     Case: 12-10691       Document: 00512342339         Page: 1     Date Filed: 08/15/2013




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

                                                                            FILED
                                                                          August 15, 2013

                                       No. 12-10691                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

MIGUEL GALVEZ-MORALES,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        of the Northern District of Texas
                             USDC No. 3:12-CR-00022


Before DENNIS, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Miguel Galvez-Morales (“Galvez-Morales”) pleaded
guilty to illegal reentry following deportation in violation of 8 U.S.C. § 1326(a)
and was sentenced to 30 months’ imprisonment. He appeals the eight-level
sentence enhancement he received pursuant to U.S.S.G. § 2L1.2(b)(1)(C) for
having previously committed an aggravated felony. Because Galvez-Morales’
2010 Texas conviction for assault of a public servant is properly classified as a



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-10691

crime of violence and therefore as an aggravated felony under § 2L1.2(b)(1)(C),
we affirm his sentence.
                                       I.
      In 2010, Galvez-Morales pleaded guilty in Texas to assault of a public
servant. A person commits the Texas offense of assault “if the person
intentionally, knowingly, or recklessly causes bodily injury to another, including
the person’s spouse.” Tex. Penal Code Ann. § 22.01(a)(1). The offense is a felony
of the third degree, inter alia, “if the offense is committed against a person the
actor knows is a public servant while the public servant is lawfully discharging
an official duty.” Id. § 22.01(b)(1). Galvez-Morales’ Texas indictment charged
that on or about December 3, 2009, he
      did unlawfully . . . intentionally, knowingly and recklessly cause
      bodily injury to [the victim] by STRIKING [the victim] WITH
      DEFENDANT’S HAND and [the victim] was at the time of said
      offense a public servant, namely: a DALLAS POLICE OFFICER,
      engaged in the lawful discharge of an official duty and [Galvez]
      knew that [the victim] was a public servant.
In his judicial confession, Galvez-Morales admitted that he committed the
offense “exactly as alleged in the indictment in this cause.”
      On December 20, 2011, Galvez-Morales was arrested by immigration
authorities and charged with illegal reentry following deportation in violation
of 8 U.S.C. § 1326. Galvez-Morales pleaded guilty. The presentence report
recommended an eight-level sentence enhancement pursuant to U.S.S.G.
§ 2L1.2(b)(1)(C) for Galvez-Morales’ 2010 Texas conviction for assault of a public
servant. The district court agreed, overruling Galvez-Morales’ objection. The
district court sentenced Galvez-Morales to 30 months’ imprisonment.
                                       II.
      Galvez-Morales now appeals the district court’s application of the eight-
level enhancement to his sentence. We review de novo whether the district court


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                                    No. 12-10691

properly categorized a prior offense as an aggravated felony. See United States
v. Flores-Gallo, 625 F.3d 819, 821 (5th Cir. 2010). Where, as in the present case,
the statute of conviction defines multiple offenses, at least one of which does not
describe an aggravated felony, we apply a modified categorical approach. United
States v. Medina-Torres, 703 F.3d 770, 774 (5th Cir. 2012). Under the modified
categorical approach, we may examine the charging document, written plea
agreement, transcript of a plea colloquy, or any explicit factual finding by the
trial judge to which the defendant assented, in order “to determine whether the
guilty plea conviction ‘necessarily’ fell under a particular subsection of the
statute that meets the aggravated felony criterion.” Rodriguez v. Holder, 705
F.3d 207, 210-11 (5th Cir. 2013).
      Pursuant to § 2L1.2(b)(1)(C), a defendant convicted of illegal reentry
receives an eight-level sentencing enhancement when the defendant was
previously deported after a conviction for an aggravated felony. The term
“aggravated felony” has the meaning given to the term in 8 U.S.C. § 1101(a)(43).
U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(C) cmt. 3. Section 1101(a)(43)
defines aggravated felony as, inter alia, “a crime of violence (as defined in section
16 of Title 18, but not including a purely political offense) for which the term of
imprisonment is at least one year.” 8 U.S.C. § 1101(a)(43)(F). Section 16 defines
a crime of violence as:
      (a) an offense that has as an element the use, attempted use, or
      threatened use of physical force against the person or property of
      another, or
      (b) any other offense that is a felony and that, by its nature, involves
      a substantial risk that physical force against the person or property
      of another may be used in the course of committing the offense.
18 U.S.C. § 16. The Texas offense of assault does not satisfy § 16(a) because it
does not have the use, attempted use, or threatened use of physical force as an
element. See United States v. Villegas-Hernandez, 468 F.3d 874, 878-79 (5th Cir.


