     Case: 15-10336         Document: 00513688174          Page: 1    Date Filed: 09/22/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                         No. 15-10336                                FILED
                                                                            September 22, 2016

UNITED STATES OF AMERICA,                                                       Lyle W. Cayce
                                                                                     Clerk
              Plaintiff–Appellee,

v.

CURTIS MARROW HOWELL,

              Defendant–Appellant.




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


Before CLEMENT and OWEN, Circuit Judges, and JORDAN, District Judge.*
PRISCILLA RICHMAN OWEN, Circuit Judge:
      Curtis Marrow Howell pleaded guilty to the federal crime of possession
of a firearm by a convicted felon, a violation of 18 U.S.C. § 922(g)(1). At
sentencing, the district court concluded that Howell’s prior conviction under
Texas Penal Code § 22.01(a)(1), (b)(2)(B) for assault constituted a “crime of
violence” within the meaning of United States Sentencing Guidelines
§ 4B1.2(a). This resulted in an enhancement to the base offense level under
§ 2K2.1(a)(3) of the Guidelines. The district court sentenced Howell to 100




      * District   Judge of the Southern District of Mississippi, sitting by designation.
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                                       No. 15-10336
months of imprisonment, and Howell has appealed contending that his Texas
conviction is not a crime of violence. We affirm.
                                               I
       Howell pleaded guilty, without a plea agreement, to possession of a
firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).                        The
Presentence Report (PSR) indicated that the handgun Howell possessed was a
semiautomatic firearm capable of accepting a large-capacity magazine, which
increased the base offense level under certain provisions of § 2K2.1(a) of the
Guidelines. 1 The PSR also reflected that Howell had previously been convicted
of a third-degree felony under a Texas statute, which provided that a person
commits an offense if he or she
       intentionally, knowingly, or recklessly causes bodily injury to
       another, including the person’s spouse . . . [and] the offense is
       committed against . . . a person [who is a family member or has
       another defined relationship with the defendant] . . . [and] the
       offense is committed by intentionally, knowingly, or recklessly
       impeding the normal breathing or circulation of the blood of the
       person by applying pressure to the person’s throat or neck or by
       blocking the person’s nose or mouth. 2
       The PSR concluded that Howell’s conviction under this statute qualified
as a “crime of violence” within the meaning of U.S.S.G. § 4B1.2(a), 3 without



       1 See, e.g., U.S. Sentencing Guidelines Manual § 2K2.1(a)(3) (U.S. Sentencing Comm’n
2014) (directing a base offense level of 22 when “(A) the offense involved a . . . semiautomatic
firearm that is capable of accepting a large capacity magazine . . . and (B) the defendant
committed any part of the instant offense subsequent to sustaining one felony conviction of
either a crime of violence or a controlled substance offense”).
       2 Tex. Penal Code Ann. § 22.01(a)(1), (b)(2)(B) (West 2009).
       3 U.S. Sentencing Guidelines Manual § 4B1.2(a) (U.S. Sentencing Comm’n 2014) (“The

term ‘crime of violence’ means any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that . . . (1) has as an element the use,
attempted use, or threatened use of physical force against the person of another, or (2) is
burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.”).
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                                          No. 15-10336
specifying whether one or both of the two subsections of that provision
supported this conclusion.           Pursuant to U.S.S.G. § 2K2.1(a)(3), the PSR
recommended a base offense level of 22. After applying other adjustments, the
PSR calculated a total offense level of 27 and a criminal history category of IV,
yielding an advisory sentencing range of 100 to 120 months of imprisonment.
      Howell filed written objections to the base offense level, arguing that the
prior Texas conviction at issue in this appeal did not qualify as a “‘crime of
violence’ under U.S.S.G. § 4B1.2.” Howell advanced two arguments. First, he
contended that the Texas offense could not be a crime of violence because the
mens rea required in the Texas statute included “recklessly” committing the
assault. The Texas indictment alleged that he intentionally, knowingly, and
recklessly caused injury to another person, and he asserted in his objections to
the PSR that his guilty plea to that indictment must be construed as a plea to
the least culpable conduct, which was recklessness. He did not specifically
argue that “use” as used in subsection (1) of § 4B1.2(a) could not encompass
reckless conduct, nor did he allude to the “use” language in that subsection.
He did expressly address the residual clause embodied in § 4B1.2(a)(2), but he
acknowledged that his argument regarding recklessness in this context was
foreclosed by then-existing-circuit precedent, United States v. Espinoza. 4 In
Espinoza, this court held that a violation of Texas Penal Code § 22.01(a) and
(b)(2)(A), with a mens rea of recklessness qualified as a “violent felony” under
the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C.




