     Case: 11-50766   Document: 00512376703     Page: 1   Date Filed: 09/17/2013




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

                                                                  FILED
                                                             September 17, 2013

                                 No. 11-50766                    Lyle W. Cayce
                                                                      Clerk

UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,
v.

DANIEL RAUL ESPINOZA, also known as Damian Nevarez,

                                           Defendant-Appellant.



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


Before STEWART, Chief Judge, and DAVIS and WIENER, Circuit Judges.
CARL E. STEWART, Chief Judge:
      The Armed Career Criminal Act (“ACCA”) imposes a mandatory 15–year
term of imprisonment upon convicted felons who unlawfully possess a firearm
and have three or more prior convictions for committing violent felonies. 18
U.S.C. § 924(e)(1) (2006). The question before this court is whether a violation
of Texas Penal Code § 22.01 constitutes a violent felony as defined by the ACCA.
The district court held that it does. We AFFIRM.
           I. FACTUAL AND PROCEDURAL BACKGROUND
      Daniel Raul Espinoza pleaded guilty to being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g). When Espinoza pleaded guilty, he
acknowledged that he had three prior felony convictions. The Government filed
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notice of its intent to seek an enhanced sentence pursuant to the ACCA. The
district court determined that Espinoza’s three prior felony convictions rendered
him an “Armed Career Criminal.” This designation resulted in Espinoza facing
a mandatory minimum sentence of 15 years’ imprisonment under the ACCA.
      Espinoza objected to the district court’s application of the ACCA to his
sentence. He claimed that one of his prior convictions, felony assault involving
family violence, did not qualify as a “violent felony” as defined by the ACCA.
During the sentencing hearing, Espinoza argued that the judgment in the
assault case did not cite the specific subsection of the Texas Penal Code for
which he was convicted and, thus, the court could not presume that he was
convicted under a certain subsection or that he engaged in all possible mens rea
under the statute. He contended that the district court should presume that he
used the least culpable means of committing the offense and conclude that the
statute did not meet the definition of a violent felony under 18 U.S.C. § 924(e).
      The Government responded that Espinoza’s plea colloquy reflected that he
pleaded guilty to an assault, enhanced by a prior assault as charged in the
indictment and judgment, and that the admission of the occurrence of a bodily
injury reflected intentional conduct that was violent in nature. The district
court agreed and determined that Espinoza’s felony assault involving family
violence conviction was intentional and violent. The district court relied upon
evidence outside the indictment and judgment to reach its conclusion. The
district court noted that Espinoza had broken down a door and threatened to kill
a woman by strangulation. Applying the ACCA, the district court sentenced
Espinoza to 188 months’ imprisonment to be followed by a 5-year term of
supervised release. Espinoza timely filed a notice of appeal.
                        II. STANDARD OF REVIEW
      “Where a defendant objects at sentencing, we review the district court’s
findings of fact for clear error and its conclusions of law de novo. The sentence
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is reviewed for reasonableness.” See United States v. Anderson, 559 F.3d 348,
354 (5th Cir. 2009).
                              III. DISCUSSION
                                       A.
      On appeal, Espinoza argues that his prior felony assault conviction was
not a violent felony as defined by the ACCA because the record does not
