     Case: 18-20451      Document: 00515513527         Page: 1    Date Filed: 08/03/2020




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

                                      No. 18-20451                             FILED
                                                                          August 3, 2020
                                                                          Lyle W. Cayce
UNITED STATES OF AMERICA,                                                      Clerk

              Plaintiff - Appellee

v.

J. MATIAS PICAZO-LUCAS,

              Defendant - Appellant




                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:17-CR-537-1




Before SOUTHWICK, GRAVES, and ENGELHARDT.
PER CURIAM:*
       Appellant J. Matias Picazo-Lucas argues for the first time on appeal that
his conviction and sentence under 18 U.S.C. § 924(c) are contrary to the law
and that this appeal is not barred by his plea agreement’s appeal-waiver
provision. We agree.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 18-20451
                                     BACKGROUND
       Pursuant to a plea agreement, Picazo-Lucas pleaded guilty to “using a
firearm during a crime of violence” in violation of 18 U.S.C. § 924(c)(1)(A). The
predicate crime of violence underlying his § 924(c) violation is hostage taking
pursuant to the Hostage Taking Act, 18 U.S.C. § 1203(a). 1 On March 7, 2018,
the district court accepted Picazo-Lucas’s plea and, on June 28, 2018,
sentenced him to 60 months imprisonment under § 924(c)(1)(A). 2 Picazo-Lucas
timely appealed, arguing that hostage taking is not a crime of violence under
§ 924(c) as a matter of law. His plea agreement, however, stated that he
“waives the right to appeal or ‘collaterally attack’ [his] conviction and
sentence[.]” 3 Relying on the plea agreement’s appeal-waiver provision, the
government filed an opposed motion to dismiss this appeal, arguing that
Picazo-Lucas waived his right to bring the appeal. The court ordered that the
motion be carried with the case.
                               STANDARDS OF REVIEW
       First, a plea agreement’s appeal-waiver provision does not apply when
“the language of . . . [the] plea agreement” is “insufficient to accomplish an
intelligent waiver of the right not to be prosecuted (and imprisoned) for conduct
that does not violate the law.” United States v. White, 258 F.3d 374, 380 (5th



       1 While Picazo-Lucas’s indictment had charged him with violating § 1203(a), the
government dismissed its § 1203(a) charges under the terms of the plea agreement.
       2 Also pursuant to the plea agreement, Picazo-Lucas pleaded guilty to “conspiracy to

transport and harbor certain aliens for the purpose of private financial gain” in violation of 8
U.S.C. § 1324(a)(1)(A)(v)(I), “alien in possession of a firearm” in violation of 18 U.S.C. §
922(g)(5), and “illegal reentry into the United States after having been deported following a
conviction for an aggravated felony” in violation of 8 U.S.C. §§ 1326(a) and (b)(2).
(Capitalization altered.) The district court sentenced Picazo-Lucas to three concurrent 36-
month terms of imprisonment for these crimes. Thus, Picazo-Lucas was sentenced to a total
of 96 months imprisonment based on his 60-month term of imprisonment and his concurrent
36-month terms of imprisonment.
       3 The plea agreement preserved Picazo-Lucas’s right to raise on direct appeal, or under