      4   733 F.3d 568 (5th Cir. 2013).
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                                    No. 15-10336
§ 924(e)(2)(B)(ii). 5 Second, Howell objected to the PSR on the basis that the
residual clause in § 4B1.2(a)(2) is unconstitutionally vague.
      A PSR addendum recommended that the court reject Howell’s objection
regarding recklessness as foreclosed by precedent but did not address Howell’s
vagueness challenge. The addendum also attached the indictment, judgment,
and judicial confession pertaining to Howell’s prior Texas conviction.
      At the sentencing hearing, Howell reaffirmed his objections to the
offense-level enhancement for his prior Texas conviction of assault.           The
district court overruled those objections and imposed a sentence of 100 months
of imprisonment, to be followed by two years of supervised release. Without
the enhancement, Howell contends that his offense level would be 25, yielding
an advisory sentencing range of 84 to 105 months of imprisonment.
      Howell has appealed.
                                          II
      Because we conclude that Howell’s prior Texas assault offense “has as
an element the use, attempted use, or threatened use of physical force against
the person of another,” within the meaning of § 4B1.2(a)(1) of the Guidelines,
we do not reach the constitutional vagueness challenge to the “residual” clause
of this Guidelines provision set forth in § 4B1.2(a)(2). The “residual” clause in
§ 4B1.2(a)(2) is identical in its wording to the “residual” clause in the ACCA, 6
with the exception of the inclusion of the words “of a dwelling” after “burglary”
in the Guidelines section. While Howell’s appeal was pending, the Supreme




      5   Id. at 572-74.
      6  Compare U.S. Sentencing Guidelines Manual § 4B1.2(a)(2) (Sentencing Comm’n.
2014), with 18 U.S.C. § 924(e)(2)(B)(ii).
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                                      No. 15-10336
Court held in Johnson v. United States that the residual clause in the ACCA is
unconstitutionally vague. 7
       In light of Johnson, some of the reasoning in our decision in United
States v. Espinoza 8 remains persuasive, but its holding is no longer binding
precedent, since the Espinoza opinion concluded that the Texas offense of
assault, for which Howell was convicted, was a “violent felony” under the
residual clause of the ACCA, 9 and that clause is no longer an enforceable part
of the ACCA.
       However, the issue of whether the residual clause in § 4B1.2(a)(2) (as
distinguished from the residual clause of the ACCA) is void for vagueness
presents a constitutional issue that our court did not address in Espinoza. The
Courts of Appeals that have considered the issue have divided: the Eleventh
Circuit has held that none of the Sentencing Guidelines’ provisions can be
attacked as unconstitutional; 10 the Third, Sixth, Seventh, and Tenth Circuits
have held that § 4B1.2(a)(2) is unconstitutionally vague. 11 The Supreme Court
may soon resolve the question; it has granted a petition for writ of certiorari in


       7  135 S. Ct. 2551, 2563 (2015).
       8  733 F.3d 568 (5th Cir. 2013).
        9 Id. at 569, 573.
        10 See United States v. Matchett, 802 F.3d 1185, 1196 (11th Cir. 2015), reh’g en banc

denied, No. 14-10396, 2016 WL 4757211 (September 13, 2016); see also United States v.
Gonzalez-Longoria, No. 15-40041, 2016 WL 4169127, at *6, *8 (5th Cir. Aug. 5, 2016) (Jones,
J., concurring) (contending that the majority opinion’s holding that 18 U.S.C. § 16(b) is not
unconstitutionally vague “could have been obviated with a holding that neither the U.S.
Sentencing Guidelines, nor extrinsic statutes cross-referenced in the Guidelines, are subject
to challenges based on the Due Process Clause’s prohibition of vague laws” and that “Due
process requires only notice and predictability in the statutory range of punishments
following conviction. . . . [and] vagueness challenges cannot stand against a discretionary
scheme of sentencing within that range”).
        11 See United States v. Calabretta, No. 14-3969, 2016 WL 3997215, at *4 (3d Cir. July

26, 2016); United States v. Pawlak, 822 F.3d 902, 903 (6th Cir. 2016); United States v.
Hurlburt, No. 14-3611, 2016 WL 4506717, at *1 (7th Cir. Aug. 29, 2016); United States v.
Madrid, 805 F.3d 1204, 1212 (10th Cir. 2015).
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                                        No. 15-10336
Beckles v. United States, 12 and the issue is presented in that case. However,
we are obliged to consider non-constitutional issues that would be dispositive
of the appeal before we reach a constitutional question. 13 We therefore first
consider the Government’s contention that Howell’s Texas conviction is a
“crime of violence” within the meaning of § 4B1.2(a)(1).                    The Government
contends that the Texas assault offense “has as an element the use, attempted
use, or threatened use of physical force against the person of another.” 14
                                               III
       “For properly preserved claims, this court reviews the district court’s
interpretation and application of the Sentencing Guidelines de novo.” 15 It is at
least subject to debate, however, whether Howell preserved a claim that his
prior offense did not have “as an element the use, attempted use, or threatened
use of physical force against the person of another.”
       Conspicuously absent from the Government’s brief is a statement or
argument as to the standard of review that we should apply. Nor does the



       12   136 S.Ct. 2510 (2016).
       13   See, e.g., Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 205 (2009)
(“[I]t is a well-established principle governing the prudent exercise of this Court’s jurisdiction
that normally the Court will not decide a constitutional question if there is some other ground
upon which to dispose of the case.”) (quoting Escambia Cty v. McMillan, 466 U.S. 48, 51
(1984) (per curiam)); Jean v. Nelson, 472 U.S. 846, 854 (1985) (“Prior to reaching any
constitutional questions, federal courts must consider nonconstitutional grounds for
decision.”) (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 99 (1981)); Clay v. Sun Ins. Office
Ltd., 363 U.S. 207, 209 (1960) (“By the settled canons of constitutional adjudication the
constitutional issue should have been reached only if, after decision of two non-constitutional
questions, decision was compelled.”); Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347
(1936) (Brandeis, J., concurring) (“The Court will not pass upon a constitutional question
although properly presented by the record, if there is also present some other ground upon
which the case may be disposed of. . . . Thus, if a case can be decided on either of two grounds,
one involving a constitutional question, the other a question of statutory construction or
general law, the Court will decide only the latter.”).
         14 U.S. Sentencing Guidelines Manual § 4B1.2(a)(1) (Sentencing Comm’n. 2014)
         15 United States v. Cedillo-Narvaez, 761 F.3d 397, 401 (5th Cir. 2014).


