               Case: 12-15815       Date Filed: 07/10/2014       Page: 1 of 28


                                                                                  [PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 12-15815
                              ________________________

                       D.C. Docket No. 6:12-cr-00175-JA-TBS-1


UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                            versus
MARIO ESTRELLA,
a.k.a. Arturo Hernandez,

                                                                       Defendant-Appellant.
                              ________________________

                    On Appeal from the United States District Court
                          for the Middle District of Florida
                            ________________________


                                       (July 10, 2014)

Before MARTIN and HILL, Circuit Judges, and FULLER, * District Judge.

MARTIN, Circuit Judge:




*
  Honorable Mark E. Fuller, United States District Judge for the Middle District of Alabama,
sitting by designation.
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      Mario Estrella, a federal prisoner convicted of illegal reentry in violation of

8 U.S.C. § 1326(a) and (b)(1), appeals from the District Court’s application of a

16-level guideline enhancement pursuant to United States Sentencing Guidelines

(USSG) § 2L1.2(b)(1)(A)(ii). We must decide whether Mr. Estrella’s conviction

under Fla. Stat. § 790.19 for wantonly or maliciously throwing, hurling, or

projecting a missile, stone, or other hard substance at an occupied vehicle

constitutes a crime of violence for purposes of the USSG § 2L1.2 enhancement.

After careful review, and with the benefit of oral argument, we hold that it is not.

                I. FACTS AND PROCEDURAL BACKGROUND

      Mr. Estrella’s present troubles arise from his decision to illegally re-enter the

United States after being deported in December 2009. When law enforcement

discovered his admittedly unlawful presence in the United States in May 2012, Mr.

Estrella was charged with, and pleaded guilty to, illegal reentry in violation of 8

U.S.C. § 1326(a) and (b)(1).

      The severity of Mr. Estrella’s punishment, however, derives from a sentence

enhancement based on a transgression that took place years before he pleaded

guilty to illegal reentry. On July 7, 2004, the State of Florida alleged that Mr.

Estrella “did, in violation of Florida Statute 790.19, wantonly or maliciously throw,

hurl or project a missile, stone or other hard substance, which would produce death

or great bodily harm, at a vehicle being used or occupied by a person.” He


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apparently pleaded guilty to the offense as charged on November 17, 2004,

although the record of conviction before the sentencing court and before this Court

on appeal includes neither the judgment of conviction nor the transcript of any plea

colloquy.

      The fact of Mr. Estrella’s conviction under Fla. Stat. § 790.19, as well as a

description of his alleged conduct, was included in the Presentence Investigation

Report (PSR) prepared to assist the District Court with Mr. Estrella’s sentencing

for his illegal reentry conviction. The PSR concluded that the § 790.19 conviction

qualified as a crime of violence under USSG § 2L1.2(b)(1)(A)(ii), and

recommended that the District Court impose the corresponding 16-level

enhancement.

      Mr. Estrella objected to the proposed enhancement. He argued that his

violation of § 790.19 is not a crime of violence within the meaning of USSG

§ 2L1.2(b)(1)(A)(ii) because the statute does not have an element requiring the use,

attempted use, or threatened use of physical force against the person of another. He

argued that the statute is not on its face a USSG § 2L1.2 crime of violence because

its elements would permit conviction even if a defendant directed physical force

against property rather than a person. What is more, he argued, the record of

conviction before the District Court did not establish whether Mr. Estrella did, in

fact, direct force against a person.


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       The District Court overruled Mr. Estrella’s objection and applied the 16-

level guideline enhancement, resulting in a total offense level of 21 after applicable

downward adjustments. An offense level of 21 corresponded to a guideline range

of 46 to 57 months given Mr. Estrella’s criminal history category. Ultimately, the

District Court showed mercy on Mr. Estrella and sentenced him to 26 months. But

had the District Court sustained Mr. Estrella’s objection, his offense level would

have fallen to 10,1 corresponding to a recommended guideline range of just 10 to

16 months.

                               II. LEGAL FRAMEWORK

       “We review de novo whether a defendant’s prior conviction qualifies as a

‘crime of violence’ under the Sentencing Guidelines.” United States v. Palomino

Garcia, 606 F.3d 1317, 1326 (11th Cir. 2010) (some quotation marks omitted). A

conviction is considered a crime of violence for purposes of USSG § 2L1.2 if it

falls under a list of enumerated offenses or meets an elements-based definition.

USSG § 2L1.2, comment. (n.1(B)(iii)). We are concerned here only with the

elements-based definition, which permits application of the enhancement only if

the prior conviction upon which the enhancement is based “has as an element the

use, attempted use, or threatened use of physical force against the person of


1
 Absent the 16-level crime of violence enhancement, Mr. Estrella would not qualify for the
additional one point reduction for acceptance of responsibility under USSG § 3E1.1(b) that was
applied when calculating his original guideline range.
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another.” Id. To decide whether a conviction qualifies as a crime of violence

under this definition, courts apply what has become known as the “categorical

approach,” and depending on the statutory structure of the crime of conviction may

apply a variant of the categorical approach known as the “modified categorical

approach.” See Descamps v. United States, 570 U.S. ___, 133 S. Ct. 2276, 2281

(2013).