establish that he committed the offense with a mens rea greater than
recklessness. Espinoza emphasizes that the Government drafted his indictment
in the conjunctive, claiming that he intentionally, knowingly, and recklessly
assaulted the victim. As a result, there was never a finding as to his specific
mens rea and the court should presume that he committed the offense recklessly.
Espinoza asserts that an offense that is committed recklessly is not a violent
felony under the ACCA. Citing Begay v. United States, 553 U.S. 137 (2008) and
Sykes v. United States, 131 S. Ct. 2267 (2011), Espinoza contends that a reckless
offense lacks the deliberate, purposeful, criminality of the ACCA’s enumerated
offenses or similar crimes under the residual clause of § 924(e)(2)(B)(ii). We do
not agree.
                                       B.
      Congress enacted the ACCA to ensure “(1) that violent, dangerous
recidivists would be subject to enhanced penalties and (2) that those enhanced
penalties would be applied uniformly, regardless of state-law variations.”
Descamps v. United States, –– U.S. ––,133 S.Ct. 2276, 2302 (2013) (Alito, J.,
dissenting) (citations omitted). The ACCA provides for a minimum sentence of
15 years for a defendant convicted under 18 U.S.C. § 922(g) if he has three
previous convictions for violent felonies committed on different occasions. 18
U.S.C. § 924(e)(1); see United States v. Montgomery, 402 F.3d 482, 485 (5th Cir.
2005). The ACCA defines a violent felony as, inter alia, any crime punishable
by a term of imprisonment exceeding one year that: “(i) has as an element the
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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)(2)(B) (emphasis added).           United States
Sentencing Guidelines § 4B1.4 implements the ACCA’s mandatory minimum
requirement and utilizes the same definitions as the ACCA. See U.S.S.G. §
4B1.4(a) & comment (n.1); see also Montgomery, 402 F.3d at 485 (noting that the
ACCA is implemented by § 4B1.4). The residual clause, which captures conduct
that “presents a potential risk of physical injury to another,” is the portion of the
statute at issue on appeal. See 18 U.S.C. § 924(e)(2)(B)(ii).
      Generally we follow the categorical approach to determine whether a prior
conviction qualifies as a violent felony for the purposes of the ACCA. See United
States v. Garza-Lopez, 410 F. 3d 268, 273 (5th Cir. 2005) (citing Taylor v. United
States, 495 U.S. 575, 602 (1990)). Under this approach, we look to the relevant
statute and, in certain circumstances, to the conduct alleged in the charging
documents, to determine whether the prior conviction qualifies as a violent
felony. See Taylor, 495 U.S. at 576. However, when a statute can be violated in
a way that constitutes a violent felony and in a way that does not, we review
other judicial documents to make the determination. See United States v.
Garcia-Arellano, 522 F.3d 477, 479-80 (5th Cir. 2008). The indictment, judicial
confession, and judgment are “within the scope of documents a court may
consider under Shepard.” Id. at 480-81 (citing Shepard v. United States, 544
U.S. 13, 26 (2005)).
      In an effort to remedy the ambiguity surrounding Espinoza’s mens rea, we
review the judicial documents available to us on appeal.           The indictment
supporting the conviction at issue reads as follows:
      The Grand Jurors for the County of El Paso, State of Texas, duly
      organized as such, at the JANUARY Term, A.D., 2005 of the 168th
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      Judicial District Court for said County, upon their oaths in said
      Court, present that on or about the 14th day of February, 2005. . .in
      the County of El Paso and State of Texas,
      DANIEL ESPINOZA, hereinafter referred to as Defendant,
      did then and there . . .intentionally, knowingly, and recklessly cause
      bodily injury to SUSANA ESPARZA, a member of Defendant’s
      Family or household, by applying pressure about the throat of
      SUSANA ESPARZA with the [D]efendant’s hands,

