     Case: 10-40860 Document: 00511434873 Page: 1 Date Filed: 04/05/2011




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

                                                 FILED
                                                                             April 5, 2011
                                     No. 10-40860
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee,

versus

AURELIO BASULTO-REINA,

                                                   Defendant-Appellant.




                    Appeal from the United States District Court
                         for the Southern District of Texas
                                 No. 2:10-CR-363-1




Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Aurelio Basulto-Reina challenges the district court’s conclusion that aggra-
vated battery under Georgia law is a “crime of violence” (“COV”) under U.S.S.G.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-40860

§ 2L1.2(b)(1)(A)(ii). We affirm, because Georgia aggravated battery involves the
use of force and is thus a COV.
                                             I.
       Basulto-Reina pleaded guilty to one count of being found unlawfully pres-
ent in the United States following deportation, in violation of 8 U.S.C. § 1326(a)
and (b). The district court imposed a 16-level sentencing enhancement under
§ 2L1.2(b)(1)(A)(ii) because Basulto-Reina had been deported following a felony
conviction for a COV. The underlying felony was a 1997 conviction in Georgia
for aggravated battery. After a three-level reduction for acceptance of responsi-
bility, the enhancement gave Basulto-Reina a total offense level of 21; he had a
criminal history category of I. The guideline range was 37-46 months, but the
district court gave 24 months. Basulto-Reina challenges the 16-level enhance-
ment, arguing that Georgia aggravated battery is not a COV.


                                            II.
       The categorization of prior convictions as COV’s is a legal issue that we
review de novo.1 The application notes define a COV as
       any of the following offenses under federal, state, or local law: mur-
       der, manslaughter, kidnapping, aggravated assault, forcible sex of-
       fenses . . ., 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). Thus, an offense can qualify as a COV either
because it is part of an enumerated category or because it falls within the physi-
cal-force provision. Because we decide that the use of physical force is an ele-
ment of aggravated battery in Georgia, we need not determine whether it is part

       1
         United States v. Hernandez-Galvan, 632 F.3d 192, 196 (5th Cir. 2011) (citing United
States v. Sanchez-Ruedas, 452 F.3d 409, 412 (5th Cir. 2006)).

                                             2
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                                   No. 10-40860

of an enumerated category.
      For purposes of the guidelines, the “‘use’ of force requires that a defendant
intentionally avail himself of that force.” United States v. Vargas-Duran, 356
F.3d 598, 599 (5th Cir. 2004). To determine whether an offense involves the use
of force, we employ the categorical approach in Taylor v. United States, 495 U.S.
575, 600-02 (1990), examining the elements of the offense rather than the facts
underlying the conviction. United States v. Moreno-Florean, 542 F.3d 445, 449
(5th Cir. 2008). Nonetheless, “if the statute of conviction contains a series of dis-
junctive elements, this court may look beyond the statute to certain records
made or used in adjudicating guilt to determine which subpart of the statute
formed the basis of the conviction.” Id. (citations omitted).
      A person commits aggravated battery in Georgia “when he or she malici-
ously causes bodily harm to another by depriving him or her of a member of his
or her body, by rendering a member of his or her body useless, or by seriously
disfiguring his or her body or a member thereof.” G A. C ODE A NN. § 16-5-24(a).
The indictment for Basulto-Reina’s 1997 conviction reveals that his conviction
arose from disfigurement. Therefore, our inquiry is whether “maliciously caus-
[ing] bodily harm to another . . . by seriously disfiguring his or her body” requires
the use, attempted use, or threatened use of physical force.
      Basulto-Reina contends that causing bodily harm does not necessarily re-
quire physical force. His argument is supported by United States v. Lopez-Her-
nandez, 112 F. App’x 984, 985 (5th Cir. 2004) (per curiam), in which we evalu-
ated a Georgia family violence battery conviction. A conviction for family vio-
lence battery requires “‘intentionally caus[ing] substantial physical harm or visi-
ble bodily harm to another’ person who is a family member.” Id. (quoting G A.
C ODE A NN. § 16-5-23.1(a)). We reasoned that “[t]he Georgia offense is results-
oriented and does not contain a requirement that the offender apply force, but
rather, leaves open the possibility that harm to the victim might result from

                                         3
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                                            No. 10-40860

omission or from the actions of another person or animal controlled by the of-
fender.” Id. Basulto-Reina urges that the same reasoning applies to a conviction
for aggravated battery.
        Because Lopez-Hernandez is unpublished, it is not precedential, and we
find it unpersuasive. In particular, it ignores that Georgia courts have interpret-
ed even simple battery to require the use of physical force. In Hammonds v.
State, 587 S.E.2d 161, 163 (Ga. Ct. App. 2003), for example, the court examined
the element of simple battery requiring “intentionally causing physical harm to
another.” G A. C ODE A NN. § 16-5-23(a)(2). That requirement, the court held,
“contemplates a touching that goes beyond insult to the infliction of pain or phys-
ical injury,”2 and any touching that inflicts pain necessarily requires the use of
force.3 If a requirement of “intentionally causing physical harm” requires physi-
cal force, therefore, so must the stricter requirement of “maliciously causing bod-
ily harm to another. . . by seriously disfiguring his or her body.”
        Admittedly, Georgia uses the results of a forceful touching to distinguish
among simple battery, battery, and aggravated battery.4 Thus, battery and ag