                        A. CATEGORICAL APPROACH

      The first step in determining whether a conviction qualifies as a crime of

violence under USSG § 2L1.2 is to analyze the statute of conviction under the

categorical approach set forth in Taylor v. United States, 495 U.S. 575, 110 S. Ct.

2143 (1990). See, e.g., Palomino Garcia, 606 F.3d at 1336–37. Under this

approach, we “look no further than the statute and judgment of conviction,” id. at

1336, and “compare only the elements of the statute forming the basis of the

defendant’s conviction” and the generic definition of a crime of violence. United

States v. Howard, 742 F.3d 1334, 1345 (11th Cir. 2014) (quotation marks omitted).

This analysis permits application of the USSG § 2L1.2 crime of violence

enhancement only if the statute on its face “requires the government to establish,

beyond a reasonable doubt and without exception,” an element involving the use,

attempted use, or threatened use of physical force against a person for every charge

brought under the statute. Donawa v. U.S. Attorney Gen., 735 F.3d 1275, 1281


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(11th Cir. 2013); see also Descamps, 133 S. Ct. at 2285–86 (holding that

conviction under a California burglary statute did not qualify as a predicate offense

under the Armed Career Criminal Act because the State, to get a conviction, “need

not prove” an element of the generic federal offense).

      Whether, in fact, the person suffering under this particular conviction

actually used, attempted to use, or threatened to use physical force against a person

is “quite irrelevant.” Donawa, 735 F.3d at 1280 (quoting Moncrieffe v. Holder,

___ U.S. ___, 133 S. Ct. 1678, 1684 (2013)) (quotation mark omitted). Instead,

the categorical approach focuses on whether in every case a conviction under the

statute “necessarily involves” proof of the element. Id.; see also Howard, 742 F.3d

at 1345 (“If the statute criminalizes several acts, we must assume that the

conviction rested upon nothing more than the least of the acts criminalized, and

then determine whether even those acts are encompassed by the generic federal

offense. A conviction will qualify as an ACCA predicate under the categorical

approach only if the statute’s elements are the same as, or narrower than, those of

the generic offense.” (citation omitted) (quotation marks omitted)). Even if the

government could prove an element if it were called upon to do so, this does not

affect the answer to the question courts must ask when applying the categorical

approach—whether the crime of conviction “has” the element, as USSG § 2L1.2




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requires before the crime of violence enhancement is applied. See USSG § 2L1.2,

comment. (n.1(B)(iii)).

                  B. MODIFIED CATEGORICAL APPROACH

      In most cases, the categorical approach should be the beginning and end of

the analysis. But in a “narrow range of cases”—where the elements do not

necessarily meet the generic crime of violence definition—it is appropriate for

courts to apply the modified categorical approach. Descamps, 133 S. Ct. at 2281,

2287; see also Howard, 742 F.3d at 1345 (“The modified categorical approach

does not come into the picture when a statute criminalizes only categorically

generic crimes; it is not needed.”). In applying the modified categorical analysis,

courts “look to the fact of conviction and the statutory definition of the prior

offense, as well as any charging paper and jury instructions to ascertain whether, as

a formal matter, committing the offense required committing a ‘crime of

violence.’” United States v. Rosales-Bruno, 676 F.3d 1017, 1020 (11th Cir. 2012)

(some quotation marks omitted); see also Shepard v. United States, 544 U.S. 13,

26, 125 S. Ct. 1254, 1263 (2005) (defining the scope of judicial records that can be

relied upon by courts applying the modified categorical approach).

      But before engaging the modified categorical inquiry, courts must decide

whether they are confronted with a prior conviction that warrants application of the

modified analysis. The Supreme Court has only approved using the modified


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categorical approach “when a prior conviction is for violating a so-called ‘divisible

statute.’” Descamps, 133 S. Ct. at 2281, 2286. A divisible statute is one that “sets

out one or more elements of the offense in the alternative.” Id. at 2281; see also

Howard, 742 F.3d at 1345–46 (“Descamps tells us that a statute is divisible if it

‘sets out one or more elements of the offense in the alternative—for example,

stating that burglary involves entry into a building or an automobile.’” (quoting

Descamps, 133 S. Ct. at 2281)). In a “typical case” brought under such a statute,

“the prosecutor charges one of those two alternatives, and the judge instructs the

jury accordingly.” Descamps, 133 S. Ct. at 2284. A statutory scheme that is

divisible, the Supreme Court elaborated, is one in which “[a] prosecutor charging a

violation . . . must generally select the relevant elements from its list of

alternatives. And the jury, as instructions in the case will make clear, must then

find that element, unanimously and beyond a reasonable doubt.” Id. at 2289

(footnote omitted) (citation omitted).