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                                      No. 15-10336
Government contend that Howell’s objections in the district court were
inadequate to preserve each of his contentions on appeal. We will assume,
without deciding, that Howell’s objections were sufficient to preserve the
contention that his offense is not one involving a use of force, since we conclude
that under either a de novo standard or the plain error standard of review, the
district court did not err in determining that the prior Texas offense was a
crime of violence.
       It is not entirely clear if the district court considered whether Howell’s
Texas assault conviction has as an element the “use” of physical force under
subsection (a)(1) of § 4B1.2. We may nevertheless affirm the district court’s
application of the Guidelines on any ground supported by the record. 16
                                            IV
       The Government maintains that we need not consider whether
committing the Texas offense at issue with the mental state of recklessness
constitutes a crime of violence under § 4B1.2 because, the Government asserts,
Howell judicially admitted in the state court of conviction that he acted
intentionally in committing the assault. The state court records reflect that
Howell pled guilty to the allegations in the indictment that he acted
“intentionally, knowingly and recklessly.”
       This court’s decisions as to the effect of such a plea are in tension. Before
we consider those decisions, however, an explanation of the so-called
“categorical” and “modified categorical” approaches is necessary.                        In
determining if a prior conviction is for an offense enumerated or defined in a
Guidelines provision, we generally apply the categorical approach and look to


       16See, e.g., United States v. Garcia-Gonzalez, 714 F.3d 306, 314 (5th Cir. 2013) (“We
may affirm an enhancement on any ground supported by the record.”) (citing United States
v. Jackson, 453 F.3d 302, 308 n.11 (5th Cir. 2006)).
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                                         No. 15-10336
the elements of the offense enumerated or defined by the Guideline section and
compare those elements to the elements of the prior offense for which the
defendant was convicted. 17 We do not consider the actual conduct of the
defendant in committing the offense. 18 If the offense is an enumerated offense,
such as burglary, we first determine the elements contained in the generic,
contemporary meaning of that offense. 19
         In one of several decisions on the subject, the Supreme Court explained
the application of the categorical approach in Descamps v. United States. 20 The


         17   United States v. Hinkle, No. 15-10067, 2016 WL 4254372, at *2 (5th Cir. Aug. 11,
2016).
         18Id. See, e.g., United States v. Carrasco-Tercero, 745 F.3d 192, 195 (5th Cir. 2014)
(“This court employs a categorical approach in determining whether an offense qualifies as a
crime of violence under § 2L1.2. ‘[W]e examine the elements of the offense, rather than the
facts underlying the conviction or the defendant’s actual conduct, to determine whether an
offense meets the definition of a [crime of violence].’” (quoting United States v. Ortiz-Gomez,
562 F.3d 683, 684 (5th Cir. 2009))).
        19 See, e.g., Taylor v. United States, 495 U.S. 575, 598 (1990) (construing the ACCA,

18 U.S.C. § 924(e), and concluding that “[a]lthough the exact formulations vary, the generic,
contemporary meaning of burglary contains at least the following elements: an unlawful or
unprivileged entry into, or remaining in, a building or other structure, with intent to commit
a crime.”).
        20 133 S. Ct. 2276, 2283 (2013) (citations omitted) (construing the ACCA):



         Sentencing courts may “look only to the statutory definitions”—i.e., the
         elements—of a defendant’s prior offenses, and not “to the particular facts
         underlying those convictions.” If the relevant statute has the same elements
         as the “generic” ACCA crime, then the prior conviction can serve as an ACCA
         predicate; so too if the statute defines the crime more narrowly, because anyone
         convicted under that law is “necessarily . . . guilty of all the [generic crime’s]
         elements.” But if the statute sweeps more broadly than the generic crime, a
         conviction under that law cannot count as an ACCA predicate, even if the
         defendant actually committed the offense in its generic form. The key, we
         emphasized, is elements, not facts. So, for example, we held that a defendant
         can receive an ACCA enhancement for burglary only if he was convicted of a
         crime having “the basic elements” of generic burglary—i.e., “unlawful or
         unprivileged entry into, or remaining in, a building or structure, with intent to
         commit a crime.” And indeed, we indicated that the very statute at issue here,
         § 459, does not fit that bill because “California defines ‘burglary’ so broadly as
         to include shoplifting.”

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                                         No. 15-10336
Supreme Court also explained in Descamps, as it had in prior opinions, that
when a statute defines more than one crime, and not all of them constitute an
enumerated generic offense, courts employ the “modified categorical approach”
to “determine which crime formed the basis of the defendant’s conviction.” 21
Courts may consult certain records pertaining to the prior offense to ascertain
if the conviction rested on the generic or defined crime or instead was an over-
inclusive offense that could not support a sentence enhancement. 22 But, if the
statute of conviction is not divisible, “[t]he modified [categorical] approach . . .
has no role to play.” 23



