Sentencing      Guidelines.       We    review    the    district    court’s




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                                       No. 13-40114
characterization of a defendant’s prior conviction as a COV de novo. 1 United
States v. Calderon–Pena, 383 F.3d 254, 256 (5th Cir. 2004) (en banc) (per
curiam).
       Looking at Garcia-Figueroa’s prior crime, the judgment in Garcia-
Figueroa’s prior case indicates that he was convicted in 1991 for “attempted
aggravated battery on [a] law enforcement officer with a law enforcement
officer’s firearm” in violation of Florida Statute §§ 784.07, 777.04, and
775.0875. Florida Statute § 784.07 provides that aggravated battery is
classified as a first-degree felony when it is committed against a law
enforcement officer. Fla. Stat. § 784.07(2)(d) (1991). However, § 784.07 does
not list the specific elements of aggravated battery. Those elements are found
in § 784.045, which provides that a person is guilty of aggravated battery
“who, in committing battery: 1. Intentionally or knowingly causes great
bodily harm, permanent disability, or permanent disfigurement; or 2. Uses a
deadly weapon.” Fla. Stat. § 784.045(1)(a) (1991). An individual commits
battery if he “1. Actually and intentionally touches or strikes another person
against the will of the other; or 2. Intentionally causes bodily harm to an
individual.” Fla. Stat. § 784.03(1)(a) (1991). The third statute mentioned in
Garcia-Figueroa’s judgment, Florida Statute § 775.0875, makes it a third-
degree felony for a person to “without authorization, take[] a firearm from a



