      Case: 15-41733          Document: 00514175800              Page: 1      Date Filed: 09/28/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                                      United States Court of Appeals
                                                                                               Fifth Circuit
                                            No. 15-41733                                     FILED
                                                                                     September 28, 2017
                                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,
                                                                                                Clerk

                 Plaintiff - Appellee

v.

ARIEL BERNAL-JACINTO, also known as Ariel Jacinto Bernal,

                  Defendant - Appellant
----------------------------------------------------------------------------------------

Consolidated with: 16-20148

UNITED STATES OF AMERICA,

                 Plaintiff - Appellee

v.

SANTOS ORLANDO ESCOBAR GALO, also known as Santos O. Escobar,
also known as Orlando Escorba, also known as Santos Orlando Escobar, also
known as Santos Escobar-Galo,

                 Defendant - Appellant


                      Appeals from the United States District Court
                           for the Southern District of Texas
                                USDC No. 7:15-CR-1157-1
                                USDC No. 4:15-CR-473-1
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                                    No. 15-41733
                                 Cons w/ No. 16-20148
Before REAVLEY, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
       Ariel Bernal-Jacinto and Santos Orlando Escobar Galo appeal the 16-
level increase to their base offense levels under United States Sentencing
Guidelines § 2L1.2(b)(1)(A)(ii) based on prior Massachusetts convictions for
assault and battery with a dangerous weapon (“ABDW”). Bernal-Jacinto and
Escobar Galo contend that this enhancement should not have applied to their
sentences because the Massachusetts crime of ABDW is not a crime of violence.
Because our review is for plain error and the appellants failed to show that any
error committed by the district court was plain, we AFFIRM.
                                    I. Background
       Both Bernal-Jacinto and Escobar Galo pleaded guilty to being found in
the United States after a previous deportation in violation of 8 U.S.C § 1326(a)
and (b). Both appellants were assigned a base offense level of 8 pursuant to
United States Sentencing Guidelines (“U.S.S.G.”) § 2L1.2(a), and their
presentence investigation reports recommended a 16-level enhancement under
§ 2L1.2(b)(1)(A)(ii). 1 The 16-level enhancement for both appellants was based
on a prior Massachusetts conviction for ABDW under Massachusetts General
Laws Chapter 265 § 15A(b), which the probation officers determined was a
crime of violence as defined by U.S.S.G. § 2L1.2, commentary application note
1(B)(iii).



