     Case: 15-40213      Document: 00513262180         Page: 1    Date Filed: 11/06/2015




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

                                                                                  FILED
                                                                             November 6, 2015
                                    No. 15-40213
                                                                               Lyle W. Cayce
                                  Summary Calendar
                                                                                    Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOSE ELIU HAM-MOLINA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:14-CR-579-1


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Jose Eliu Ham-Molina appeals the 60-month sentence imposed in
connection with his conviction for illegal reentry after deportation. Ham-
Molina argues that the district court erred in applying the 16-level
enhancement for a crime of violence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).
He contends that he was not convicted of aggravated assault, and that
therefore, his prior conviction was not an enumerated offense which would


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-40213      Document: 00513262180     Page: 2     Date Filed: 11/06/2015


                                  No. 15-40213

justify the enhancement.      Additionally, he asserts that this court cannot
employ the modified categorical approach and look to the indictment to
determine whether the offense involves the use, attempted use, or threatened
use of force because the commission of aggravated assault as alleged in the
indictment was not an element of the offense. Rather, he argues that only the
commission of a predicate act involving violence is an element of the offense,
and he contends that other crimes not having force as an element of the offense
may satisfy the element of a predicate act involving violence. Further, Ham-
Molina argues that, despite the court’s statements that it would impose the
same sentence, the error is not harmless because the court never referenced
the guidelines range without the enhancement and did not provide reasons to
justify the variance.    The Government concedes that Ham-Molina’s prior
conviction was not the enumerated offense of aggravated assault but argues
that the offense has, as an element, the use, attempted use, or threatened use
of force. See § 2L1.2, comment. (n.1(B)(iii)).
      We review the district court’s interpretation or application of the
Sentencing Guidelines de novo and its factual findings for clear error. See
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Section 2L1.2 provides that the offense level for unlawfully reentering the
United States shall be increased by 16 levels if the defendant has a prior
conviction for a “crime of violence.” § 2L1.2(b)(1)(A)(ii).
      Because the Georgia statute under which Ham-Molina was convicted is
divisible, see GA. CODE ANN. § 16-15-4(a)(1); GA. CODE ANN. § 16-15-3(1), the
modified categorical approach may be used to determine under which portion
of the statute Ham-Molina was convicted. See Descamps v. United States,
133 S. Ct. 2276, 2284 (2013). “In defining the elements of a crime for the
purposes of applying the modified categorical approach, ‘laws and regulations’



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                                  No. 15-40213

cross-referenced by the charged statute ‘can also be the subject of the modified
categorical approach.’” United States v. Ramos Ceron, 775 F.3d 222, 228 (5th
Cir. 2014) (quoting Franco-Casasola v. Holder, 773 F.3d 33, 37 (5th Cir. 2014)).
However, if the state court documents are insufficient to narrow the statute,
the court “consider[s] whether the least culpable act constituting a violation of
that statute constitutes” a crime of violence for purposes of § 2L1.2(b)(1)(A)(ii).
United States v. Moreno-Florean, 542 F.3d 445, 449 (5th Cir. 2008) (internal
quotation marks and citation omitted).
      Undisputedly, the State is required to prove a predicate act of violence
in order to obtain a conviction for engaging in criminal gang activity. See GA.
CODE ANN. § 16-15-4(a)(1); GA. CODE ANN. § 16-15-3(1); Zamudio v. State,
771 S.E.3d 733, 737 (Ga. Ct. App. 2015). The predicate act of violence alleged
in the indictment was aggravated assault. Ham-Molina provides no support
for the assertion that he could have been convicted under the theory that the
predicate offense was a simple battery, when the indictment specifies a
different offense. Because the state court documents show that Ham-Molina
was convicted of committing criminal gang activity through the commission of
an aggravated assault and because Ham-Molina does not argue that the
Georgia offense of aggravated assault can be committed without the use of
force, he fails to show that the district court clearly erred in applying the 16-
level enhancement based on a finding that the Georgia conviction was a crime
of violence.
      Moreover, even if the district court erred, the error is harmless. The
district court imposed an alternative non-guidelines sentence of 60 months. In
imposing the alternative sentence, the court made statements indicating that
it would impose the same sentence if the enhancement did not apply and would
impose the sentence because of Ham-Molina’s dangerous propensities and



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involvement with gang activity.    Because the district court’s statements
indicate that it would have imposed the same sentence without the alleged
error for the same reasons, any error in imposing the 16-level enhancement is
harmless. See United States v. Ibarra-Luna, 628 F.3d 712, 714, 716-19 (5th
Cir. 2010).
      The judgment of the district court is AFFIRMED.




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