    Case: 16-41218   Document: 00514337367     Page: 1   Date Filed: 02/06/2018




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

                                No. 16-41218
                                                                         Fifth Circuit

                                                                       FILED
                                                                February 6, 2018
                                                                  Lyle W. Cayce
                                                                       Clerk
UNITED STATES OF AMERICA,

                                          Plaintiff–Appellee,

versus

FREDIS ALBERTO REYES-CONTRERAS,
Also Known as Alberto Contreras-Romero,

                                          Defendant–Appellant.




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




Before JONES, SMITH, and PRADO, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Fredis Reyes-Contreras pleaded guilty of illegal reentry under 8 U.S.C.
§ 1326(a) and (b). Because he had been convicted of manslaughter in Missouri,
the court applied the sixteen-level crime-of-violence (“COV”) enhancement
under U.S.S.G. § 2L1.2(b)(1)(A)(ii).   Reyes-Contreras appeals the enhance-
ment, claiming that Missouri’s manslaughter statute is non-generic under
    Case: 16-41218        Document: 00514337367        Page: 2    Date Filed: 02/06/2018



                                      No. 16-41218
Mathis. Though we find that the statute is divisible and could warrant an
enhancement under the modified categorical approach, the documents of con-
viction do not indicate the subsection of conviction, so as required by our
caselaw we vacate and remand for resentencing.

                                             I.
      Reyes-Contreras was apprehended after illegally crossing from Mexico.
Because he had been deported, he was charged with illegal reentry under
8 U.S.C. § 1326(a) and (b). He admitted to being a citizen of Honduras and
entered a guilty plea with no plea agreement. He claims he entered illegally
because a gang in Honduras threatened his life if he did not pay them money.

      A criminal record check revealed two Missouri convictions from 2006:
one for voluntary manslaughter in the first degree and a second for armed
criminal action. An immigration check showed that Reyes-Contreras had been
deported in 2012.

      Given the above information, the presentence report (“PSR”) assigned
Reyes-Contreras a base offense level of 8 under U.S.S.G. § 2L1.2(a) 1 and
applied a 16-level COV enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Two
levels were subtracted for acceptance of responsibility, and a third level for
timely acceptance was subtracted at the sentencing hearing, leaving Reyes-
Contreras at a level of 21.

      The PSR assigned four criminal history points, three for the Missouri
convictions and one for a 2001 conviction that was later subtracted because it
was more than ten years old. That yielded a Category II criminal history. The
Guidelines range for the offense was 41–51 months, and the district court
sentenced Reyes-Contreras to 41 months.


      1   Reyes-Contreras was sentenced under the 2015 version of the Guidelines.
                                             2
    Case: 16-41218    Document: 00514337367     Page: 3   Date Filed: 02/06/2018



                                 No. 16-41218
      At issue is the sixteen-level enhancement for a COV given the Missouri
conviction for voluntary manslaughter. Reyes-Contreras was seen striking the
victim―his brother-in-law―on the head with a baseball bat, causing death.
Reyes-Contreras contends he committed the offense in defense of his younger
brother because his brother-in-law had attacked his brother with a knife.

      Reyes-Contreras was charged with second degree murder, a Class A
felony. The indictment includes the fact that Reyes-Contreras caused the
death of another by striking him with a baseball bat. Reyes-Contreras pleaded
guilty of voluntary manslaughter, a Class B felony. The plea includes neither
an elaboration of the facts nor the subsection of conviction. Because the Mis-
souri manslaughter statute criminalizes generic manslaughter in subsection
(1) as well as knowingly assisting another in self-murder in subsection (2),
Reyes-Contreras asserts that the statute is indivisible and overbroad under
Mathis. Reyes-Contreras preserved his objection to the enhancement, so our
review is de novo. United States v. Rodriguez, 711 F.3d 541, 548 (5th Cir. 2013)
(en banc).

                                       II.
                                       A.
      The Guidelines establish that a COV enhancement applies to an enum-
erated list of crimes, including manslaughter, and to offenses that “ha[ve] 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. 1(B)(iii). To qualify as an enum-
erated crime, the statute of conviction must match the generic offense. Mathis
v. United States, 136 S. Ct. 2243, 2247 (2016); Taylor v. United States, 495 U.S.
575, 598 (1990). Under this categorical approach, the court must ignore the
facts of the case and ask whether the elements of the crime of conviction and
the elements of the generic crime are sufficiently similar. Mathis, 136 S. Ct.