      By contrast, “[n]one of that is true of an overbroad, indivisible statute.” Id.

at 2290. “A sentencing court, to be sure, can hypothetically reconceive [an

indivisible] statute in divisible terms.” Id. But if the statutory scheme is not such

that it would typically require the jury to agree to convict on the basis of one

alternative as opposed to the other, then the statute is not divisible in the sense

required to justify invocation of the modified categorical approach. Id. This is


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true “even if in many cases[] the jury could have readily reached consensus” on a

fact that would satisfy the crime of violence definition. Id. If the jury is not

required to decide which of the statute’s alternative bases for guilt applies to a

given defendant, then “a later sentencing court cannot supply that missing

judgment.” Id.

      The Supreme Court’s effort to distinguish divisible and indivisible statutes

makes clear that we should ask ourselves the following question when confronted

with a statute that purports to list elements in the alternative: If a defendant

charged with violating the statute went to trial, would the jurors typically be

required to agree that their decision to convict is based on one of the alternative

elements? If that is true, then the statute is divisible, and the sentencing court can

turn to the modified categorical approach to determine which of the alternative

elements formed the basis of the particular conviction underlying the proposed

sentence enhancement. If not, then the statute is both overbroad and indivisible

and cannot serve as a predicate offense for purposes of a sentence enhancement.

      Determining whether a statute is divisible may be difficult sometimes. See

id. at 2285 n.2. Still, “courts should usually be able to determine whether a statute

is divisible by simply reading its text and asking if its elements or means are

drafted in the alternative.” Howard, 742 F.3d at 1346 (quotation marks omitted).

In conducting this analysis in our Circuit, sentencing courts “are bound to follow


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any state court decisions that define or interpret the statute’s substantive elements

because state law is what the state supreme court says it is.” Id. at 1346 & n.5

(explaining the law of this Circuit, while noting that “Descamps left open the

question whether sentencing courts deciding divisibility issues should be bound by

state court decisions about the elements of a crime”). Barring guidance from the

state courts interpreting the statute, courts should apply traditional tools of

statutory interpretation to decide whether a statute sweeping broader than a generic

offense is divisible and thus amenable to analysis under the modified categorical

approach.

       Once a court confirms that the statute of prior conviction is divisible, then—

and only then—can it analyze the conviction under the modified categorical

approach. Descamps, 133 S. Ct. at 2285; see also Donawa, 735 F.3d at 1280–81.

This approach permits courts to examine not just the statute of conviction but also

reliable materials in the record of conviction “to determine whether the prior

conviction falls under a particular statutory phrase that qualifies it as a ‘crime of

violence.’” 2 Rosales-Bruno, 676 F.3d at 1020. “Where, as here, the prior



2
 Of course, as this Court recognized in Howard, application of the modified categorical
approach may not be necessary even for a divisible statute if none of the alternative elements
qualifies as a crime of violence. 742 F.3d at 1346. “If that is the case, even though the statute is
divisible, the court can and should skip over any Shepard documents and simply declare that the
prior conviction is not a predicate offense based on the statute itself.” Id. The point here is that
courts should feel free to pursue the most efficient means of deciding a particular case, id. at
1347, provided they adhere strictly to the several reminders federal courts have recently received
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conviction stems from a guilty plea, the materials we review include the terms of

the charging document, the terms of a plea agreement or transcript of colloquy . . .

[or] some comparable judicial record of this information. In that vein, we may also

rely on facts contained in a presentence investigation report (PSR), so long as those

facts are undisputed.” Id. (citation omitted) (quotation marks omitted).3

       But, as the Supreme Court has recognized, treating the modified categorical

approach as entirely untethered from the principles underlying the categorical

approach is not appropriate. See Descamps, 133 S. Ct. at 2285. Rather, the

modified categorical approach “retains the categorical approach’s central feature: a

focus on the elements, rather than the facts, of a crime.” Id. The purpose is to

avoid “the sort of post hoc investigation into the facts of predicate offenses that we

have long deemed undesirable.” Moncrieffe, 133 S. Ct. at 1690. And here, that

limitation also effectuates the Sentencing Commission’s intent—USSG § 2L1.2’s

crime of violence definition explicitly calls for courts to focus on the elements of a

prior conviction, not the facts of the prior conduct resulting in that conviction.