       1 At oral argument, this court questioned counsel on whether Garcia-Figueroa had
sufficiently raised all aspects of his argument that his prior conviction does not qualify as a
COV before the district court such that de novo review, rather than plain-error review,
applies. See generally United States v. Chavez–Hernandez, 671 F.3d 494, 497 (5th Cir. 2012)
(explaining that this court will generally review the district court’s characterization of a
defendant’s prior conviction as a COV de novo, but that if the defendant fails to make his
objection to the Guidelines calculation sufficiently clear, the issue is considered forfeited,
and this court reviews only for plain error). Both parties represented that de novo review is
appropriate. Considering that we conclude that the district court did not err in its
application of the COV enhancement, we apply de novo review without addressing whether
Garcia-Figueroa made his objection to the Guidelines calculation sufficiently clear.
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                                  No. 13-40114
law enforcement officer lawfully engaged in law enforcement duties.” Fla.
Stat. § 775.0875(1) (1991). Finally, § 777.04 defines criminal attempt as “any
act toward the commission” of an offense. Fla. Stat. § 777.04(1) (1991).
      We first examine whether this prior conviction has physical force as an
element of the offense. “This court employs a ‘categorical approach’ in
determining whether an offense qualifies as a COV under § 2L1.2.” United
States v. Dominguez, 479 F.3d 345, 347 (5th Cir. 2007). That is, the court
“examine[s] the elements of the offense, rather than the facts underlying the
conviction or the defendant’s actual conduct.” Id. In this context, “an element
is ‘a constituent part of a claim that must be proved for the claim to succeed.’”
United States v. Vargas–Duran, 356 F.3d 598, 605 (5th Cir. 2004) (en banc)
(quoting Black’s Law Dictionary 538 (7th ed. 1999)). “If any set of facts would
support a conviction without proof of that component, then the component
most decidedly is not an element—implicit or explicit—of the crime.” Id. In
the case where a statute has a series of disjunctive elements, “a court may
look to the indictment or jury instructions, for the limited purpose of
determining which in a series of disjunctive elements a defendant’s conviction
satisfies.” Dominguez, 479 F.3d at 347 (quoting Calderon–Pena, 383 F.3d at
258) (emphasis in original) (internal quotation marks omitted); see also
Descamps v. United States, 133 S. Ct. 2276, 2281 (2013) (explaining that a
sentencing court 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”).
      Physical force in the context of § 2L1.2 requires “force capable of
causing pain or injury to another person.” United States v. Flores–Gallo, 625
F.3d 819, 823 (5th Cir. 2010) (per curiam) (quoting Johnson v. United States,
559 U.S. 133, 140 (2010)) (internal quotation marks omitted). It is
“synonymous with destructive or violent force.” Dominguez, 479 F.3d at 348
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                                  No. 13-40114
(quoting United States v. Landeros–Gonzales, 262 F.3d 424, 426 (5th Cir.
2001)) (internal quotation marks omitted). Further, “the ‘use’ of force requires
that a defendant intentionally avail himself of that force.” Vargas–Duran,
356 F.3d at 599. However, the actual use of force is not necessary, as
“threatened use of force is sufficient.” Dominguez, 479 F.3d at 348.
      As noted above, a defendant can be found guilty of aggravated battery
under Florida law either by (1) intentionally or knowingly causing great
bodily harm, permanent disability, or permanent disfigurement, or by (2)
using a deadly weapon. Fla. Stat. § 784.045(1)(a) (1991). Thus, the
aggravated battery statute is disjunctive. Although this court has never
evaluated whether prong (1) of the aggravated battery statute constitutes a
COV, in United States v. Dominguez, this court held that a conviction under
the “deadly weapon” prong of § 784.045 is a COV. 479 F.3d at 349. In
Dominguez, we acknowledged that under the “deadly weapon prong” of the
Florida statute, “an individual could commit an aggravated battery merely by
touching someone with a deadly weapon, without any resulting physical
injury, and this does not qualify as a use of force.” Id. at 348. However, this
court reasoned that “the touching of an individual with a deadly weapon
creates a sufficient threat of force to qualify as a crime of violence.” Id.
      Garcia-Figueroa contends that Dominguez is not controlling in this case
because the charging document from his 1991 conviction does not narrow his
crime to the “use of a deadly weapon” subsection but simply tracks the
language of Florida Statute § 784.045. This argument, however, ignores the
specificity in the charging document. In Garcia-Figueroa’s case, the
indictment alleges that he “did attempt to commit a battery on Lt. H.
Robinson of the Bradenton Police Department and in so doing intentionally
or knowingly attempted to cause great bodily harm, permanent disability,
permanent disfigurement, and/or use a deadly weapon, to-wit: the firearm of
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                                       No. 13-40114
Lt. H. Robinson . . . .” The charging document does not mechanically restate
the language of Florida Statute § 784.045 and the words of the “deadly
weapon” prong; rather it identifies the particular deadly weapon that Garcia-
Figueroa used in the commission of the offense—that is, “the firearm of Lt. H.
Robinson.” Further, looking at the judgment in Garcia-Figueroa’s case, that
document describes the crime of conviction as “attempted aggravated battery
on [a] law enforcement officer with a law enforcement officer’s firearm.” By
specifying that the Florida battery was done “with a law enforcement officer’s
firearm,” the judgment also demonstrates that Garcia-Figueroa “use[d] a
deadly weapon.” 2
       Moreover, Garcia-Figueroa’s argument only focuses on Florida Statute
§ 784.045, which defines aggravated battery, and ignores Florida Statute
§ 775.0875. Considering that statute more closely, § 775.0875 makes it a
crime for a person to “without authorization, take[] a firearm from a law
enforcement officer lawfully engaged in law enforcement duties.” Fla. Stat.
§ 775.0875(1) (1991). Such an offense qualifies as a crime of violence under
this court’s reasoning in Dominguez. In Dominguez, the charging instrument