                                       3
     Case: 16-41218      Document: 00514337367        Page: 4     Date Filed: 02/06/2018



                                     No. 16-41218
at 2248. When a defendant pleads guilty, the elements are those things he
necessarily admits in his plea. Id.

       If a statute is divisible, we employ the modified categorical approach and
look to certain documents to determine which subsection of the statute was the
basis for conviction. Shepard v. United States, 544 U.S. 13, 25 (2005). We then
compare the elements of that subsection with the elements of the generic
crime. But if the statute lists means of fulfilling a single offense, it is indivisi-
ble and must be taken as a whole instead of using the facts of the offense to
narrow the statute. Descamps v. United States, 133 S. Ct. 2276, 2290 (2013).

                                            B.
       The Missouri voluntary manslaughter statute, MO. ANN. STAT.
§ 565.023, reads as follows 2:

              1. A person commits the crime of voluntary manslaughter if
       he:
                    (1) Causes the death of another person under circum-
              stances that would constitute murder in the second degree
              under subdivision (1) of subsection 1 of section 565.021, ex-
              cept that he caused the death under the influence of sudden
              passion arising from adequate cause; or
                    (2) Knowingly assists another in the commission of
              self-murder.
              2. The defendant shall have the burden of injecting the issue
       of influence of sudden passion arising from adequate cause under
       subdivision (1) of subsection 1 of this section.
              3. Voluntary manslaughter is a class B felony.
Second degree murder under MO. ANN. STAT. § 565.023.1(1) has the following




       2Reyes-Contreras was convicted under the 1984 version of the statute. Minor linguis-
tic amendments were enacted in 2017, updating “crime” to “offense,” changing “he” to “he or
she,” and adding “the offense of” before “voluntary manslaughter” in section 3.
                                            4
     Case: 16-41218       Document: 00514337367          Page: 5     Date Filed: 02/06/2018



                                       No. 16-41218
elements 3:
            1. A person commits the crime of murder in the second
       degree if he:
                    (1) Knowingly causes the death of another person or,
              with the purpose of causing serious physical injury to an-
              other person, causes the death of another person . . . .
       The parties do not dispute that manslaughter as defined in subsec-
tion (1) is a COV meeting the elements of generic manslaughter. 4 Reyes-
Contreras contends that the statute is indivisible and cannot be generic be-
cause of the criminalization of assisting another in self-murder in subsec-
tion (2). He further asserts that subsection (2) lacks as an element the use of
force such that it does not qualify under the alternative definition of a COV.

                                              C.
       To determine whether an alternatively phrased statute lays out ele-
ments or means, we follow Mathis and look first to state-court decisions, second
to the statute itself, and finally to a limited permissible list of documents such
as the indictment, jury instructions, and plea agreement and colloquy. If none
of those sources definitively answers the question of divisibility, then Taylor’s
demand for certainty has not been met, and we must consider the statute as a
whole. Mathis, 136 S. Ct. at 2256–57.



       3 This statute was similarly amended in 2017, changing “crime” to “offense” and “he”
to “he or she.”
       4 See United States v. Bonilla, 524 F.3d 647, 654 (5th Cir. 2008) (laying out the generic
definition of manslaughter). Bonilla looked to the Model Penal Code (“MPC”) and LaFave’s
treatise. LaFave defines voluntary manslaughter as “intentional homicide committed under
extenuating circumstances which mitigate, though they do not justify or excuse, the killing.”
Id. (quoting 2 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 15.2, at 491 (2d ed. 2003)).
The MPC likewise defines manslaughter as “a homicide which would otherwise be murder”
but is “committed under the influence of extreme mental or emotional disturbance for which
there is reasonable explanation or excuse.” Id. (quoting MODEL PENAL CODE § 210.3(1)(b)).
These definitions are substantially similar to Missouri’s definition of manslaughter under
subsection (1).
                                               5
     Case: 16-41218         Document: 00514337367          Page: 6     Date Filed: 02/06/2018



                                         No. 16-41218
       We conclude that Missouri’s manslaughter statute is divisible. There is
no state highest-court decision definitively saying that, but the statutory
framework and state caselaw as a whole convincingly demonstrate that subsec-
tion (1) and subsection (2) manslaughter are offenses with distinct elements. 5

                                                1.
       Divisibility is first seen in the statutory scheme. The provision on lesser-
included offenses, MO. ANN. STAT. § 565.025.2(2), 6 delineates subsection (1)
voluntary manslaughter as a lesser-included offense of second-degree murder. 7
It does not so list voluntary manslaughter as a whole or under subsection (2).
Thus the statutory structure establishes manslaughter under subsections
(1) and (2) as separate crimes requiring different elements, given that only one
is included in the section on lesser-included offenses.

