     Case: 11-41375    Document: 00512280874    Page: 1   Date Filed: 06/19/2013




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

                                                                  FILED
                                                                 June 19, 2013

                                 No. 11-41375                    Lyle W. Cayce
                                                                      Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee
v.

EVER ALEXANDER MARTINEZ-FLORES,

                                           Defendant-Appellant



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


Before STEWART, Chief Judge, BENAVIDES and HIGGINSON, Circuit Judges.
PER CURIAM:
      This is a direct appeal from a felony conviction for illegal reentry after
deportation in violation of 8 U.S.C. § 1326(a) and 1326(b). Appellant challenges
only his sentence, arguing that his prior New Jersey conviction for third degree
aggravated assault does not constitute a crime of violence under the sentencing
guidelines. U.S.S.G. § 2L1.2(b)(1)(A)(ii). We agree and therefore VACATE the
sentence and REMAND for resentencing.
      I.      BACKGROUND
      Ever Alexander Martinez-Flores (“Martinez-Flores”) pleaded guilty to
illegal reentry into the United States after deportation. Martinez-Flores had a
prior New Jersey conviction for third degree aggravated assault. The State of
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New Jersey initially charged him by indictment with, among other things,
second degree aggravated assault and “possess[ing] a certain weapon, that is, a
broken beer bottle, with purpose to use it unlawfully against the person or
property of another.” Subsequently, without generation of a new charging
instrument, he pleaded guilty to third degree aggravated assault. N.J. STAT.
ANN. § 2C:12-1b(7).    Based on this prior conviction, the probation officer
recommended a 16-level increase to his offense level because aggravated assault
is a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii).      Martinez-Flores
objected to this sentencing enhancement, arguing that the New Jersey statute
did not qualify as a crime of violence. Relying on this Court’s opinion in United
States v. Ramirez, 557 F.3d 200 (5th Cir. 2009), the district court overruled the
objection and applied the 16-level enhancement. In Ramirez, this Court held
that the district court did not plainly err in ruling that a New Jersey conviction
for third degree aggravated assault constitutes a crime of violence under § 2L1.2.
Id. at 207. Martinez-Flores now appeals to this Court.
      II.   ANALYSIS
            A.    Crime of Violence Enhancement
      Martinez-Flores argues that his prior conviction for third degree
aggravated assault does not qualify as a crime of violence under the guidelines
and thus the district court erred in imposing a 16-level increase in his base
offense level. An offense qualifies as a crime of violence under the pertinent
sentencing guideline if it includes the element of use of force or constitutes an
enumerated offense. § 2L1.2 cmt. n.1(B)(iii). Section 2L1.2 includes among the
enumerated offenses the crime of “aggravated assault.” Id. The guidelines,
however, “do not define the enumerated crimes of violence,” and therefore, “this


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court adopts a ‘common sense approach,’ defining each crime by its ‘generic,
contemporary meaning.’” United States v. Sanchez-Ruedas, 452 F.3d 409, 412
(5th Cir. 2006) (citations omitted).1 “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.”
United States v. Fierro-Reyna, 466 F.3d 324, 327 (5th Cir. 2006).
       Martinez-Flores argues that his conviction does not qualify as a crime of
violence because it requires only significant bodily injury and the Model Penal
Code (“MPC”) defines the enumerated felony of aggravated assault as involving
serious bodily injury.2 In relevant part, the New Jersey statute of conviction
provides as follows:      “A person is guilty of aggravated assault if he . . .
[a]ttempts to cause significant bodily injury to another or causes significant
bodily injury purposely or knowingly or, under circumstances manifesting
extreme indifference to the value of human life recklessly causes such significant
bodily injury.” N.J. STAT. ANN. § 2C:12-1b(7). The MPC provides that a person
commits aggravated assault when he “(a) attempts to cause serious bodily injury
to another, or causes such injury purposely, knowingly, or recklessly under
circumstances manifesting extreme indifference to the value of human life; or (b)
attempts to cause or purposely or knowingly causes bodily injury to another with
a deadly weapon.” Model Penal Code § 211.1(2).


