     Case: 13-40095   Document: 00512878028        Page: 1   Date Filed: 12/19/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 13-40095                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                         December 19, 2014
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

OSCAR CECILIO RAMOS CERON,

             Defendant - Appellant




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


Before KING, JOLLY, and COSTA, Circuit Judges.
PER CURIAM:
      Oscar Cecilio Ramos Ceron pleaded guilty to reentry of a deported alien.
The district court applied a 16-level Sentencing Guidelines enhancement,
categorizing his prior Florida conviction of aggravated battery as a “crime of
violence.” Ramos Ceron appeals, arguing that Florida aggravated battery is
not a crime of violence, and that collateral estoppel should have precluded the
government from asserting the crime of violence enhancement because a judge
presiding over his earlier reentry case declined to apply it.
                                         I.
      The calculation of Ramos Ceron’s offense level in his presentence report
(PSR) included a 16-level crime of violence enhancement under U.S.S.G.
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                                  No. 13-40095
§ 2L1.2(b)(1)(A)(ii), based on his 2008 Florida conviction of aggravated battery
under Fla. Stat. § 784.045(1)(a)(1). Ramos Ceron’s charging document for the
Florida conviction stated that he committed
      an aggravated battery upon Jorge Alfredo Talavera by actually
      and intentionally touching or striking the person of Jorge Alfredo
      Talavera, against said person’s will, by touching Jorge Alfredo
      Talavera about the face and/or back and/or body, and did thereby
      knowingly or intentionally cause great bodily harm and/or
      permanent disfigurement, to wit: lacerations requiring stitches, in
      violation of s. 784.045(1)(a)1, Fla. Stat.
      Based on a resulting offense level of 22 and a criminal history category
of III, Ramos Ceron’s Guidelines range was 51 to 63 months. Ramos Ceron
objected to the enhancement, arguing that his Florida aggravated battery
conviction did not qualify as a crime of violence. A footnote in the objection he
filed noted that a different judge presiding over his earlier illegal reentry case
had granted this objection and instead applied only the 4-level enhancement
for “any felony.”
      In this case, however, the district court overruled the objection to the
crime of violence enhancement, adopted the PSR, and imposed a 63-month
sentence at the high end of the Guidelines range. The district court also stated
that in the absence of the crime of violence enhancement it would have imposed
the same sentence by applying an upward variance.
      Ramos Ceron appeals, arguing that the crime of violence enhancement
is not applicable, that the district court should have applied collateral estoppel,
and that the error was not harmless despite the district court’s alternative
sentence.
                                        II.
      We begin by addressing Ramos Ceron’s argument that the district court
erred by failing to apply collateral estoppel based on his prior illegal reentry
case in which he successfully litigated against the application of the crime of
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                                 No. 13-40095
violence enhancement. Collateral estoppel applies in criminal cases, but it is
not raised often and we have observed that the “efficiency concerns that drive
the collateral estoppel policy on the civil side are not nearly so important in
criminal cases.” United States v. Mollier, 853 F.2d 1169, 1176 (5th Cir. 1988)
(citing Standefer v. United States, 447 U.S. 10, 25 (1980)). Indeed, Ramos
Ceron cites no case in which a defendant successfully invoked collateral
estoppel to preclude application of a Sentencing Guidelines enhancement.
There are at least a few appellate decisions involving failed attempts to raise
collateral estoppel in which the doctrine’s basic requirements were missing.
See United States v. Duarte-Aldana, 364 F. App’x 360, 361–62 (9th Cir. 2010)
(rejecting collateral estoppel argument because the enhancement “was not
actually litigated”); United States v. Rosquete, 199 F. App’x 728, 730–31 (11th
Cir. 2005) (rejecting collateral estoppel because the defendant did not show
that the applicability of the enhancement had been “determined by a valid and
final judgment”); United States v. Grey, No. 13-12333, slip op. at 11–13 (11th
Cir. Mar. 12, 2014) (same).
      Ramos Ceron did not raise the collateral estoppel argument below. The
sentencing objection he filed did not cite the doctrine or otherwise contend that
the prior ruling had preclusive effect; it merely pointed out the ruling in a
footnote and noted that there had been no “change in the existing
jurisprudence since then.” Nor did Ramos Ceron invoke collateral estoppel at
the sentencing hearing, during which no one even mentioned the ruling in the
prior case. Even if the district court could have construed the footnote as a
collateral estoppel argument, there was nothing in the record that revealed the
arguments or holding in the prior case besides a citation to its case number.
      Issues like this one not adequately raised in the district court are
reviewed for plain error on appeal; an appellant must show a forfeited error
that is clear or obvious and that affects his substantial rights. See Puckett v.
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                                   No. 13-40095
United States, 556 U.S. 129, 135 (2009). Even when that standard is satisfied,
we have discretion to correct the error only if it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.”         Id. (alteration in
original).
      Ramos Ceron is unable to show that the district court’s failure to apply
collateral estoppel is reversible plain error. “The defendant bears the burden
of demonstrating that the issue whose relitigation he seeks to foreclose was
actually decided in the first proceeding.” United States v. El-Mezain, 664 F.3d
467, 552 (5th Cir. 2011) (internal quotation marks omitted). The record before
the district court on this issue did not satisfy that burden.
      At oral argument, Ramos Ceron’s counsel argued that, on appeal, we
should take judicial notice of sealed docket entries in the prior case, which
would reveal the written objection Ramos Ceron filed and the district court’s
statement of reasons showing that the court did not apply the enhancement.
Even then, because the docket does not contain a transcript of the sentencing
hearing, we would not know the exact reasoning used by the district court in
the earlier case. See United States v. Giarratano, 622 F.2d 153, 156 & n.4 (5th
Cir. 1980) (holding that a criminal defendant who failed to provide transcripts
could not show that a prior trial “necessarily decided” the issue in a subsequent
case, and thus failed to carry his burden on collateral estoppel).
      But more fundamentally, we review for plain error based on the record
before the district court. See United States v. Montano, 505 F. App’x 299, 300
(5th Cir. 2013), cert. denied, 133 S. Ct. 2367 (2013) (evaluating plain error “on
the limited record before the district court”); United States v. Troyer, 677 F.3d
356, 358–59 (8th Cir. 2012) (“[T]he error must be clear on the record in the
district court.”); United States v. Brown, 526 F.3d 691, 707 (11th Cir. 2008),
vacated on other grounds by 556 U.S. 1150 (2009) (noting that the use of
“inherent equitable powers . . . to supplement the record with information not
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                                  No. 13-40095
reviewed by the district [court] . . . is entirely inappropriate in reviewing a case
for plain error” and that “[i]n conducting plain error review, we examine the
record before the district court for error that is ‘clear or obvious’” (emphasis and
alterations in original)). Although we may correct errors not raised below
when they are obvious from the record and meet the other plain error criteria,
it is quite different to allow the creation of a new record on appeal to support
an argument that was not raised below. The record that was before the district
court on this issue—only the footnote referring to the ruling in the prior case—
would not have indicated a number of things that might be relevant to the
estoppel analysis, such as whether the district court in the prior case had a
copy of the charging instrument from Ramos Ceron’s Florida offense. The
district court therefore did not plainly err because the record before it did not
support giving collateral estoppel effect to Ramos Ceron’s prior sentencing. See
Rosquete, 199 F. App’x at 731 (holding that a district court did not err in failing
to apply collateral estoppel when the defendant did not show that the non-
applicability of a Guidelines enhancement had “been determined by a valid and
final judgment” in a prior proceeding).
      Furthermore, as mentioned above, Ramos Ceron is unable to cite any
authority giving preclusive effect to a prior Sentencing Guidelines ruling.
When the case law is unsettled, we cannot say that any error is clear or
obvious. See United States v. Trejo, 610 F.3d 308, 319 (5th Cir. 2010) (holding
that a claim that is “novel” and “not entirely clear under the existing case
authority” is “doom[ed] . . . for plain error”). With an inadequate district court
record on which to evaluate collateral estoppel, as well as the absence of case
law unequivocally supporting its application in this context, Ramos Ceron
cannot demonstrate that any district court error was clear or obvious.