       When voluntary manslaughter under subsection (1) is charged as a
lesser-included offense, there are accompanying instructions specifying what
the jury must find. This satisfies the Mathis criteria, 136 S. Ct. at 2256, that
a statute identify “which things must be charged.” State caselaw lays out these
instructions, showing that to convict a defendant of voluntary manslaughter
as a lesser-included offense, the jury must unanimously find the elements of
subsection (1) without any consideration of subsection (2). 8 Because the jury



       5See United States v. Perlaza-Ortiz, 869 F.3d 375, 379–80 (5th Cir. 2017); see also
United States v. Mendez-Henriquez, 847 F.3d 214, 219 (5th Cir.) (finding state supreme court
case referencing the statutory sections to be “persuasive[]” in the absence of definitive
supreme court caselaw), cert. denied, 137 S. Ct. 2177 (2017).
       6   This section was transferred to § 565.029 in 2017.
       7 The difference between second-degree murder and voluntary manslaughter is that,
for voluntary manslaughter, the defendant must inject evidence of sudden passion and ade-
quate cause. MO. ANN. STAT. §§ 565.021.1(1), 565.023.2. Second-degree murder is a Class A
felony, while voluntary manslaughter is a Class B felony. Id. §§ 565.021.2, 565.023.3.
       8   See, e.g., State v. Neal, 304 S.W.3d 749, 754 (Mo. Ct. App. 2010).
                                                6
     Case: 16-41218          Document: 00514337367       Page: 7    Date Filed: 02/06/2018



                                         No. 16-41218
must find every element of subsection (1), standing alone, to convict, subsec-
tion (1) must contain elements that are distinct from subsection (2). 9

                                               2.
         Missouri state-court opinions also discuss voluntary manslaughter in a
way that treats it as divisible. For example, “[a] person commits the crime of
voluntary manslaughter if he” satisfies each element under subsection (1). 10
The court ends there full-stop with no mention of alternative means or a dis-
cussion of subsection (2). Taking state law as a whole, then, Taylor’s “demand
for certainty” is met that the voluntary manslaughter statute sets out two sep-
arate offenses.

                                              III.
         Even though the statute is divisible, we must be able to discern whether
the generic subsection (1) manslaughter formed the basis of Reyes-Contreras’s
conviction. If he was convicted under the statute as a whole or under subsec-
tion (2), the enhancement cannot apply unless subsection (2) is generic or has
as an element the use of force. See United States v. Neri-Hernandes, 504 F.3d
587, 589 (5th Cir. 2007).

                                               A.
         Under Shepard v. United States, 544 U.S. 13 (2005), we may use the
“modified categorical approach” and look to “a limited class of documents” such
as the indictment, jury instructions, or plea agreements and colloquies to
determine the crime of conviction. Mathis, 136 S. Ct. at 2249; see also Shepard,


         United States v. Reyes-Ochoa, 861 F.3d 582, 586 (5th Cir. 2017) (‘“Elements’ are the
         9

‘constituent parts’ of a crime’s legal definition—the things the ‘prosecution must prove to
sustain a conviction.’” (quoting Mathis, 136 S. Ct. at 2248)).
         10   Patrick v. Purkett, No. 4:07CV00974, 2010 WL 2926230, at *4 (E.D. Mo. July 20,
2010).
                                               7
     Case: 16-41218       Document: 00514337367         Page: 8    Date Filed: 02/06/2018



                                      No. 16-41218
544 U.S. at 26. Those may be used solely “as a tool to identify the elements of
the crime of conviction” and not to identify facts supporting a COV enhance-
ment. Mathis, 136 S. Ct. at 2253; see also Descamps, 133 S. Ct. at 2285.

       Reyes-Contreras’s indictment shows that he was charged with second-
degree murder (Count One) and armed criminal action (Count Two). The
indictment makes no mention of a lesser-included offense or of manslaughter
as a separate offense. Count One does reflect that Reyes-Contreras “knowingly
or with the purpose of causing serious physical injury to [the victim] caused
[his death] by striking him with a baseball bat.” His conviction, however,
merely states “voluntary manslaughter first degree.”