This is evidence that the Commission did not “want[] to increase a sentence based

on the facts of a prior offense,” for if it had desired such an inquiry “it presumably

would have said so.” Descamps, 133 S. Ct. at 2287.


from the Supreme Court that the focus is always on the elements of a prior conviction and never
on the facts of the underlying conduct.
3
  Because it makes no difference in the outcome here, we assume that continued reliance on
undisputed facts included in the PSR is appropriate after Descamps.
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      When we analyze a particular conviction under a divisible statute in an effort

to determine which of the alternative elements formed the basis of the prior

conviction, we must ask: Which “version” of the divisible statute formed the basis

of the conviction—that is, which of the alternative elements did the jury all agree

to or the defendant necessarily admit? See Descamps, 133 S. Ct. at 2284; Shepard,

544 U.S. at 25–26, 125 S. Ct. at 1262–63 (plurality opinion). The goal is to

determine “which statutory phrase was the basis for the conviction,” Johnson, 559

U.S. at 144, 130 S. Ct. at 1273, to ensure that the defendant was “convicted, in the

deliberate and considered way the Constitution guarantees,” Descamps, 133 S. Ct.

at 2290, of an offense meeting the USSG § 2L1.2 crime of violence definition.

Whether the defendant’s conduct is such that he “hypothetically could have been

convicted” of a crime of violence is irrelevant, even when engaging the modified

categorical inquiry. Id. at 2288. Such a “circumstance-specific review is just what

the categorical approach precludes. And as we have explained, we adopted the

modified approach to help implement the categorical inquiry, not to undermine it.”

Id. at 2292–93.

      This is all to say that a sentencing court applying the modified categorical

approach may not “look beyond the elements to the evidence . . . to explore

whether a person convicted of one crime could also have been convicted of

another, more serious offense.” Id. at 2292. The Supreme Court has clearly told


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us, as well as the sentencing courts, that we must resist the urge, tempting though it

may be, to apply an enhancement based on the conduct in which a defendant

actually engaged. Where the judge or jury made no finding of an element at the

time a defendant was actually convicted of the earlier crime, it is decidedly not our

role to step in and do it now. Rather, the enhancement must be based only on the

elements for which the defendant was convicted at the time.

                                III. APPLICATION

      With this legal backdrop in mind, we turn to Mr. Estrella’s sentence. The

District Court’s application of the crime of violence enhancement was proper only

if Mr. Estrella’s prior conviction “has as an element the use, attempted use, or

threatened use of physical force against the person of another.” USSG § 2L1.2,

comment. (n.1(B)(iii)). Mr. Estrella argues that his conviction (1) has no element

requiring the use of “physical” force as defined in Johnson v. United States, 559

U.S. 133, 130 S. Ct. 1265 (2010) (the quantum-of-force requirement), and (2) has

no element requiring that the force used, attempted, or threatened be directed

against a person (the against-a-person requirement).

      The District Court based the enhancement on Mr. Estrella’s prior conviction

under Fla. Stat. § 790.19, which provides:

      Whoever wantonly or maliciously, shoots at, within, or into, or throws
      any missile or hurls or projects a stone or other hard substance which
      would produce death or great bodily harm, at, within, or in any public
      or private building, occupied or unoccupied, or public or private bus
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      or any train, locomotive, railway car, caboose, cable railway car,
      street railway car, monorail car, or vehicle of any kind which is being
      used or occupied by any person, or any boat, vessel, ship, or barge
      lying in or plying the waters of this state, or aircraft flying through the
      airspace of this state shall be guilty of a felony of the second
      degree . . . .

The only two elements that might equate, either in isolation or when considered

together, to an element requiring the use, attempted use, or threatened use of

physical force against a person are (1) the element regarding the type of structure

targeted or (2) the mens rea element. We analyze each of these elements in turn,

but ultimately conclude that neither element, in isolation or in tandem, satisfies the

against-a-person requirement. This conclusion settles the question now before us,

and there is no need to consider whether the quantum-of-force requirement is met,

because both aspects of the crime of violence definition must be met before the

enhancement may be applied. It was therefore error for the District Court to

enhance Mr. Estrella’s sentence under USSG § 2L1.2(b)(1)(A)(ii).

             A. THE TYPE-OF-STRUCTURE-TARGETED ELEMENT

      Applying the categorical approach first, we conclude that the element

defining the type of structure targeted is not one that categorically means that there

was physical violence used, attempted, or threatened against a person. Rather, it is

an element that describes a range of conduct, some of which does not meet the

against-a-person requirement. Cf. Donawa, 735 F.3d at 1280 (“The modified

categorical approach applies when the state statute is ‘divisible’—that is, when it
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punishes some conduct that would satisfy the elements of a federal felony and

some conduct that would not.”). For example, the element can be satisfied if a

defendant shoots into a building he knows is not occupied. This conduct clearly

targets property and not a person. This example makes clear that the element

covers a broader swath of conduct than the crime of violence definition, and

therefore is not categorically an element satisfying the crime of violence definition.

      Moving on to the next stage of the inquiry, we must decide whether the type-

of-structure-targeted element is defined in such a way that it “effectively create[s]

several different crimes.” Donawa, 735 F.3d at 1281; see also Descamps, 133 S.