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                                      No. 13-40095
                                            III.
       We therefore turn to the merits of applying the crime of violence
enhancement to Ramos Ceron’s conviction of Florida aggravated battery. The
Guidelines state that the offense level for unlawfully reentering the United
States shall be increased 16 levels if the defendant has a prior conviction for a
crime of violence and the prior conviction receives criminal history points.
U.S.S.G. § 2L1.2(b)(1)(A)(ii). The commentary to the Guidelines defines a
crime of violence as a number of enumerated offenses “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). Ramos Ceron contends that his Florida
aggravated battery conviction qualifies as neither an enumerated offense 1 nor
one that has as an element “the use of physical force.” We need consider only
the latter catch-all provision because the charging document shows that Ramos
Ceron was convicted under elements of Florida aggravated battery that
combine to require the “use of physical force against the person of another.”
       Courts employ a categorical approach when classifying a prior conviction
for sentencing enhancement purposes. See Taylor v. United States, 495 U.S.
575, 602 (1990).       Under this approach, “the analysis is grounded in the
elements of the statute of conviction rather than a defendant’s specific
conduct.” United States v. Rodriguez, 711 F.3d 541, 549 (5th Cir. 2013) (en
banc). An enhancement is therefore justified under the use of force prong of
the crime of violence definition only if the crime “necessarily requires a finding
that the defendant used, attempted to use, or threatened to use physical force