       At sentencing, the district court stated it was clear which subsection
formed the basis of conviction because the judgment shows “voluntary man-
slaughter first degree.” There is, however, no such crime; there is only volun-
tary manslaughter with two subsections ungraded by degree. See MO. ANN.
STAT. § 565.023. The district court stated that the degrees were defined in MO.
ANN. STAT. § 565.025. 11       That section, however, delineates lesser-included
offenses of first- and second-degree murder. Although it does state that “volun-
tary manslaughter under subdivision (1) of subsection 1 of section 565.023” is
a “lesser degree” offense of second-degree murder, MO. ANN. STAT. § 565.025,
it nowhere defines subsection (1) manslaughter as “first degree.” Thus, the
district court’s reliance on this language in the plea is misguided.

                                             B.
       As a general rule, we cannot use an indictment to narrow the subsection



       11“And just to be clear, what I’m saying is that this judgment does show under which
statute he was—or subsection he was convicted because it does show the voluntary man-
slaughter first degree. And the statute 565.025 differentiates which section of the Voluntary
Manslaughter would constitute first degree, and that is only Subsection 1.”
                                             8
    Case: 16-41218     Document: 00514337367     Page: 9   Date Filed: 02/06/2018



                                  No. 16-41218
of conviction if it is for a crime different from the crime pleaded. United States
v. Turner, 349 F.3d 833, 836 (5th Cir. 2003). The general rule in Turner was
explained further in Neri-Hernandes and Bonilla.            In Neri-Hernandes,
504 F.3d at 590, we stated broadly that “the district court cannot use the
indictment to pare down the statute of conviction to determine under which
subsection [the defendant] pleaded guilty” if the defendant never pleaded to
the crime in the indictment. Accord Bonilla, 524 F.3d at 652.

      There is an exception where the plea references a lesser-included offense,
allowing the indictment to clarify the ambiguity in the plea. For example, in
United States v. Martinez-Vega, 471 F.3d 559, 563 (5th Cir. 2006), the court
looked to an indictment charging a different crime from the judgment because
the defendant pleaded to “the lesser charge contained in the Indictment.” The
indictment was used to clarify to which crime the judgment referred.

      Similarly, in United States v. Hernandez-Borjas, 641 F. App’x 367 (5th
Cir. 2016) (per curiam), the indictment charged a crime different from the
crime of conviction. But the court looked to the indictment because the convic-
tion was “pursuant to a guilty plea to ‘the lesser charge contained in the
Indictment.’” Id. at 372 (quoting Martinez-Vega, 471 F.3d at 562). Though the
indictment did not spell out a lesser-included offense, its language tracked the
elements of a particular subsection, and it provided the necessary context to
look to state law to discover that only one lesser-included offense was possible.
Thus, “the indictment [was] relevant to ascertain the meaning of ‘the lesser
included offense.’” Id.

      Neither Reyes-Contreras’s indictment nor his plea refers to a lesser-
included offense. It is clear from Missouri law that subsection (1) is the only
possible offense in the judgment, in light of the elements and crime in the
indictment. Moreover, the use of “first degree” in the judgment seems to

                                        9
    Case: 16-41218        Document: 00514337367           Page: 10      Date Filed: 02/06/2018



                                        No. 16-41218
indicate an intention to narrow down the subsection.

       This is not enough to allow us to look to the indictment. The court in
Bonilla, 524 F.3d at 653 n.4, expressly distinguished Martinez-Vega on the
ground that “the lesser charge was made clear from the judgment, and was
found by the court as actually being charged in the original indictment.” In
contrast, in Bonilla, the disposition did not “refer back to a lesser offense in the
original indictment.” Id. 12 Because there is no ambiguity in the judgment re-
quiring us to cross-reference the indictment, we consider the statute as a
whole.

                                               IV.
       The statute as a whole can support the enhancement if subsection (2)
manslaughter is generic or if it contains as an element the use of force. Neither
obtains.

