     Case: 15-40480         Document: 00513428051          Page: 1     Date Filed: 03/17/2016




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


                                         No. 15-40480                                FILED
                                                                               March 17, 2016
                                                                                Lyle W. Cayce
UNITED STATES OF AMERICA,                                                            Clerk



                                                     Plaintiff - Appellee
v.


LUIS HERNANDEZ-HERNANDEZ,


                                                     Defendant - Appellant




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



Before JONES and SMITH, Circuit Judges, and BOYLE, * District Judge.
JANE J. BOYLE, District Judge:
       Luis Hernandez-Hernandez appeals his 16-level “crime of violence”
enhancement under § 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines based
upon a prior conviction for assaulting a federal officer and inflicting bodily
injury, in violation of 18 U.S.C. § 111 (a)(1) and (b). 1 In his sole issue on appeal,

       *   District Judge of the Northern District of Texas, sitting by designation.
       1 The forcible acts described in subpart (a)(1) of § 111—“forcibly assaults, resists,
opposes, impedes, intimidates, or interferes”—are necessary elements of all § 111 offenses,
hence the reference to subpart (a)(1). For clarity, our analysis centers on § 111(b) and whether
that particular subpart constitutes a crime of violence. Thus, we primarily reference § 111(b)
in this analysis.
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                                   No. 15-40480

Hernandez argues that his § 111 conviction did not constitute a crime of
violence   under     §   2L1.2(b)(1)(A)(ii)   because   it   is   neither   one   of
§ 2L1.2(b)(1)(A)(ii)’s enumerated offenses nor does it require “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). Whether Hernandez’s crime of
conviction under § 111(a)(1) and (b) for assaulting a federal officer and
inflicting bodily injury constitutes a crime of violence under § 2L1.2(b)(1)(A)(ii)
is a question of first impression for this Court. Finding that Hernandez’s
conviction under § 111(a)(1) and (b) necessarily required proof that he used,
attempted to use, or threatened to use physical force against the person of
another, we AFFIRM the judgment of the district court.
                                         I.
      Hernandez pleaded guilty to illegal reentry following a conviction for an
aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b). At the time of his
plea, he had two prior convictions under 18 U.S.C. § 111 for assaulting a federal
officer, one in 2002, the other in 2005. Both were referenced in the PSR and
relied upon by the district court in assessing the 16-level enhancement. The
2002 offense was under § 111(a), which covers misdemeanors and less serious
felony conduct. The 2005 conviction was under § 111(a)(1) and (b), the more
serious felony provision of the statute which includes the element of the
infliction of bodily injury or the use of a deadly or dangerous weapon and
carries up to 20 years in prison. The parties have focused their arguments
regarding the 16-level enhancement on the 2005 felony offense under § 111 (b).
The Court will do likewise. The dispute boils down to whether Hernandez’s
conviction qualifies as a crime of violence under § 2L1.2(b)(1)(A)(ii)’s use of
force provision. That question requires us to determine whether Hernandez’s
conviction under § 111(a) and (b) necessarily requires proof of “the use,
attempted use, or threatened use of physical force against the person of
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                                          No. 15-40480

another” as required for an enhancement under § 2L1.2(b)(1)(A)(ii). U.S.S.G.
§ 2L1.2, cmt. n. 1 (B)(iii).
                                                 II.
       In deciding whether Hernandez’s conviction under § 111 constitutes a
crime of violence, we look to the specific Guidelines provision from which the
16-level enhancement derives—§ 2L1.2(b)(1)(A)(ii). That provision calls for a
16-level increase to the base offense level for illegal reentry if the defendant
was previously convicted for a crime of violence and the prior conviction
receives criminal history points. United States v. Ceron, 775 F.3d 222, 227 (5th
Cir. 2014) (citing U.S.S.G. § 2L1.2(b)(1)(A)(ii)). To qualify for the enhancement
under § 2L1.2(b)(1)(A)(ii), the crime of conviction must fall within one of two
discrete categories of offenses. The first is a list of enumerated offenses, none
of which apply here. The other, applicable to Hernandez’s conviction, is a
“catch-all” provision, 2 which defines a crime of violence as an “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.”                           Ceron,
775 F.3d at 227 (citing U.S.S.G. § 2L1.2, cmt. n. 1 (B)(iii)).
       To trigger the 16-level enhancement under the catch-all definition, “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. Calderon-Pena, 383 F.3d 254,
260 (5th Cir. 2004) (en banc) (quoting United States v. Vargas-Duran, 356 F.3d
589, 605 (5th Cir. 2004) (en banc)). 3 “If any set of facts would support a
conviction without proof of [the intentional use of force], then the [intentional