       2 Citing this court’s opinion in United States v. Neri–Hernandes, 504 F.3d 587 (5th
Cir. 2007), Garcia-Figueroa argues that the court may not rely on the judgment in his
Florida case to narrow the offense of conviction to a particular prong of the aggravated
battery statute. Garcia-Figueroa misconstrues Neri–Hernandes. In Neri–Hernandes, this
court held that a district court could look to a New York Certificate of Disposition “to
determine the nature of a prior conviction” but that the Certificate “is not conclusive and
may be rebutted.” 504 F.3d at 592. In so holding, Neri–Hernandes distinguished a New
York Certificate of Disposition from a California Abstract of Judgment, which this court
had previously determined could not be relied upon. The court noted that “[u]nder
California law, an abstract of judgment is a clerical, rather than a judicial function” and
that “the factual information on the form identifying the offense does not reflect a ‘conscious
judicial narrowing of the charging document.’” Id. at 590–91 (quoting United States v.
Gutierrez–Ramirez, 405 F.3d 352, 358 (5th Cir. 2005)). In contrast, “[u]nder New York law,
a Certificate of Disposition is a judicial record of the offense of which the defendant was
convicted.” Id. at 592. At Garcia-Figueroa’s sentencing, the district court had before it the
actual judgment in the Florida case, signed by the judge in that matter. Under Neri–
Hernandes, a court may rely on a “judicial record of the offense,” and thus a court is not
precluded from considering the crime of conviction as defined in the judgment.
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                                 No. 13-40114
alleged that the defendant “did unlawfully and intentionally touch or strike
[the victim] against his will with a deadly weapon, to-wit: a knife,” in
violation of the Florida aggravated battery statute, § 784.045. 479 F.3d at
347. This court explained that “[a]lthough an intentional touching with a
deadly weapon under Florida law may not in itself cause injury, it could lead
to more violent contact, or could at least put the victim on notice of the
possibility that the weapon will be used more harshly in the future, thereby
constituting a threatened use of force.” Id. at 349 (emphasis added). Similarly,
“tak[ing] a firearm from a law enforcement officer lawfully engaged in law
enforcement duties” may not necessarily involve the use of force, but it does
create a sufficient “threatened use of force” to qualify as a crime of violence
under U.S.S.G. § 2L1.2.
      Accordingly, we conclude that “attempted aggravated battery on [a] law
enforcement officer with a law enforcement officer’s firearm” in violation of
Florida Statute §§ 784.07, 777.04, and 775.0875 “has as an element the use,
attempted use, or threatened use of physical force against the person of
another.” We need not consider whether this conviction qualifies as one of the
enumerated offenses. U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).
      Even though “attempted aggravated battery on [a] law enforcement
officer with a law enforcement officer’s firearm” has use of force as an
element, we must additionally examine whether “attempt” under Florida law
is broader than the meaning of “attempt” that applies under the Sentencing
Guidelines.
      In United States v. Sanchez, 667 F.3d 555 (5th Cir. 2012), this court set
forth the framework for determining whether an attempt qualifies as a
“crime of violence” for the purposes U.S.S.G. § 2L1.2. As explained in
Sanchez, “[t]he Guidelines do not define ‘attempt.’” 667 F.3d at 560.
Therefore, the court “employ[s] a common-sense approach and define[s] the
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                                 No. 13-40114
term according to its generic, contemporary meaning.” Id. (quoting United
States v. Rosas–Pulido, 526 F.3d 829, 834 (5th Cir. 2008)). In doing so, the
court “should rely on a uniform definition, regardless of the labels employed
by the various States’ criminal codes.” Id. (quoting United States v. Murillo–
Lopez, 444 F.3d 337, 339 (5th Cir. 2006)) (internal alterations omitted). If the
state definition of attempt is broader than the generic definition, “a
conviction under that state’s law cannot serve as a predicate for the crime of
violence enhancement.” Id. (quoting United States v. Ellis, 564 F.3d 370, 372
(5th Cir. 2009)). To demonstrate that the state definition is broader that the
generic definition, “the defendant must show more than a ‘mere theoretical
possibility’ that the statute of conviction criminalizes conduct that does not
fall within the ordinary meaning.” Id. at 561. Rather, a defendant “must
show a ‘realistic probability’ that the statute of conviction would in fact
punish conduct outside of the offense’s ordinary meaning.” Id. To show a
“realistic probability,” a defendant “must at least point to his own case or
other cases in which the state courts in fact did apply the statute in the
special (nongeneric) manner for which he argues.” Id. (quoting Gonzales v.
Duenas–Alvarez, 549 U.S. 183, 193 (2007)) (internal quotation marks
omitted).
      The crime of attempt consists of two elements—a mens rea requirement
and an actus reus requirement. Sanchez, 667 F.3d at 561. The requisite mens
rea is “an intent to commit some other crime.” Id. (quoting 2 Wayne R.
LaFave, Substantive Criminal Law § 11.3 (2d. ed. 2003)). This court has held
that “the generic, contemporary actus reus requirement for attempt is the
Model Penal Code’s ‘substantial step’ test.” Id. at 562. Under the substantial
step test, “[a] person is guilty of an attempt to commit a crime if, acting with
the kind of culpability otherwise required for the commission of the crime, he
. . . purposely does or omits to do anything that, under the circumstances as
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                                 No. 13-40114
he believes them to be, is an act or omission constituting a substantial step in
a course of conduct planned to culminate in his commission of the crime.”
Model Penal Code § 5.01(1)(c); see also Sanchez, 667 F.3d at 562. The Model
Penal Code further instructs that a substantial step must be “strongly
corroborative of the actor’s criminal purpose.” Model Penal Code § 5.01(2); see
also Sanchez, 667 F.3d at 562. The conduct must also “be more than ‘mere
preparation.’” Sanchez, 667 F.3d at 562 (quoting United States v. Mandujano,
499 F.2d 370, 377 (5th Cir. 1974)). In Sanchez, this court explained that
“strongly corroborative” and “more than mere preparation” are two separate
requirements that must both be satisfied. 667 F.3d at 562–63.
      As mentioned above, Florida Statute § 777.04 defines criminal attempt
as “any act toward the commission” of an offense. Fla. Stat. § 777.04(1)
(1991). Comparing the Florida attempt statute to the Model Penal Code, it
appears that the Florida law could criminalize conduct that fails to satisfy
the substantial-step test. “Any act toward the commission” could include
mere preparation. Further, there is no express requirement in the Florida
statute that the act be “strongly corroborative” of the actor’s criminal
purpose. Under Sanchez, however, it is not sufficient to demonstrate a
theoretical possibility that Florida criminalizes conduct outside the ordinary
meaning of attempt. Rather, Garcia-Figueroa must point to specific instances
where it has been so applied. To meet this burden, Garcia-Figueroa cites two
cases, Hudson v. State, 745 So. 2d 997 (Fla. Dist. Ct. App. 1999), and Smith v.
State, 632 So. 2d 644 (Fla. Dist. Ct. App. 1994). Neither of these cases,
however, shows a realistic probability that the Florida attempt statute would
in fact punish conduct outside of the offense’s ordinary meaning.
      In Hudson v. State, the defendant challenged his conviction for “an
attempted lewd and lascivious act” on the grounds that the facts “[did] not
demonstrate he took an overt step toward the commission of the crime.” 745
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                                       No. 13-40114
So. 2d at 998–99. The defendant had placed a personal advertisement in a
pornographic magazine seeking a “dreamboy” age twenty-one or under. Id. at
998–99. A law enforcement officer responded to the advertisement,
representing himself to be a fourteen-year-old boy. Id. at 999. For a month
and a half, the defendant exchanged sexually graphic letters with the “boy,”
mailed him money and pornographic magazines, and sent the “boy” photos of
his apartment, urging the “boy” to live with him in Florida. Id. Finally, the
defendant purchased and mailed a plane ticket for the “boy” and arranged for
a taxi from the airport to the defendant’s home. Id. When the taxi arrived
with a law enforcement officer posing as a boy, the defendant went to the cab
to greet the “boy” and was arrested. Id.
        The Florida District Court of Appeal rejected the defendant’s argument
that his conduct did not constitute an overt step. The court explained that
“Florida case law, in general, focuses on whether a defendant’s actions were
preparatory or overt.” Id. at 1000. In Hudson, the court concluded that the
defendant’s actions had gone beyond preparation to include an overt act:
        In this case, we agree that Mr. Hudson was merely in the preparatory stages
        of the crime when he purchased the advertisement and wrote his initial
        correspondence to Larry [the “boy”]. However, thereafter he wrote numerous
        letters, mailed Larry a plane ticket and money for travel, arranged for a taxi
        to bring Larry to his house, and then approached the taxi in order to greet
        Larry. We conclude that under these circumstances the trial court correctly
        decided the information charged a crime supported by an overt act.
Id.
        In reaching its decision, the Florida court applied the Florida attempt
statute in a manner consistent with the Model Penal Code’s definition of
attempt. The defendant was not convicted on the grounds of “mere
preparation”; rather he had taken actions properly analogous to a substantial
step—writing numerous, sexually explicit letters; purchasing and mailing a
plane ticket; providing money for travel; arranging transportation; and going