      And it is further presented in and to said Court that, prior to the
      commission of the aforesaid offense, said Defendant was previously
      convicted of an offense against a member of [D]efendant’s family or
      household under Section 22.01 of the Texas Penal Code, to–wit: on
      the 5th day of September, 2002, in cause number
      200220CO9972 in the County Court At Law No. CCR2 of El
      Paso County, Texas.

(Emphasis in original).

      The Shepard documentation for Espinoza’s conviction contained a fully-
executed judicial confession where Espinoza admitted the following:
      I, the undersigned defendant in this case, do now hereby, in open
      Court, admit all of the allegations in the indictment or information
      now pending in this cause including any all [sic] paragraphs alleged
      for the purpose of enhancing punishment, and confess that I
      committed the offense as charged in the indictment or information,
      as well as all lesser included offenses arising out of the same
      criminal episode and admit the truth of any and all paragraphs
      alleged for purposes of enhancing punishment.

      The state court’s findings of fact indicate that Espinoza “admitted all of the
allegations charged in the indictment or information on file in this cause and
has, in open court, confessed his or her guilt to the offense charged.”
      The indictment and relevant judicial documents do not provide conclusive
evidence as to the mens rea we should associate with Espinoza’s prior felony
conviction. Espinoza’s adoption of the judicial confession is simply a blanket
statement admitting that he committed the assault with every listed category
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of mental culpability. This does not support a finding that Espinoza committed
the act intentionally and knowingly and not recklessly. Therefore, we apply the
“least culpable means” analysis to this case and assume that Espinoza’s offense
was committed recklessly. See United States v. Houston, 364 F.3d 243, 246 (5th
Cir. 2004) (“If an indictment is silent as to the offender’s actual conduct, we must
proceed under the assumption that his conduct constituted the least culpable act
satisfying the count of conviction.” (citation omitted)).
                                                    C.
        We now focus our inquiry on whether violating Tex. Penal Code § 22.01
with a culpable mens rea of recklessness qualifies as a violent felony under the
residual clause of the ACCA.
            The Supreme Court’s decision in Begay suggests that, under these facts,
we should consider whether the offense in question involved “purposeful, violent
and aggressive” conduct. See Begay, 553 U.S. at 144–45 (citation omitted). In
Begay, the Court held that a violation of New Mexico’s driving under the
influence (“DUI”) statute is not a violent felony under the ACCA. Id. at 148.
The Court reasoned that DUI differs from the enumerated offenses in that those
crimes typically involve “purposeful, violent and aggressive” conduct, whereas
DUI statutes typically do not. Id. The Court stated that the enumerated
offenses “should [be] read [] as limiting the crimes the [residual] clause [] covers
to crimes that are roughly similar, in kind as well as in degree of risk posed, to
the examples themselves.” Id. at 143. (citation omitted).
        Sykes clarified the Court’s holding in Begay and provided instruction on
how its reasoning should be applied.1 The Sykes Court emphasized that Begay


        1
          In Sykes, the Supreme Court held that a defendant’s prior conviction for fleeing from law
enforcement by car was a violent felony under the ACCA. 131 S. Ct. at 2270. The Sykes Court reasoned
that a “determination to elude capture makes a lack of concern for the safety” of others an inherent
feature of the offense. Id. at 2273. The Sykes Court focused on the risk of physical injury that accrues as
a result of a defendant’s decision to evade the police by car. Id. at 2278-81. The Court noted that the
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is the “sole decision of this Court concerning the reach of the ACCA’s residual
clause in which risk was not the dispositive factor. . . .” Sykes, 131 S.Ct. at 2275.
(emphasis added).            Sykes reasoned that Begay’s “purposeful, violent and
aggressive” language did not de-emphasize the risk analysis that applied in the
Court’s ACCA cases. See id. (stating that “[i]n general, levels of risk divide
crimes that qualify [as violent felonies] from those that do not.”). Instead, Begay
serves as a guide-post for analyzing the ACCA’s applicability to crimes that
involve strict liability, negligence or recklessness. See Sykes, 131 S. Ct. at
2275–76.
        Here, we conclude that Espinoza’s reckless assault conviction qualifies as
a violent felony under the ACCA pursuant to Begay’s “purposeful, violent and
aggressive” standard as guided by the Supreme Court’s reasoning in Sykes.
         Espinoza was convicted of violating Tex. Penal Code § 22.01(a) which
criminalizes, inter alia, recklessly causing bodily injury to another. See Thomas
v. State, 303 S.W.3d 331, 332 (Tex. Ct. App.—El Paso 2009, no pet.) (defining the
elements of Tex. Penal Code §22.01(a)(1)). The offense was enhanced to a third-
degree felony because Espinoza was previously convicted under the same
statute. See Tex. Penal Code § 22.01(b)(1)(a). According to the Texas Penal
Code:
        A person acts recklessly, or is reckless, with respect to
        circumstances surrounding his conduct or the result of his conduct
        when he is aware of but consciously disregards a substantial and
        unjustifiable risk that the circumstances exist or the result will
        occur. The risk must be of such a nature and degree that its
        disregard constitutes a gross deviation from the standard of care