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2006). Therefore, Galvez-Morales’ offense will qualify as an aggravated felony
only if it constitutes a crime of violence under § 16(b).
      “Section 16(b) encompasses crimes that, while capable of being committed
without the use of physical force, always entail a substantial risk that physical
force—defined as ‘destructive or violent force’—may be used.” Rodriguez, 705
F.3d at 213 (quoting Larin-Ulloa v. Gonzales, 462 F.3d 456, 465 (5th Cir. 2006)).
“A ‘substantial risk requires a strong probability that the application of physical
force during the commission of a crime will occur.’” United States v. Landeros-
Gonzales, 262 F.3d 424, 427 (5th Cir. 2001) (quoting United States v. Rodriguez-
Guzman, 56 F.3d 18, 20 (5th Cir. 1995)). “Section 16(b) sweeps more broadly
than § 16(a).” Leocal v. Ashcroft, 543 U.S. 1, 10 (2004). It “covers offenses that
naturally involve a person acting in disregard of the risk that physical force
might be used against another in committing an offense.” Id. It does not,
however, encompass merely negligent conduct. Id.
      Galvez-Morales’ indictment charged that he “intentionally, knowingly and
recklessly cause[d] bodily injury to [the victim] by STRIKING [the victim] WITH
DEFENDANT’S HAND,” and he admitted in his plea that he committed the
offense “exactly as alleged in the indictment.” Under the modified categorical
approach, we may take into account Galvez-Morales’ charging sheet and guilty
plea “to pare down [the] statute to determine if a violation of part of the statute
constitutes a crime of violence when the statute as a whole categorically does
not.” Perez-Munoz v. Keilser, 507 F.3d 357, 361 (5th Cir. 2007). Because Galvez-
Morales admitted that he acted intentionally and knowingly to cause bodily
injury by striking the victim with his hand, we need not reach the question of
whether the offense committed with the lesser mens rea of recklessness would
also qualify as a crime of violence pursuant to § 16(b).
      The offense of intentionally and knowingly causing bodily injury to
another person involves a substantial risk that a person will use physical force

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                                  No. 12-10691

to commit the offense. “[W]hen analyzing the operative phrase ‘substantial risk,’
it is not necessary that [the risk] must occur in every instance; rather a
substantial risk requires a strong probability that the event, in this case the
application of physical force during the commission of the crime, will occur.”
Rodriguez, 705 F.3d at 213 (alterations in original) (internal quotation marks
omitted). Although one can hypothesize scenarios in which a person may
intentionally cause bodily injury without resorting to physical force, this is not
the proper inquiry. See James v. United States, 550 U.S. 192, 208 (2007) (holding
that for the purpose of defining a violent felony pursuant to 18 U.S.C. § 924(e),
the proper inquiry is whether the offense “in the ordinary case, presents a
serious risk of injury to another”). “Being able to imagine unusual ways the
crime could be committed without the use of physical force does not prevent it
from qualifying as a crime of violence under § 16(b).” Perez-Munoz, 507 F.3d at
364. With regard to Galvez-Morales’ offense, in the ordinary case, when the
defendant is charged with and admits to intentionally and knowingly causing
bodily injury to a public servant by striking him with the defendant’s hand, the
defendant uses or substantially risks using physical force to commit the offense.
Therefore, under the modified categorical approach, Galvez-Morales’ prior
conviction assault of a public servant with an intentional, knowing mens rea
qualifies as a crime of violence under § 16(b). Because it is a crime of violence,
it therefore qualifies as an aggravated felony for the purpose of § 2L1.2(a). The
district court did not err in assigning an eight-level sentencing enhancement to
Galvez-Morales.
                                CONCLUSION
      For the aforementioned reasons, we AFFIRM Galvez-Morales’ sentence.




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