     Case: 12-41231       Document: 00512465250         Page: 1     Date Filed: 12/09/2013




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

                                                                            FILED
                                                                         December 9, 2013

                                       No. 12-41231                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee
v.

SERGIO RICO-MENDOZA,

                                                  Defendant - Appellant



                   Appeals from the United States District Court
                        for the Southern District of Texas
                            U.S.D.C. No. 2:12-CR-311-1


Before BARKSDALE, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
       Sergio Rico-Mendoza pleaded guilty to illegal reentry after deportation in
violation of 8 U.S.C. § 1326 and was sentenced to fifty-seven months of
imprisonment. Rico-Mendoza appeals his sentence, arguing that the district
court incorrectly applied a sixteen-level “crime of violence” enhancement based
on his prior Iowa conviction for aggravated assault. Because we conclude that
Rico-Mendoza’s Iowa conviction was not a crime of violence, we VACATE his
sentence and REMAND for resentencing.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-41231

                                 I. Background
      Rico-Mendoza pleaded guilty to one count of illegal reentry following
deportation in violation of 8 U.S.C. § 1326(a), (b). The pre-sentence investigation
report (“PSR”) recommended a sixteen-offense-level increase pursuant to U.S.
SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 2L1.2(b)(1)(A)(ii) (2011) on the
ground that his 2003 Iowa conviction for aggravated assault was a crime of
violence. At sentencing, Rico-Mendoza objected to the sixteen-offense-level
increase, arguing that his prior Iowa conviction did not constitute a crime of
violence. The district court overruled the objection and sentenced Rico-Mendoza
to fifty-seven months of imprisonment. Rico-Mendoza appealed.
                                 II. Discussion
      Under the Guidelines, a defendant convicted of illegal reentry is subject
to a sixteen-offense-level sentence enhancement if he was convicted of a crime
of violence prior to his removal or deportation. U.S.S.G. § 2L1.2(b)(1)(A)(ii). The
Application Notes to the Guidelines define a “crime of violence” as: (1) one of
several enumerated offenses, including “aggravated assault,” or (2) “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). Rico-Mendoza argues that his Iowa conviction
does not fall under either definition.
      Characterization of a prior offense as a crime of violence is a question of
law that we review de novo. United States v. Rodriguez, 711 F.3d 541, 548 (5th
Cir.) (en banc), cert. denied, No. 12-10695, 2013 WL 2617911 (U.S. Nov. 4, 2013).
“When determining whether a prior conviction qualifies as a crime of violence
under the Guidelines, we [use] the categorical approach that the Supreme Court
first outlined in Taylor v. United States, 495 U.S. 575 (1990).” Rodriguez, 711
F.3d at 549. “Under the categorical approach, the analysis is grounded in the
elements of the statute of conviction rather than a defendant’s specific conduct.”

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Id.; see also United States v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2004)
(en banc). “[I]f the statute of conviction contains a series of disjunctive elements,
we may look beyond the statute to certain records made or used in adjudicating
guilt to determine which subpart of the statute formed the basis of the
conviction.” United States v. Esparza-Perez, 681 F.3d 228, 230 (5th Cir. 2012)
(citation omitted).    “These records are generally limited to the charging
document, written plea agreement, transcript of the plea colloquy, and any
explicit factual findings by the trial judge to which the defendant assented.” Id.
(citation and internal quotation marks omitted).
      Rico-Mendoza’s charging document alleged that he “unlawfully and
willfully, without justification, commit[ted] an assault . . . and did use or display
a dangerous weapon . . . . in violation of Sections 708.1 and 708.2(3) of the 2001
Code of Iowa as amended.” The judgment likewise reflected that Rico-Mendoza
pleaded guilty to “Aggravated Assault in violation of Iowa Code Sections 708.1
and 708.2(3).” Section 708.1 of the Iowa Code defines the crime of “assault” as
follows:
      An assault as defined in this section is a general intent crime. A
      person commits an assault when, without justification, the person
      does any of the following:
      1.     Any act which is intended to cause pain or injury to, or which
             is intended to result in physical contact which will be
             insulting or offensive to another, coupled with the apparent
             ability to execute the act.
      2.     Any act which is intended to place another in fear of
             immediate physical contact which will be painful, injurious,
             insulting, or offensive, coupled with the apparent ability to
             execute the act.
      3.     Intentionally points any firearm toward another, or displays
             in a threatening manner any dangerous weapon toward
             another.




