     Case: 13-40112      Document: 00512586303         Page: 1    Date Filed: 04/04/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 13-40112                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             April 4, 2014
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                 Plaintiff-Appellee,            Clerk
v.

EBLIN FAVIEL OCAMPO-CRUZ,

                                                 Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:12-CR-668-1


Before SMITH, DeMOSS, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Elbin Faviel Ocampo-Cruz appeals from the sentence imposed by the
district court following his guilty plea to being found in the United States after
deportation, having previously been convicted of an aggravated felony.
Ocampo-Cruz asserts that the district court erred by imposing a 16-level crime-
of-violence enhancement due to his previous conviction under North Carolina
General Statute § 14-32(b), which criminalizes assault with a deadly weapon
inflicting serious injury (AWDWISI). For the following reasons, we find that


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 13-40112
the least culpable act supporting a conviction for AWDWISI does not constitute
a crime of violence and reverse. Ocamp-Cruz also argues that the district court
erred in its assessment of his criminal history points. We affirm the district
court on this issue.
                                       I.
      On October 25, 2007, Ocampo-Cruz was involved in an automobile
accident in North Carolina. In connection with the accident, he was indicted
for driving while impaired and AWDWISI. The indictment states that Ocampo-
Cruz “unlawfully, willfully, and feloniously did assault [the victim] with a
motor vehicle, a deadly weapon, inflicting serious injury,” in violation of North
Carolina General Statute § 14-32(b). After his release from prison, Ocampo-
Cruz, who had entered the country unlawfully, was deported to his native
Honduras.
      On July 10, 2012, border patrol agents encountered Ocampo-Cruz in
Kenedy County, Texas. He was charged with being unlawfully present in the
United States after deportation subsequent to being convicted of an aggravated
felony, in violation of 8 U.S.C. § 1326(a), (b). Ocampo-Cruz pleaded guilty. The
PSR recommended a 16-level crime-of-violence enhancement pursuant to
United States Sentencing Guidelines (U.S.S.G.) § 2L1.2(b)(1)(A)(ii) due to his
AWDWISI conviction in North Carolina.           Ocampo-Cruz objected to the
enhancement. The district court overruled his objection on the ground that
AWDWISI is one of the enumerated offenses identified in the Sentencing
Guidelines as a crime of violence, specifically aggravated assault. Ocampo-
Cruz was sentenced to 96 months of imprisonment and a three year term of
supervised release. Ocampo-Cruz now appeals the district court’s imposition
of the crime of violence enhancement, which we review de novo. See United
States v. Esparza-Perez, 681 F.3d 228, 229 (5th Cir. 2012).


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                                       No. 13-40112
                                              II.
       This court uses “a common sense” approach when determining whether
a state conviction qualifies as an enumerated offense for purposes of
§ 2L1.2(b)(1)(A)(ii). 1 United States v. Izaguirre-Flores, 405 F.3d 270, 273-74
(5th Cir. 2005). Under the common-sense approach, we decide whether a
violation of the statute of conviction constitutes the enumerated offense as it
is understood in its “ordinary, contemporary, [and] common meaning.” Id. at
275 (citation omitted). “Our primary source for the generic contemporary
meaning of aggravated assault is the Model Penal Code.” Esparza-Perez, 681
F.3d at 231 (quoting United States v. Torres-Diaz, 438 F.3d 529, 536 (5th Cir.
2006)). The “statute of conviction need not perfectly correlate with the Model
Penal Code; ‘minor differences’ are acceptable.” United States v. Mungia-
Portillo, 484 F.3d 813, 817 (5th Cir. 2007).
       The Model Penal Code provides, in relevant part, that “[a] person is
guilty of aggravated assault if 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.”
MODEL PENAL CODE § 211.1(2)(a). Model Penal Code aggravated assault,
therefore, requires a mens rea no lower than recklessness “manifesting
extreme indifference to the value of human life,” which we will call “extreme
recklessness.” Section 14-32(b), the statute of conviction in this case, provides
that “[a]ny person who assaults another person with a deadly weapon and
inflicts serious injury shall be punished as a Class E felon.” N.C. GEN. STAT.