       1
         Recently, this Court, sitting en banc, created a new “plain-meaning approach” for
non-common-law enumerated offenses. United States v. Rodriguez, 711 F.3d 541, 544 (5th Cir.
2013) (en banc). In Rodriguez, we explicitly noted that the new plain-meaning approach would
not be employed in determining whether an aggravated assault conviction constitutes an
enumerated offense. Id. at 552 n.17. Thus, Rodriguez is inapplicable to the instant case.
       2
           Martinez-Flores asserts in his brief that 42 states and the District of Columbia
define “serious bodily injury” or an equivalent term substantially the same as the MPC.

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      As previously stated, this Court has held that a district court did not
plainly err in ruling that New Jersey’s offense of third degree aggravated assault
constitutes a crime of violence. Ramirez, 557 F.3d at 207. This Court noted that
both the New Jersey statute and the MPC had similar intent requirements. The
only difference was that the MPC defined aggravated assault as involving
“serious bodily injury” and the relevant New Jersey statute defined it as
involving “significant bodily injury.” Id. at 206-07. This Court then recognized
that the MPC “defines ‘serious bodily injury’ as ‘bodily 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. at 206-07 (quoting Model Penal Code § 210.0(3)). On the other hand, New
Jersey “defines ‘significant bodily injury’ as ‘bodily 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 207 (quoting N.J. STAT. ANN. § 2C:11-1d).
New Jersey’s second degree aggravated assault involves “serious bodily injury,”
which is defined as “‘bodily injury to create 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. at 207 (quoting N.J. STAT. ANN.
§ 2C:11-1b). The Court noted that the MPC and New Jersey define “serious
bodily injury” very similarly. Id. This Court explained that “‘[e]ven if the fit
between the enumerated offense of aggravated assault and the ordinary,
contemporary, and common meaning of aggravated assault may not be precise
in each and every way, slight imprecision would not preclude [this Court from]
finding a sufficient equivalence.’” Id. (quoting United States v. Rojas-Gutierrez,
510 F.3d 545, 549 (5th Cir. 2007)).


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           In Ramirez, this Court, reviewing only for plain error, held that “the
difference in this case between significant bodily injury and serious bodily injury
under New Jersey law is not enough to take the defendant’s crime out of the
common sense definition of the enumerated offense of aggravated assault.” 557
F.3d at 207.3 This Court in Ramirez did not separately analyze the prongs of the
plain error test,4 and thus, it never squarely addressed whether, under the first
prong, the district court committed “error of any sort.” Rojas-Gutierrez, 510 F.3d
at 548; cf. id. at 550 (expressly concluding that the defendant “has not satisfied
the first prong of the plain error standard, that is, the district court committed
no error”).      Because we review the district court’s interpretation of the
sentencing guidelines de novo, see United States v. Calderon-Pena, 383 F.3d 254,
256 (5th Cir. 2004) (en banc), and because the Court in Ramirez did not conduct
such a review, its holding does not control our analysis in this case.
       Accordingly, the issue before us is whether, on de novo review, the
difference between serious bodily injury and significant bodily injury is such a
“slight imprecision” that it would not preclude a finding of “sufficient


       3
         The Government’s contention that the Court in Ramirez conducted a plenary de novo
review is belied by the Court’s introductory comment that its decision is “colored by the
standard of review—plain error—which applies,” 557 F.3d at 202, and its conclusion that “[o]n
plain error review, the difference in this case between significant bodily injury and serious
bodily injury under New Jersey law is not enough to take the defendant’s crime out of the
common sense definition of the enumerated offense of aggravated assault,” id. at 207
(emphasis added).
       4
           This Court finds “plain error only if: (1) there was an error; (2) the error was clear
and obvious; and (3) the error affected the defendant’s substantial rights.” United States v.
Gracia-Cantu, 302 F.3d 308, 310 (5th Cir. 2002). If a defendant proves these three elements,
this Court has the “discretion to correct the error only if it seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.” Id. (citation and internal quotation
marks omitted).