                                               A.
       The government posits that the entire statute is generic because subsec-
tion (1) is undisputedly generic manslaughter, and subsection (2) should be
considered generic murder. The government does not try to fit subsection (2)
into generic manslaughter, which would be difficult given the generic defini-
tion adopted by this circuit. 13

       Assisting another in self-murder is not generic murder. Though assisted



       12 The court also noted that Martinez-Vega was subject to plain-error review, unlike
Bonilla, where review was de novo. That is given, however, only as a secondary reason for
the distinction; the court does not rely on this difference to make its first distinction tenable.
See Bonilla, 524 F.3d at 653 n.4.
       13Bonilla defines voluntary manslaughter as “intentional homicide committed under
extenuating circumstances which mitigate, though they do not justify or excuse, the killing.”
524 F.3d at 654 (quoting WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 15.1 490 (2d ed.
2003)) (emphasis omitted).
                                               10
    Case: 16-41218       Document: 00514337367          Page: 11     Date Filed: 02/06/2018



                                       No. 16-41218
suicide historically was considered murder, LAFAVE, § 15.6(c), many states
now treat it as a separate offense or as part of manslaughter, id. & nn.30–31.
If a defendant actively participates or directly causes the death of another, a
murder conviction can still lie. Id. & n.33. The statutes defining assisted sui-
cide, however, are similar to Missouri’s and do not delineate the specific role
played by the defendant under the assisted-suicide provision. Id. at n.31. The
MPC also contains a separate section dealing with “Causing or Aiding Suicide”
as a crime separate from murder and manslaughter. MODEL PENAL CODE
§ 210.5. Thus although some conduct can warrant a conviction under either
assisted suicide or murder, the two are treated as separate crimes. Further,
this circuit has not adopted a generic definition of murder, and this is not the
proper case in which to do so.

                                              B.
       Nor does assisting in self-murder require the use of force as defined by
this circuit. 14 For the use of force to be an element, force must be a “constituent
part of a claim that must be proved for the claim to succeed” in every case
charging that offense. 15        Citing Vargas-Duran, 356 F.3d at 599, Reyes-
Contreras defines use of force as requiring the use of destructive or violent
force as distinguished from causing bodily injury through even indirect means.
The government stakes the position that indirect force is sufficient, asserting
that United States v. Castleman, 134 S. Ct. 1405 (2014), overruled Fifth Circuit


       14 The government suggests plain-error review applies because Reyes-Contreras did
not preserve this objection. But the district court did not impose the enhancement on this
ground, so there was no basis for an objection. Reyes-Contreras’s arguments regarding the
use of force anticipate our authority to affirm on any basis found in the record, and we review
them de novo.
       15United States v. Vargas-Duran, 356 F.3d 598, 605 (5th Cir. 2004) (en banc) (quoting
BLACK’S LAW DICTIONARY 538 (7th ed. 1999)); see also United States v. Calderon-Pena,
383 F.3d 254, 257 (5th Cir. 2004) (en banc) (“[T]he statute of conviction, not the defendant's
underlying conduct, is the proper focus.”).
                                              11
    Case: 16-41218       Document: 00514337367         Page: 12     Date Filed: 02/06/2018



                                      No. 16-41218
precedent requiring destructive or violent force by interpreting the use-of-force
clause in 18 U.S.C. § 921(a)(33)(A)(ii) to encompass the common-law definition,
which includes offensive touching and indirect applications of force.

       Castleman interpreted a provision in the context of domestic violence
and expressly distinguished its broad definition of “force” in that context from
its use in other statutes. 16 “In defining a violent felony [under 18 U.S.C.
§ 924(e)(1)], we held, the phrase physical force must mea[n] violent force.” Cas-
tleman, 134 S. Ct. at 1410 (internal quotation marks omitted) (quoting John-
son v. United States, 559 U.S. 133, 140 (2010)). The Court also clarified that
its opinion was tailored to domestic violence and was not meant to cast doubt
on circuit-court opinions interpreting COV in other contexts. Id. at 1411 n.4.

       A post-Castleman panel, in United States v. Rico-Mejia, 859 F.3d 318
(5th Cir. 2017), has already held that Castleman does not abrogate our deci-
sions on the use of force under the Guidelines, binding us by the rule of order-
liness. Teague v. City of Flower Mound, Tex., 179 F.3d 377, 383 (5th Cir. 1999).
“By its express terms, Castleman’s analysis is not applicable to the physical
force requirement for a crime of violence . . . . Accordingly, Castleman does not
disturb this court’s precedent regarding the characterization of crimes of vio-
lence.” Rico-Mejia, 859 F.3d at 322–23.