      21   Id. at 2283-84; see also id. 2284-85 (citations omitted):

      We recognized that when a statute so “refer[s] to several different crimes,” not
      all of which qualify as an ACCA predicate, a court must determine which crime
      formed the basis of the defendant’s conviction. That is why, we explained,
      Taylor and Shepard developed the modified categorical approach. By
      reviewing the extra-statutory materials approved in those cases, courts could
      discover “which statutory phrase,” contained within a statute listing “several
      different” crimes, “covered a prior conviction.” And a year later, we repeated
      that understanding of when and why courts can resort to those documents:
      “[T]he ‘modified categorical approach’ that we have approved permits a court
      to determine which statutory phrase was the basis for the conviction.”
              Applied in that way—which is the only way we have ever allowed—the
      modified approach merely helps implement the categorical approach when a
      defendant was convicted of violating a divisible statute. The modified
      approach thus acts not as an exception, but instead as a tool. It retains the
      categorical approach’s central feature: a focus on the elements, rather than the
      facts, of a crime. And it preserves the categorical approach’s basic method:
      comparing those elements with the generic offense’s. All the modified
      approach adds is a mechanism for making that comparison when a statute lists
      multiple, alternative elements, and so effectively creates “several
      different . . . crimes.” If at least one, but not all of those crimes matches the
      generic version, a court needs a way to find out which the defendant was
      convicted of. That is the job, as we have always understood it, of the modified
      approach: to identify, from among several alternatives, the crime of conviction
      so that the court can compare it to the generic offense.
      22   See, e.g., Shepard v. United States, 544 U.S. 13, 26 (2005).
      23   Descamps, 133 S. Ct. at 2285.
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                                      No. 15-10336
       The Government contends that Howell’s statute of conviction is divisible
and therefore that his guilty plea and accompanying admissions establish that
he was convicted of intentionally impeding the breath or circulation of the
victim. Howell disagrees, observing that in United States v. Espinoza, this
court said that the defendant’s “judicial confession is simply a blanket
statement admitting that he committed the assault with every listed category
of mental culpability,” but that “[t]his does not support a finding that Espinoza
committed the act intentionally and knowingly and not recklessly.” 24 We
concluded in Espinoza that “we apply the ‘least culpable means’ analysis to
this case and assume that Espinoza’s offense was committed recklessly.” 25
       The Government contends that Espinoza failed to adhere to prior,
binding precedent of this court, and that our court has disapproved of
Espinoza’s conclusion regarding the import of a guilty plea. The Government
cites our decision in United States v. Conde-Castaneda, which said:

       Espinoza cannot overturn the earlier decided case of Garcia–
       Arellano. To the extent that the holding of Espinoza is inconsistent
       with Garcia–Arellano, Garcia–Arellano controls. Espinoza cited
       no authority when it stated that the judicial confession failed to
       support the enhancement. Espinoza’s scant reasoning indicates
       either that the case is a true outlier in our caselaw, that its
       pronouncement was dicta, or both. 26
In Conde-Castaneda, we considered a Texas burglary statute that set forth
three subsections describing what constituted burglary of a habitation, and
concluded that it contained divisible crimes. 27 We therefore held “that the



       24733 F.3d 568, 572 (5th Cir. 2013).
       25Id. (quoting United States v. Houston, 364 F.3d 243, 246 (5th Cir. 2004)).
      26 753 F.3d 172, 178 (5th Cir. 2014) (citations omitted) (referencing United States v.

Garcia-Arellano, 522 F.3d 477 (5th Cir. 2008)).
      27 Id. at 176 (examining Tex. Penal Code § 30.02(a)).

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                                      No. 15-10336
modified categorical approach applies here,” and we relied on the defendant’s
written confession in concluding that he had been convicted of the generic
crime of burglary, 28 which constituted a “crime of violence” within the meaning
of § 2L1.2(b)(1)(A)(ii) of the Guidelines. 29
       The Conde-Castaneda decision discussed United States v. Garcia-
Arellano, in which this court was reviewing a Guidelines sentencing
enhancement for plain error. 30 The prior offense was a conviction under Texas
Health and Safety Code section 481.112(a), which the district court held was a
“drug trafficking offense” under § 2L1.2(b)(1)(B) of the Guidelines. 31                 We
recognized that the Texas statute at issue, section 481.112(a), “encompasses
‘both conduct that does constitute a drug trafficking offense . . . and conduct
that does not (offering to sell cocaine).’” 32 But we concluded that based on the
record in that case, there was a means of determining whether the conviction
was for conduct that did constitute a drug trafficking offense. The Garcia-
Arellano decision held that “a written judicial confession also constitutes a
‘comparable judicial record’ under Shepard, and that it may be considered in
determining whether a defendant’s prior conviction constitutes a drug
trafficking offense under the guidelines.” 33           Because Garcia-Arellano had
judicially admitted the Texas indictment’s charges against him and admitted
that he knowingly and intentionally delivered a controlled substance as well




       28 Id. at 177-78.
       29 U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii) (Sentencing Comm’n. 2013).
       30 522 F.3d 477, 480 (5th Cir. 2008).
       31 Id. at 479.
       32 Id. at 480 (quoting United States v. Morales-Martinez, 496 F.3d 356, 358 (5th Cir.

2007), and citing United States v. Gonzales, 484 F.3d 712, 714-15 (5th Cir. 2007)).
       33 Id. at 481 (citing Shepard v. United States, 544 U.S. 13, 26 (2005)).