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equivalence.” Rojas-Gutierrez, 510 F.3d at 549. In other words, this Court must
determine whether the difference between significant and serious bodily injury
is enough to take the third degree offense out of the common sense definition of
aggravated assault.
       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. Izaguirre-Flores, 405 F.3d 270, 273 (5th Cir. 2005) (internal
quotation marks and citation omitted). The legislative history sheds some light
on the legislature’s purpose in enacting the statute at issue. The legislature
apparently was concerned that assaults involving injury more severe than
simple assault5 but not rising to the level of serious injury were not being
punished appropriately. State v. James, 777 A.2d 1035, 1037 (N.J. Super. Ct.
App. Div. 2001). To remedy this concern, the New Jersey legislature amended
its aggravated assault statute by adding the instant third degree offense,
creating “a criminal offense for attempting to cause or causing less than the
‘[s]erious bodily injury.’” Id. (citation omitted) (brackets in opinion). The
legislative history explains that the “amendments are an attempt to address the
problem of classifying certain types of assault which fall between simple assault
and aggravated assaults where the victim suffers serious bodily injury. . . .
These amendments are intended to provide an intermediate level of assault
which is more serious than simple assault and yet may not result in serious
injury.” Id. (quoting Assembly Judiciary, Law and Public Safety Committee,

       5
          The New Jersey offense of simple assault involves “bodily injury.” N.J. STAT. ANN.
§ 2C:12-1a. New Jersey defines “bodily injury” as “physical pain, illness or any impairment
of physical condition.” N.J. STAT. ANN. § 2C:11-1a.

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Statement to Senate, No. 504 [L. 1995, c. 307, § 2] (April 12, 1995)). The
legislative history further provides that “‘[a]n example of this intermediate type
of assault would be a bar fight which erupts and in which one of the participants
suffers a blow to the eye and which results in impaired vision for a few days but
which does not result in permanent injury.’” Id. (quoting Statement to Senate,
No. 504).
      With respect to the New Jersey courts’ interpretation of the nature of the
aggravated assault statute, a “critical distinction between the second and third
degree offenses is the extent of the bodily injury sustained by the victim.” State
v. Mincey, 2009 WL 4254651, at *3 (N.J. Super. Ct. App. Div. Nov. 20, 2009)
(unpublished). Further, the duration of the injury is an important consideration
in the courts’ determination of the severity of the injury in that significant bodily
injury is temporary, and serious bodily injury is protracted or permanent. See
State v. Kane, 762 A.2d 677, 681 (N.J. Super. Ct. App. Div. 2000) (holding that
injury was not a serious bodily injury because the record “is barren of evidence
indicating that the victim’s condition was protracted, prolonged or extended in
time”); see also State v. Cote, 2010 WL 4120313, *15–16 (N.J. Super. Ct. App.
Div. May 21, 2010) (unpublished) (rejecting challenge to jury charge when jury
was instructed that aggravated assault with significant bodily injury essentially
has the same elements of aggravated assault with serious bodily injury except
that significant bodily injury is a temporary injury in contrast to serious bodily
injury, which is protracted).
      In United States v. Mungia-Portillo, the appellant argued that the
Tennessee offense of reckless aggravated assault did not comport with the MPC
definition of aggravated assault because under the MPC the mental state “is a