       1 On this issue, which we do not reach, Ramos Ceron argues that Florida aggravated
battery criminalizes a wider range of behavior than the generic crime of aggravated assault,
which is an enumerated offense under the definition of a crime of violence. This is the case,
he contends, because the Florida statute’s requirement of “great bodily harm” is a lower bar
than generic aggravated assault’s requirement of “serious bodily injury.”
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                                  No. 13-40095
against the person of another.” United States v. Herrera-Alvarez, 753 F.3d 132,
134 (5th Cir. 2014). “[P]hysical force in the context of defining a crime of
violence for the purposes of construing the Sentencing Guidelines requires
force capable of causing physical pain or injury to another person.” United
States v. Flores-Gallo, 625 F.3d 819, 823 (5th Cir. 2010) (internal quotation
marks omitted).
      If “a statute contains multiple, disjunctive subsections,” we apply a
modified categorical approach. See United States v. Sanchez-Espinal, 762 F.3d
425, 429 (5th Cir. 2014). Under this approach, we “look beyond the statute to
certain conclusive records made or used in adjudicating guilt in order to
determine which particular statutory alternative applies to the defendant’s
conviction,” and apply the categorical approach to that version of the crime.
Id. (quoting United States v. Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir.
2005)). A court may review “the statutory definition, charging document,
written plea agreement, transcript of plea colloquy, and any explicit factual
finding by the trial judge to which the defendant assented” in order to
determine under which elements the defendant was charged.            See United
States v. Elizondo-Hernandez, 755 F.3d 779, 781 (5th Cir. 2014) (quoting
Shepard v. United States, 544 U.S. 13, 16 (2005)).         The Supreme Court
emphasized in Descamps v. United States that a criminal statute must be
divisible—that is, the statute must “comprise[] multiple, alternative versions
of the crime”—in order for the modified categorical approach to apply. 133 S.
Ct. 2276, 2283–84 (2013).
      The Florida aggravated battery statute under which Ramos Ceron
pleaded guilty states:
      A person commits aggravated battery who, in committing battery:
            1.    Intentionally or knowingly causes great bodily harm,
                  permanent disability, or permanent disfigurement; or

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                                   No. 13-40095
            2.    Uses a deadly weapon
Fla. Stat. Ann. § 784.045(1)(a). The referenced offense of simple battery is
defined in a separate provision:
      The offense of battery occurs when a person:
            1.    Actually and intentionally touches or strikes another
                  person against the will of the other; or
            2.    Intentionally causes bodily harm to another person.
Fla. Stat. Ann. § 784.03(1)(a).
      To determine the conduct necessarily involved in Ramos Ceron’s Florida
offense, we must therefore be able to narrow his crime down to a particular
element of both the simple battery and aggravated battery statutes. A recent
decision helps this inquiry, because we held that in defining the elements of a
crime for the purposes of applying the modified categorical approach, “laws and
regulations” cross-referenced by the charged statute “can also be the subject of
the modified categorical approach.” See Franco-Casasola v. Holder, --- F.3d ----,
2014 WL 5454842, at *3 (5th Cir. Oct. 23, 2014). This accords with our sister
circuits’ interpretations of Descamps. See United States v. Trent, 767 F.3d
1046, 1055 (10th Cir. 2014); Coronado v. Holder, 759 F.3d 977, 985 (9th Cir.
2014); United States v. Denson, 728 F.3d 603, 608 (6th Cir. 2013). And in
United States v. Dominguez, a pre-Descamps opinion, we took that same
approach to the Florida aggravated battery statute at issue here. See 479 F.3d
345, 347–48 (5th Cir. 2007) (using the disjunctive elements of simple battery
to apply the modified categorical approach to the defendant’s conviction of
Florida aggravated battery). Florida aggravated battery is therefore divisible
based on the elements of the underlying offense of simple battery. Because the
aggravated battery offense requires that the accused also be guilty of simple
battery, and because both the aggravated battery and simple battery statutes
have two enumerated “disjunctive subsections,” Sanchez-Espinal, 762 F.3d at