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                                       No. 15-10336
as admitting to an offer to sell, our court concluded that the Texas conviction
qualified as a drug trafficking offense under the Guidelines. 34
       Six years after our decision in United States v. Garcia-Arellano, the
Supreme Court emphasized, in United States v. Castleman, that if a statute is
“divisible,” meaning that it sets forth separate offenses, then it is permissible
to consult the defendant’s guilty plea to determine which offense was the basis
for the prior conviction. 35 The Court held that because Castleman had pleaded
guilty to knowingly and intentionally causing bodily injury, he had committed
a predicate offense within the meaning of 18 U.S.C. § 922(g)(9). 36
       The Government recognizes in its briefing in the present case that a
court may only apply the so-called modified categorical approach discussed in
Shepard and other cases if the statute of conviction is “divisible,” citing the
Supreme Court’s decision in Descamps v. United States. 37 The issue that has
divided courts, and with great respect to the Supreme Court, confused courts
attempting to apply Descamps and the decisions preceding it, 38 is how to
determine if a statute is “divisible.”



       34  Id.
       35  134 S. Ct. 1405, 1414 (2014) (“[T]he parties do not contest that [the Tennessee
statute under which the defendant was previously convicted] is a ‘divisible statute’ . . . . We
may accordingly apply the modified categorical approach, consulting the indictment to which
Castleman pleaded guilty in order to determine whether his conviction did entail the
elements necessary to constitute the generic federal offense.”).
        36 Id.
        37 133 S. Ct. 2276, 2281 (2013).
        38 See Mathis v. United States, 136 S. Ct. 2243, 2251 (2016) (recognizing “a Circuit

split over whether ACCA’s general rule—that a defendant’s crime of conviction can count as
a predicate only if its elements match those of a generic offense—gives way when a statute
happens to list various means by which a defendant can satisfy an element”) (citing United
States v. Mathis, 786 F.3d 1068 (8th Cir. 2015) (recognizing such an exception); United States
v. Ozier, 796 F.3d 597 (6th Cir. 2015) (same); United States v. Trent, 767 F.3d 1046 (10th Cir.
2014) (same); Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014) (rejecting that exception);
Omargharib v. Holder, 775 F.3d 192 (4th Cir. 2014) (same)).
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                                       No. 15-10336
       While this appeal was pending, the Supreme Court issued its decision
in Mathis v. United States, 39 which provided needed guidance on when a
statute of conviction is divisible. Though Mathis dealt with the ACCA, rather
than the Guidelines, the methodology of determining whether a statute is
divisible and therefore whether the modified categorical approach may be
employed, is the same, unless the Guidelines were to specify otherwise. The
Supreme Court explained that if a statute sets forth only various means of
committing the offense, it is not divisible, but if the statute sets forth more
than one offense by including alternative elements of each offense, then the
statute is divisible. 40 The test to distinguish means from elements is whether
a jury must agree. 41
       In Mathis, an Iowa burglary statute criminalized entry into or onto
locations that included a building, a structure, land, water, or an air vehicle. 42
Because generic burglary does not proscribe burglary of vehicles, the Iowa
offense was overly inclusive; it included conduct that was not generic
burglary. 43 The sentencing court considered documents pertaining to Mathis’s
prior convictions, which reflected that Mathis had burgled structures not
vehicles, and the district court concluded that the sentencing enhancement




       39  136 S. Ct. 2243 (2016).
       40  See id. at 2256 (explaining that a “sentencing court faced with an alternatively
phrased statute” must first decide if the “listed items are elements or means. If they are
elements, the court should [apply the categorical approach]. . . . But if instead they are
means, the court has no call to decide which of the statutory alternatives was at issue in the
earlier prosecution.”).
        41 See id. at 2249 (explaining that the jurors in the Mathis case did not need to make

any specific finding as to where the crime occurred, where the statute merely “itemize[d] the
various places that crime could occur as disjunctive factual scenarios rather than separate
elements”).
        42 Id. at 2250.
        43 Id. at 2256.

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                                      No. 15-10336
under the ACCA applied. 44 The Eighth Circuit affirmed, holding that whether
the itemized list of places “amount[ed] to alternative elements or merely
alternative means to fulfilling an element, the statute is divisible, and we must
apply the modified categorical approach.” 45 The Supreme Court reversed the
Eighth Circuit because the Iowa Supreme Court has held that the Iowa statute
sets forth “alternative method[s] of committing [the] single crime,” and an Iowa
“jury need not agree on which of the locations was actually involved.” 46
      We recently discussed the import of Mathis in United States v. Hinkle:

             The decision in Mathis instructs that there is a difference
      between alternative elements of an offense and alternative means
      of satisfying a single element. Elements must be agreed upon by
      a jury. When a jury is not required to agree on the way that a
      particular requirement of an offense is met, the way of satisfying
      that requirement is a means of committing an offense not an
      element of the offense. 47
      In light of Mathis, we know that we must determine whether “listed
items” in a state statute “are elements or means,” and if “a state court decision
definitively answers the question” our inquiry is at an end. 48 The Texas Court
of Criminal Appeals has held that the three mental states listed in section
22.01(a) do not describe three distinct offenses. The Texas court has said:

            This actus reus [which the court held is “causing bodily
      injury”] must be accompanied by a culpable mental state. In its
      “bodily injury” assault subsection [22.01(a)], the legislature stated
      that any of three culpable mental states suffices: intentionally,
      knowingly, or recklessly causing bodily injury. The legislature was
      apparently neutral about which of these three mental states


      44 Id. at 2250.
      45 United States v. Mathis, 786 F.3d 1068, 1075 (8th Cir. 2015).
      46 Mathis, 136 S. Ct. at 2250 (citing State v. Duncan, 312 N.W.2d 519, 523 (Iowa 1981)).
      47 No. 15-10067, 2016 WL 4254372, at *4 (5th Cir. Aug. 11, 2016) (citations omitted).
      48 Mathis, 136 S. Ct. at 2256.

