     Case: 15-20565      Document: 00513904931         Page: 1    Date Filed: 03/09/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 15-20565                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
UNITED STATES OF AMERICA,                                                   March 9, 2017
                                                                           Lyle W. Cayce
              Plaintiff - Appellee                                              Clerk

v.

CARLOS BORJAS BRICENO, also known as Carlos Briceno Borjas, also
known as Carlos Borjas, also known as Carlos B. Borjas,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:15-CR-129-1


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       Carlos Borjas Briceno appeals the district court’s finding that his prior
conviction under TEX. PENAL CODE ANN. § 28.03 for criminal mischief was an
“aggravated felony” under the Sentencing Guidelines, thereby imposing an
eight-level enhancement to Briceno’s sentence. Briceno served his term of
imprisonment and was released from federal custody on September 29, 2016,



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-20565
so the length of Briceno’s sentence is no longer material to his appeal.
However, there is a possibility that collateral consequences may attach to the
district court’s finding that Briceno’s prior criminal mischief conviction was an
aggravated felony. So we must determine whether the district court erred in
making this finding. We hold that the district court erred in classifying the
Texas criminal mischief provision as an “aggravated felony” under the
Sentencing Guidelines because the underlying crime does not require the use
of force in the ordinary case.
                                              I.
       Briceno pleaded guilty to illegal reentry as a previously deported alien
following an aggravated felony conviction in violation of 8 U.S.C. § 1326(a) and
(b)(2). The Presentence Investigation Report (“PSR”) determined Briceno’s
base offense level to be eight under U.S.S.G. § 2L1.2(a) (2015). The district
court found, over Briceno’s objection, that Briceno’s prior Texas criminal
mischief conviction 1 was an aggravated felony, and imposed an eight-level
enhancement under U.S.S.G. § 2L1.2(b)(1)(C).                The district court reduced
Briceno’s offense level by three upon his acceptance of responsibility under
U.S.S.G. § 3E1.1(a) and (b). The resulting total offense level of 13, combined
with Briceno’s criminal history category of III, provided an advisory
imprisonment range of 18 to 24 months under the Sentencing Guidelines.
       The district court sentenced Briceno to 22 months of imprisonment and
three years of supervised release. Briceno appeals, arguing that the district
court erred in classifying his Texas criminal mischief conviction as a “crime of




       1 Briceno was previously convicted under the Texas criminal mischief statute in 2005,
which provides in part that “(a) A person commits an offense if, without the effective consent
of the owner: (1) he intentionally or knowingly damages or destroys the tangible property of
the owner . . . .” TEX. PENAL CODE ANN. § 28.03(a)(1) (2005).
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                                     No. 15-20565
violence” under 18 U.S.C. § 16(b), and therefore an “aggravated felony” under
U.S.S.G. § 2L1.2(b)(1)(C).
                                            II.
       We review the district court’s categorization of a defendant’s prior
offense as an aggravated felony de novo. 2
                                           III.
      In 2005, Briceno was convicted under the Texas criminal mischief
statute, which provides, in part, “(a) A person commits an offense if, without
the effective consent of the owner: (1) he intentionally or knowingly damages
or destroys the tangible property of the owner . . . .” 3 The district court
determined this Texas criminal mischief statute encompassed conduct that
would be classified as an “aggravated felony” and imposed an eight-level
enhancement to Briceno’s sentence under U.S.S.G. § 2L1.2(b)(1)(C).
      The commentary to that guideline states that an “aggravated felony” is
defined in 8 U.S.C. § 1101(a)(43). 4          Under 8 U.S.C. § 1101(a)(43)(F), an
“aggravated felony” is defined as a “crime of violence” under 18 U.S.C. § 16. 5
A crime of violence under 18 U.S.C. § 16(b) is defined as “any other offense that
is a felony and that, by its nature, involves a substantial risk that physical
force against the person or property of another may be used in the course of
committing the offense.” 6         Thus, Briceno’s criminal mischief conviction
qualifies as an aggravated felony only if it constitutes a crime of violence under
§ 16(b).




      2  United States v. Martinez-Romero, 817 F.3d 917, 919 (5th Cir. 2016) (citing United
States v. Robinson, 741 F.3d 588, 598-99 (5th Cir. 2014)).
       3 TEX. PENAL CODE ANN. § 28.03(a)(1).
       4 U.S.S.G. § 2L1.2 cmt. n.3.
       5 8 U.S.C. § 1101(a)(43)(F).
       6 18 U.S.C. § 16(b).

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                                       No. 15-20565
       The district court applied the modified categorical approach upon finding
that the criminal mischief statute was divisible, and examined Briceno’s
indictment to pare down his conviction to a subpart of the criminal mischief
statute, § 28.03(a)(1). 7 Then, the district court looked to the crime under that
subpart in its “ordinary case” and determined that there was a strong
probability that physical force would be used against property in the
commission of the crime. Accordingly, the district court found that the conduct
proscribed under § 28.03(a)(1) was a “crime of violence” under 18 U.S.C. § 16(b),
and therefore an “aggravated felony” under the applicable guideline. Briceno
argues that the eight-level enhancement applied to his sentence was
inappropriate because the “ordinary case” of criminal mischief under
§ 28.03(a)(1) does not require the use of force. 8
       The length of Briceno’s sentence is no longer material because he was
released from federal custody on September 29, 2016. Briceno’s release does
not render his appeal moot because he was convicted under 8 U.S.C.
§ 1326(b)(2), the statutory sentencing provision that applies if the illegal
reentry was subsequent to a conviction for an “aggravated felony.” 9 We have
held that a district court’s determination that a defendant’s prior offense was
an “aggravated felony” to support a conviction under § 1326(b)(2) renders the
“offense of conviction itself an ‘aggravated felony.’” 10                   The collateral
consequences of that determination, including rendering Briceno permanently