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IOWA CODE § 708.1 (2003) (the final two paragraphs, which are not relevant to
this action, are omitted). In turn, section 708.2(3) provides, “[a] person who
commits an assault, as defined in section 708.1, and uses or displays a dangerous
weapon in connection with the assault, is guilty of an aggravated misdemeanor.”
IOWA CODE § 708.2(3) (2003).
      The applicable records do not allow us to determine further which
subparts or disjunctive elements of the statutes formed the basis of Rico-
Mendoza’s conviction. We therefore must determine whether “the least culpable
act constituting a violation” of the statutes of conviction meets the definition of
the enumerated offense of aggravated assault or has as an element the use,
attempted use, or threatened use of physical force against the person of another.
United States v. Gonzalez-Ramirez, 477 F.3d 310, 315–16 (5th Cir. 2007); see
also United States v. Gore, 636 F.3d 728, 733–34 & n.19 (5th Cir. 2011), cert.
denied, 132 S. Ct. 1633 (2012). The least culpable act constituting a violation of
the statutes consistent with the conviction here at issue occurs when the
defendant “[i]ntentionally points any firearm toward another, or displays in a
threatening manner any dangerous weapon toward another.” §§ 708.1(3),
708.2(3).1
A. Enumerated Offense of Aggravated Assault
      Because aggravated assault is not defined by the Guidelines, “we look to
the generic, contemporary meaning of aggravated assault, employing a common
sense approach that looks to the Model Penal Code, the LaFave and Scott
treatises, modern state codes, and dictionary definitions.” Esparza-Perez, 681
F.3d at 229 (citation and internal quotation marks omitted). In Esparza-Perez,
we relied on these sources to conclude that “the generic, contemporary meaning


      1
         Section 708.2(3) (“uses or displays a dangerous weapon in connection with the
assault”) is redundant of section 708.1(3) and adds no greater specificity to the offense.
Therefore, we refer only to the language of section 708.1(3).

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                                  No. 12-41231

of aggravated assault is an assault carried out under certain aggravating
circumstances.” Id. at 231 (citing United States v. Fierro-Reyna, 466 F.3d 324,
328 (5th Cir. 2006)). “Assault, in turn, requires proof that the defendant either
caused, attempted to cause, or threatened to cause bodily injury or offensive
contact to another person.” Esparza-Perez, 681 F.3d at 231. “When the statute
of conviction encompasses prohibited behavior that is not within the plain,
ordinary meaning of [aggravated assault], the conviction is not a crime of
violence as a matter of law.” Fierro-Reyna, 466 F.3d at 327 (citation and internal
quotation marks omitted). Thus, we consider the statutes under which Rico-
Mendoza was convicted to see if they require (1) causing, attempting to cause,
or threatening to cause bodily injury or offensive contact to another (2) under
aggravating circumstances.
      While Rico-Mendoza’s conviction may have included the traditional
aggravating circumstance of using a dangerous weapon, he “was not convicted
of the enumerated offense of aggravated assault because his [Iowa] offense did
not require proof of an underlying assault and therefore does not comport with
the generic, contemporary definition of that crime.” Esparza-Perez, 681 F.3d at
231. As construed by state and federal courts in Iowa, sections 708.1(3) and
708.2(3) do not require that the defendant cause, attempt to cause, or threaten
to cause bodily injury or offensive contact to another. Unlike the “generic
meaning,” sections 708.1(3) and 708.2(3) do not require proof that the defendant
intended to use the weapon, threatened to use the weapon, or that the acts were
intended or reasonably calculated to place another in fear of harmful or offensive
contact. See, e.g., United States v. Thomas, 565 F.3d 438, 440–42 (8th Cir. 2009)
(holding that the defendant committed assault under section 708.1(3) where he
“came into the apartment for about two seconds with a gun in his right hand,”
“held the gun straight down at his side,” said “wrong door,” then “closed the door
and started knocking on the other apartment’s door”); State v. Harris, 705

