     Case: 13-10541      Document: 00512768534         Page: 1    Date Filed: 09/15/2014




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

                                                                                  FILED
                                                                            September 15, 2014
                                      No. 13-10541
                                                                               Lyle W. Cayce
                                                                                    Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

FRANCISCO DE LA CRUZ, JR., also known as Frank Delacruz,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:12-CR-111-1


Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Francisco De La Cruz, Jr. pleaded guilty to the federal offense of
Convicted Felon in Possession of a Firearm. His sentence was enhanced based
on the Armed Career Criminal Act (ACCA) because of his three prior “violent
felony” convictions. The district court sentenced De La Cruz at the bottom of
the guideline range to 180 months’ imprisonment. On appeal, De La Cruz
argues that: (1) the district court erred in classifying one of his prior offenses
as a “violent felony” for purposes of applying the ACCA enhancement; and


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-10541

(2) the statute of conviction, 18 U.S.C. § 922(g)(1), is unconstitutional under
the Commerce Clause. We hold that the district court properly classified De
La Cruz’s prior offense, and that the constitutional challenge is foreclosed.
Therefore, we AFFIRM.
                                        I.
      This Court reviews a district court’s classification of a “violent felony” de
novo. United States v. Schmidt, 623 F.3d 257, 260 (5th Cir. 2010). The ACCA
states that a person who violates 18 U.S.C. § 922(g) and has three previous
violent felony convictions shall be sentenced to no less than fifteen years in
prison. 18 U.S.C. § 924(e). The statute defines “violent felony” as
      any crime punishable by imprisonment for a term exceeding one
      year . . . that –
             (i)    has as an element the use, attempted use, or
                    threatened use of physical force against the
                    person of another; or
             (ii) is burglary, arson, or extortion, involves use of
                    explosives, or otherwise involves conduct
                    that presents a serious potential risk of
                    physical injury to another.
18 U.S.C. § 924(e) (emphasis added).
                                       II.
      De La Cruz argues that the ACCA enhancement was improperly applied
because his prior felony conviction for Possession of a Prohibited Object in
Prison does not qualify as a “violent felony” under the ACCA’s residual clause,
emphasized above. In determining whether a prior conviction qualifies as a
violent felony under the ACCA, we begin with the categorical approach, which
requires looking only to the fact of conviction and the statutory definition of
the predicate offense, rather than to the particular underlying facts.         See
Taylor v. United States, 495 U.S. 575, 600, 110 S. Ct. 2143, 2159 (1990).
However, there are instances which require a variation of this approach. Id.


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This variation, referred to as the “modified categorical approach,” allows a
court to look at other documents, limited to “the terms of the charging
document, the terms of a plea agreement or transcript of colloquy between
judge and defendant . . . . or to some comparable judicial record.” Shepard v.
United States, 544 U.S. 13, 26, 125 S. Ct. 1254, 1263 (2005). The modified
categorical approach is applicable only when a divisible statute is at issue.
Descamps v. United States, 133 S. Ct. 2276 (2013).        The Court explained
divisibility as follows: when a statute is divisible “i.e., comprises multiple,
alternative versions of the crime – a later sentencing court cannot tell, without
reviewing something more” which element of the statute the defendant was
convicted under. Id. at 2284.
      Here, De La Cruz’s statute of conviction criminalized possession of
certain objects by prisoners. The statute defined “prohibited object” as:
      (B) marijuana or a controlled substance in schedule III, other than
      a controlled substance referred to in subparagraph (C) of this
      subsection, ammunition, a weapon (other than a firearm or
      destructive device), or an object that is designed or intended to be
      used as a weapon or to facilitate escape from a prison.
18 U.S.C. § 1791(d)(1)(B) (emphasis added). This statute is divisible because
it lists in the disjunctive multiple, alternative elements for committing the
offense, e.g., by possessing marijuana, ammunition, a non-firearm weapon, or
an object designed to be used as a weapon. Under Descamps, the statute may
be analyzed under the modified categorical approach.
      De La Cruz argues, however, that the statute of conviction is not
divisible.   He asserts that the possession of non-firearm weapons and
possession of marijuana were statutorily listed together because they are
simply possession offenses, and as such, they do not satisfy the ACCA’s
residual clause. De La Cruz relies heavily on Chambers v. United States, 555
U.S. 122, 129 S. Ct. 687 (2009), for this assertion. He contends that Chambers


