     Case: 16-50022   Document: 00514015769        Page: 1   Date Filed: 06/01/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                    No. 16-50022                       FILED
                                                                    June 1, 2017

UNITED STATES OF AMERICA,
                                                                  Lyle W. Cayce
                                                                       Clerk

             Plaintiff - Appellee

v.

JOSE GUSTAVO RICO-MEJIA, also known as Juan Gustavo Rico-Mejia,

             Defendant - Appellant


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


                      ON PETITION FOR REHEARING
Before STEWART, Chief Judge, and KING and DENNIS, Circuit Judges.
CARL E. STEWART, Chief Judge:
      IT IS ORDERED that the petition for panel rehearing is GRANTED and
our prior panel opinion, United States v. Rico-Mejia, 853 F.3d 731 (5th Cir.
2017), is WITHDRAWN. The following opinion is SUBSTITUTED therefor.
      Jose Gustavo Rico-Mejia pleaded guilty to illegal re-entry into the United
States. The district court sentenced Rico-Mejia to 41 months of imprisonment
and three years of supervised release. In making its sentencing determination,
the district court imposed a sixteen-level enhancement for a past conviction
under Arkansas law, on the grounds that it qualified as a “crime of violence.”
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                                      No. 16-50022

See U.S.S.G. § 2L1.2(b)(1)(A)(ii). For the reasons that follow, we VACATE and
REMAND for resentencing.
                                   I.
       On January 21, 2015, Rico-Mejia was charged by indictment with
illegally reentering the United States after deportation, in violation of 8 U.S.C.
§ 1326. On March 25, 2015, Rico-Mejia pleaded guilty without benefit of a plea
agreement. A probation officer compiled his pre-sentence report (“PSR”).
Applying the 2014 edition of the U.S. Sentencing Guidelines (“Guidelines”), the
PSR recommended a base offense level of eight pursuant to U.S.S.G. § 2L1.2(a).
The PSR also recommended a sixteen-level enhancement due to Rico-Mejia’s
September 14, 2007 conviction for terroristic threatening in violation of
Arkansas code § 5-13-301(a)(1)—a felony in Arkansas that the PSR deemed to
be a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). 1 Rico-Mejia was given
a three-level reduction for acceptance of responsibility, resulting in a total
offense level of 21. Pursuant to the Guidelines, that offense level, combined
with a criminal history category of II, resulted in a recommended sentencing
range of 41 to 51 months’ imprisonment.
       At the December 17, 2015 sentencing hearing, Rico-Mejia objected to the
sixteen-level enhancement, arguing that his prior state conviction did not
constitute a crime of violence within the meaning of § 2L1.2 because “terroristic
threatening” is not an enumerated crime of violence and does not have “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) (2014). Accordingly, Rico-
Mejia contended that he should only have received a four-level increase. The
district court disagreed and sentenced him to 41 months of imprisonment and



       1 All references to the Sentencing Guidelines refer to the 2014 version applicable in
this case.

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                                  No. 16-50022

three years of supervised release, a sentence at the bottom end of the
sentencing range. The district court acknowledged that the Arkansas statute
could be violated by threats not involving physical force, but overruled Rico-
Mejia’s objection because the conduct actually charged in his case involved a
threat to kill, which the district court believed to necessarily import an element
of physical force. The sentencing judge also noted that he had “considered
everything else about this case, including the conviction as well as the other
[available] information concerning this particular defendant,” and that the
sentence he chose “would be the same sentence that I would pronounce even if
I would have sustained the Defendant’s objection to the Guideline
Enhancement.” Rico-Mejia appealed, challenging the sixteen-level crime of
violence enhancement.
      We first address whether the district court erred in imposing a sixteen-
level sentencing enhancement pursuant to § 2L1.2(b)(1)(A)(ii). Finding that the
district court did err, we progress to examine whether that error was harmless.
                                  II.
      Section 2L1.2 of the Guidelines states that the offense level for
unlawfully entering or remaining in the United States is increased by sixteen
if the defendant has previously been convicted of a “crime of violence.” U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). As the district court’s characterization of Rico-Mejia’s prior
offense is a question of law, we review it de novo. United States v. Herrera, 647
F.3d 172, 175 (5th Cir. 2011) (citing United States v. Hernandez-Galvan, 632
F.3d 192, 196 (5th Cir. 2011)).
      According to the Guidelines, a “crime of violence” consists of:
            [A]ny of the following offenses under federal, state, or
            local law: murder, manslaughter, kidnapping,
            aggravated assault, forcible sex offenses (including
            where consent to the conduct is not given or is not
            legally valid, such as where consent to the conduct is