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                                       No. 15-10336
       accompanied the forbidden conduct because all three culpable
       mental states are listed together in a single phrase within a single
       subsection of the statute. There is no indication that the
       legislature intended for an “intentional” bodily injury assault to be
       a separate crime from a “knowing” bodily injury assault or that
       both of those differ from a “reckless” bodily injury assault. All
       three culpable mental states are strung together in a single phrase
       within a single subsection of the statute. All result in the same
       punishment. They are conceptually equivalent. 49
       Though this decision of the Texas court is not definitive in the sense that
it did not explicitly consider the “intentionally, knowingly, or recklessly”
mental states set forth in subsection 22.01(b)(2)(B), it is clear from the court’s
reasoning that it would not construe the import of listing these mental states
any differently than it construed the same listing in the preceding subsection
of the statute. Nor can we discern any basis for the conclusion that the Texas
Legislature intended to create three separate offenses depending on the mental
state under subsection (b)(2)(B) but did not intend to do so when it used the
same language in subsection (a).
        This means that the offense for which Howell was convicted is not
divisible on the basis of a defendant’s mental state. A jury could permissibly
find a defendant guilty even though some jurors might conclude the accused
acted “intentionally,” others might conclude that the accused acted
“knowingly,” and others might find only that the accused acted “recklessly,” as
long as the jury found that the accused “intentionally, knowingly, or recklessly
imped[ed] the normal breathing or circulation of the blood of the person”
assaulted. 50


       49Landrian v. State, 268 S.W.3d 532, 537 (Tex. Crim. App. 2008) (citations omitted).
       50 Price v. State, 457 S.W.3d 437, 442 (Tex. Crim. App. 2015) (emphasis added)
(holding that “the offense defined by sections 22.01(a)(1) and (b)(2)(B) has three parts, two of
which include culpable mental states” and that “intentionally, knowingly, or recklessly” in
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                                      No. 15-10336
       Accordingly, the modified categorical approach cannot be employed to
“narrow” the statute of conviction, and Howell’s admission of guilt does not
establish that he was convicted of a distinct offense of intentionally causing
the specified bodily injury as distinguished from recklessly causing the injury.
We therefore must consider whether recklessly causing bodily injury by
recklessly impeding breathing or circulation 51 “has as an element the use,
attempted use, or threatened use of physical force against the person of
another.” 52
                                             V
       The Government contends, as an alternative ground for affirming the
district court’s judgment, that every means of committing the offense for which
Howell was convicted has as an element the use of force. Howell responds that
our court’s decision in United States v. Vargas-Duran 53 has construed “use” of
physical force to require that a defendant intentionally use force. Howell also
relies on a footnote in the Supreme Court’s decision in United States v.
Castleman, which said, “[a]lthough Leocal reserved the question whether a
reckless application of force could constitute a ‘use’ of force, the Courts of
Appeals have almost uniformly held that recklessness is not sufficient.” 54
       The Supreme Court did not resolve in Castleman whether “reckless
causation of bodily injury” could constitute the use of force. 55 In Castleman, 18




the third part modifies “impeding the normal breathing or circulation of the blood of the
person”).
       51 See id.
       52 U.S. Sentencing Guidelines Manual § 4B1.2(a)(1) (Sentencing Comm’n. 2014)
       53 356 F.3d 598, 603 (5th Cir. 2004).
       54 134 S. Ct. 1405, 1414 n.8 (2014) (internal citations omitted) (citing Leocal v.

Ashcroft, 543 U.S. 1, 13 (2004)).
       55 Id. at 1413; see also Voisine v. United States, 136 S. Ct. 2272, 2277 (2016) (“[W]e

expressly left open [in Castleman] whether a reckless assault also qualifies as a ‘use’ of
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                                      No. 15-10336
U.S.C. § 922(g)(9) “forbade the possession of firearms by anyone convicted of ‘a
misdemeanor crime of domestic violence,’” and the Court concluded that
Castleman’s conviction under a Tennessee statute for knowingly or
intentionally causing bodily injury to the mother of his child was a
“misdemeanor crime of domestic violence.” 56
       However, while the present appeal was pending, the Supreme Court held
in Voisine v. United States, that “misdemeanor assault convictions for reckless
(as contrasted to knowing or intentional) conduct trigger the statutory firearms
ban” in 18 U.S.C. § 922(g)(9). 57 The phrase “misdemeanor crime of domestic
violence,” used in § 922(g)(9), was defined in another section of the statute:

             [T]he term “misdemeanor crime of domestic violence” means
       an offense that--
               (i) is a misdemeanor under Federal, State, or Tribal law; and
              (ii) has, as an element, the use or attempted use of physical
       force, or the threatened use of a deadly weapon, committed by a
       current or former spouse, parent, or guardian of the victim, by a
       person with whom the victim shares a child in common, by a
       person who is cohabiting with or has cohabited with the victim as
       a spouse, parent, or guardian, or by a person similarly situated to
       a spouse, parent, or guardian of the victim. 58
       Accordingly, as the Supreme Court recognized, “Congress defined that
phrase to include crimes that necessarily involve the ‘use . . . of physical
force.’” 59   The Supreme Court held, “[r]eckless assaults, no less than the
knowing or intentional ones we addressed in Castleman, satisfy that



force—so that a misdemeanor conviction for such conduct would trigger § 922(g)(9)’s firearms
ban.”).
        56 134 S. Ct. at 1414.
        57 136 S. Ct. 2272, 2276 (2016).
        58 18 U.S.C. § 921(a)(33)(A) (emphasis added).
        59 Voisine, 136 S. Ct. at 2278.