        2
         Hammonds, 587 S.E.2d at 163; accord McKinney v. State, 463 S.E.2d 136, 139 (Ga.
Ct. App. 1995) (“Physical contact is required for a simple battery . . . .”); Lyman v. State, 374
S.E.2d 563, 565 (Ga. Ct. App. 1988) (stating that § 16-5-23(a)(2) “concerns the intentional caus-
ation of physical harm, a touching which goes beyond insult to the infliction of pain”); Ander-
son v. State, 317 S.E.2d 877, 878 (Ga. Ct. App. 1984) (stating that a simple battery conviction
under § 16-5-23 “requires physical contact”); Tuggle v. State, 244 S.E.2d 131, 133 (Ga. Ct. App.
1978) (same).
        3
        See Hernandez v. U.S. Att’y Gen., 513 F.3d 1336 (11th Cir. 2008) (declining to insert
the word “violent” before “physical force” in the definition of COV and concluding that “simple
physical contact . . . . satisfie[s] the ‘use of physical force’ definition of a ‘crime of violence’” (cit-
ing United States v. Griffith, 455 F.3d 1339, 1342 (11th Cir. 2006))).
        4
        Williams v. State, 546 S.E.2d 74, 78 (Ga. Ct. App. 2001) (“The legislature has created
three distinct categories of battery: simple battery, OCGA § 16-5-23 (offensive touching or
physical harm); battery, OCGA § 16-5-23.1 (substantial physical harm or visible bodily injury);
and aggravated battery, OCGA § 16-5-24 (loss of body member or serious disfigurement).
These statutes evidence a legislative intent to categorize the types of battery by the severity
                                                                                 (continued...)

                                                    4
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                                       No. 10-40860

gravated battery are defined by the level of harm a defendant “causes” and do
not explicitly mention an offensive touching or the use of force. That classifica-
tion scheme does not mean, however, that a forceful touching has dropped out
of the offense as the severity increases to battery and aggravated battery. Thus,
one Georgia court has construed the aggravated battery statute with reference
to the common law definition of battery as the “‘unlawful touching or striking of
the person of another by the aggressor himself or by any substance put in motion
by him, done with the intention of bringing about a harmful or offensive contact
or apprehension thereof.’”5 Similarly, another court has assumed that aggravat-
ed battery qualifies under the Georgia statute allowing self-defense to prevent
“forcible felonies.”6 Georgia thus treats aggravated battery as including an ele-
ment of force.
       In support of its holding, Lopez-Hernandez cited J.A.T. v. State, 212 S.E.2d
879, 882 (Ga. Ct. App. 1975), which held that one can commit battery by siccing
a dog on another. J.A.T. does not hold, however, that committing battery in such
a fashion involves the absence of force. Instead, the court noted that by letting
the dog go, the defendant “set[] a force in motion which ultimately produce[d] the
result.” Id. at 881. As the government points out, pulling the trigger on a gun
also sets in motion a separate force that actually causes the harm, but it cer-
tainly involves the use of force. Siccing a dog on another must therefore involve
using force as well, at least when that act is committed intentionally, as in

       4
         (...continued)
of the harm inflicted and to provide harsher penalties for batteries that result in more severe
bodily harm.”).
       5
       Blanch v. State, 667 S.E.2d 925, 926 (Ga. Ct. App. 2008) (emphasis removed) (quoting
Brown v. State, 197 S.E. 82, 84 (Ga. Ct. App. 1938)).
       6
         See Wicker v. State, 645 S.E.2d 712, 713 (Ga. 2007) (rejecting a defendant’s requested
self-defense instruction because she did not introduce evidence that she feared her victim
would commit aggravated battery, but acknowledging that aggravated battery can be a forcible
felony justifying self-defense).

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                                       No. 10-40860

J.A.T.7
       It is hypothetically possible that at some point the defendant’s actions be-
come so attenuated from the application of force to the victim that he cannot be
said to have “used force,” even though he is still guilty of battery. We need not
engage in speculation to identify such remote possibilities, however. The Su-
preme Court’s reasoning when determining whether a crime fell within an enu-
merated category of COV’s is equally applicable here:
       [T]o find that a state statute creates a crime outside the generic de-
       finition of a listed crime in a federal statute requires more than the
       application of legal imagination to a state statute’s language. It re-
       quires a realistic probability, not a theoretical possibility, that the
       State would apply its statute to conduct that falls outside the gener-
       ic definition of a crime. To show that realistic probability, an offend-
       er, of course, may show that the statute was so applied in his own
       case. But he must at least point to his own case or other cases in
       which the state courts in fact did apply the statute in the special
       (nongeneric) manner for which he argues.

Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). Basulto-Reina has cited
no Georgia cases applying the aggravated-battery statute in the absence of force,
so he has not shown a “realistic probability” that the statute could apply in such
situations. We thus conclude that aggravated battery in Georgia involves the
use of force and is a COV under U.S.S.G. § 2L1.2(b)(1)(A)(ii).
       AFFIRMED.




       7
         J.A.T., 212 S.E.2d at 880. J.A.T. suggests that one can also be convicted of battery
if one was “criminally negligent” when letting the dog go, id. at 881, and one might argue that
a criminally negligent defendant did not “use” force because “using” force requires using force
“intentionally,” Vargas-Duran, 356 F.3d at 599. J.A.T. stated that criminally negligent defen-
dants can be convicted of battery, however, only because “[e]very person is presumed to intend
the natural and necessary consequence of his acts.” J.A.T., 212 S.E.2d at 881 (citations and
internal quotation marks omitted). Even a defendant convicted of battery because of criminal
negligence has therefore used force “intentionally” and has thus committed a COV.

                                              6