       1 In United States v. Rodriguez, 711 F.3d 541, 552 (5th Cir.) (en banc) cert. denied, 134
S. Ct. 512 (2013), we adopted “a plain-meaning approach when determining the ‘generic
contemporary meaning’ of non-common-law offense categories enumerated in the federal
sentencing enhancements.” At the same time, however, we recognized that the offense of
assault was defined at common law. Id. at 552-53 n.16-17. Accordingly, we do not employ
the plain-meaning approach in this case.
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14-32(b). The elements of the offense are: “(1) an assault, (2) with a deadly
weapon, (3) inflicting serious injury, (4) not resulting in death.” State v. Jones,
538 S.E.2d 917, 922 (N.C. 2000). An assault under North Carolina law is “an
overt act or attempt, with force or violence, to do some immediate physical
injury to the person of another, which is sufficient to put a person of reasonable
firmness in fear of immediate physical injury.” Id. (internal quotation marks
and citation omitted). The crux of the disagreement between Ocampo-Cruz and
the government concerns the mental state required for AWDWISI. Ocampo-
Cruz argues that the offense requires only a negligent state of mind, while the
government contends that it requires recklessness.
      In State v. Jones, the Supreme Court of North Carolina held that under
North Carolina law, “an automobile can be a deadly weapon if it is driven in a
reckless or dangerous manner,” and that a driver may be convicted of
AWDWISI provided “there is either an actual intent to inflict injury or culpable
or criminal negligence from which such intent may be implied.” Id. at 922-923.
The court further explained that “culpable or criminal negligence” means “such
recklessness or carelessness, proximately resulting in injury or death, as
imports a thoughtless disregard of consequences or a heedless indifference to
the safety and rights of others.” Id. at 923 (internal quotations and citations
omitted). Ocampo-Cruz argues that the “culpable or criminal negligence”
described by the North Carolina courts is, at bottom, simply negligence. The
government seizes on the language in Jones mentioning recklessness as an
element of AWDWISI and argues that “culpable or criminal negligence” is a
somewhat misleading label used by North Carolina courts to describe a mental
state akin to the extreme recklessness required by Model Penal Code
aggravated assault.
      The Fourth Circuit recently addressed the question of whether “culpable
negligence” under North Carolina law encompasses a mens rea lower than
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simple recklessness. United States v. Peterson, 629 F.3d 432, 437-38 (4th Cir.
2011). The court first noted that recklessness requires at least a conscious
disregard of the risk caused by one’s actions. Id. at 436. The court then
contrasted the North Carolina cases describing culpable negligence as a
“thoughtless disregard of consequences.” Id. at 436-37. It concluded that,
although some North Carolina cases describe “culpable negligence” in terms of
recklessness, “culpable negligence” nonetheless encompasses a thoughtless,
rather than a conscious, disregard of the risk and therefore reflects a mens rea
lesser than even simple recklessness and more in line with simple negligence.
Id. at 437. (“‘Thoughtless disregard’ . . . is less than ‘conscious disregard,’ which
is the definition of recklessness under the Model Penal Code.”). We find the
Fourth Circuit’s analysis persuasive, and therefore agree with Ocampo-Cruz
that because AWDWISI requires only “culpable or criminal negligence,” it
encompasses a mens rea similar to ordinary negligence and lesser than both
plain recklessness and the extreme recklessness required by Model Penal Code
aggravated assault.
      We next consider whether AWDWISI falls within the generic,
contemporary meaning of aggravated assault, despite encompassing a mental
state lesser than ordinary recklessness and closer to simple negligence. Several
of our sister circuits have held that any offense with a mens rea lesser than the
extreme recklessness required for Model Penal Code aggravated assault does
not meet the generic, contemporary meaning of “aggravated assault.” See
United States v. McFalls, 592 F.3d 707, 717 (6th Cir. 2010) (“Because South
Carolina courts have upheld [assault and battery of a high and aggravated
nature] convictions in cases involving merely reckless conduct . . . [such] . . .
conviction does not qualify categorically as a generic aggravated assault.”);
United States v. Esparza-Herrera, 557 F.3d 1019, 1025 (9th Cir. 2009) (finding
that defendant’s statute of conviction “encompassed ordinary recklessness, and
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                                  No. 13-40112
therefore his conviction was not a conviction for generic aggravated assault or
a crime of violence”). This circuit, by contrast, has held that although the Model
Penal Code may require something beyond simple recklessness, a statute
requiring mere reckless nonetheless falls within “the plain, ordinary meaning
of the enumerated offense of aggravated assault,” because it contains only a
“minor difference” from Model Penal Code aggravated assault. Mungia-
Portillo, 484 F.3d at 817. While distinctions between gradations of recklessness
may reflect only minor differences, however, the same cannot be said of the
difference between extreme recklessness required for Model Penal Code
aggravated assault and a mens rea that is lesser than plain recklessness and
more akin to ordinary negligence. Indeed, in the context of the enumerated
offense of involuntary manslaughter, we have held that something beyond
simple negligence is required. See United States v. Dominguez-Ochoa, 386 F.3d
639, 645-46 (5th Cir. 2004). We therefore hold that AWDWISI does not qualify
as the enumerated offense of “aggravated assault.”
                                       III.
      The government argues alternatively that the imposition of the crime of
violence enhancement is still proper because Ocampo-Cruz’s North Carolina
conviction has as an element the “use, attempted use, or threatened use of
physical force against the person of another.” See U.S.S.G. § 2L1.2 cmt.
(1)(B)(iii). Ocampo-Cruz argues that a person may be convicted under § 14-
32(b) without the intentional use of force and, as a result, the statute does not
have as an element the use, attempted use, or threatened use of physical force
against the person of another. He asserts that culpable negligence exists when
a safety statute, such as driving under the influence of impairing substances,
is violated even unintentionally when it is accompanied by criminal or culpable
negligence. Thus, Ocampo-Cruz argues, he was convicted under a statute that