28 U.S.C. § 2255, ineffective assistance of counsel claims.
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Cir. 2001) (“We reject the government’s waiver argument, especially since
failure to do so risks depriving a person of his liberty for conduct that does not
constitute an offense.”).
      Second, we review whether Picazo-Lucas’s § 924(c) conviction and
sentence are contrary to the law for plain error because he raises this claim for
the first time on appeal. See United States v. Fernandez, 559 F.3d 303, 316
(5th Cir. 2009) (“We may review a claim for the first time on appeal, even when
based on an intervening Supreme Court decision, only for plain error.”). To
prevail on his claim, Picazo-Lucas must show that (1) there is “an error or
defect” that he has not affirmatively waived; (2) the error is plain; and (3) the
error affected Picazo-Lucas’s “substantial rights, which in the ordinary case
means [the appellant] must demonstrate that it affected the outcome of the
district court proceedings.” See United States v. Lewis, 907 F.3d 891, 894 (5th
Cir. 2018) (quoting Puckett v. United States, 556 U.S. 129, 135 (2009) (internal
quotation marks and brackets omitted)). “[I]f the above three prongs are
satisfied, we have the discretion to remedy the error—discretion which ought
to be exercised only if the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. (quoting Puckett, 556 U.S. at
135) (internal quotation marks, emphasis, and brackets omitted).
                                 DISCUSSION
      In the first instance, we address whether the plea agreement’s appeal-
waiver provision bars this appeal. It does not. The language of Picazo-Lucas’s
plea agreement is insufficient to “accomplish an intelligent waiver of the right
not to be prosecuted (and imprisoned) for conduct that does not violate the
law.” White, 258 F.3d at 379. Thus, the government’s motion to dismiss the
appeal fails.
      Next, we address whether Picazo-Lucas’s conviction and sentence under
§ 924(c) are plain error. They are. First, hostage taking cannot serve as a
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predicate crime of violence for a § 924(c)(1)(A) conviction as a matter of law.
Section 924(c)(1)(A) states, in relevant part: [A]ny person who, during and in
relation to any crime of violence . . . , uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm, shall, in addition to the
punishment provided for such crime of violence . . . [,]” “be sentenced to a term
of imprisonment not less than 5 years[.]” 4 Section 924(c)(3) defines “crime of
violence” as “an offense that is a felony and . . . (A) has an element the use,
attempted use, or threatened use of physical force against the person or
property of another, or (B) that by its nature, involves a substantial risk that
physical force against the person or property of another may be used in the
course of committing the offense.” We refer to the first clause “(A)” as the
“elements clause” and to the second clause “(B)” as the “residual clause.”
United States v. Smith, 957 F.3d 590, 592 (5th Cir. 2020). The residual clause
is unconstitutional under United States v. Davis, meaning that Picazo-Lucas’s
conviction cannot stand under § 924(c)’s residual clause as a matter of law. 903
F.3d 483, 486 (5th Cir. 2018), affirmed in relevant part and vacated on other
grounds, 139 S. Ct. 2319 (2019). Hostage taking, then, is a crime of violence
only if it meets the elements-clause definition. Notably, “physical force” in the
elements clause “means violent force—that is, force capable of causing physical
pain or injury to another person.” Smith, 957 F.3d at 593 (quoting Johnson v.


       4 No term of imprisonment imposed under § 924(c)(1)(A) “shall run concurrently with
any other term of imprisonment imposed on the person, including any term of imprisonment
imposed for the crime of violence . . . during which the firearm was used, carried, or
possessed.” 18 U.S.C. § 924(c)(1)(D). As the Supreme Court stated in Dean v. United States,
§ 924(c) “simply requires any mandatory minimum under § 924(c) to be imposed ‘in addition
to’ the sentence for the predicate offense, and to run consecutively to that sentence.” 137 S.
Ct. 1170, 1178 (2017). Here, however, the government dismissed Picazo-Lucas’s predicate
hostage-taking counts, and Picazo-Lucas was not sentenced for any predicate offense, begging
the question: is Picazo-Lucas’s § 924(c) sentence contrary to the law because it was not
imposed “in addition to” the sentence for any predicate offense? Picazo-Lucas does not raise
this question. We need not address it in any case because Picazo-Lucas prevails on the
ground he raises.
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United States, 559 U.S. 133, 140 (2010) (defining “physical force” in the context
of 18 U.S.C. § 924(e)(2)(B)(i)’s nearly identically-worded elements clause))
(emphasis in original). 5
       We apply the categorical approach to determine whether hostage taking
is a crime of violence under § 924(c) and, accordingly, consider only whether
the “least culpable conduct under the [hostage taking] statute requires, at a
minimum, an implicit threat to use force.” United States v. Reece, 938 F.3d
630, 636 (5th Cir. 2019) (internal quotation marks and citation omitted).
Under the categorical approach, Picazo-Lucas’s factual conduct does not
matter. Davis, 139 S. Ct. at 2326 (“Following the categorical approach, judges
[have] to disregard how the defendant actually committed his crime.”); Lewis,
907 F.3d at 894 (“Whether a particular offense is a [crime of violence] is a
question of law for the court to resolve.”) (internal quotation marks and citation
omitted).
       To meet hostage taking’s statutory elements under § 1203(a), a
defendant must have “(1) seized or detained another person, and (2) threatened
to kill, injure, or continue to detain that person, (3) with the purpose of
compelling a third person or entity to act in some way” as a condition for the
release of the detained person. United States v. Ibarra-Zelaya, 465 F.3d 596,
602 (5th Cir. 2006). In United States v. Carrion-Caliz, this court held that the
“seized or detained” element of hostage taking does not require the “use, or
even threat[] to use, physical force or violence.” 944 F.2d 220, 225 (5th Cir.
1991) (emphasis in original). Instead, “non-physical restraint—for instance,
fear or deception—can be sufficient to restrain a person against her will.” Id.
The first element is also contained in the second element. The second element