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N.W.2d 105, 2005 WL 1397907 (Iowa Ct. App. June 15, 2005) (table decision
without published opinion) (finding substantial evidence for conviction under
section 708.1(3) where tenants in disagreement with their landlord peered into
the window of the landlord’s office while attempting to get the landlord’s
attention and saw the landlord, “who appeared to be very angry,” stand up from
behind his desk with a rifle in his hands in a “ready” position); State v. Mott, No.
00-575, 2001 WL 433395, at *1–2 (Iowa Ct. App. Apr. 27, 2001) (unreported)
(finding sufficient evidence for conviction under section 708.1(3) where the
defendant, who seemed upset, stabbed a calculator and a desk with a knife, but
did not display the knife at the victim, point the knife at the victim, or approach
the victim with the knife). While we recognize that pointing a gun at someone
is a serious offense, we are constrained by precedent to conclude that these are
not “sufficiently minor” differences from the definition of generic aggravated
assault.   See Esparza-Perez, 681 F.3d at 231 (quoting United States v.
Mungia-Portillo, 484 F.3d 813, 817 (5th Cir. 2007)).
      In effect, section 708.1(3) proscribes the same conduct that elevates the
offense of “assault” to “aggravated assault” under section 708.2(3), i.e., the
presence of a dangerous weapon, without clearly requiring the commission of the
acts constituting an underlying generic “assault.” Rico-Mendoza’s crime of
conviction therefore was not a crime of violence based on the enumerated offense
of aggravated assault as listed in U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).
B. Physical Force Element
       The residual clause to comment note 1(B)(iii) defines “crime of violence”
as any offense 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).
To be an element of the offense, “the intentional use of force must be a
constituent part of a claim that must be proved for the claim to succeed.” United
States v. Vargas-Duran, 356 F.3d 598, 605 (5th Cir. 2004) (en banc) (citation and

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                                  No. 12-41231

internal quotation marks omitted).       “If any set of facts would support a
conviction without proof of that component, then the component most decidedly
is not an element—implicit or explicit—of the crime.” Id. For Guidelines
purposes, physical force 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).
      For much the same reason that the least culpable means of violating the
statutes of conviction does not constitute the enumerated offense of aggravated
assault, it likewise does not have as an element the use, attempted use, or
threatened use of physical force against another. See Esparza-Perez, 681 F.3d
at 232 (“Assault, as commonly understood, by its nature requires proof of the
use, attempted use, or threatened use of offensive contact against another
person.”).   As illustrated above, the statutes require proof only that the
defendant pointed a firearm at another or displayed a dangerous weapon in a
threatening manner toward another. See § 708.1(3).           Although there are
certainly situations encompassed by the statute that would constitute a
threatened use of physical force, the statute does not require intent to harm or
apprehension by the victim of potential harm. As such, it could include an
accidental or jesting pointing of the weapon, which would not fall under the “use,
attempted use, or threatened use” of physical force rubric. The statutes do not
require use of the weapon, threatened use of the weapon, touching another
person with the weapon, or that a victim even be aware that the weapon is
pointed or displayed toward them. Cf. United States v. Dominguez, 479 F.3d
345, 347–49 (5th Cir. 2007) (finding that intentionally touching or striking with
a deadly weapon against the victim’s will is a crime of violence based on the
threatened use of physical force). The least culpable means of violating the
statutes of conviction simply does not have a physical-force element as
articulated in the residual clause of U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).

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                                     III. Conclusion
       Rico-Mendoza’s Iowa conviction is not a crime of violence for purposes of
imposing       a   sixteen-offense-level          enhancement          under      U.S.S.G.
§ 2L1.2(b)(1)(A)(ii).2 Because the Government has not shown that such error
was harmless, Rico-Mendoza’s sentence is VACATED and we REMAND this
case for resentencing.




       2
         Since we conclude that the least culpable means of violating the statutes of
conviction—section 708.1(3) coupled with section 708.2(3)—is not a crime of violence, we leave
for another day whether the other subparts of the statutes constitute crimes of violence.

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