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                                No. 13-40114
out to greet a boy whom the defendant believed to be fourteen years old.
Furthermore, such actions are strongly corroborative of a criminal purpose to
commit a lewd or lascivious act, which, under Florida law at that time, was
defined as “sexual battery under § 794.011(1)(h) upon any child under 16
years.” Fla. Stat. § 800.04(3) (1995); see also Hudson, 745 So. 2d at 998 n.1.
Sexual battery, in turn, was defined as “oral, anal, or vaginal penetration by,
or union with, the sexual organ of another or the anal or vaginal penetration
of another by any other object.” Fla. Stat. § 794.011(1)(h) (1995). Considering
that the “more than mere preparation” and “strongly corroborative” elements
were satisfied, Hudson fails to support Garcia-Figueroa’s argument that the
“attempt” under Florida law is broader than the meaning of “attempt” that
applies under the Sentencing Guidelines.
      The second case cited by Garcia-Figueroa is Smith v. State. There, the
defendant was convicted on four counts of “attempting to handle, fondle, or
make an assault upon a child under the age of 16 years in a lewd, lascivious
or indecent manner” under Florida Statute § 800.04(1). 632 So. 2d at 645.
Counts 1 and 2 were based on a December 8, 1990 incident. Two girls, ages
thirteen and fourteen, were walking on the sidewalk when the defendant,
driving a van, said to them “[h]ey girls, show me your pussy.” Id. The two
girls ran away, taking a back road to a church, where they sat in the
sanctuary for several minutes. Id. The girls then walked to a fast food
restaurant. Id. While they were there, the defendant drove up outside the
restaurant and looked into the restaurant, causing the girls to hide in the
restaurant’s bathroom. Id. Counts 3 and 4 resulted from a December 20, 1990
incident. Id. Two girls, ages nine and ten, were walking along a sidewalk.
The defendant drove by, stuck out his tongue, and “said, ‘Honey, let me have
some pussy,’ or ‘Give me your pussy.’” Id. The defendant circled back past the