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429, there are “multiple, alternative versions of the crime” of Florida
aggravated battery. See Descamps, 133 S. Ct. at 2284.
      The Florida charging document identifies under which of these
alternative elements Ramos Ceron was charged. It states that he “actually
and intentionally touch[ed] or str[uck]” the victim against his will. In terms of
the underlying simple battery offense, he was therefore guilty of violating Fla.
Stat. Ann. § 784.03(1)(a)(1), which prohibits “[a]ctually and intentionally
touch[ing] or strik[ing] another person against the will of the other.” That
battery offense was aggravated pursuant to Fla. Stat. Ann. § 784.045(1)(a)(1)—
the “great bodily harm” version, rather than the “deadly weapon” version, of
aggravated battery.
      It may be that neither of these two elements—intentional touching and
causing great bodily harm—would, standing alone, necessarily involve the use
of force. The Supreme Court has held, interpreting the same simple battery
statute that underlies Ramos Ceron’s aggravated battery conviction, that
touching another person is not, by itself, the “use of force.” See Johnson v.
United States, 559 U.S. 133, 138 (2010). And in United States v. Villegas-
Hernandez, we held that a Texas assault statute that criminalized causing
“bodily injury” could be committed in ways that do not necessarily involve the
use of force. 468 F.3d 874, 879 (5th Cir. 2006).
      But because it involved both of these elements, Ramos Ceron’s conviction
necessarily required the use of force. See United States v. Dominguez, 479 F.3d
345, 348 (5th Cir. 2007) (combining the “intentional touching” element with
the “deadly weapon” element to conclude that the two together “create[] a
sufficient threat of force to qualify as a crime of violence”). Touching or striking
that causes great bodily harm is a paradigmatic example of the use of force.
We have held, for example, that a statute criminalizing “unlawful touching . . .
done with the intention of bringing about a harmful or offensive contact or
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                                 No. 13-40095
apprehension thereof” requires the use of force. See United States v. Basulto-
Reina, 421 F. App’x 349, 352 (5th Cir. 2011). Similarly, the Eleventh Circuit
has held that Florida felony battery, which involves the same elements as
Ramos Ceron’s conviction for aggravated battery (intentional touching and
great bodily harm), qualifies as a violent felony under the Armed Career
Criminal Act “because the statute requires that the defendant intentionally
touch or strike the victim with sufficient force to cause the requisite level of
harm.” See United States v. Smith, 448 F. App’x 936, 940 (11th Cir. 2011); see
also United States v. Lawrence, 627 F.3d 1281, 1286 (9th Cir. 2010) (noting
that while “‘unlawful touching’ would not on its own qualify [Washington’s
second degree assault statute] as a categorical violent felony,” the additional
element of “substantial bodily harm” “require[s] force that . . . is violent in
nature”).
      Ramos Ceron counters this by suggesting that a person could be found
guilty of aggravated battery by virtue of tapping a victim on the shoulder and
causing him to fall down and suffer great bodily harm. Although this is a clever
hypothetical, it is the type of argument the Supreme Court has instructed us
to avoid crediting.    The categorical approach requires “more than the
application of legal imagination to a state statute’s language.” Gonzales v.
Duenas-Alvarez, 549 U.S. 183, 193 (2007). Instead,
      [i]t 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 in which the state courts in fact did apply the statute in the
      special (nongeneric) manner for which he argues.
Id.; see also United States v. Basulto-Reina, 421 F. App’x 349, 352 (5th Cir.
2011) (applying this reasoning from Duenas-Alvarez to the use of force prong
of the crime of violence definition); United States v. Laurico-Yeno, 590 F.3d
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                               No. 13-40095
818, 822 (9th Cir. 2010) (same). With no showing that Florida courts actually
apply the aggravated battery statute to this far-fetched and hypothetical
conduct, we cannot say that the district court erred by applying the crime of
violence enhancement.
     We therefore AFFIRM the district court’s sentence.




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