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                                       No. 15-10336
definition.” 60 The Court reasoned that “[d]ictionaries consistently define the
noun ‘use’ to mean the ‘act of employing’ something,” 61 and that “[o]n that
common understanding, the force involved in a qualifying assault must be
volitional; an involuntary motion, even a powerful one, is not naturally
described as an active employment of force.” 62 The Court also reasoned that
“[t]he harm [reckless behavior] causes is the result of a deliberate decision to
endanger another—no more an ‘accident’ than if the ‘substantial risk’ were
‘practically certain.’” 63     The Court observed that “the word ‘use’ . . . is
indifferent as to whether the actor has the mental state of intention,
knowledge, or recklessness with respect to the harmful consequences of his
volitional conduct.” 64
       This court’s reasoning in an earlier, en banc, decision on which Howell
relies, United States v. Vargas-Duran, 65 is similar in many respects to the
reasoning in Voisine. In Vargas-Duran, the defendant had previously been
convicted under a Texas statute that provided a person is guilty of intoxication
assault if he or she “by accident or mistake, while operating an aircraft,
watercraft or motor vehicle in a public place while intoxicated, by reason of
that intoxication causes serious bodily injury to another.” 66 We held that this
prior offense was not a crime of violence within the meaning of § 2L1.2 of the



       60  Id. (citing United States v. Castleman, 134 S. Ct. 1405 (2014)).
       61   Id. (citing Webster's New International Dictionary 2806 (2d ed. 1954) (“[a]ct of
employing anything”); Random House Dictionary of the English Language 2097 (2d ed. 1987)
(“act of employing, using, or putting into service”); Black's Law Dictionary 1541 (6th ed. 1990)
(“[a]ct of employing,” “application”)).
        62 Id. at 2278-79.
        63 Id. at 2279.
        64 Id.
        65 356 F.3d 598 (5th Cir. 2004).
        66 Id. at 600 (quoting Tex. Penal Code Ann. § 49.07 (West 1994)) (internal quotation

marks omitted).
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                                        No. 15-10336
Guidelines. The commentary to this section of the Guidelines defined “crime
of violence” to include “an 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.” 67 Like the Supreme Court in Voisine, we consulted
dictionary definitions of “use” and concluded that “‘use of force’ means ‘the act
of employing force for any . . . purpose,’ or ‘to avail oneself of force.’” 68 We also
indicated that “the dictionary definitions of ‘use’ indicate that the word ‘refers
to volitional, purposeful, not accidental, employment of whatever is being
‘used.’” 69 We were not presented in Vargas-Duran with an offense in which
recklessness was an element or means; the Texas statute specified “accident”
or “mistake” as the levels of culpability. We concluded that the “use . . . of
physical force” phrase in § 2L1.2 of the Guidelines “requires that a defendant
intentionally avail himself of that force.” 70 We had no cause to consider, and
we did not consider, whether “use” of physical force could encompass
recklessness.
       We conclude that Vargas-Duran is not controlling in the present case,
for at least three reasons. First, as just noted, we did not have occasion to
decide, and did not consider, whether an offense involving “recklessness” under
at least some statutes could have as an element “use” of force. Second, though
a somewhat technical matter, the decision in Vargas-Duran concerned § 2L1.2,
not § 4B1.2, of the Guidelines. Third, the Supreme Court’s subsequent decision



       67   Id. (quoting U.S.S.G. Application Note 1(B)(ii)(I)) (internal quotation marks
omitted).
       68 Id. at 603 (quoting Webster’s Third New International Dictionary of the English
Language Unabridged 2523 (1993)).
       69 Id. at 604 (quoting United States v. Chapa-Garza, 243 F.3d 921, 926 (5th Cir. 2001)).
       70 Id. at 599; see also id. at 600 (“We further hold that the intentional use of force must

be an element of the predicate offense if the predicate offense is to enhance a defendant’s
sentence.”).
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                                      No. 15-10336
in Voisine substantially undercuts the statements in Vargas-Duran that “use”
of force encompasses only intentional conduct.
       The Supreme Court’s discussion in Voisine of the history of modern
assault statutes is also illuminating as to the backdrop against which the
Sentencing Commission defined a “crime of violence” as including “use” of force
against another person. The Supreme Court noted in Voisine that “[s]everal
decades” before Congress enacted the ACCA, “the Model Penal Code had taken
the position that a mens rea of recklessness should generally suffice to
establish criminal liability, including for assault.” 71 The Court observed that
thereafter, “States quickly incorporated that view into their misdemeanor
assault and battery statutes. So in linking § 922(g)(9) to those laws, Congress
must have known it was sweeping in some persons who had engaged in
reckless conduct.” 72 The Sentencing Commission similarly must have known
that the Model Penal Code had taken the position that a mens rea of
recklessness should establish criminal liability, and that various states
incorporated that view into assault statutes. In any event, the Commission
has largely modeled the “crime of violence” definition that includes of “use” of
force after the ACCA’s similar “use” of force provision.
       We therefore conclude that the mental state of recklessness may qualify
as an offense that “has as an element the use, attempted use, or threatened
use of physical force against the person of another” within the meaning of
§ 4B1.2(a)(1) of the Guidelines. We further conclude from the terms of the