       Our precedent includes Calderon-Pena, 383 F.3d at 260, in which the en
banc court expressly held that an offense that can be committed without “any
bodily contact (let alone violent or forceful contact) . . . does not qualify for the
sixteen-level enhancement.” Assisting in self-murder is just such an offense.
It “can—but need not—involve the application of physical force.” Id. For




        The Court noted that domestic violence is “a term of art encompassing acts that one
       16

might not characterize as ‘violent’ in a nondomestic context.” Castleman, 134 S. Ct. at 1411.
                                             12
    Case: 16-41218        Document: 00514337367         Page: 13   Date Filed: 02/06/2018



                                       No. 16-41218
example, a man was charged under Missouri’s voluntary-manslaughter statute
for entering a suicide pact with a friend even though his only action was to
hand his friend the weapon. 17 Therefore subsection (2) manslaughter is not a
crime that has use of force as an element.

      The government rightly points out that many circuits have rejected this
view and have expanded Castleman to state that indirect causation of bodily
injury may warrant a COV enhancement. But Castleman does not on its own
terms make this expansion, and a previous panel declined to interpret it as
doing so, thus binding us. See United States v. Tanksley, 848 F.3d 347, 350
(5th Cir. 2017).

                                              V.
      The government advances the alternative position that if this panel
reverses the enhancement for the manslaughter conviction, Reyes-Contreras’s
conviction for armed criminal action can support the enhancement as a crime
having as an element the use of force. The statute reads, “Except as provided
in subsection 4 of this section, any person who commits any felony under the
laws of this state by, with, or through the use, assistance, or aid of a dangerous
instrument or deadly weapon is also guilty of the crime of armed criminal
action.”     MO. ANN. STAT. § 571.015.             Missouri further defines “dangerous
instrument” as “any instrument, article or substance, which, under the cir-
cumstances in which it is used, is readily capable of causing death or other
serious physical injury.” MO. ANN. STAT. § 556.061(9). 18 We have determined
that, to qualify for the COV enhancement, use of such an instrument must be




      17Man Arrested After Friend Kills Himself, COLUM. DAILY TRIB. (June 17, 2009,
12:20 PM).
      18   This definition was moved to § 556.061(20) in 2017.
                                              13
   Case: 16-41218    Document: 00514337367      Page: 14   Date Filed: 02/06/2018



                                 No. 16-41218
more than mere possession but must include at least threatening physical
force. United States v. Velasco, 465 F.3d 633, 640 (5th Cir. 2006).

      Because, under Missouri law, possession that bolsters a defendant’s con-
fidence to commit the felony is sufficient for conviction of armed criminal
action, the statute criminalizes more than the “use” of force under the Guide-
lines. State v. Jones, 479 S.W.3d 100 (Mo. 2016). “Armed criminal action under
section 571.015.1 does not require that the defendant actually attack or
threaten an imminent attack with the weapon.” Id. at 108. Rather, a defen-
dant who commits a burglary with a gun in hand is guilty if the weapon “bol-
ster[ed] his confidence,” even though no one sees him, no one is threatened,
and the gun is not used to breach the threshold. Id. at 109. That is because
the words “aid” and “assistance” sweep in more conduct than does “use” alone,
id. at 107, and make the statute broader than permitted for a COV having the
use of force as an element.

                                      VI.
      The district court’s error in the Guidelines calculation was not harmless.
To show that error is harmless, the government must demonstrate both that
the district court would have imposed the same sentence for the same reasons
and that it was “not influenced by an erroneous Guidelines calculation.”
United States v. Castro-Alfonso, 841 F.3d 292, 298 (5th Cir. 2016).

      To show that it would have imposed the same sentence, a district court
need not use “magic words,” but it must be evident that it would have imposed
the same sentence absent the error. United States v. Shepherd, 848 F.3d 425,
427 (5th Cir. 2017). The court considered the Guidelines range given the
sixteen-level enhancement, mitigating circumstances, and the Guidelines
range under the then-forthcoming 2016 amendments that would have lowered
the range from 41–51 months to 21–27 months. The court stated that the 2016
                                      14
    Case: 16-41218       Document: 00514337367          Page: 15     Date Filed: 02/06/2018



                                       No. 16-41218
Guidelines did not “adequately address the type of conviction that we have on
the record here” and sentenced Reyes-Contreras to the low end of the erron-
eously calculated Guidelines range. Given the eight-level enhancement for
armed criminal action, the proper range is 15–21 months. Though the record
strongly supports that the district court would think this too low, given that it
saw the amended range as too low, it never stated that it would impose the
same 41-month sentence absent any error. 19 The government thus fails to
establish harmless error on the first prong.