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stands for the proposition that a statute is not necessarily divisible merely
because it lists different kinds of conduct in the disjunctive. In Chambers, the
statute at issue listed various types of “failure to report” offenses in the same
section as “escape.” Id. at 124. The Court determined that “failure to report”
was a separate crime from “escape,” but that the statute grouped all the
“failure to report” offenses together as a single crime. Id. at 127. Likewise,
De La Cruz asserts that the “possession” offenses listed together in the statute
at issue should also be analyzed as a single crime, i.e., possession of a weapon
should not be analyzed separately from possession of marijuana. De La Cruz’s
argument misses the point. The Supreme Court in Chambers grouped the
“failure to report” offenses together because they described similar types of
behavior, and it held that “separately listed behaviors [that] pose a similar
degree of risk” may be considered as a single crime. Id. at 127 (citing James v.
United States, 550 U.S. 207-209, 127 S. Ct. 1586 (2007)). Unlike the “failure
to report” offenses in Chambers, possession of marijuana and possession of a
stabbing weapon clearly involve very different types of behaviors and do not
pose a similar degree of risk. Even following Chambers’ reasoning, the statute
of conviction in the instant case is divisible.
                                        III.
      Because the statute of conviction is divisible and the modified categorical
approach is applicable, we can look beyond the statute to determine the crime
of conviction. De La Cruz’s indictment reveals that the “prohibited object” he
was convicted of possessing was “an approximately six inch metal stabbing
weapon.” In United States v. Marquez, 626 F.3d 214 (5th Cir. 2010), we held
that possession of a deadly weapon by a prisoner (there a club) is a “crime of
violence” under U.S.S.G. § 4B1.2. De La Cruz’s possession of a metal stabbing




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weapon is similar and presents “a serious potential risk of physical injury to
another” for purposes of the ACCA.
       De La Cruz attempts to sidestep Marquez by distinguishing between the
definitions of “violent felony” under the ACCA and “crime of violence” under
§ 4B1.2. However, we have deemed the § 4B1.2 and ACCA definitions “very
similar.” See id. at 215-217 (stating that the only difference in the black letter
text of the § 4B1.2 definition of a crime of violence and the ACCA violent felony
definition is the insertion of “of a dwelling” after “burglary”).
       De La Cruz additionally argues that Marquez was not consistent with
the Supreme Court’s decisions in Chambers and in Begay v. United States, 553
U.S. 137, 128 S. Ct. 1581 (2008). 1 We disagree. The Marquez court followed
the reasoning of the Supreme Court and drew the proper distinctions, stating:
       We are persuaded, based on the Supreme Court’s reasoning in
       Begay and Chambers, that Marquez’s conviction for possession of
       a deadly weapon by a prisoner in a penal institution is a crime of
       violence . . . . [A] prisoner’s possession of a deadly weapon is more
       similar “in kind” to arson, burglary, extortion, or crimes involving
       the use of explosives.
Marquez, 626 F.3d at 221 (footnotes omitted).
       The Marquez court further emphasized the potential risk of harm by
stating that “an inmate may not intend to attack another person when he
obtains a deadly weapon, but at a minimum his intentional possession of a
deadly weapon signals his willingness to use it if, in his mind, the occasion
warrants it.” Id. at 222.



       1  The Begay Court, in holding that DUI was not a “violent felony,” reasoned that even
if an offense presents a potential risk for physical injury to another, it must also be “roughly
similar, in kind as well as in degree of risk posed” to the enumerated offenses and “must be
purposeful, violent, and aggressive.” Begay, 553 U.S. at 158, 128 S. Ct. at 1594 (internal
quotation marks omitted). The Chambers Court followed the Begay analysis in deciding that
the “failure to report” offenses were not “purposeful, violent, and aggressive.” Chambers, 555
U.S. at 128, 129 S. Ct. at 692 (internal quotation marks omitted).


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      Marquez held that possession of a deadly weapon by a prisoner is a
violent felony under the ACCA, and that holding controls us. Accordingly, the
district court properly classified De La Cruz’s prior offense as a “violent felony”
for purposes of applying the ACCA sentence enhancement.
                                       IV.
      De La Cruz’s constitutional challenge to 18 U.S.C. §922(g)(1) under the
Commerce Clause is foreclosed in this circuit and was not overruled by the
Supreme Court in National Federation of Independent Business v. Sebelius,
132 S. Ct. 2566 (2012). United States v. Alcantar, 733 F.3d 143 (5th Cir. 2013).
      The judgment of the district court is AFFIRMED.




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