Ct. at 2285. It clearly does. This element is satisfied if there is proof that the

defendant targeted any of the following alternative structures: (1) a public or

private building, occupied or unoccupied; (2) a public or private bus; (3) (i) a train

being used or occupied by any person, (ii) a railway car being used or occupied by

any person, (iii) a vehicle being used or occupied by any person, etc.; (4) a boat,

vessel, ship, or barge lying in or plying the waters of this state; or (5) an aircraft

flying through the air space of this state. See Fla. Stat. § 790.19. Based upon what

Descamps teaches us, it is clear from the face of the statute that each of these

different structures is a separate element. See Nijhawan v. Holder, 557 U.S. 29,

35, 129 S. Ct. 2294, 2299 (2009) (“A single Massachusetts statute section entitled

‘Breaking and Entering at Night,’ for example, criminalizes breaking into a


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‘building, ship, vessel or vehicle.’ In such an instance, we have said, a court must

determine whether an offender’s prior conviction was for the violent, rather than

the nonviolent, break-ins that this single five-word phrase describes (e.g., breaking

into a building rather than into a vessel), by examining the indictment or

information and jury instructions, or, if a guilty plea is at issue, by examining the

plea agreement, plea colloquy or some comparable judicial record of the factual

basis for the plea.” (citations omitted) (quotation marks omitted)); Shepard, 544

U.S. at 17, 25–26, 125 S. Ct. at 1257, 1262–63 (considering a burglary statute

criminalizing entry into buildings as well as “boats and cars,” and authorizing

application of the modified categorical approach to try to discern whether the

conviction was for generic or non-generic burglary); Taylor, 495 U.S. at 602, 110

S. Ct. at 2160 (explaining that there is a “narrow range of cases” where a

sentencing court may go beyond the mere fact of conviction, and hypothesizing a

burglary statute “includ[ing] entry of an automobile as well as a building” as one

case permitting deeper inquiry); see also Descamps, 133 S. Ct. at 2283–85

(discussing these cases).

      Because the type-of-structure element is divisible, we invoke the modified

categorical approach to determine whether Mr. Estrella’s conviction under the

element of targeting “a vehicle being used or occupied by a person” equates to an

element meeting the against-a-person requirement. In answering this question, we


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benefit from the analysis engaged by several of our sister Circuits in addressing

whether an element requiring that force be directed at occupied property equates to

an element requiring the use, attempted use, or threatened use of physical force

against the occupant. 4

       First, the Fifth Circuit in United States v. Alfaro, 408 F.3d 204 (5th Cir.

2005), considered whether a prior conviction under a Virginia statute for shooting

into an occupied dwelling constitutes a crime of violence for purposes of the USSG

§ 2L1.2 enhancement. The Fifth Circuit held that the statute under which Mr.

Alfaro was convicted does not have an element requiring the use, threatened use,

or attempted use of force “against the person of another.” Id. at 209. It held that

the against-a-person requirement was not met because “a defendant could violate

[the] statute merely by shooting a gun at a building that happens to be occupied

without actually shooting, attempting to shoot, or threatening to shoot another

person.” Id.; cf. United States v. Hernandez-Rodriguez, 467 F.3d 492, 495 (5th


4
  Florida has also considered whether a violation of Fla. Stat. § 790.19 meets the state’s
definition of a crime of violence. Paul v. State, 129 So. 3d 1058 (Fla. 2013). The Florida
Supreme Court concluded that a conviction for throwing a deadly missile or shooting into an
occupied vehicle under the statute “necessarily involves the use or threat of physical force or
violence against an individual.” Id. at 1059. We are mindful that state court opinions regarding
the elements of a criminal conviction are binding on the federal courts in this Circuit. See
Howard, 742 F.3d at 1346. However, the question we are answering here is whether those
elements as defined by state law, including state court decisions, create a crime of violence for
purposes of the federal sentence enhancement. We are not bound by Paul in answering this
question. This is because whether conduct qualifies for a sentence enhancement under federal
law “is a question of federal law, not state law. And in answering that question we are not bound
by a state court’s interpretation of a similar—or even identical—state statute.” Johnson, 559
U.S. at 138, 130 S. Ct. at 1269.
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Cir. 2006) (finding the against-a-person requirement satisfied because an element

of the statute of conviction required that a firearm be discharged “at or in the

direction of one or more individuals”). 5

       The next Circuit to address a variation of the question now before us was the

Tenth Circuit in United States v. Ford, 613 F.3d 1263 (10th Cir. 2010). In Ford,

that Court considered whether a Kansas conviction for criminal discharge of a

firearm at an occupied building or vehicle is a violent felony under the Armed

Career Criminal Act. Id. at 1271. Specifically, “[t]he criminal complaint and the

plea colloquy both described the crime as ‘Criminal Discharge of a Firearm at an

Occupied Vehicle (Severity Level 7, Person Felony).’” Id. In concluding that Mr.