       2   We alternatively refer to this provision as the “catch-all” or “use of force” provision.

       3 The definition of “crime of violence” has been rearranged in § 2L1.2 of the Guidelines
since Calderon-Pena and Vargas-Duran were decided. In any event, the language of the
catch-all provision in the 2014 version of the Guidelines, at issue in this case, is identical to
that examined in Calderon-Pena and Vargas-Duran. See Calderon-Pena, 383 F.3d at 256,
n.2; U.S.S.G.§ 2L1.2, cmt. n. 1 (B)(iii).
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                                  No. 15-40480

use of force] most decidedly is not an element—implicit or explicit—of the
crime.” Calderon-Pena, 383 F.3d at 260 (quoting Vargas-Duran, 356 F.3d at
605) (emphasis added).       In other words, if the crime upon which the
enhancement is based can be proven without evidence that the defendant
intentionally used force against the person of another, then the offense does
not qualify as a crime of violence under § 2L1.2(b)(1)(A)(ii). United States v.
Velasco, 465 F.3d 633, 638 (5th Cir. 2006).
      So our task here is to determine whether Hernandez’s conviction under
§ 111 (b) “necessarily require[d] a finding that [Hernandez] used, attempted to
use, or threatened to use physical force against the person of another.” Ceron,
775 F.3d at 227 (emphasis added) (quoting United States v. Herrera-Alvarez,
753 F.3d 132, 134 (5th Cir. 2014)). In making this determination, we utilize
the categorical approach, first announced in Taylor v. United States, 495 U.S.
575, 602 (1990), which centers our inquiry on “the elements of the statute of
conviction” not on the defendant’s actual conduct in committing the crime.
Ceron, 775 F.3d at 227 (quoting United States v. Rodriguez, 711 F.3d 541, 549
(5th Cir. 2013) (en banc)). If “we determine that the statute of conviction as a
whole does not categorically qualify as a crime of violence, but the statute is
divisible, then we apply a variant of the categorical approach—the ‘modified
categorical approach.’” Herrera-Alvarez, 753 F.3d at 138 (quoting Descamps v.
United States, 133 S. Ct. 2276, 2281 (2013)).
      A statute is divisible when it “sets forth multiple separate offenses or
sets forth one or more elements of an offense in the alternative,” not all of which
may qualify as a crime of violence. Id. at 134. Once a statute is deemed
divisible, the task for the court—under the modified categorical approach—is
to determine “which [of the statute’s alternative bases for committing the
crime] formed the basis of the defendant’s conviction.” Descamps, 133 S. Ct. at
2284 (citation omitted). This entails looking beyond the statute to certain
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                                       No. 15-40480

“extra-statutory” records to isolate the actual elements underlying the
defendant’s conviction and then assessing—from the narrowed elements—
whether the defendant’s crime constitutes a crime of violence under the
applicable enhancement provision. Here we examine § 2L1.2’s use of force
provision. The permissible “extra-statutory” records, known as               documents,
include the “charging document, written plea agreement, transcript of plea
colloquy, and any explicit factual finding by the trial judge to which the
defendant assented.”          Ceron, 775 F.3d at 227 (quoting United States v.
Elizondo-Hernandez, 755 F.3d 779, 781 (5th Cir. 2014)). Once the elements
comprising the underlying conviction have been identified, the court applies
the categorical approach to the crime of conviction to ascertain whether that
offense necessarily “has as an element the use, attempted use, or threatened
use of physical force against the person of another.” Herrera-Alvarez, 753 F.3d
at 137.
                                             III.
      We conduct a de novo review of a district court’s determination that a
conviction constitutes a crime of violence. United States v. Flores-Gallo,
625 F.3d 819, 821 (5th Cir. 2010). “Guideline commentary is given controlling
weight if it is not plainly erroneous or inconsistent with the guidelines.” Id.
(quoting United States v. Velasco, 465 F.3d 633, 637 (5th Cir. 2006)).
      The parties do not dispute that § 111 as a whole criminalizes “a broader
swath of conduct” than the conduct covered by § 2L1.2(b)(1)(A)(ii)’s use of force
provision. Descamps, 133 S. Ct. at 2281. But the parties agree, and our cases
confirm, that § 111 is divisible. See United States v. Ramirez, 233 F.3d 318,
321 (5th Cir. 2000), overruled on other grounds by United States v. Cotton,
535 U.S. 625, 629–31 (2000).                Our precedent establishes that § 111


