     Case: 14-10279      Document: 00512928233         Page: 1    Date Filed: 02/05/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-10279                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                February 5, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

EVERARDO FLORES,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:13-CR-302-1


Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM:*
       This is a direct criminal appeal in which Appellant challenges only his
sentence. Because we find no reversible error, we AFFIRM the district court’s
judgment.
              I.     BACKGROUND
       Everardo Flores pleaded guilty to illegal reentry following deportation in
violation of 8 U.S.C. § 1326. The probation officer calculated Flores’s total


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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offense level as 21, including a 16-level enhancement for a prior Texas state
court conviction of assault against a family member, which the probation
officer   characterized     as   a   crime       of   violence   pursuant   to   U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). 1   The state court documents provide that this assault
conviction arose under Section 22.01 of the Texas Penal Code. See Tex. Penal
Code Ann. § 22.01(a), (b)(2). In the district court, Flores did not object to the
presentence report’s (“PSR”) characterization of this assault conviction as a
crime of violence.
      At sentencing, the government moved for a further reduction of one
offense level for acceptance of responsibility, and the district court granted the
motion. Flores’s criminal history score placed him in criminal history category
IV, and his sentencing range was 57-71 months of imprisonment. Defense
counsel stated that Flores had no objections to the PSR. However, counsel
argued for a variance from the guideline sentencing range, contending that
Flores’s criminal history was overrepresented. Counsel also argued that a
variance was warranted by Flores’s cultural assimilation, his youth, and his
maturity since he returned to this country from Mexico.
      The district court denied the request for a variance and found that a
sentence within the guideline sentencing range would be appropriate.
Although the low end of the guideline range was 57 months, the district court
imposed a 56-month sentence because Flores had spent one month in
administrative custody. Flores now appeals.




      1  Flores also received a two-level reduction for acceptance of responsibility. See
§ 3E1.1(a).
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              II.   Crime of Violence
         Flores contends that the district court erred by applying the 16-level
enhancement based on his prior domestic violence assault conviction, which he
argues was not a crime of violence for purposes of § 2L1.2. We generally review
a district court’s interpretation or application of the Sentencing Guidelines de
novo and its factual findings for clear error.        United States v. Cisneros-
Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). Because Flores did not object to
the 16-level adjustment in the district court, however, his challenge on appeal
is reviewed for plain error. See United States v. Chavez-Hernandez, 671 F.3d
494, 497 (5th Cir. 2012). To succeed on plain error review, an appellant must
show (1) a forfeited error (2) that is clear or obvious and (3) that affects his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If
he makes that showing, this Court may exercise its discretion “to remedy the
error . . . only if the error seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. (internal quotation marks and citation
omitted) (alteration in opinion).
         The Sentencing Guidelines call for a 16-level increase in a defendant’s
base offense level if he previously was removed after being convicted of a crime
of violence, and the conviction receives criminal history points.         U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). The Sentencing Guidelines define a crime of violence to
include several enumerated offenses and “any other offense under federal,
state, or local law that has as an element the use, attempted use, or threatened
use of physical force against the person of another.” §2L1.2 cmt. n.1(B)(iii).
The issue before us is whether the district court plainly erred in concluding
that Flores’s Texas assault conviction qualified as a crime of violence based on
it having as an element the use, attempted use, or threatened use of physical
force.
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                                 No. 14-10279
      This Court analyzes whether a past conviction is a crime of violence
under the Guidelines by applying a categorical approach, which examines “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.) (en banc),
cert. denied, 134 S. Ct. 512 (2013). Because we look to the statute of conviction
rather than the facts of the crime, we “must presume that the conviction rested
upon nothing more than the least of the acts criminalized.” Moncrieffe v.
Holder, 133 S. Ct. 1678, 1684 (2013) (citation and internal quotation marks
omitted).
      “Physical force in the context of § 2L1.2 requires force capable of causing
pain or injury to another person.” United States v. Garcia-Figueroa, 753 F.3d
179, 185 (5th Cir. 2014) (internal quotation marks and citation omitted).
Offensive touching, without more, does not constitute the type of violent force
typically associated with a crime of violence. United States v. Herrera-Alvarez,
753 F.3d 132, 141 (5th Cir. 2014). Moreover, a defendant need not actually
employ force; the threatened use of force is sufficient. Garcia-Figueroa, 753
F.3d at 185-86.
      As previously set forth, Flores was convicted under Texas’s assault
statute, which provides that an offense is committed when an individual:
            (1) intentionally, knowingly, or recklessly causes bodily
      injury to another, including the person's spouse;
           (2) intentionally or knowingly threatens another with
      imminent bodily injury, including the person's spouse; or
            (3) intentionally or knowingly causes physical contact with
      another when the person knows or should reasonably believe that
      the other will regard the contact as offensive or provocative.
TEX. PENAL CODE ANN. § 22.01(a)(1)-(3). Although simple assault generally is
a Class A misdemeanor offense, it becomes a third-degree felony if it is