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kind of ‘depraved heart’ recklessness that is greater than the ‘mere’ recklessness
required in Tennessee.” 484 F.3d 813, 817 (5th Cir. 2007). This Court rejected
that argument, explaining that it had previously held “that a prior statute of
conviction need not perfectly correlate with the Model Penal Code; ‘minor
differences’ are acceptable.” Id. We pointed out that neither LaFave’s treatise
nor Black’s Law Dictionary made a special note regarding the degree of mental
culpability required for a typical aggravated assault. Id. We therefore inferred
that mental culpability was “not dispositive of whether the aggravated assault
falls within or outside the plain, ordinary meaning of the enumerated offense of
aggravated assault.” Id. We further opined that it was more important that the
Tennessee       statute     included     the       two    most      common    aggravating
factors—causation of serious bodily injury and use of a deadly weapon—than a
certain level of mental culpability. Id.; accord United States v. Guerrero-
Robledo, 565 F.3d 940, 947 (5th Cir. 2009).
       Here, the New Jersey third degree aggravated assault statute contains the
aggravating factor of use of a deadly weapon6 but does not require serious bodily
injury. As in Mungia-Portillo, this Court may look to Professor LaFave’s treatise
and Black’s Law Dictionary for guidance in determining whether the difference
in the state statute and the MPC is sufficient to take the state statute out of the
common meaning of aggravated assault.                    Black’s Law Dictionary defines
“aggravated assault” as follows:                   “Criminal assault accompanied by
circumstances that make it more severe, such as the intent to commit another
crime or the intent to cause serious bodily injury, esp. by using a deadly

       6
          State v. Thomas, 900 A.2d 797, 800 (N.J. 2006) (citing N.J. STAT. ANN. § 2C:12–1b(2)
as third degree aggravated assault with a deadly weapon). However, Martinez-Flores was not
convicted under that subsection.

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weapon.” BLACK’S LAW DICTIONARY 130 (9th ed. 2009) (citing Model Penal Code
§ 211.1(2)). That definition simply relies on the MPC and lists the previously
mentioned two most common aggravating factors of aggravated assault.7
       As previously set forth, New Jersey considers an eye injury lasting only a
few days to constitute a significant bodily injury. James, 777 A.2d at 1037. Such
an injury obviously would not be considered protracted or permanent and thus
would not constitute serious bodily injury.             Further, we are mindful of the
Supreme Court’s very recent admonition that when determining whether a prior
conviction qualifies as an aggravated felony (albeit in the context of immigration
law), our focus should be on the “minimum conduct criminalized by the state
statute.” Moncrieffe v. Holder, __ U.S. __, 133 S. Ct. 1678, 1684 (2013).
       To summarize, it is clear that the New Jersey legislature was carving out
a lesser included offense when it enacted third degree aggravated assault and
only required significant bodily injury. State v. Hudson, 39 A.3d 150, 154 (N.J.
2012) (noting that third degree aggravated assault under N.J. STAT. ANN.
§ 2C:12-1(b)(7) was a lesser included offense of second degree aggravated
assault). Simply put, significant bodily injury does not rise to the level of serious
bodily injury. Serious bodily injury is a common aggravating factor that elevates
simple assault to aggravated assault and is part of the contemporary, generic

       7
           Professor LaFave’s treatise describes three types of aggravated assault: assault
involving use of a deadly weapon; assault upon victims of a certain status, such as law
enforcement officers; and assault with intent to achieve a certain harm, such as to murder,
rob, or “maim.” 2 Wayne R. LaFave, Substantive Criminal Law, § 16.3(d). LaFave states that
“one is guilty of the crime of assault with intent to maim only if he has an intention to cause
that degree of harm which suffices for mayhem.” Id. (citing Hammond v. State, 588 A.2d 345
(Md. 1991). “Mayhem” is generally defined as causing a permanent disability. Hammond, 588
A.2d at 347–48. In Ramirez, we recognized that “Professor LaFave’s definition [of aggravated
assault] does not reference a bodily injury, while the definition in Black’s Law Dictionary more
closely parallels the Model Penal Code’s definition of aggravated assault.” 557 F.3d at 207 n.4.