       Even if the evidence were sufficient to find that the court would have
departed upward from the proper range, the government also fails to carry its
burden to show that the chosen sentence was not influenced by the erroneous
calculation.
       [I]t is a stretch to say that the court’s choice of the same param-
       eters as the improperly calculated guidelines range in this case
       were mere serendipity. While the court expressed a multitude of
       reasons for imposing a sentence above the properly calculated
       range, we can find no indication that the court’s decision . . . was
       independent of the erroneous calculation that called the court’s
       attention to that range in the first instance.
Martinez-Romero, 817 F.3d at 926; see also United States v. Ibarra-Luna,
628 F.3d 712, 717 (5th Cir. 2010). Because the district court did not provide a
basis for the chosen sentence independent of the erroneously calculated range,
the error was not harmless.

       The judgment of sentence is VACATED and REMANDED for
resentencing.




       19 See United States v. Martinez-Romero, 817 F.3d 917, 925 (5th Cir. 2016) (explaining
that the court stated three times that it would impose the same sentence regardless of error).
                                             15
    Case: 16-41218      Document: 00514337367         Page: 16    Date Filed: 02/06/2018



                                     No. 16-41218
EDITH H. JONES, Circuit Judge, concurring in the judgment:
      The rule of orderliness binds us to follow a prior published opinion that
renders a res nova interpretation of a Supreme Court decision. This rule
requires my concurrence here, but I write separately to explain why I believe
that a prior panel erred in holding that United States v. Castleman,
134 S. Ct. 1405 (2014) does not abrogate our circuit’s “direct force” requirement
for “crimes of violence.” See United States v. Rico-Mejia, 859 F.3d 318, 322-23
(5th Cir. 2017) (“Castleman does not disturb this court’s precedent regarding
the characterization of crimes of violence.”). For the following reasons, Rico-
Mejia decided this issue incorrectly and should be reconsidered. 1
      Under the Sentencing Guidelines for illegal reentry, a “crime of violence”
includes offenses that “ha[ve] 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. 2. 2 The key issue here is whether the indirect application of
violent force—e.g., administering a deadly poison—qualifies as the “use of
force.” Unfortunately, this court has indicated that such indirect applications
of force do not qualify. See United States v. Villegas-Hernandez, 468 F.3d 874,
879 n.6 (5th Cir. 2006) (concluding that this circuit had rejected a view of “use
of force” encompassing “tricking a person into consuming poison”) (quoting
United States v. Calderon-Pena, 383 F.3d 254, 270 (5th Cir. 2004) (Smith, J.,
dissenting)).


      1  The result of the following analysis would mean that we uphold the sentence
enhancement here because subsection (2) of MO. REV. STAT. § 565.023.1, which criminalizes
assisted suicide, has the “use of force” as an element and should be designated a “crime of
violence” under Castleman.


      2   The same “use of physical force” language appears in the definition of “crime of
violence” for the career offender enhancement under U.S.S.G. § 4B1.2(a)(1).
                                            16
   Case: 16-41218     Document: 00514337367      Page: 17   Date Filed: 02/06/2018