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                                  No. 16-50022

           involuntary, incompetent, or coerced), 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) (2014). This court has interpreted this
provision to mean that a prior offense qualifies as a crime of violence if that
offense “(1) has physical force as an element, or (2) qualifies as one of the
enumerated offenses.” Herrera, 647 F.3d at 175 (quoting United States v.
Gomez-Gomez, 547 F.3d 242, 244 (5th Cir. 2008) (en banc), superseded by
regulation on other grounds, as recognized in United States v. Diaz-Corado, 648
F.3d 290, 294 (5th Cir. 2011)). Because “terroristic threatening” is not included
in the list of enumerated offenses above, we must now determine whether Rico-
Mejia’s conviction for terroristic threatening includes physical force as an
element.
      On appeal, Rico-Mejia argues that the district court erred in increasing
his offense level by sixteen pursuant to § 2L1.2(b)(1)(A)(ii), contending that his
prior Arkansas conviction for “terroristic threatening” does not constitute a
crime of violence, since a person could “cause death or serious physical injury”
even without using physical force and because the offense includes property
damage while crimes of violence only involve injuries to people. In support of
this contention, he cites United States v. Johnson, 286 F. App’x 155, 157 (5th
Cir. 2008) (per curiam), an unpublished decision in which we held that a
conviction for terroristic threatening under the same Arkansas statute did not
qualify as a violent felony under 18 U.S.C. § 924(e)(2)(B)(i). There, we reasoned
that even though the conduct in that case involved a threat to kill, a person
could cause physical injury without using physical force. Id.; see also United
States v. Villegas-Hernandez, 468 F.3d 874, 879 (5th Cir. 2006) (“There is . . .

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                                  No. 16-50022

a difference between a defendant’s causation of injury and the . . . use of
force.”); United States v. De La Rosa-Hernandez, 264 F. App’x 446 (5th Cir.
2008) (per curiam) (“As in Villegas, a defendant could violate [the California
Terroristic Threats law], for example, by threatening either to poison another
or to guide someone intentionally into dangerous traffic, neither of which
involve ‘force’, as that term is defined by our court.”).
      The Government responds that these cases have been overruled by
United States v. Castleman, 134 S. Ct. 1405, 1414 (2014), which held that a
defendant’s guilty plea to having “intentionally or knowingly cause[d] bodily
injury” to the mother of his child constituted “the use of physical force” required
for a misdemeanor crime of domestic violence as defined in 18 U.S.C. §
921(a)(33)(A). The Government points out that as part of the Supreme Court’s
reasoning in that decision, it applied a definition of “use of physical force” that
was much broader than that described in the above cases—one that could
involve harm caused both directly and indirectly and that would include
administering poison or similar actions. Id. at 1413–15.
      Arkansas law decrees that a person is guilty of first-degree terroristic
threatening if:
      (A) With the purpose of terrorizing another person, the person
          threatens to cause death or serious physical injury or
          substantial property damage to another person; or


      (B) With the purpose of terrorizing another person, the person
          threatens to cause physical injury or property damage to a
          teacher or other school employee acting in the line of duty.


Ark. Code Ann. § 5-13-301(a)(1). To determine whether a given prior conviction
qualifies for a Guidelines enhancement, courts use either (1) the categorical
approach or (2) the modified categorical approach. United States v. Hinkle, 832


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                                  No. 16-50022

F.3d 569, 574 (5th Cir. 2016) (“[W]e have generally used the categorical and
modified   categorical    approaches   in   applying   the    federal   sentencing
Guidelines.”). The district court in this instance determined that the Arkansas
statute was divisible under the modified categorical approach, and,
accordingly, referred to the charging document to conclude that physical force
was an element of terroristic threatening.
      The Supreme Court’s decision in Mathis v. United States, 136 S. Ct. 2243,
2248–57 (2016) addressed when and how courts may use the modified
categorical approach in the context of federal sentencing. See also Hinkle, 832
F.3d at 574 (noting that although Mathis did not explicitly involve the federal
sentencing Guidelines, it was nonetheless controlling in this circuit as concerns
application of the modified categorical approach in the context of those
Guidelines). This court has observed that Mathis “instructs that there is a
difference between alternative elements of an offense and alternative means of
satisfying a single element,” and that when a court confronts an alternatively-
phrased statute, it must first “determine whether listed items in a statute are
elements or means.” Id. at 575 (internal quotation marks and citation omitted).
      At the sentencing hearing, the district court responded to Rico-Mejia’s
argument that physical force was not an element of the previous conviction
because a conviction could be obtained under § 5-13-301(a)(1) without proof
that a defendant threatened to use physical force by asking, “[H]ow else would
you threaten to kill someone unless you’re going to use some type of force to
bring about death, the actual killing? You can’t wish somebody dead, right?”
The answer to the district court’s question is provided by the analysis set forth
in Johnson, Villegas-Hernandez, and De La Rosa-Hernandez. These cases
clarify that even if the district court correctly resorted to the modified