       5  Section 924(e)(2)(B)(i) excludes the words “or property of another,” which §
924(c)(3)(A) includes. This distinction is irrelevant here. Cf. Smith, 957 F.3d at 593 (defining
“physical force” in § 924(c)(3)(A) the same as “physical force” in § 924(e)(2)(B)(i)).
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                                 No. 18-20451
is “threatened to kill, injure, or continue to detain that person[.]” Ibarra-
Zelaya, 465 F.3d at 602 (emphasis added). Thus, the second element does not
require a threat of physical force, just as the first element. Notably, the third
element pertains to the “purpose” of a defendant’s actions, not the actions
themselves, and is therefore plainly irrelevant to our inquiry. See Reece, 938
F.3d at 636.
      The government’s reliance on United States v. Reyes-Contreras is
unavailing. 910 F.3d 169 (5th Cir. 2018) (en banc). There, this court held that,
“for purposes of identifying a conviction as a [crime of violence], there is no
valid distinction between direct and indirect force.”        Id. at 182.     The
government argues that even if Picazo-Lucas had only “threaten[ed] his
captives   with   involuntary   detainment    and   deportation”    that   would
“constitute[] a threat of ‘subtle and indirect’ physical force as contemplated by
Reyes-Contreras[.]” First, no element of hostage taking contains any reference
to “deportation.” Relevant here, hostage taking’s first element is “seized or
detained another person” and the second element is “threatened to kill, injure,
or continue to detain that person[.]” Ibarra-Zelaya, 465 F.3d at 602. The
alternative phrase “threatened to . . . continue to detain that person” is the
least culpable conduct that the second element requires. See Reece, 938 F.3d
at 636. Second, Carrion-Caliz establishes that the first element does not
require even a threat of physical force.        And the government does not
convincingly explain how a threat of continued detainment necessarily
involves a threat of physical force. Nor could it. Reyes-Contreras simply
abolishes the distinction between direct and indirect uses of physical force.
Following Reyes-Contreras, indirect uses of physical force, such as murdering
someone with poison, qualify as crimes of violence. See 910 F.3d at 181. As
such, an indirect use of physical force still requires physical force.


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                                        No. 18-20451
Unambiguously, Reyes-Contreras does not stand for the proposition that fear
alone or deception alone qualifies as physical force.
       Ignoring Carrion-Caliz, and mistakenly thinking that Reyes-Contreras
troubles Carrion-Caliz in any relevant way, the government argues that a
threat to continue detaining someone necessarily contains an implicit threat of
indirect “physical force,” i.e., “that the victims will be physically seized by law
enforcement agents and involuntarily deported back to the place they were
desperate to leave.” But this is not the least culpable conduct that satisfies the
“threatened to . . . continue to detain [a] person” requirement under the
hostage-taking statute. The least culpable conduct is akin to this: threatening
to keep someone locked in a room. See Carrion-Caliz, 944 F.2d at 225 (“[T]his
Court holds that a hostage is ‘seized’ or ‘detained’ within the meaning of the
Hostage Taking Act when she is held or confined against her will for an
appreciable period of time.”); United States v. Rivera-Benito, 136 F. App’x 690,
692 (5th Cir. 2005) (unpublished) (“For the purposes of 18 U.S.C. § 1203(a), it
is sufficient that Pantaleon was later detained or confined against her will. . .
. Pantaleon was kept in a house completely enclosed by locked burglar bars.
She testified that she wanted to run away from the house but that she could
not. Based on these facts, . . . she was confined against her will.”) (citing
Carrion-Caliz, 944 F.2d at 226). This scenario does not involve a threat of
physical force, direct or indirect, which is why “fear or deception can be
sufficient to restrain a person against her will.” 6 Carrion-Caliz, 944 F.2d at
225 (punctuation omitted).            Thus, threatening to continue to detain an
individual does not necessarily involve the threat of physical force.