                                  No. 16-41218
      Castleman rejected the direct versus indirect force distinction and
dismissed a defendant’s claim that poisoning is not the “use of force”:
      The “use of force” in Castleman’s example is not the act of
      “sprinkl[ing]” the poison; it is the act of employing poison
      knowingly as a device to cause physical harm. That the harm
      occurs indirectly, rather than directly (as with a kick or punch),
      does not matter. Under Castleman’s logic, after all, one could say
      that pulling the trigger on a gun is not a “use of force” because it
      is the bullet, not the trigger, that actually strikes the victim.
Castleman, 134 S. Ct. at 1415 (emphasis added). Justice Sotomayor’s analysis
in Castleman is common sense.
      Rico-Mejia held that Castleman applies only in the context of the
misdemeanor crime of domestic violence defined in 18 U.S.C. § 921(a)(33)(A):
“By its express terms, Castleman’s analysis is not applicable to the physical
force requirement for a crime of violence.” 859 F.3d at 322. This confuses the
different legal questions discussed in Castleman. Certainly, Castleman held
that the misdemeanor crime of domestic violence encompasses “the slightest
offensive touching”—that is, the degree of force necessary for common-law
battery. Castleman, 134 S. Ct. at 1410 (quoting Johnson v. United States,
559 U.S. 133, 139, 130 S. Ct. 1265, 1270 (2010)). The Court included a footnote
acknowledging that “[t]he Courts of Appeals have generally held that mere
offensive touching cannot constitute the ‘physical force’ necessary to a ‘crime
of violence.’” Castleman, 134 S. Ct. at 1411 n.4. And the Court explained that
“[n]othing in today’s opinion casts doubt on these holdings, because—as we
explain—‘domestic violence’ encompasses a range of force broader than that
which constitutes ‘violence’ simpliciter.” Id. (emphasis in original).
      But the requisite degree or “range” of force is an issue entirely separate
from whether that force is applied directly or indirectly.        As Castleman
specified, if the degree of force is sufficient, it “does not matter” whether “the
                                       17
    Case: 16-41218    Document: 00514337367      Page: 18   Date Filed: 02/06/2018



                                  No. 16-41218
harm occurs indirectly, rather than directly.”      Id. at 1415.     Thus, though
Castleman does not alter the degree of force this circuit requires to satisfy the
“crime of violence” enhancement, it ought to abrogate our decisions holding
that indirect applications of force are distinct and insufficient.
      Every other circuit to address this issue has applied Castleman’s direct-
indirect analysis in the “crime of violence” or “violent felony” context.
See United States v. Ellison, 866 F.3d 32, 37 (1st Cir. 2017) (Barron, J.) (finding
“no argument as to why the logic of Castleman is inapplicable” to the “crime of
violence” analysis); United States v. Hill, 832 F.3d 135, 144 (2d Cir. 2016)
(Livingston, J.) (relying on Castleman to determine that Hobbs Act robbery
constitutes a “crime of violence”); United States v. Chapman, 866 F.3d 129, 133
(3d Cir. 2017) (Greenaway, J.) (holding that Castleman “rejected the contention
that knowingly or intentionally poisoning another person does not constitute a
use of force”); United States v. Reid, 861 F.3d 523, 529 (4th Cir. 2017)
(Niemeyer, J.) (holding that Castleman precludes the “argument that the
phrase ‘use of physical force’ excludes indirect applications”) (emphasis in
original); United States v. Verwiebe, 874 F.3d 258, 261 (6th Cir. 2017) (Sutton,
J.) (relying on Castleman to reject the claim that “tripping somebody into
oncoming traffic, or for that matter perpetrating a sarin gas attack, would not
be a crime of violence”); Hill v. United States, 877 F.3d 717, 720 (7th Cir. 2017)
(Easterbrook, J.) (citing Castleman to hold that “administering poison”
satisfies the “use of force” requirement for a “violent felony”); United States v.
Rice, 813 F.3d 704, 706 (8th Cir. 2016) (Murphy, J.) (relying on Castleman to
hold that second degree battery “includes the use of physical force as an
element”); United States v. Calvillo-Palacios, 860 F.3d 1285, 1291 (9th Cir.
2017) (O’Scannlain, J.) (“Castleman explicitly rejected the poison hypothetical
frequently employed by other circuits”); United States v. Benton, 876 F.3d 1260,
                                        18
    Case: 16-41218    Document: 00514337367      Page: 19   Date Filed: 02/06/2018



                                  No. 16-41218
1263 (10th Cir. 2017) (Briscoe, J.) (relying on Castleman to hold that
aggravated assault with a deadly weapon is a “crime of violence”); United
States v. Haldemann, 664 F. App’x 820, 822 (11th Cir. 2016) (per curiam)
(relying on Castleman to hold that “whether that use of force occurs indirectly,
rather than directly, by way of the defendant’s actions is of no consequence”);
United States v. Redrick, 841 F.3d 478, 484 (D.C. Cir. 2016) (Silberman, J.)
(relying on Castleman to reject the poison hypothetical).
      When every other circuit interprets a Supreme Court decision in one
way, and we interpret it another, it is worth considering whether we are
mistaken.    Rico-Mejia devoted a mere three sentences to distinguishing
Castleman, and the opinion did not acknowledge the circuit split. Because this
court stands alone in holding the nonsensical position that murdering someone
with poison is not a “crime of violence,” it is time to take another look.




                                       19