       * 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.
       1  Bernal-Jacinto was sentenced under the 2014 edition of the Guidelines while
Escobar Galo was sentenced under the 2015 edition. The 2014 and 2015 editions of the
Guidelines include identical enhancements and definitions for a crime of violence under
U.S.S.G. § 2L1.2(b)(1)(A)(ii). This opinion, therefore, does not distinguish between these two
editions of the Guidelines when referring to the sentencing enhancement and the definition
for a crime of violence under § 2L1.2(b)(1)(A)(ii).
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      Escobar Galo did not object to the enhancement based on his prior ABDW
conviction, but Bernal-Jacinto did object, arguing that Massachusetts ABDW
is not a crime of violence because it can be accomplished by “touching, however
slight” and does not require bodily injury. The district court overruled Bernal-
Jacinto’s objections and determined that Massachusetts ABDW qualifies as an
enumerated offense of aggravated assault.
      Bernal-Jacinto’s Guidelines range was 46 to 57 months, and the district
court imposed a sentence of 50 months’ imprisonment.               Escobar Galo’s
Guidelines range was 41 to 51 months, and the district court imposed a
sentence of 45 months. Both appellants now appeal their sentences.
                           II. Standard of Review
      Escobar Galo concedes, and our review of the record confirms, that his
appeal is subject to plain error review because he failed to object to the crime-
of-violence determination before the district court. Although Bernal-Jacinto
objected to the enhancement, his current arguments on appeal (which focus on
the intent required for the crime) were never raised before the district court.
Accordingly, both appeals are subject to plain error review. See United States
v. Escobar, 866 F.3d 333, 338 (5th Cir. 2017) (per curiam). To establish plain
error, a defendant “must show (1) an error (2) that was clear or obvious (3) that
affected his substantial rights.” United States v. Avalos-Martinez, 700 F.3d
148, 153 (5th Cir. 2012) (per curiam). If plain error is established, “we have
the discretion to correct the error if it ‘seriously affects the fairness, integrity
or public reputation of judicial proceedings.’” Id. (quoting Puckett v. United
States, 556 U.S. 129, 135 (2009)).
                                III. Discussion
      U.S.S.G. § 2L1.2 authorizes a 16-level increase in a defendant’s offense
level if he was previously deported after a felony conviction for a crime of
violence that receives criminal history points.        § 2L1.2(b)(1)(A)(ii).   The
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commentary to § 2L1.2 defines a crime of violence in two ways: (1) any of a list
of enumerated offenses, including aggravated assault, or (2) “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.” § 2L1.2
cmt. n.1(B)(iii).
      We apply the “categorical approach” to determine whether a prior
conviction qualifies as a crime of violence. See United States v. Espinoza, 733
F.3d 568, 571 (5th Cir. 2013); United States v. Moreno-Florean, 542 F.3d 445,
449 (5th Cir. 2008). To determine whether the offense of conviction contains
“as an element the use, attempted use, or threatened use of force,” we examine
the offense’s elements. United States v. Carrasco-Tercero, 745 F.3d 192, 195
(5th Cir. 2014) (quoting United States v. Ortiz-Gomez, 562 F.3d 683, 684 (5th
Cir. 2009)).    To assess whether the crime of conviction amounts to an
enumerated offense, such as aggravated assault, we apply a “common sense”
approach that looks to the “generic, contemporary meaning” of the enumerated
offense. United States v. Esparza-Perez, 681 F.3d 228, 229 (5th Cir. 2012). If
a statute is divisible, we use the “modified categorical approach” in order to
determine under which subsection the defendant was convicted. United States
v. Howell, 838 F.3d 489, 494–95 (5th Cir. 2016).
      It is undisputed that Massachusetts General Laws Chapter 265 § 15A is
a divisible statute and that both appellants were convicted of ABDW under
subsection (b) of that statute. Thus, the parties dispute only whether the
ABDW offense of subsection (b) is a crime of violence.
      “The substantive definition of [Massachusetts] ABDW . . . is supplied by
case law applying the crime’s common law definition.”         United States v.
Tavares, 843 F.3d 1, 12 (1st Cir. 2016). The assault and battery portion of
ABDW may be proved using either of two theories of liability: (1) “the
intentional and unjustified use of force upon the person of another, however
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slight” (“intentional ABDW”), Commonwealth v. Burno, 487 N.E.2d 1366,
1368–69 (Mass. 1986) (quoting Commonwealth v. McCan, 178 N.E. 633, 634
(Mass. 1931)), or (2) “the intentional commission of a wanton or reckless act
(something more than gross negligence) causing physical or bodily injury to
another” (“reckless ABDW”), id. at 1369 (citing Commonwealth v. Welansky,
55 N.E.2d 902, 911–12 (Mass. 1944)). Specific intent to injure is not required.
Commonwealth v. Appleby, 402 N.E.2d 1051, 1059 (Mass. 1980). Under either
theory, however, to constitute ABDW the assault and battery must be
committed by means of a dangerous weapon, and not merely while possessing
the weapon. Id. at 1058. That is, the dangerous weapon must come into
contact with the victim.    Id. at 1058–59.    The definition of a “dangerous
weapon” is “any instrument or instrumentality so constructed or so used as to
be likely to produce death or great bodily harm.” Commonwealth v. Fettes, 835
N.E.2d 639, 640 (Mass. App. Ct. 2005) (quoting Commonwealth v. Farrell, 78
N.E.2d 697, 702 (Mass. 1948)).
      The appellants both contend that (1) the Massachusetts crime of ABDW
is not divisible and (2) the second theory of liability, reckless ABDW, is not a
crime of violence because the reckless means of committing the crime (a) does
not qualify as the equivalent of generic aggravated assault and (b) does not
have as an element the use, attempted use, or threatened use of physical force
against the person of another. Escobar Galo—but not Bernal-Jacinto—also
argues that the first theory of liability, intentional ABDW, does not involve the
use of force because it allows for any degree of force, “however slight.” Even
assuming without deciding that Massachusetts ABDW is not divisible, we
conclude that appellants have failed to discharge their burden as to the second
prong of plain error review requiring a showing of clear or obvious error.
      The appellants first argue that Massachusetts ABDW falls outside of the
generic definition of aggravated assault because committing the crime requires
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only the general intent of recklessness. For support, they point to our decision
in United States v. Hernandez-Rodriguez, 788 F.3d 193 (5th Cir. 2015). In
Hernandez-Rodriguez, we determined that the Louisiana aggravated battery
statute was not the equivalent of generic aggravated assault. 788 F.3d at 196–
200. Hernandez-Rodriguez focused on the aspect of the Louisiana statute
allowing aggravated battery to be predicated on poisoning someone. See id.;
see also id. at 200 n.7 (“Unlike the obvious consequences of, say, swinging a
knife at another person, administering a noxious substance may have chemical
effects that are likely to produce harm to the victim but are not predicted or
understood by the perpetrator.”). More analogous to our case is the holding in
United States v. Guillen-Alvarez, which did not involve the question of
poisoning as a means of committing the assault. In that case, we held that
recklessness does not take a crime outside of the scope of generic aggravated
assault. See 489 F.3d 197, 198–200 (5th Cir. 2007); see also United States v.
Villasenor-Ortiz, 675 F. App’x 424, 428 (5th Cir.) (per curiam), petition for cert.
filed (U.S. June 2, 2017) (No. 16-9422). The statute at issue in Guillen-Alvarez,
similar to reckless ABDW, criminalized “recklessly caus[ing] bodily injury to
another” while “us[ing] or exhibit[ing] a deadly weapon during the commission
of the assault.” 489 F.3d at 199–200. Although reckless ABDW requires only
a “dangerous” rather than “deadly” weapon, this requirement has been
interpreted to mean “any instrument or instrumentality so constructed or so
used as to be likely to produce death or great bodily harm.” Fettes, 835 N.E.2d
at 640 (quoting Farrell, 78 N.E.2d at 702). Thus, it is neither clear nor obvious
that reckless ABDW is not a crime of violence under the generic definition of
aggravated assault. 2