Ford’s conviction did not have an element requiring the use, attempted use, or

threatened use of physical force against a person, the Tenth Circuit approved of the

distinction the Fifth Circuit drew between “convictions for discharging a firearm at

or in the direction of a person and convictions for discharging a firearm at or in the

direction of an occupied building or vehicle.” 6 Id. at 1271–72 (citing Hernandez-


5
  Hernandez-Rodriguez suggests that Alfaro would control in cases where a defendant’s
conviction was for targeting an occupied vehicle as opposed to an occupied dwelling, although
the Fifth Circuit has not published an opinion specifically addressing the occupied vehicle
scenario. See Hernandez-Rodriguez, 467 F.3d at 495 (“The Virginia statute in Alfaro is more
analogous to Tex. Penal Code Ann. § 22.05(b)(2), which outlaws discharging a firearm at or in
the direction of a habitation, building, or vehicle with reckless disregard for whether the structure
is occupied.”).
6
  The Tenth Circuit did ultimately conclude that Mr. Ford’s conviction was a violent felony for
purposes of the Armed Career Criminal Act, but under a definition of violent felony not
implicated here—the “residual” definition, which permits treatment as a crime of violence even
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Rodriguez, 467 F.3d 492, and Alfaro, 408 F.3d 204). The Tenth Circuit

recognized that a statute with elements that can be satisfied by directing force at an

occupied structure “requires force against a building or vehicle, but not against the

person inside.” Id. at 1271; see also United States v. Hernandez, 568 F.3d 827,

830 (10th Cir. 2009) (finding that an element requiring that a firearm be discharged

“at or in the direction of an individual” meets the requirement that the statute have

as an element the use, attempted use, or threatened use of physical force against a

person). Statutes that can be satisfied merely by directing force against property

that a person happens to occupy at the time, the Tenth Circuit holds, is “one step

removed” from the against-a-person requirement that federal law imposes. Ford,

613 F.3d at 1271.

       Most recently, the Seventh Circuit in United States v. Curtis, 645 F.3d 937

(7th Cir. 2011), considered a conviction under an Illinois statute prohibiting the

discharge of a firearm “in the direction of another person or in the direction of a

vehicle he or she knows or reasonably should know to be occupied by a person.”

Id. at 940 (quoting 720 Ill. Comp. Stat. 5/24-1.2(a)(2)). The Seventh Circuit

concluded that the statute under which Mr. Curtis was convicted categorically

involves the use, attempted use, or threatened use of physical force against a



if there is no element requiring the use, attempted use, or threatened use of physical force against
a person so long as the crime otherwise involves conduct that presents a serious potential risk of
physical injury to another. Ford, 613 F.3d at 1272–73.
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person. Id. at 941. In reaching this conclusion, the Seventh Circuit emphasized

that “[v]ehicles as a class are generally quite smaller than buildings,” and therefore

much closer in size in proportion to the average person. Id. at 942. Thus, because

vehicles and people are relatively comparable in size, the Seventh Circuit held that

Mr. Curtis’s conviction for shooting in the direction of a vehicle he knew or

reasonably should have known to be occupied met the against-a-person

requirement “because one cannot commit that act without shooting, attempting to

shoot, or threatening to shoot at that person in the vehicle.” Id.

      But the scope of the Seventh Circuit’s holding is limited. The Court

repeatedly emphasized that the statute it considered in Curtis permitted conviction

only if the shooter knew or reasonably should have known that the vehicle was

occupied. Id. at 940–42. The Seventh Circuit praised the government for

“properly conced[ing] at oral argument” that “had [Mr.] Curtis fired in the

direction of a car he should not have reasonably known to be occupied, (for

instance, [Mr.] Curtis fired in the direction of a parked car awaiting crushing at a

junkyard), he could not be convicted of this aggravated discharge of a firearm

offense because that action would be akin to criminal damage to property—not

aggravated discharge of a firearm.” Id. at 942. That conduct, the Seventh Circuit

noted, “would not involve the use, attempted use, or threatened use of physical

force against another person,” even if the car ultimately proved to be occupied. Id.


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at 942. This limitation in the Seventh Circuit’s holding is important, because it

signals that Court’s recognition that merely directing physical force at property that

happens to be occupied would not, in every case, satisfy the requirement that force

be directed at a person. In a circumstance like this, the Seventh Circuit would look

to the mens rea required for conviction in order to determine whether the element

of targeting occupied property equates to an element requiring the use, attempted

use, or threatened use of physical force against the occupant. See id.7

       These cases—Alfaro, Ford, and Curtis—are instructive. They all support the

conclusion that directing physical force against an occupied vehicle, without more,