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does not require proof of the intentional use of physical force as an element of
the offense.
      This court employs a categorical approach to determine whether a prior
offense is a crime of violence because it has as an element the use, attempted
use, or threatened use of force. Taylor v. United States, 495 U.S. 575, 602
(1990); see also Mungia-Portillo, 484 F.3d at 816. Under the categorical
approach, this court determines the elements to which a defendant pleaded
guilty by analyzing the statutory definition of the offense, not the defendant’s
underlying conduct. United States v. Medina-Torres, 703 F.3d 770, 774 (5th
Cir. 2012).
      “[T]he ‘use’ of force requires that a defendant intentionally avail himself
of that force” and “that the intentional use of force must be an element of the
predicate offense if the predicate offense is to enhance a defendant’s sentence.”
United States v. Vargas–Duran, 356 F.3d 598, 599-600 (5th Cir. 2004) (en
banc). “If any set of facts would secure a conviction under the statute without
proof of the intentional use of force against the person of another, then the
offense cannot be characterized as a crime of violence for sentence-
enhancement purposes.” United States v. Velasco, 465 F.3d 633, 638 (5th Cir.
2006).
      In United States v. Vargas–Duran, this court held that the Texas crime
of “intoxication assault” did not constitute a crime of violence under § 2L1.2
because physical force was not intentionally used. 356 F.3d at 605-06. The
court first determined that the plain meaning of the word “use” requires intent.
Id at 603. The court next looked to whether the statue of conviction had as an
element the use of force. Id. at 605. For an element of an offense to include the
use, attempted use, or threatened use of physical force, “the intentional use of
force must be ‘a constituent part of a claim that must be proved for the claim
to succeed.’” Id. at 605 (quoting United States v. Williams, 343 F.3d 423, 432
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                                  No. 13-40112
(5th Cir. 2003)). “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.
      The Texas statute at issue in Vargas–Duran permitted conviction of
intoxication assault when the defendant “(1) by accident or mistake, (2) while
operating a motor vehicle in a public place while intoxicated, (3) by reason of
that intoxication causes serious bodily injury to another.” Id. at 605 (citing TEX.
PENAL CODE ANN. § 49.07 (1994)). Because the language of the Texas statute
did not require intentional conduct, the court held that the use of force is not
an element of the offense of intoxication assault, and the crime of violence
enhancement was improperly applied. Id. at 606.
      For the same reasons that the least culpable means of violating
AWDWISI does not constitute the enumerated offense of aggravated assault,
it likewise does not have as an element the use, attempted use, or threatened
use of physical force against another. The least culpable means of violating
AWDWISI includes an unintentional use of the weapon. See Jones, 538 S.E.2d
at 923 (finding that violation of North Carolina safety statutes “which prohibit[
] drivers from operating motor vehicles while under the influence of impairing
substances . . . constitutes culpable negligence as a matter of law,” and defining
culpable negligence as “such recklessness or carelessness, proximately
resulting in injury or death, as imports a thoughtless disregard of
consequences or a heedless indifference to the safety and rights of others”
(internal quotations and citations omitted)); State v. Johnson, 325 S.E.2d 253,
255 (N.C. App. 1985) (finding that “driving under the influence of alcohol
constitutes a thoughtless disregard of consequences or a heedless indifference
to the safety and rights of others . . . . [t]his is culpable negligence” (internal
quotations omitted)); State v. McGill, 336 S.E.2d 90, 92-93 (N.C. 1985) (finding
that in the context of a AWDWISI violation, “[a]n intentional, wilful or wanton
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                                      No. 13-40112
violation of a statute . . . designed for the protection of human life or limb,
which proximately results in injury or death, is culpable negligence” (internal
quotations and citations omitted)). Such unintentional use of a weapon does
not fall under the “use, attempted use, or threatened use of the weapon” of
physical force convention. See Vargas-Duran, 356 F.3d at 603 (“[H]ow could
one intentionally attempt to unintentionally use force, or intentionally
threaten to unintentionally use force? The force, so to speak, of this rhetorical
question only bolsters our belief that ‘use’ requires intent.”); see also Leocal v.
Ashcroft, 543 U.S. 1, 9-10 (2004) (finding in the context of an 18 U.S.C. §16(b)
case involving a Florida conviction for driving under the influence and causing
bodily injury that “use” requires active employment, because “[w]hile one may,
in theory, actively employ something in an accidental manner, it is much less
natural to say that a person actively employs physical force against another
person by accident”).
       The government attempts to distinguish Vargas-Duran on the basis that
the statutory language in the Texas statute differed from the language in the
North Carolina statute; specifically that the elements of the Texas statute
include the accidental use of a weapon. This argument misses the point. The
conduct that supports an AWDWISI conviction includes a similar lack of
intentional conduct, which was insufficient to support a crime of violence
enhancement in Vargas-Duran. 356 F.3d at 604. 2