      4   Shepard v. United States, 544 U.S. 13, 26 (2005).
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                                    No. 15-40480

encompasses “three separate offenses” including: “(1) simple assault; (2) more
serious assaults but not involving a dangerous weapon; and (3) assault with a
dangerous weapon.” Id. (citation omitted). The first offense, simple assault
under § 111(a), is a misdemeanor and does not require “any physical contact.”
Id. at 321–22. The second offense under § 111(a) is a felony punishable by up
to 8 years in prison, and requires either physical contact or the “intent to
commit another felony” when committing the acts proscribed in § 111(a) (i.e.,
“forcibly assaulting, resisting, opposing, impeding, intimidating or interfering
with any person . . . while engaged in or on account of the performance of official
duties”) but does not require a showing of bodily injury or use of a deadly
weapon. 18 U.S.C. §111(a)(1); United States v. Williams, 602 F.3d 313, 317
(5th Cir. 2010) (quoting United States v. Gagnon, 553 F.3d 1021, 1026 (6th Cir.
2009)). The third offense, under § 111(b), is a felony carrying a maximum
penalty of up to 20 years in prison, and requires proof of the use of a deadly
weapon or the infliction of bodily injury “in the commission of any of the acts
described in subsection (a).” 18 U.S.C. § 111(b).
      The version of § in place at the time of Hernandez’s 2005 conviction
provided in pertinent part:
             § 111. Assaulting, resisting, or impeding certain officers or
      employees
      (a) In general.—Whoever—
           (1) forcibly assaults, resists, opposes, impedes, intimidates, or
           interferes with any person designated in section 1114 of this title
           while engaged in or on account of the performance of official duties;
           …shall, where the acts in violation of this section constitute only
           simple assault, be fined under this title or imprisoned not more than
           one year, or both, and in all other cases, be fined under this title or
           imprisoned not more than 8 years, or both.


      5 § 111 was amended in 2008. The changes to the statute, however, do not affect our
analysis and therefore will not be addressed.
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                                  No. 15-40480

      (b) Enhanced penalty.—Whoever, in the commission of any acts
      described in subsection (a), uses a deadly or dangerous weapon
      (including a weapon intended to cause death or danger but that fails to
      do so by reason of a defective component) or inflicts bodily injury, shall
      be fined under this title or imprisoned not more than 20 years, or both.
18 U.S.C. § 111 (Nov. 2, 2002).

      Because § 111 is a divisible statute, the modified categorical approach
permits us to consult the Shepard documents to determine which of the
alternative statutory phrases formed the basis for Hernandez’s 2005 § 111
conviction.   The available Shepard documents include the indictment,
judgment, and plea agreement. The indictment charges that Hernandez “did
knowingly and forcibly assault Kevin Estrada, a United States Bureau of
Prisons Correctional Officer…while the officer was engaged in and on account
of the performance of official duties, inflicting bodily injury upon the officer…in
violation of Title 18 United States Code, Section 111(a)(1) and (b).” The written
Plea Agreement and Statement of Facts Relevant to Sentencing reflects the
following agreed factual basis for Hernandez’s guilty plea:
      On June 9, 2003, defendant-inmate LUIS HERNANDEZ-HERNANDEZ
      was walking through a metal detector near the entrance of a housing unit
      within the United States Penitentiary - High Security in Florence,
      Colorado. Defendant was contacted by Senior Officer Specialist Kevin
      Estrada, who ordered defendant to submit to a “pat-down” search.
      Defendant became enraged and forcefully threw a portable -“Walkman-
      type”- radio at Officer Estrada. The radio struck Officer Estrada in the
      forehead, causing a cut in the skin.