does not permit application of the USSG § 2L1.2 crime of violence enhancement. 8

We are persuaded by the logic underlying these cases. Where an element would

7
  In an unpublished opinion, the Fourth Circuit summarily adopted the Seventh Circuit’s
conclusion in Curtis without addressing its reasoning. See United States v. Wilkerson, 492 F.
App’x 447, 449 (4th Cir. 2012). The Ninth Circuit has, consistent with the Seventh Circuit,
found that a statute’s mens rea element may preclude a finding that a conviction for discharging
a firearm at occupied property is a crime of violence. See United States v. Narvaez-Gomez, 489
F.3d 970, 975–77 (9th Cir. 2007) (finding that a conviction for maliciously or willfully
discharging a firearm at an inhabited or occupied house, building, vehicle, aircraft, housecar, or
camper is not categorically a crime of violence under USSG § 2L1.2 because a conviction may
result from purely reckless conduct).
8
  This is not to suggest, however, that the Circuits’ reasoning is wholly harmonious. As Curtis
recognizes, the result the Seventh Circuit reaches depends to some extent on a difference
between the nature of the structure before it and the nature of the structure that was before the
Fifth Circuit in Alfaro. Curtis, 645 F.3d at 942. It continues to be the case that the Fifth Circuit
could reject the distinction drawn by the Seventh Circuit. And the Tenth Circuit could decline to
follow the Seventh Circuit in finding that targeting an occupied vehicle may in some
circumstances equate to a crime of violence so long as the defendant had a certain mental state.
This nuanced tension does not, however, change the fact that Ford and Curtis directly, and Alfaro
and Hernandez-Rodriguez by extension, all support the conclusion that targeting an occupied
vehicle, without more, does not meet the crime of violence definition. Neither does the statute
we now consider in Mr. Estrella’s case implicate these potential points of future divergence
among the Circuits.
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permit conviction whenever the defendant targets property that happens to be

occupied, that element is “akin to criminal damage to property,” Curtis, 645 F.3d at

942, and covers conduct broader than the crimes against persons to which the

USSG § 2L1.2 crime of violence enhancement is supposed to apply.

      Our review of the Sentencing Commission’s varying definitions for a crime

of violence throughout the Sentencing Guidelines makes it clear that the USSG

§ 2L1.2 crime of violence enhancement should not be interpreted in a way that

risks application of the enhancement to true property offenses. In USSG § 2L1.2,

the Commission decided to treat as crimes of violence only those statutes that have

as an element the use, attempted use, or threatened use of physical force against a

person. USSG § 2L1.2, comment. (n.1(B)(iii)). By contrast, where sentence

enhancements are intended to apply for both crimes against person and crimes

against property, the relevant sentencing provision explicitly says so. See 18

U.S.C. § 924(c)(3)(A) (defining a crime of violence for Armed Career Criminal

Act purposes as any felony that “has as an element the use, attempted use, or

threatened use of physical force against the person or property of another”

(emphasis added)). When language is included in one statutory provision but not

included in another related provision, that omission has an important meaning that

we cannot ignore. See Pretka v. Kolter City Plaza II, Inc., 608 F.3d 744, 763 (11th

Cir. 2010).


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      Here, where the Commission omitted crimes against property from USSG

§ 2L1.2’s crime of violence definition, we understand that only those prior

convictions that are necessarily and in all circumstances crimes against persons are

supposed to trigger the enhancement. Statutes that would permit conviction when

the defendant targets only property do not meet the elements-based crime of

violence definition that the Commission has chosen to codify and by which we are

bound. See United States v. Wilk, 464 F.3d 1240, 1245 (11th Cir. 2006)

(“Commentary and Application Notes of the Sentencing Guidelines are binding on

the courts unless they contradict the plain meaning of the text of the Guidelines.”

(quotation marks omitted)). This is true even if the statute’s elements can also be

satisfied if the defendant targets a person.

      There is no question that Fla. Stat. § 790.19’s requirement that force be

directed against an occupied vehicle means it will in fact capture both force

directed at the property and force directed at the occupant. This is so because the

element standing alone requires force against the vehicle, but not against the

person inside. Alfaro, 408 F.3d at 209; Ford, 613 F.3d at 1271; Curtis, 645 F.3d at

940–42. Beyond that, there is nothing about the element which is further divisible

into alternative offenses: one where the target is the occupant and one where the

target is just the property that happens to be occupied at the time. Thus, once a

defendant is charged under the element of targeting a vehicle while it is occupied,


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the element can be satisfied if the jurors agree only that the vehicle was occupied at

the time of the defendant’s offensive conduct. See Fla. Std. Jury Intr. (Crim.)

10.13; Paul, 129 So. 3d at 1062 (noting that Fla. Stat. § 790.19’s type-of-structure-

targeted element can be satisfied by proof that the defendant’s conduct targeted “a

vehicle of any kind that was being used or occupied by any person”).

      And, as we next discuss, there is no mens rea requirement in Fla. Stat.

§ 790.19 that might translate the requirement that force be directed against an

occupied vehicle into a requirement that force be directed against the occupant, as

was the case in Curtis. All of this is to say that, because the alternative type-of-

structure-targeted element under which Mr. Estrella was convicted does not meet

the against-a-person requirement, either standing alone or when considered

alongside the mens rea element, the type-of-structure-targeted element does not

elevate this conviction to a crime of violence.