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                                  No. 16-50022

categorical approach, § 5-13-301(a)(1)(A) cannot constitute a crime of violence
under § 2L1.2(b)(1)(A)(ii) because it lacks physical force as an element.
      The Government’s contention regarding Castleman must be rejected. By
its express terms, Castleman’s analysis is not applicable to the physical force
requirement for a crime of violence, which “suggests a category of violent,
active crimes” that have as an element a heightened form of physical force that
is narrower in scope than that applicable in the domestic violence context. 134
S. Ct. 1411 n.4 (noting that “Courts of Appeals have generally held that mere
offensive touching cannot constitute the ‘physical force’ necessary to a ‘crime
of violence’” and clarifying that “[n]othing in today’s opinion casts doubt on
these holdings, because . . . ‘domestic violence’ encompasses a range of force
broader than that which constitutes ‘violence’ simpliciter”). Accordingly,
Castleman    does    not   disturb   this   court’s   precedent   regarding    the
characterization of crimes of violence, and § 5-13-301(a)(1)(A) cannot constitute
a crime of violence under § 2L1.2(b)(1)(A)(ii) because it lacks physical force as
an element. See Herrera, 647 F.3d at 175.
                                  III.
      The Government also contends that even if the district court erred in
determining that the sixteen-level enhancement applied, that error was
harmless because of the district court’s admonition that it would have imposed
the same sentence even if it had sustained Rico-Mejia’s objection to that
enhancement.
      The district court indicated that it considered multiple factors in
imposing Rico-Mejia’s sentence, including: (1) the PSR; (2) Rico-Mejia’s
personal characteristics; (3) the 18 U.S.C. § 3553(a) sentencing factors; (4) “the
serious nature of the offense” and “particularly the quick turn-around between
his last deportation from this country, and then his re-entry.” The district court
then indicated that it also had considered Rico-Mejia’s conviction history—

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                                   No. 16-50022

which included convictions for driving while intoxicated, a previous illegal
entry, and terroristic threatening—and the sentences imposed pursuant to
those prior convictions. The district court also indicated that it did not consider
arrests that did not lead to convictions. The district court then concluded that
to “promote respect for our laws, to discourage future criminal misconduct,
which . . . is important considering his extensive criminal history, the quick
turn-arounds in violation of our Immigration laws, including this one,” it was
pronouncing the same sentence it would have pronounced even if the it had
sustained Rico-Mejia’s objection to the sixteen-level enhancement. The district
court further added that “even if [terroristic threatening] wasn’t a crime of
violence, it could still be used as a conviction and considered as a factor for
sentencing and promoting and considering public safety issues, as well as
respect for our laws.”
      While a district court undoubtedly commits procedural error in
improperly calculating the Guidelines range, see United States v. Richardson,
676 F.3d 491, 511 (5th Cir. 2012), that error can be considered harmless
provided that the sentence did not result from the error. United States v. Tzep-
Mejia, 461 F.3d 522, 526–27 & n.6 (5th Cir. 2006). One way to demonstrate
that the sentence was not imposed as a result of the Guidelines error is to show
that the district court considered the correct Guidelines range and
subsequently indicated that it would impose the same sentence even if that
range applied. Id. at 526 & n.6.
      However, where the district court does not consider the correct
guidelines range, a determination of harmlessness requires the proponent of
the sentence to “convincingly demonstrate[] both (1) that the district court
would have imposed the same sentence had it not made the error and (2) that
it would have done so for the same reasons it gave at the prior sentencing.”