      Officer Estrada attempted to restrain defendant; defendant became further
      enraged and engaged Officer Estrada in physical combat. Defendant bit
      the arm of Officer Estrada. With assistance from other corrections officers,
      Officer Estrada was able to restrain defendant and place him into
      handcuffs.




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                                        No. 15-40480

       The parties agree that the Government’s evidence would establish that
       Officer Estrada received some bodily injury as a result of defendant’s
       assault.
The judgment in the 2005 case reflects that Hernandez was convicted of
“Assault on a Correctional Officer” in violation of § 111(a)(1) and (b) and was
sentenced to 84 months in custody.
       From the foregoing Shepard documents, it is a simple matter to deduce
that Hernandez’s conviction was under § 111(b), the more serious felony
provision of the statute. 6 First, the citation to § 111(a)(1) and (b) in the
indictment and judgment indicates that subpart (b) was the operative
statutory provision. 7      Further, Hernandez’s admission in the written plea
papers that he “forcefully” “struck” and “bit” the corrections officer and that
these actions caused “bodily injury” to the officer, demonstrate that his
conviction fell under subpart (b) as opposed to (a). In contrast to subpart (b),
neither of the offenses described in subpart (a) of § 111—misdemeanor or
felony—requires proof of both assaultive conduct and bodily injury for a
conviction. Williams, 602 F.3d at 317 (quoting Gagnon, 553 F.3d at 1027)
(describing the misdemeanor provision of § 111(a) as requiring proof of a
forcible act without the intent to cause physical contact and the felony portion
of (a) requiring proof of a forcible act with the intent to commit a felony or
resulting in physical contact). Section 111(b), from the plain language of the


       6  As mentioned, the parties do not really dispute that Hernandez’s 2005 § 111
conviction fell under subpart (b); rather, they contest the level of force required under subpart
(b). In any event, because we must apply the categorical and modified categorical approaches
to § 111, as a divisible statute, to discern “which [of the statute’s alternative bases for
committing the crime] formed the basis of [Hernandez’s] conviction,” Descamps, 133 S. Ct. at
2284, and then decide if the underlying elements required the type of force defined under
§ 2L1.2, we include the Shepard analysis set forth above.

       7 As addressed, the acts described in subpart (a)(1) of § 111—forcibly assaults, resists,
opposes, impedes, intimidates, or interferes—are, by the very language of the statute,
necessary elements of all § 111 offenses; ergo, a citation to (a)(1) reveals less about the
specific statutory provision at play than a citation to subpart (b).
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                                     No. 15-40480

statute, requires proof of both assaultive conduct and bodily injury to sustain
a conviction. 8 See United States v. Juvenile Female, 566 F.3d 943, 946–47 (9th
Cir. 2009) (agreeing with seven other circuits that § 111(b) describes an
“assault involving a deadly or dangerous weapon or resulting in bodily injury”)
(collecting cases). Both assaultive conduct and bodily injury are charged in
Hernandez’s indictment. Finally, Hernandez’s 84-month sentence reflected in
the judgment accompanied by a citation to § 111(a)(1) and (b) further supports
our conclusion that Hernandez’s conviction was based on § 111(b).
      Going a step further, drawing from the Shepard documents, we identify
the elements underlying Hernandez’s § 111(b) conviction. Those elements can
be distilled to: (1) a knowing and forcible assault of a federal corrections officer
that (2) involved physical contact and that (3) inflicted bodily injury. 9 The
question then becomes whether Hernandez’s conviction, narrowed to the
foregoing elements, categorically constitutes a crime of violence under
§ 2L1.2(b)(1)(A)(ii). Stated another way, we must decide whether Hernandez’s
crime of conviction—as narrowed—necessarily requires a finding that he
intentionally used, attempted to use, or threatened to use physical force
against the person of another. U.S.S.G. § 2L1.2, cmt. n. 1 (B)(iii); Herrera-
Alvarez, 753 F.3d 132, 140–41 (5th Cir. 2014).                  “Physical force” under
§ 2L1.2(b)(1)(A)(ii) requires a showing of “violent force—that is, force capable
of causing physical pain or injury to another person.” Flores-Gallo, 625 F.3d
at 822–23 (quoting Johnson v. United States, 559 U.S. 133, 140 (2010)).




      8As set out in the statute, § 111(b) may also be violated by the “use of a deadly or
dangerous weapon.”