                            B. THE MENS REA ELEMENT

      The remaining element that might elevate the offense to a USSG § 2L1.2

crime of violence is the mens rea element. Fla. Stat. § 790.19 requires proof that

the defendant directed force against an occupied vehicle “wantonly or

maliciously.” See Paul, 129 So. 3d at 1062. Florida defines wantonly to mean

“consciously and intentionally, with reckless indifference to consequences and

with the knowledge that damage is likely to be done to some person.” Fla. Std.


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Jury Intr. (Crim.) 10.13 (emphasis added). Maliciously, by contrast, “means

wrongfully, intentionally, without legal justification or excuse, and with the

knowledge that injury or damage will or may be caused to another person or the

property of another person.” Id. (emphasis added); see also State v. Kettell, 980

So. 2d 1061, 1067 (Fla. 2008) (reprinting the Florida Standard Jury Instructions

definitions for wantonly and maliciously and noting that Fla. Stat. § 790.19

requires the State to prove the mens rea element “in accordance with the

definitions of those terms”).

      An element that can be satisfied by proof that “injury or damage may be

caused to . . . the property of another person” is certainly not an element that

requires the force to be directed against a person. Rather, this mens rea

requirement creates an offense that is “akin to criminal property damage,” because

it would permit conviction even if the defendant, for example, hurled a stone in the

middle of the night at a vehicle parked in a long-term parking lot that,

unbeknownst to the defendant, just so happened to be occupied at the time. See

Curtis, 645 F.3d at 942. This being the case, the mens rea element does not

categorically require the use, attempted use, or threatened use of physical force

against a person, as USSG § 2L1.2 requires.

      But it is also true that some of the conduct encompassed within the mens rea

element—wanton conduct—may be a crime of violence under USSG § 2L1.2.


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And because the statute is structured in the alternative, it effectively creates two

different crimes: wantonly shooting into an occupied vehicle and maliciously

shooting into an occupied vehicle. See Part III.A (noting that in Taylor, Shepard,

and Nijhawan, the Supreme Court indicated that burglary elements structured as

exhaustive lists of different structures burglarized would be amenable to

application of the modified categorical approach); cf. Howard, 742 F.3d at 1348–

49 (holding that a non-exhaustive list of illustrative examples of structures which

can result in a burglary conviction was not a divisible element, while implying that

an exhaustive list would be divisible). We therefore apply the modified categorical

approach to try to discern whether Mr. Estrella was convicted of wanton

misconduct or malicious misconduct.

      We cannot tell from any of the Shepard-approved sources which of the

alternative mens rea elements formed the basis of Mr. Estrella’s conviction. The

charging document accuses Mr. Estrella of “wantonly or maliciously” targeting “a

vehicle being used or occupied by a person.” Nothing about this document

clarifies which of the two alternative mental states formed the basis of Mr.

Estrella’s conviction. Neither does the PSR shed light on this question, because it

merely sets out the facts underlying the conviction and does not specify upon

which mens rea alternative Mr. Estrella’s conviction was based. The Supreme

Court has strongly rejected the notion that a sentencing court considering the


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propriety of an enhancement should engage in a “post hoc investigation into the

facts of predicate offenses.” Moncrieffe, 133 S. Ct. at 1690. Just as it does not

matter that “the jury could have readily reached consensus” on one of the

alternative elements, it does not matter that the sentencing court might be able to

do the same. Descamps, 133 S. Ct. at 2290. To permit the sentencing court to

infer a particular mens rea based only on the factual description of the conduct

would fly in the face of these recent Supreme Court cases and, perhaps most

important, raise significant Constitutional questions. See id. at 2288, 2290 (“The

Sixth Amendment contemplates that a jury—not a sentencing court—will find

[the] facts, unanimously and beyond a reasonable doubt. And the only facts the

court can be sure the jury so found are those constituting elements of the offense—

as distinct from amplifying but legally extraneous circumstances.”).

      The mens rea element of Mr. Estrella’s conviction thus does nothing to shed

light on whether he was convicted of using force directed against a person, or

merely directed against property. As a result, we must assume “that the conviction

rested upon nothing more than the least of the acts criminalized.” Moncrieffe, 133

S. Ct. at 1684 (alterations omitted) (quotation marks omitted). In light of this

assumption, we cannot conclude that Mr. Estrella was convicted of the element of

using force against a person. This being the case, it was error for the District Court

to apply the crime of violence enhancement in sentencing Mr. Estrella.


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                                IV. CONCLUSION

      Adhering to the Supreme Court’s most recent decisions analyzing the

categorical and modified categorical approaches, we must conclude that Mr.

Estrella’s conviction under Fla. Stat. § 790.19 for wantonly or maliciously

throwing, hurling, or projecting a missile, stone, or other hard substance at an

occupied vehicle is not a crime of violence under USSG § 2L1.2. For this reason,

we REVERSE the District Court’s enhancement of Mr. Estrella’s conviction and

REMAND for resentencing consistent with this opinion.




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