       2  While we conclude that the two cases are not in conflict, to the extent there is any
conflict between Hernandez-Rodriguez and Guillen-Alvarez, Guillen-Alvarez, which was not
cited in Hernandez-Rodriguez, would control because it is the earlier precedential opinion.
See Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008) (“It is a well-
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       Furthermore, appellants have also failed to show that it is clear or
obvious that reckless ABDW does not have as an element the use, attempted
use, or threatened use of physical force against the person of another.
Appellants argue—similar to their aggravated assault argument—that the
general intent nature of reckless ABDW shows that there is no requirement
for the use of force to commit the offense. But we have held that, in light of the
Supreme Court’s decision in Voisine v. United States, 136 S. Ct. 2272 (2016),
“Guidelines provisions using the language ‘has as an element the use,
attempted use, or threatened use of physical force against the person of
another’ are indifferent to mens rea: we concern ourselves only with whether
[the defendant’s] predicate conduct was volitional.” United States v. Mendez-
Henriquez, 847 F.3d 214, 221–22 (5th Cir.), cert. denied, 137 S. Ct. 2177 (2017).
Appellants also argue that reckless ABDW does not require the use of force
because it is defined in terms of result (i.e., bodily injury) rather than the
means by which the result is accomplished. However, reckless ABDW can only
be accomplished “by means of a dangerous weapon,” see Appleby, 402 N.E.2d
at 1059, defined as “any instrument or instrumentality so constructed or so
used as to be likely to produce death or great bodily harm,” Fettes, 835 N.E.2d
at 640 (quoting Farrell, 78 N.E.2d at 702). We have held that touching an
individual with a dangerous weapon calculated to produce death or great
bodily harm creates a sufficient threat of force to qualify as a crime of violence.
United States v. Herrera-Alvarez, 753 F.3d 132, 141–42 (5th Cir. 2014).
       As to intentional ABDW, we held in Herrera-Alvarez that an analogous
crime of aggravated battery was a crime of violence under § 2L1.2 of the
Guidelines because it “require[d] both physical contact and the use of a


settled Fifth Circuit rule of orderliness that one panel of our court may not overturn another
panel’s decision, absent an intervening change in the law, such as by a statutory amendment,
or the Supreme Court, or our en banc court.”).

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dangerous weapon ‘which, in the manner used, [was] calculated or likely to
produce death or great bodily harm.’” Id. (quoting LA. REV. STAT. § 14:2(3)).
Intentional ABDW similarly requires both physical contact and the use of a
dangerous weapon, Appleby, 402 N.E.2d at 1058–59, which is defined as “any
instrument or instrumentality so constructed or so used as to be likely to
produce death or great bodily harm,” Fettes, 835 N.E.2d at 640 (quoting Farrell,
78 N.E.2d at 702). Thus, it is neither clear nor obvious that intentional ABDW
is not a crime of violence. Indeed, the First Circuit has determined that
intentional ABDW is a crime of violence under the force clause in U.S.S.G.
§ 4B1.2(a)(1). Tavares, 843 F.3d at 13. The force clause in § 4B1.2(a)(1) is
identical to the force clause in the Guidelines section at issue here,
§ 2L1.2(b)(1)(A)(ii). See § 2L1.2 cmt. n.1(B)(iii). The First Circuit, therefore,
essentially rejected the argument Escobar Galo asserts on appeal and that
Bernal-Jacinto made before the district judge—i.e., that intentional ABDW
may be committed without the requisite violent force to constitute a crime of
violence under § 2L1.2(b)(1)(A)(ii). See Tavares, 843 F.3d at 12–13.
      Accordingly, we     need not decide       whether    the   district court’s
determination was error because any error was not plain. See United States v.
Rodriguez-Parra, 581 F.3d 227, 231 (5th Cir. 2009) (“[T]o satisfy the second
prong of plain error inquiry, ‘the legal error must be clear or obvious, rather
than subject to reasonable [dispute].’” (alterations in original) (quoting United
States v. Ellis, 564 F.3d 370, 377–78 (5th Cir. 2009))).
      AFFIRMED.




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