      9   Hernandez maintains in his briefing that only a “simple assault” was involved but
fails to provide any support for this argument from the Shepard documents.
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       Here, because we are dealing with a federal statute, we look to federal
law for guidance as to the requirements of § 111(b). Unfortunately, § 111 is
not a model of clarity and does not specify the level of force required for a
violation of § 111(b). Nor does the statute define “bodily injury” as that term
is used in § 111(b). Such a definition, if contained in the statute, would likely
shed some light on the amount of force required for a conviction under § 111(b)
which, in turn, might reveal whether that level of force equals that required by
§ 2L1.2. For his part, Hernandez argues that the bodily injury element of
§ 111(b) can be proven without a showing of violent or destructive force and,
therefore, that § 111(b) does not categorically qualify as a crime of violence.
Hernandez specifically maintains that § 111(b) can be violated by “non-forceful
acts” including “simple assault,” “spitting,” or “projecting bodily fluids” onto the
person of another. But none of the cases he cites stand for this proposition or
even address whether § 111(b) qualifies as a crime of violence under § 2L1.2’s
use of force provision. The government counters that the definition of “bodily
injury” for § 111(b) can be drawn from the Fifth Circuit Pattern Jury


       10  Typically, the crime of violence at issue in our cases is a state offense so we look to
the relevant state law for assistance in analyzing the “nature” of the crime of conviction to
decide if it satisfies § 2L1.2’s use of force requirements. United States v. Martinez-Flores,
720 F.3d 293, 297 (5th Cir. 2013) (quoting United States v. Izaguirre-Flores, 405 F.3d 270,
273 (5th Cir. 2005)). For example, in cases involving state assault crimes, we have looked to
the definition of “bodily injury” under the statute of conviction to determine whether a
violation of the statute necessarily required proof of § 2L1.2’s use of force requirements. Id.
at 297–98.

       11 Hernandez relies heavily on United States v. Ramirez, 233 F.3d 316, 321-22 (5th Cir.
2000) to support his argument. But Ramirez addressed the sufficiency of the evidence
underlying a § 111(a) conviction, not whether § 111(b) constitutes a crime of violence. He
also unpersuasively cites to United States v. Gonzales-Chavez, 432 F.3d 334, 338 n.6 (5th Cir.
2005), for support. That case involved a Florida aggravated battery statute where the record
was unclear as to which part of the multipart statute the defendant was convicted under.
Because at least one of the subparts could be violated by actions not involving a crime of
violence, we remanded the case to the district court. Id. Neither Ramirez nor Gonzales-
Chavez provides support for Hernandez’s argument that § 111(b) does not constitute a crime
of violence.
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                                       No. 15-40480

Instructions, which define bodily injury as “a painful and obvious injury or is
of a type for which medical attention ordinarily would be sought.” Fifth Circuit
Pattern Jury Instruction (Criminal) § 2.07 (2015) (“FCPJI-C”). Under that
definition, the government maintains, Hernandez’s offense of conviction—as
narrowed by the Shepard documents—necessarily requires a showing of force
“capable of causing pain and injury” as required under § 2L1.2. This, the
government argues, is because the elements underlying his conviction
demonstrate that force that was not only capable of causing, but that “indeed
did cause physical pain to another person,” was an essential element of proof.
In deciding this issue of first impression, we find that the government has the
better argument.
       First, as noted, § 111(b) is the most serious of the three separate offenses
encompassed by the statute, carrying a term of imprisonment of up to 20 years.
Section 111(b) is also the only subpart of the three that, by its plain terms,
requires proof of forcible conduct as described in subpart (a) and proof that the
forcible conduct resulted in the infliction of bodily injury. The fact that the
bodily injury element is included in § 111(b) but not in (a) indicates that
§ 111(b) requires a greater baseline showing of force—enough to cause bodily
injury—than that required under § 111(a). The bodily injury requirement in
(b) further indicates that minimally forceful, albeit repugnant, conduct such as
spitting or the projecting of bodily fluids—that Hernandez argues can underlie
a § 111(b) violation—is instead covered by subpart (a). The Ramirez case, cited


       12 The government refers to the 2001 version of the Fifth Circuit Pattern Jury
Instructions but that definition is identical to that contained in the 2015 version cited above.