residual clause is designed to enhance punishment for offenses that involve a potential risk of physical
injury similar to that presented by the offenses enumerated in the ACCA. Id. The enumerated offenses
include burglary, extortion, arson, and crimes involving explosives. Id. The Sykes Court likened a
criminal who evades an officer and creates a high risk of crashes to a criminal involved in arson and
burglary. Id.
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        that an ordinary person would exercise under all the circumstances
        as viewed from the actor’s standpoint.
Tex. Penal Code § 6.03.
        Pursuant to Sykes, we analogize the statute in question with one of the
crimes enumerated in the ACCA. Here, Tex. Penal Code § 22.01 is most
analogous to the ACCA-enumerated offense of burglary because reckless assault
“can end in confrontation leading to violence.” Sykes, 131 S. Ct. at 2273. A
violation under §22.01, whether committed knowingly, intentionally or
recklessly, requires proof that the defendant caused bodily injury to another
person. The elements of § 22.01 indicate that a violation of this statute requires
more than a “risk” of physical harm, but rather must result in actual physical
harm.2 In comparison, the enumerated offense of burglary does not always
result in a physical confrontation between two people, nor does it always result
in physical injury. Nonetheless, burglary was included as an enumerated
offense under the ACCA because the Act contemplates the potential injury that
may result from a burglary.
        A conviction under § 22.01(a)(1) can be achieved if, and only if, a violent,
physical confrontation between at least two people leads to bodily injury.
Reckless assault in Texas contemplates a scenario where a defendant
appreciates the risk that his conduct may result in bodily injury to another, but
“consciously disregards” that risk and harms someone as a result. In Texas,
“[r]eckless conduct involves conscious risk creation—that is, the actor was aware


        2
          In several cases decided pre-Sykes, we held that a violation of § 22.01 is a violent felony even
when the defendant commits the offense recklessly. See United States v. Anderson, 559 F. 3d 348, 355
(5th Cir. 2009); United States v. Mackey 313 F. App’x 699 (5th Cir. 2010) (unpublished); United States
v. Birdow, 385 F. App’x 391, 392 (5th Cir. 2010) (per curiam) (unpublished). Anderson involved a
defendant who challenged the district court’s finding that his prior felony conviction under § 22.01 for
assault of a public servant was a crime of violence for the purposes of U.S.S.G. Section 4B1.2(a). See
Anderson at 559 F. 3d at 354. We held that “physical harms committed recklessly fit naturally with the
offenses–for example, arson and crimes involving explosives–actually mentioned in § 4B1.2(a)(2).” Id.
at 355-56.
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of the risk surrounding his conduct or the result of his conduct, but consciously
disregarded that risk.” See Cleburn v. State, 138 S.W.3d 542, 545 (Tex. Ct.
App.—Houston [14th Dist.] 2004, pet. ref’d) (citation omitted). Sykes dictates
that the ACCA applies to crimes that are “similar in degree of danger” to one of
the enumerated offenses. Because reckless assault creates, at a minimum, a
similar degree of danger as burglary, we hold that it is a violent felony.
      Begay aimed to limit the application of the ACCA to crimes that involve
conduct that is “purposeful, violent and aggressive” in nature. See Begay, 553
U.S. at 137. Reckless assault under § 22.01 requires proof that the defendant
consciously disregarded a substantial and unjustifiable risk and in doing so,
caused bodily injury to another. For the reasons stated above, we hold that a
violation of § 22.01 falls squarely within the parameters of the criminal conduct
contemplated in Begay.
                              IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s judgment
imposing a sentence of 188 months’ imprisonment to be followed by a 5–year
term of supervised release.