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                                    No. 13-40114
girls about three more times. Id. The girls walked to a park to be near other
people, and the defendant drove by the park. Id.
      The Florida appellate court concluded that the facts of Counts 1 and 2
failed to establish a prima facie case against the defendant of attempting to
handle, fondle, or make an assault upon a child under the age of 16 years in a
lewd, lascivious or indecent manner. Id. The court explained that “[a]ttempt
requires an overt act which is a direct movement toward the commission of
the offense, and which is more than mere preparation.” Id. at 645–46. The
court determined that the defendant’s statement to “show me your pussy” did
not “evince the specific intent to handle, fondle, or assault the girls.” Id. at
646. Further, the defendant’s following the girls to the restaurant did not
“constitute a direct movement toward a specific purpose of handling, fondling,
or assaulting the girls.” Id.
      However, the Florida appellate court held that facts of Counts 3 and 4
did establish a prima facie case of attempt. According to the court, “[t]he
appellant’s command to the girls to ‘give [him] some pussy’ demonstrates the
specific desire to handle or fondle the girls, and the appellant’s act of
repeatedly driving back by the girls can properly be viewed as a direct act in
furtherance of this specific intent.” Id. (alteration in original).
      As in Hudson, the Smith court applied the Florida attempt law in a
manner consistent with the generic meaning of attempt. The court evaluated
whether the defendant made a direct movement that was more than mere
preparation. Further, the court analyzed whether that movement furthered
the defendant’s “specific desire to handle or fondle the girls”—that is,
whether the movement was corroborative of his criminal purpose.
Considering    that   the   “more    than     mere    preparation”    and   “strongly
corroborative” elements were satisfied, Smith also fails to support Garcia-


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                                   No. 13-40114
Figueroa’s argument that “attempt” under Florida law is broader than the
meaning of “attempt” that applies under the Sentencing Guidelines.
      Under Sanchez, in order to demonstrate that Florida’s attempt statute
is overly broad, Garcia-Figueroa is required to point to cases in which the
Florida courts applied the attempt statute in a nongeneric manner. The two
cases cited by Garcia-Figueroa—Hudson and Smith—are inapplicable; in
both cases, the Florida courts applied a definition of attempt consistent with
the Model Penal Code’s substantial step test. Accordingly, Garcia-Figueroa
has failed to demonstrate that “attempt” under Florida law is broader than
“attempt” under the Sentencing Guidelines.
      Concluding that “attempted aggravated battery on [a] law enforcement
officer with a law enforcement officer’s firearm” has the use of force as an
element, and that attempt under Florida law is not broader than the generic
definition of attempt, we hold that Garcia-Figueroa’s conviction qualifies as a
COV and that the district court did not err in assigning a 12-level
enhancement.
                                         II.