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                                        No. 14-10279
committed against a family member as defined under Texas law, and if the
defendant previously has been convicted of an enumerated offense against a
family member. § 22.01(b)(2)(A). The assault conviction at issue in the case
at bar was a third-degree felony based on Flores’s previous conviction for
domestic violence.
       Relying on United States v. Villegas-Hernandez, 468 F.3d 874 (5th Cir.
2006), Flores argues that this Court’s binding precedent establishes that a
conviction under the Texas simple assault statute does not qualify as a crime
of violence under § 2L1.2. In that case, we held that the Texas crime of simple
assault, § 22.01(a), is not a crime of violence that has as an element the use,
attempted use, or threatened use of physical force.                     Id. at 879. 2       The
government responds that Flores’s conviction was under a different subsection
of the Texas assault statute, and Flores fails to point to a published opinion
that expressly holds that a conviction under § 22.01(b)(2)(A) does not constitute
a crime of violence. Thus, the government argues that any error is not plain
under the second prong of the plain error test. Because we ultimately conclude
that Flores cannot succeed on the fourth prong of the plain error test, we will
assume arguendo that Flores has shown that there was clear or obvious error
under the first and second prongs of the plain error test. See United States v.
Davis, 602 F.3d 643, 650 (5th Cir. 2010) (explaining that we would not decide
whether appellant met the third prong of the test “because assuming without




       2 See also United States v. Cortez-Rocha, 552 F. App’x 322, 326 (5th Cir. 2014) (holding
that Texas conviction of simple assault under § 22.01 “is not a crime of violence under the
use of force clause because it merely requires that the defendant cause bodily injury to
another, which may occur from acts other than the actual, attempted, or threatened use of
physical force”); United States v. Carrillo-Soria, 214 F. App’x 444, 444 (5th Cir. 2007) (holding
that an assault under § 22.01(a)(1) and § 22.01(b)(2) does not constitute a crime of violence).

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                                  No. 14-10279
deciding that he has, the error in this case is not the sort that we should, on
plain error review, exercise our discretion to remedy”).
       With respect to the third prong of the plain error test, a “sentencing
error affects a defendant’s substantial rights if he can show a reasonable
probability that, but for the district court’s misapplication of the Guidelines,
he would have received a lesser sentence.” United States v. Mudekunye, 646
F.3d 281, 289 (5th Cir. 2011). “[A]bsent additional evidence, a defendant has
shown a reasonable probability that he would have received a lesser sentence
when (1) the district court mistakenly calculates the wrong Guidelines range,
(2) the incorrect range is significantly higher than the true Guidelines range,
and (3) the defendant is sentenced within the incorrect range.” Id.
      Flores’s level-21, category-IV range of imprisonment was 57-71 months.
Without the 16-level adjustment, his offense level would have been 13,
assuming that that the assault conviction constituted an “aggravated felony”
warranting an eight-level enhancement. See § 2L1.2(b)(1)(B). The level-13,
category-IV range of imprisonment is 24-30 months.            The district court
imposed a 56-month sentence, which is 26 months more than the maximum
30-month sentence in the level-13, category-IV range. Flores thus has shown
a reasonable probability that he would have received a lower sentence but for
the district court’s error. See Mudekunye, 646 F.3d at 289.
      As previously set forth, if an appellant satisfies the first three prongs of
the plain error test, we may exercise our discretion to remand for resentencing
only if the error seriously affects the fairness, integrity or public reputation of
the proceedings. Puckett, 556 U.S. at 135. The Supreme Court has instructed
that the “fourth prong is meant to be applied on a case-specific and fact-
intensive basis.” Id. at 142.


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                                       No. 14-10279
       Thus, we turn to the particular facts of this case. With respect to the
prior conviction at issue, the state court indictment alleged that in 2011 Flores
did “unlawfully, then and there, intentionally, knowingly and recklessly cause
bodily injury to another, namely: CECILIA MARTINEZ, . . . , a member of
defendant’s family and household and with whom the said defendant had a
dating relationship, by STRIKING COMPLAINANT WITH A HAND.” In a
state court document entitled “Judicial Confession,” Flores confessed to the
facts as alleged in the indictment.           Flores also confessed to a 2010 prior
conviction for assaulting a person with whom he had a dating relationship.
Flores expressly consented to the introduction of his “Judicial Confession”
before the state court.        This sworn confession was signed by Flores, his
attorney, and the prosecutor, and it is included in the record submitted before
this Court. Accordingly, Flores has judicially confessed to the physical use of
force in committing the offense that was relied upon as a crime of violence to
enhance his sentence. 3 Under these circumstances, we are unconvinced that
the alleged error seriously affects the fairness, integrity or public reputation of
the instant judicial proceedings. See United States v. Olano, 507 U.S. 725,
735—36 (1993) (explaining that our discretion should be exercised when a
miscarriage of justice would result). Further, as previously set forth, Flores
confessed to another domestic violence/assault conviction that occurred just
one year prior to the assault conviction at issue. Cf. Davis, 602 F.3d 650–51
(explaining that this Court would decline to exercise discretion under the



       3 We recognize that when employing the categorical approach to determine whether a
conviction constitutes a crime of violence, we do not look to the defendant’s actual criminal
conduct. United States v. Herrera-Alvarez, 753 F.3d 132, 134 (5th Cir. 2014). However, when
determining whether to exercise our discretion to remand for resentencing under the fourth
prong of the plain error test, the inquiry is conducted on a “case-specific and fact-intensive
basis.” Puckett, 556 U.S. at 142.
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                                   No. 14-10279
fourth prong in part because the defendant had violated his supervised release
under circumstances that “strongly suggested that he intended to resume the
same activities for which he initially had been convicted and imprisoned”). We
have explained that the “plain error test requires both a showing of effect on
the appellant’s substantial rights and an effect on the fairness or integrity of
the proceedings before this court may exercise its discretion to remedy the
error.” Davis, 602 F.3d at 652 (emphasis in original). The latter requirement
has not been shown in this case.
            III.   Conclusion
      For the above reasons, the district court’s judgment is AFFIRMED.




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