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meaning of aggravated assault.                Guided by the MPC, the New Jersey
legislature’s intent to require less than serious bodily injury, the previously set
forth New Jersey courts’ interpretation of the distinction between serious and
significant bodily injuries, and Moncrieffe’s admonition to focus on the minimum
conduct criminalized by the state statute, we are persuaded that causing or
attempting to cause significant bodily injury does not fall within the common
sense meaning of aggravated assault.                Stated another way, the difference
between serious bodily injury and significant bodily injury is certainly not a
“slight imprecision.” Rojas-Gutierrez, 510 F.3d at 549.8 Indeed, the difference
is such that it precludes this Court from finding a sufficient equivalence. See id.
Thus, Martinez-Flores’s third degree aggravated assault conviction does not
constitute an enumerated offense.9

       8
         We note also that this same distinction among degrees of bodily injury has
determinative consequences under federal criminal assault provisions. See 18 U.S.C. §§ 113,
1365.
       9
          As previously stated, an offense can also qualify as a crime of violence under the
relevant sentencing guidelines if it includes as an element the use of force. § 2L1.2,
cmt. n.1(B)(iii). The prior conviction statute for aggravated assault contains the element of
attempting or causing significant bodily injury. N.J. STAT. ANN. § 2C:12-1b(7).
Understandably, the Government does not actually assert that under Fifth Circuit precedent
the instant statute has as an element the use of force. Instead, it simply points out that the
Third Circuit has held that the New Jersey statute’s requirement of the use of force sufficient
to cause physical pain or injury constitutes having the use of force as an element. United
States v. Horton, 461 F. App’x 179 (3rd Cir. 2012). However, the Third Circuit’s holding
conflicts with our precedent rejecting the proposition that a defendant’s causing bodily injury
means that the statute has as an element the use of force. United States v. Vargas-Duran, 356
F.3d 598, 606 (5th Cir. 2004) (en banc) (holding that a prior conviction for intoxication assault
which required causation of bodily injury did not constitute a crime of violence under § 2L1.2);
United States v. Andino-Ortega, 608 F.3d 305, 311 (5th Cir. 2010) (holding that the conviction
for causing injury to a child is not an offense that has as an element the use of physical force).
Accordingly, this Court’s precedent precludes holding that the instant statute’s requirement
of causation of bodily injury constitutes having the use of force as an element, and thus, the
statute does not qualify as a crime of violence under that test.

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      Accordingly, reviewing this claim de novo, we hold that it was error to rule
that the instant offense constituted a crime of violence and apply the 16-level
increase to the base offense level. We must now determine whether the error
was harmless.
            B.     Harmless Error
      The Government argues that any error was harmless because the district
court’s statements at the sentencing hearing show that it intended to apply the
18 U.S.C. § 3553 sentencing factors in deciding Martinez-Flores’s sentence. The
Government also argues that the court emphasized the defendant’s criminal
record and history of violence.
      To prove harmless error, the Government has the burden of convincingly
demonstrating that the district court (1) would have imposed the same sentence
absent the purported error, and (2) that it would have done so for the same
reasons. United States v. Ibarra-Luna, 628 F.3d 712, 714, 717 (5th Cir. 2010).
      We agree with Martinez-Flores that the alleged error is not harmless. The
Government does not expressly assert that the record clearly shows that the
court would have imposed the same sentence if there had not been an error in
calculating the guidelines range. Instead, the Government points out that the
district court thought the sentence was appropriate. A review of the transcript
of the sentencing hearing does in fact demonstrate that the court was concerned
about Martinez-Flores’s prior violent conduct and his criminal record. However,
the district court did not clearly state (and we cannot glean from the record) that
it would impose the same sentence if there had not been a 16-level enhancement
based on the prior crime of violence.        See Ibarra-Luna, 628 F.3d at 719
(explaining that although the district court’s remarks indicated that it would


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have imposed an above-guidelines sentence, the error was not harmless because
this Court could not determine with “requisite certainty” that it “would have
imposed precisely the same sentence” but for the guidelines error). Thus, the
error cannot be deemed harmless.
     III.   CONCLUSION
     In conclusion, we VACATE the judgment of sentence and REMAND for
resentencing. We express no view as to the appropriateness of a nonguidelines
sentence and leave to the district court’s discretion what sentence should be
imposed on remand.




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