       71 Voisine v. United States, 136 S. Ct. 2272, 2280 (2016) (citing Model Penal Code
§ 2.02(3), cmts 4-5, at 243-44 (explaining that “purpose, knowledge, and recklessness are
properly the basis for” such liability) and § 211.1 (defining assault to include “purposely,
knowingly, or recklessly caus[ing] bodily injury”)).
       72 Id. (citing United States v. Bailey, 34 U.S. 238, 256 (1835) (Story, J.) (“Congress

must be presumed to have legislated under this known state of the laws”)).
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                                    No. 15-10336
Texas statute under which Howell was convicted that the use of physical force
against the person of another is an element of the crime described. The Texas
statute at issue provided in pertinent part:

             (a) A person commits an offense if the person:
            (1) intentionally, knowingly, or recklessly causes bodily
      injury to another, including the person’s spouse;
                                         ...
              (b) An offense under Subsection (a)(1) is a Class A
      misdemeanor, except that the offense is a felony of the third degree
      if the offense is committed against:
                                         ...
            (2) a person whose relationship to or association with the
      defendant is described by Section 71.0021(b), 71.003, or 71.005,
      Family Code, if:
                                       ...
            (B) the offense is committed by intentionally, knowingly, or
      recklessly impeding the normal breathing or circulation of the
      blood of the person by applying pressure to the person’s throat or
      neck or by blocking the person’s nose or mouth. . . . 73
The Texas Court of Criminal Appeals has held that “impeding normal
breathing” within the context of § 22.01(b)(2)(B) “is per se a bodily injury,”
which is defined by the Texas Penal Code as “physical pain, illness, or any
impairment of physical condition.” 74
      To obtain a conviction for the least culpable Texas offense for which
Howell was convicted, a jury would be required to find the defendant recklessly
caused bodily injury committed by recklessly impeding the normal breathing
or circulation of the blood of the person by applying pressure to the person’s



      73Tex. Penal Code § 22.01(a)(1), (b)(2)(B) (West 2009).
      74See Marshall v. State, 479 S.W.3d 840, 843-44 (Tex. Crim. App. 2016) (citing Tex.
Penal Code § 1.07(a)(8)).
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                                  No. 15-10336
throat or neck or by blocking the person’s nose or mouth. It is difficult to
conceive of how applying pressure to either a person’s throat or neck in a
manner that resulted in “impeding the normal breathing or circulation” could
not involve the use of physical force. The same is true of blocking a person’s
nose or mouth resulting in “impeding the normal breathing or circulation of
the blood of the person.”
      Howell hypothesizes that the statute would be violated “[i]f a defendant
allows a plastic bag to ‘block’ a victim’s mouth or nose, and is reckless about
the effect that might have.” But the statute does not contemplate that a bag
might somehow, due to the recklessness of a defendant, block a victim’s nose.
The statute’s operative language in this regard is “blocking,” which connotes
an affirmative action taken to block the nose or mouth.             Howell’s other
examples are that a defendant “while carelessly performing yardwork . . .
causes a substantial amount of dirt to fall on the victim’s face” or that “[i]f a
victim’s necktie or scarf gets caught up in a piece of equipment used by the
defendant, then that defendant might end up applying pressure to the victim’s
neck or throat without intentionally using force.” But again, the operative
language in the statute is “by applying pressure to the person’s throat” or “by
blocking the person’s nose or mouth,” indicating affirmative action on the part
of the defendant that is more direct than the examples given.
      More importantly, as the Supreme Court has held,

      to find that a state statute creates a crime outside the generic
      definition of a listed crime in a federal statute requires more than
      the application of legal imagination to a state statute’s language.
      It requires a realistic probability, not a theoretical possibility, that
      the State would apply its statute to conduct that falls outside the
      generic definition of a crime. To show that realistic probability, an
      offender, 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
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                                      No. 15-10336
     in which the state courts in fact did apply the statute in the special
     (nongeneric) manner for which he argues. 75
Howell has not pointed to any case in which Texas courts have applied the
statute in such a manner.
                                     *       *       *
     For the foregoing reasons, the judgment of the district court is
AFFIRMED.




     75   Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).
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                                  No. 15-10336
DANIEL P. JORDAN III, concurring:

      I concur in the ultimate holding but take no stand with respect to the
discussion of the modified categorical approach.      Assuming arguendo that
Howell correctly urges the court to take the categorical approach, Texas Penal
Code § 22.01(a)(1), (b)(2)(B) “has as an element the use, attempted use, or
threatened use of physical force against the person of another.” U.S.S.G.        §
4B1.2(a). Howell’s primary argument is that a reckless breach of the Texas
statute cannot constitute “use . . . of physical force.” Id. But “[n]othing in the
word ‘use’ . . . indicates that [§ 4B1.2(a)] applies exclusively to knowing or
intentional” conduct. Voisine v. United States, 136 S. Ct. 2272, 2278 (2016).
When one “recklessly imped[es] the normal breathing or circulation of the
blood of the person by applying pressure to the person’s throat or neck or by
blocking the person’s nose or mouth,” Tex. Penal Code Ann. § 22.01(a)(1),
(b)(2)(B) (West 2013), that person “[uses] physical force against the person of
another,” U.S.S.G. § 4B1.2(a)(1). See Voisine, 136 S. Ct. at 2278. I therefore
agree that the District Court should be affirmed.




                                       24