       6 We illustrate the point further: A threat to continue to keep someone locked in a
room does not necessarily contain an implicit threat of starvation or other bodily harm. What
is necessarily implicit in the threat is this: the person will be stuck in a room. This is unlike
threatening to poison someone. Implicit in that threat is death or other bodily harm.
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                                        No. 18-20451
       Because hostage taking cannot serve as a predicate crime of violence for
a § 924(c) conviction as a matter of law, Picazo-Lucas has shown error and
satisfied the first prong of plain error review.
       Second, we ask whether the error is plain. It is. A plain error is one that
is “clear or obvious, rather than subject to reasonable dispute.” United States
v. Garcia-Gonzales, 714 F.3d 306, 318 (5th Cir. 2013) (quoting Puckett, 556
U.S. at 135). Error must be clear under “current law.” United States v. Trejo,
610 F.3d 308, 319 (5th Cir. 2010). We have concluded that current law is “the
law in place at the time of trial.” Id. But “[w]e have also found plain error
under ‘current law’ where the law at the time of trial was settled but is ‘clearly
contrary’ to the state of the law at the time of appeal.” Id. at n.12 (quoting
United States v. Hope, 545 F.3d 293, 296 (5th Cir. 2008)).
       We have concluded that an error is not plain when the issue is one “of
first impression and the law was not obvious at the time of trial[.]” United
States v. Jackson, 549 F.3d 963, 978 (5th Cir. 2009) (emphasis added). Thus,
that the issue here—whether hostage taking’s second element necessarily
requires, at a minimum, the threat of physical force—is one of first impression
does not end our inquiry. We must also ask whether the law is obvious. 7
       Here, the law is obvious and not subject to reasonable dispute. First, it
is undisputed that a crime of violence requires, at a minimum, the threat of
physical force. See Reece, 938 F.3d at 636. Second, this court’s precedent
makes clear that hostage taking’s second element does not require the threat



       7  An error is not plain when “[the defendant’s] theory requires the extension of
precedent[.]” United States v. Hull, 160 F.3d 265, 272 (5th Cir. 1998). But if existing
precedent makes it “clear or obvious” that hostage taking is not a crime of violence under §
924(c), then no extension of the law is required to resolve the issue. See, e.g., id. (considering
existing precedent to determine whether it makes the resolution of the issue obvious and
therefore not an extension of precedent); cf. United States v. Rodriguez-Parra, 581 F.3d 227,
230 (5th Cir. 2009) (“There is no plain error if the legal landscape at the time showed the
issue was disputed, even if . . . the district court turns out to have been wrong.”).
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of physical force. Carrion-Caliz, 944 F.2d at 225. When these two conclusions
are clear, it is not an extension of the law to state the obvious or, in simpler
terms, add two plus two.
      The government argues that Carrion-Caliz applies only to the hostage
taking statute’s first element (“seized or detained”). It is true that the Carrion-
Caliz court analyzed “detained” in the context of the first element. 944 F.2d at
225. But what the Carrion-Caliz court said is that to “detain” someone does
not require the use or even threat of physical force: “fear or deception can be
sufficient to restrain a person against her will.” Id. (punctuation omitted). The
court did not need to explicitly say that “detain” in the second element
(“threatened to . . . continue to detain that person”) also does not require a
threat of physical force. It is obvious from its conclusion regarding the first
element. In other words, the second element can be satisfied merely by the
threat to continue the first element. There can be no reasonable dispute as to
this. Nonetheless, the government argues that any error is not plain because
Reyes-Contreras troubles Carrion-Caliz. As explained above, Reyes-Contreras
is inapposite. For these reasons, the error is plain.
      Third, we ask whether Picazo-Lucas’s substantial rights were affected.
They were. Picazo-Lucas has shown that he would not have been convicted
and sentenced under § 924(c) but for the error. See Lewis, 907 F.3d at 894–95.
      Fourth, we ought to exercise our discretion to remedy the error because
it “seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Lewis, 907 F.3d at 894 (internal quotation marks, brackets, and
citation omitted). “[T]here must be a ‘showing’ regarding the fourth prong.”
United States v. Suarez, 879 F.3d 626, 640 (5th Cir. 2018). In Suarez, the Fifth
Circuit stated:
      A “showing” regarding the fourth prong has been made by Suarez
      in his initial brief as to why the sentence imposed for a crime for

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      which no jury convicted him must be vacated, if the principles
      sought to be embodied in the fourth prong have any real meaning
      and power. This court evaluates substantive, not formulaic,
      arguments and rules accordingly. Suarez explained that his
      sentence is predicated on a crime that the jury never found was
      committed, the district court would not have imposed the sentence
      but for its error, and that his sentence of imprisonment was
      increased by five years. The fourth prong has not only been
      adequately briefed, but satisfied.
Id. at 640.
      Similarly, here, Picazo-Lucas has shown that he was convicted and
sentenced for a crime he did not commit as a matter of law. His sentence of
imprisonment was increased by five years as a result. Accordingly, he has
satisfied the fourth prong.
                               CONCLUSION
      For the reasons above, we DENY the government’s motion to dismiss the
appeal and VACATE Picazo-Lucas’s § 924(c) conviction and sentence and
REMAND for resentencing.




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