       7 See Mathis v. United States, 136 S. Ct. 2243, 2248-57 (2016); United States v. Hinkle,
832 F.3d 569, 574 (5th Cir. 2016) (“[W]e have generally used the categorical and modified
categorical approaches in applying the federal sentencing Guidelines.”).
       8 Briceno also argues that 18 U.S.C. § 16(b) is unconstitutionally vague, but concedes

in reply brief that this issue is now foreclosed by United States v. Gonzalez-Longoria, 831
F.3d 670 (5th Cir. 2016) (en banc).
       9 8 U.S.C. § 1326(b)(2).
       10 Gonzalez-Longoria, 831 F.3d at 674 n.2.

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                                       No. 15-20565
inadmissible to the United States, make the aggravated felony classification
question material even after Briceno’s release. 11
       Therefore, our sole inquiry is whether the district court erred in finding
that “the conduct encompassed by the elements of the [Texas criminal mischief
statute], in the ordinary case” includes “a substantial risk that physical force”
may be used in committing the crime. 12 We have held that a “substantial risk
requires a strong probability that the application of physical force during the
commission of the crime will occur” 13 and that force is “synonymous with
destructive or violent force.” 14
       We have held that “[b]eing able to imagine unusual ways the crime could
be committed without the use of physical force does not prevent it from
qualifying as a crime of violence under § 16(b).” 15 Here, we need not imagine
unusual ways to commit the crime of criminal mischief under Texas law.
Briceno points to at least ten cases in brief and reply brief (which are collected
in the margin) where Texas courts have upheld sentences under the same
criminal mischief statute, or its predecessor, where destructive or violent force
was not required in commission of the crime. 16


       11  See id. (citing 8 U.S.C. § 1182(a)(9)(A)(i), (ii)).
       12  James v. United States, 550 U.S. 192, 208 (2007), overruled on other grounds by,
Johnson v. United States, 135 S. Ct. 2551 (2015); 18 U.S.C. § 16(b).
        13 United States v. Landeros-Gonzales, 262 F.3d 424, 427 (5th Cir. 2001) (internal

quotation marks omitted) (quoting United States v. Rodriguez-Guzman, 56 F.3d 18, 20 (5th
Cir. 1995)).
        14 Id. at 426 (internal quotation marks omitted) (quoting Rodriguez-Guzman, 56 F.3d

at 20 n.8).
        15 Perez-Munoz v. Keisler, 507 F.3d 357, 364 (5th Cir. 2007).
        16 See, e.g., Carrizales v. State, 414 S.W.3d 737 (Tex. Crim. App. 2013) (scattering

roofing screws on a road, resulting in the puncture of vehicle tires); Holz v. State, 418 S.W.3d
651 (Tex. Crim. App. 2009) (allowing scores of dogs to remain in homes without the owners’
consent, which resulted in the damage of the homes); Lackey v. State, 290 S.W.3d 912 (Tex.
Crim. App. 2009) (scattering roofing nails on a road, resulting in the puncture of vehicle
tires); Reasor v. State, 281 S.W.3d 129 (Tex. Crim. App. 2008) (painting the inside of a rental
home and otherwise modifying the home without the landlord’s permission); Ortiz v. State,
280 S.W.3d 302 (Tex. Crim. App. 2008) (spitting on the window of a police cruiser); Harrell v.
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       The government’s only counterargument is that poisoning constitutes
the use of force. 17 Latching onto one of the cases Briceno cites regarding the
poisoning of an historic tree, 18 the government argues that the Supreme Court
has held that poisoning someone was a crime involving physical force in the
domestic violence context, even though no physical contact was involved. 19
       Considering the number of cases from Texas courts, including several
instances where poisoning was not at issue, it is incorrect to say that the
“ordinary case” of criminal mischief requires destructive or violent force.
       We therefore hold that the district court erred in determining TEX.
PENAL CODE ANN. § 28.03(a)(1) is an aggravated felony under U.S.S.G.
§ 2L1.2(b)(1)(C).      The judgment is modified to reflect a conviction under
§ 1326(b)(1) instead of § 1326(b)(2), and this matter is remanded to the district
court for the limited purpose of correcting the written judgment to reflect this
modification.
       REMANDED




State, No. 06-99-00150-CR, 2000 WL 1506999 (Tex. Crim. App. Oct. 11, 2000) (pouring
gasoline containing sugar into the gasoline tank of a car belonging to another); Vantil v. State,
884 S.W.2d 212 (Tex. Crim. App. 1994) (removing the rear sliding window of a pickup truck
with a screwdriver); Cullen v. State, 832 S.W.2d 788 (Tex. Crim. App. 1992) (poisoning an
historic tree); Athey v. State, 697 S.W.2d 818 (Tex. Crim. App. 1985) (preparing a rental home
for repairs by removing cabinets, sheetrock, and tiles); Crawley v. State, 513 S.W.2d 62 (Tex.
Crim. App. 1974) (intentionally entering freeway and driving in an erratic manner, resulting
in a collision).
        17 United States v. Castleman, 134 S. Ct. 1405, 1408 (2014) (holding that poisoning a

victim by giving them a poisoned beverage was a crime that involved physical force).
        18 See Cullen, 832 S.W.2d at 788.
        19 Castleman, 134 S. Ct. at 1414.

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