       2  The government cites to Bland v. United States, to support its contention that the
North Carolina statute has as an element the use, attempted use, or threatened use of
physical force against the person of another. In Bland v. United States, No. 10-CV-3249, 2012
WL 6962906, at *14 (E.D.N.Y. Sept. 18, 2012), the magistrate judge issued a report holding
that a conviction for AWDWISI satisfied the residual clause of the Armed Career Criminal
Act because a conviction under the North Carolina statute could not be obtained based on
strict liability, omissions, negligence, or recklessness. The Government notes that the
magistrate judge found AWDWISI required a showing of either intent or implied intent and,
as a result, was not akin to drunk driving statutes that do not contain a mens rea
requirement. Id. at 15. Although our holding arguably conflicts with the magistrate judge’s
decision in Bland, we cannot ignore the precedent from the North Carolina Supreme Court
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                                       No. 13-40112
       As such, we find that a conviction for AWDWISI does not have as an
element the use, attempted use, or threatened use of physical force against the
person of another, sufficient to impose a crime of violence enhancement.
                                             IV.
       Finally, Ocampo-Cruz also asserts that the district court erred in
counting the criminal history points for his sentence for driving while impaired
and AWDWISI separately, thereby assessing six, rather than three, criminal
history points. Because the sentences were imposed on the same day and there
was no intervening arrest, Ocampo-Cruz is correct that the district court
should not have counted the two sentences separately. U.S.S.G § 4A1.2(a)(2)
(“If there is no intervening arrest, prior sentences are counted separately
unless . . . the sentences were imposed on the same day.”). The government
concedes as much. However, Ocampo-Cruz failed to raise this issue with
district court, so our review is for plain error only. United States v. Tuma, 738
F.3d 681, 690 (5th Cir. 2013). Accordingly, we will only vacate the sentence if
the district court’s error affected Ocampo-Cruz’s substantial rights. Id. The
district court’s error did not lead to any change in his criminal history category
and therefore did not “affect[] the outcome of the district court proceedings.”
Puckett v. United States, 556 U.S. 129, 135 (2009) (internal quotation marks
and citation omitted). As a result, he cannot show plain error. Id.
AFFIRMED in part; REVERSED in part and REMANDED for resentencing.




when it held that defendant may be convicted of AWDWISI provided there was “culpable or
criminal negligence, defined as “such recklessness or carelessness, proximately resulting in
injury or death, as imports a thoughtless disregard of consequences or a heedless indifference
to the safety and rights of others.” State v. Jones, 538 S.E.2d 917, 923 (N.C. 2000) (internal
quotations and citations omitted) (emphasis added).
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