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                                      No. 16-50022

United States v. Ibarra-Luna, 628 F.3d 712, 714 (5th Cir. 2010). This court has
noted that such a showing involves a heavy burden, requiring the proponent
to “point to evidence in the record that will convince [the appellate court] that
the district court had a particular sentence in mind and would have imposed
it, notwithstanding the error.” Richardson, 676 F.3d at 511 (quoting Ibarra-
Luna, 628 F.3d at 717, 718) (internal quotation marks omitted). As there is no
explicit or particularized statement from the district court showing that it
calculated or considered the correct Guidelines range, our harmless error
analysis must take place in the more demanding Ibarra-Luna scenario.
       The Government points to several pieces of evidence in an effort to carry
its burden. These include the various considerations listed by the district court
in imposing the sentence and the district court’s statement that it had
“considered everything else about this case,” which the Government argues
would include Rico-Mejia’s objection and the suggested sentencing range of 8–
14 months contained within it.
       Meanwhile, Rico-Mejia points to the facts that (1) the difference between
his actual sentencing range and possible lesser sentencing ranges is significant
(at least 20 months) 2, and (2) his sentence corresponded precisely to the bottom
of the incorrectly calculated sentencing range. Rico-Mejia draws a parallel
between his situation and the situation of the defendant in United States v.
Martinez-Romero, 817 F.3d 917 (5th Cir. 2016), where the lowest end of the
improperly calculated guideline range became the defendant’s precise
sentence, an occurrence which the court refused to attribute to “mere
serendipity.” Id. at 926. Key to the court’s decision was the recognition that,


       2 Rico-Mejia avers that the highest his sentencing range could be without the sixteen-
level enhancement is 15 to 21 months, based on a categorization of his prior conviction as an
aggravated felony. Yet even in advancing this argument he maintains that the correct range
is 8–14 months.

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                                     No. 16-50022

despite the district court’s “multitude of reasons” for its choice of sentence, a
review of the record disclosed “no indication that the court’s decision to select
the exact low and high ends of the improper range was independent of the
erroneous calculation that called the court’s attention to that range in the first
instance.” Id. Accordingly, the court’s choice to impose a guidelines sentence at
precisely the bottom of the range was found to be influenced by the erroneous
Guidelines calculation, even though the district court stated several times that
it would have imposed the same sentence regardless of error. Id. at 925.
       The facts of this case are similar to those of Martinez-Romero in two key
ways. Both cases involve: (1) sentences that correspond precisely to the bottom
of an erroneous guidelines calculation; (2) statements by the district court
regarding criminal history and willingness to impose sentences regardless of
error in guideline calculation. 3 The key potential difference between them
relates to the presence of evidence to indicate that the court’s decision to select
precisely the bottom of the recommended Guidelines range was independent of
the erroneous calculation. In Martinez-Romero there was no such evidence at
all. Id. at 926. Here, there is some inferential evidence to be accounted for—
although the district court never explicitly stated that it had calculated the
Guidelines range that would have applied absent the sixteen-level upward
adjustment, it did say that it had considered “everything else about this case,”
and Rico-Mejia’s preferred calculation was included with his objection to the
PSR. The combination of these facts could support the inference that the
district court was not influenced by the incorrect calculation, but rather chose
its sentence from among alternatives solely for the reasons it stated.



      3  Indeed, the court in Martinez-Romero stated no less than three times “that even if
the 16-level enhancement for the attempted kidnapping was incorrect, it would nonetheless
impose the same 46-month sentence.” Martinez-Romero, 817 F.3d at 925.

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                                 No. 16-50022

      This   potential   distinction   notwithstanding,    we   hold   that   the
Government’s reference to the district court’s vague and unparticularized
statement as the basis for a speculative inference that the district court
considered alternative ranges that it did not calculate is insufficient to carry
its heavy burden under Richardson. 676 F.3d at 511. This is especially true in
light of the district court’s choice to impose a sentence that corresponded
precisely to the bottom of the erroneous guidelines range, which constitutes
evidence that the range impacted the district court’s decision. See Martinez-
Romero, F.3d 917 at 925–26. Moreover, the district court’s other statements at
the sentencing hearing do nothing to prove that the erroneous Guidelines
calculation did not impact the sentence ultimately imposed. Accordingly, and
akin to the situation in Martinez-Romero, we find that the Government is
unable to convincingly show that the sentence imposed on Rico-Mejia was
uninfluenced by the erroneous Guidelines calculation, such that we are
“convince[d] . . . that the district court had a particular sentence in mind and
would have imposed it, notwithstanding the error.” 676 F.3d at 511; see also
Ibarra-Luna, 628 F.3d at 718–19.
                                       IV.
      On these facts, the Government has failed to meet its heavy burden to
convincingly demonstrate that the district court would have imposed the same
sentence regardless of its erroneous calculation. We therefore VACATE Rico-
Mejia’s sentence and REMAND to the district court for resentencing.




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