      Second, Garcia-Figueroa contends that the district court erred in not
grouping Count 3 with Count 1 and 2. We review the district court’s grouping
de novo. United States v. Lopez–Urbina, 434 F.3d 750, 762 (5th Cir. 2005).
      U.S.S.G. § 3D1.2 provides that “[a]ll counts involving substantially the
same harm shall be grouped together into a single Group.” “In essence,
counts that are grouped together are treated as constituting a single offense
for the purposes of the guidelines.” U.S.S.G. ch. 3, pt. D, introductory cmt.
(2013); see also United States v. Simmons, 649 F.3d 301, 303 (5th Cir. 2011)
(quoting the introductory comment). Counts involve substantially the same
harm in four instances:
      (a)   When counts involve the same victim and the same act or transaction.
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                                   No. 13-40114

      (b)   When counts involve the same victim and two or more acts or
            transactions connected by a common criminal objective or constituting
            part of a common scheme or plan.

      (c)   When one of the counts embodies conduct that is treated as a specific
            offense characteristic in, or other adjustment to, the guideline
            applicable to another of the counts.

      (d)   When the offense level is determined largely on the basis of the total
            amount of harm or loss, the quantity of a substance involved, or some
            other measure of aggregate harm, or if the offense behavior is ongoing
            or continuous in nature and the offense guideline is written to cover
            such behavior.

U.S.S.G. § 3D1.2. As this court noted in United States v. Lopez–Urbina, the
use of the word “shall” in § 3D1.2 “indicates that Congress intended the
grouping to be mandatory if the appropriate requirements are met.” 434 F.3d
at 764.
      Garcia-Figueroa argues that the district court should not have grouped
Counts 1 and 2 (conspiracy to bring illegal aliens into the United States and
bringing illegal aliens into the United States) separately from Count 3 (illegal
reentry). According to Garcia-Figueroa, the trial testimony demonstrates that
he was found illegally in the United States during and in connection with the
offense of bringing unlawful aliens across the Rio Grande and into the United
States. Further, he characterizes all three offenses as immigration crimes not
involving any victim. In opposition to Garcia-Figueroa, the Government
contends that notwithstanding the fact that the offenses occurred on the
same day and may be considered part of a single transaction, there were
identifiable victims directly affected by Counts 1 and 2—that is, the aliens
Garcia-Figueroa smuggled.
      It appears uncontested by the parties that the conspiracy and alien
smuggling offenses were part of the same transaction as the illegal reentry,
and based on the facts established at trial, Garcia-Figueroa illegally

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                                     No. 13-40114
reentered the United States in the course of his smuggling illegal aliens on
June 5, 2012. Thus, the question becomes whether the conspiracy and alien
smuggling offenses involve the same victim as the illegal reentry offense.
      For the purposes of § 3D1.2, the term “victim” does not include “indirect
or secondary victims. Generally, there will be one person who is directly and
most seriously affected by the offense and is therefore identifiable as the
victim.” U.S.S.G. § 3D1.2 cmt. n.2. In the context of immigration offenses, the
application notes indicate that the “victim” is the societal “interest[] protected
by laws governing immigration”:
      For offenses in which there are no identifiable victims (e.g., drug or
      immigration offenses, where society at large is the victim), the “victim” for
      purposes of subsections (a) and (b) is the societal interest that is harmed. In
      such cases, the counts are grouped together when the societal interests that
      are harmed are closely related. Where one count, for example, involves
      unlawfully entering the United States and the other involves possession of
      fraudulent evidence of citizenship, the counts are grouped together because
      the societal interests harmed (the interests protected by laws governing
      immigration) are closely related.