       13 Section 111(b) also prohibits the use of a deadly or dangerous weapon in the
commission of any acts under § 111(a). We have previously held in an unpublished opinion
that the deadly weapon portion of § 111(b) constitutes a crime of violence under U.S.S.G.
§§ 4B1.1 and 4B1.2. United States v. Mitchell, 253 F.3d 702 (5th Cir. 2001) (table), 2001 WL
498464 (Apr. 11, 2001) (per curiam) (unpublished).
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                                       No. 15-40480

above, involved just such a scenario where an inmate who flung a urine-feces
mixture at a corrections officer was convicted under the felony provision of
§ 111(a).    Ramirez, 233 F.3d at 322 (citing a collection of cases involving
conduct such as “bumping an Assistant United States Attorney,” “spitting in
the face of a mail carrier,” “grabbing a federal wildlife agent’s jacket,” and
“poking [an] IRS agent in the chest,” all of which were prosecuted under
§ 111(a)). The Ramirez court specifically noted the lack of allegations or proof
of bodily injury in concluding that the case fell under the felony provision of
subpart (a). Id. In sum, the foregoing factors compel the conclusion that a
greater baseline level of force is required for convictions under subpart (b) than
subpart (a), and that conduct such as spitting and projecting bodily fluids are
covered by the latter and not the former.
       Finally, we must determine whether the force required to violate § 111(b)
necessarily requires a showing of the type of “violent force…capable of causing
physical pain or injury to another person,” and thus constitutes a crime of
violence under § 2L1.2’s use of force provision. See Flores-Gallo, 625 F. at 822–
23 (quoting Johnson, 559 U.S. at 140). This is not a difficult task. Although
the statute itself provides little guidance in this regard, resort to the Fifth
Circuit Pattern Jury Instructions, as suggested by the government, provides
significant assistance. As already discussed, “bodily injury” is defined under
the FCPJI-C as “an injury that is painful and obvious, or is of a type for which
medical attention ordinarily would be sought.” Fifth Circuit Pattern Jury
Instruction (Criminal) § 2.07 (2015). This “painful and obvious injury” element
required for a conviction under § 111(b) readily meets § 2L1.2’s use of force
definition, which requires only force capable of causing physical pain or injury


       14This definition is adopted from the definition of “bodily injury” contained in U.S.S.G.
§ 1B1.1, cmt. n. 1 (2012).

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                                        No. 15-40480

to another person and not actual bodily injury. Here, the Shepard documents
identify that the elements underlying Hernandez’s conviction included both
assaultive conduct and the infliction of bodily injury by demonstrating that he
“forcefully” “struck” and “bit” the corrections officer and that these actions
caused the officer “bodily injury.” In Ceron, 775 F.3d at 228–29, we considered
whether a Florida aggravated battery statute, which had as elements
“intentional touching” plus “great bodily harm,” qualified as a crime of violence
under § 2L1.2. We held that, while “touching another person is not, by itself,
the ‘use of force[,]’” and “causing ‘bodily injury’ could be committed in ways that
do not necessarily involve the use of force,” the two, taken together, necessarily
require the use of force sufficient to qualify an offense as a crime of violence.
See id. That same logic applies here, but even more so. Section 111(b), as
addressed above, requires forcible, assaultive conduct that extends beyond
mere touching which, as we discussed above, is covered by subpart (a). The
added requirement under subpart (b) that the forcible, assaultive conduct
result in bodily injury, defined by the FCPJI-C as painful and obvious injury,
renders the conclusion that we reached in Ceron, that the defendant’s crime of
conviction was a crime of violence, a foregone conclusion.
       Accordingly, because we find that Hernandez’s crime of conviction under
§ 111(b) necessarily required a finding that he intentionally used, attempted to
use, or threatened to use physical force against the person of another, U.S.S.G.
§ 2L1.2(b)(1)(A)(ii), we hold that § 111(b) is categorically a crime of violence
and AFFIRM the judgment of the district court.




       15The FCPJI-C definition of bodily further supports our conclusion that conduct such
as simple assault, spitting, or the projection of bodily fluids is not covered under § 111(b),
given that these actions are not the type of conduct, standing alone, that could inflict “painful
and obvious” bodily injury or injury that requires medical attention.
                                              13