U.S.S.G. § 3D1.2 cmt. n.2. A plain reading of the application notes indicates
that the victim of immigration offenses is the societal interest, and thus
immigration offenses should generally be grouped together if they are part of
the same transaction, as is the case here.
      In support of its position that separate grouping is appropriate because
the smuggled aliens are “victims” of Counts 1 and 2, the Government cites to
United States v. Garcia–Gonzalez, 714 F.3d 306 (5th Cir. 2013). In Garcia–
Gonzalez, the defendant illegally transported four girls under the age of
eighteen from Honduras to the United States. Id. at 311. Once the girls were
in the United States, the defendant forced them to work at his restaurant
and bar in order to satisfy their $4,500 smuggling debt. Id. As part of their
job, the girls were required to drink and have sex with customers. Id. The
defendant never paid the girls, and instead applied their earnings to their

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                                  No. 13-40114
purported smuggling debts. Id. The defendant was charged and convicted on
three counts of child sex trafficking, one count of conspiring to harbor illegal
aliens, and six counts of alien harboring. Id. At sentencing, the district court
grouped the sex trafficking counts separately from the conspiracy and alien
harboring counts. See id. at 317. This court affirmed, noting that the ten
counts involved multiple victims. Id. (applying plain-error review because the
defendant failed to raise a grouping objection at the district court level).
      Garcia–Gonzalez does not stand for the proposition that illegal reentry
and alien smuggling involve different victims; rather, it demonstrates that
child sex trafficking and alien harboring involve different victims.
Importantly, child sex trafficking is not an immigration offense, as the
relevant statute is found in Title 18 of the United States Code, entitled
“Crimes and Criminal Procedure.” See 18 U.S.C. § 1591. Alien harboring is an
immigration offense addressed in Title 8, entitled “Aliens and Nationality.”
See 8 U.S.C. § 1324. All three of Garcia-Figueroa’s counts involve offenses
codified in Title 8. Furthermore, while the children in Garcia–Gonzalez were
clearly victimized, it is harder to characterize the aliens smuggled by Garcia-
Figueroa as victims. The raft may have been overcrowded, but there was no
evidence of coercion or exploitation of the unlawful aliens in the raft.
      Considering that alien smuggling and illegal reentry are both
immigration crimes, which the application notes describe as having a
common victim, and that the alien smuggling and illegal reentry were part of
the same transaction—that is, the June 5, 2012 river crossing, we hold that
Counts 1, 2, and 3 should have been grouped together.




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                                 No. 13-40114
                                      III.
      If the district court has misapplied the Sentencing Guidelines, then
this court must determine whether remand is appropriate. Improperly
calculating a defendant’s Guidelines range is a procedural error. Gall v.
United States, 552, U.S. 38, 51 (2007). However, “not every procedural error
will require outright reversal,” and “certain ‘harmless’ errors do not warrant
reversal.” United States v. Delgado–Martinez, 564 F.3d 750, 752 (5th Cir.
2009). “A procedural error during sentencing is harmless if ‘the error did not
affect the district court’s selection of the sentence imposed.’” Id. at 753
(quoting Williams v. United States, 503 U.S. 193, 203 (1992)). The party
seeking to uphold the sentence has the burden of establishing that an error is
harmless. Id. That is, “[t]he proponent of the sentence ‘must point to evidence
in the record that will convince us that the district court had a particular
sentence in mind and would have imposed it, notwithstanding the error made
in arriving at the defendant’s guideline range.’” Id. (quoting United States v.
Huskey, 137 F.3d 283, 289 (5th Cir. 1998)).
      Grouping the conspiracy and smuggling offenses separately from the
illegal entry offense resulted in a 2-level increase to Garcia-Figueroa’s offense
level pursuant to U.S.S.G. § 3D1.4. Without this error, Garcia-Figueroa’s
Guidelines range would have been 51–63 months rather than 63–78 months;
Garcia-Figueroa was ultimately sentenced to 70 months. Although the
Government argues that if the offenses had been grouped together,
circumstances would probably have warranted an upward departure, this
conclusory suggestion does not demonstrate that the district court had a
particular sentence in mind and would have imposed it notwithstanding the
grouping error. Looking at the sentencing transcript, it appears that the
district court’s sentence was strongly grounded in the erroneously calculated
Guidelines range, as the district court stated on the record that “the Court
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                               No. 13-40114
considers those factors under 18 U.S.C. 3553(a) and concludes that a sentence
within these guidelines satisfies them.” Therefore, we hold that the grouping
error was not harmless.
                              CONCLUSION
     For the foregoing reasons, Garcia-Figueroa’s sentence is VACATED
and the matter is REMANDED to the district court for resentencing.




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