                             PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4363


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

MARTIN BARCENAS-YANEZ, a/k/a Juan Yanaee Cruz, a/k/a Ricardo
Rocha-Gusman,

                Defendant - Appellant.


Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Robert J. Conrad,
Jr., District Judge. (3:14-cr-00005-RJC-1)


Argued:   May 11, 2016                    Decided:   June 21, 2016


Before MOTZ and FLOYD, Circuit Judges, and DAVIS, Senior Circuit
Judge.


Vacated and remanded by published opinion.    Senior Judge Davis
wrote the opinion, in which Judge Motz and Judge Floyd joined.


ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant.
Anthony Joseph Enright, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.     ON BRIEF: Ross Hall
Richardson, Executive Director, FEDERAL DEFENDERS OF WESTERN
NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant.
Jill Westmoreland Rose, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
DAVIS, Senior Circuit Judge:

      Having      pled       guilty       to    illegally         reentering     the    United

States    in     violation          of    8    U.S.C.     §    1326,     Appellant      Martin

Barcenas-Yanez         appeals       the       60-month       sentence    imposed       by    the

district    court.            The    length      of    the     sentence    was    driven       in

significant       part        by    the        district       court’s     conclusion         that

Barcenas-Yanez’s          1997 aggravated assault conviction under Texas

Penal     Code    §     22.02(a)          constituted         a    predicate     “crime        of

violence”      under         the    reentry       sentencing        guideline,         U.S.S.G.

§ 2L1.2(b)(1)(A).             We hold, to the contrary, that a conviction

under § 22.02(a) is not categorically a crime of violence.                                    We

therefore vacate the judgment and remand for resentencing.

      Barcenas-Yanez, a native and citizen of Mexico, illegally

entered the United States during the early 1990s and spent the

majority of the decade living and working in Texas.                                 While in

Texas, Barcenas-Yanez was convicted of several state offenses

including,       of    relevance          to     the    present      appeal,      aggravated

assault with a deadly weapon in violation of Texas Penal Code

§ 22.02(a)(2), stemming from a bar fight.

      Under      the    terms       of    the    Texas    statute        relevant      to    this

appeal, Barcenas-Yanez committed the Texas offense of aggravated

assault     in     that        he     committed         “simple       assault”      when       he

“intentionally, knowingly, or recklessly cause[d] bodily injury

to   another,”        Tex.    Penal      Code     §    22.01(a)(1),       and   that     simple

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assault    offense    was     elevated    to    aggravated        assault      because,

during the assault, he “use[d] or exhibit[ed] a deadly weapon.”

§   22.02(a)(2). 1      After    serving      three   years      in    state     prison,

Barcenas-Yanez       was    deported     to    Mexico.      As     early       as   2003,

however, he illegally reentered the United States, making his

way to North Carolina.

      In 2006, Barcenas-Yanez was convicted of driving under the

influence    and     assault    in   a   North    Carolina        state       court.   In

December    2013,     while     Barcenas-Yanez        was   serving       a    term    of

probation, the Department of Homeland Security discovered his

presence in North Carolina.              A grand jury returned the instant

indictment charging him with knowingly and unlawfully reentering

the United States while under a preexisting order of deportation

in violation of 8 U.S.C. § 1326(a) and (b)(2).

      In due course, Barcenas-Yanez pled guilty as charged in the

indictment.     In preparation for sentencing, a probation officer

prepared    a   Presentence       Investigation          Report       (“PSR”),      which

concluded that, because Barcenas-Yanez “was previously deported

after being convicted of a crime of violence, Aggravated Assault

with a Deadly Weapon,” his offense level should be increased by

      1The actual charging document alleged that Barcenas-Yanez
“intentionally and knowingly cause[d] serious bodily injury to
[the victim] by beating him about the face and head with a cue
stick, that by the manner of its use and intended use was
capable of causing death and serious bodily injury.” J.A. 46.



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16 levels pursuant to U.S.S.G. § 2L1.2(b)(1)(A).                          With the 16-

level    enhancement,       Barcenas-Yanez’s           advisory     guidelines      range

was 77 to 96 months’ imprisonment.

       Barcenas-Yanez objected to the PSR’s conclusion that his

1997 conviction for aggravated assault qualified as a “crime of

violence”      for     purposes    of    U.S.S.G.      §    2L1.2(b)(1)(A),       arguing

that, because the mens rea element of Texas’s aggravated assault

statute       sweeps     more     broadly       than       that    of    the    “generic”

definition of aggravated assault (by permitting a conviction for

“reckless[ly] caus[ing] bodily injury to another”), a conviction

under § 22.02(a) does not categorically constitute a crime of

violence.         The government did not oppose the objection, and the

probation officer revised the PSR, replacing the recommended 16-

level enhancement with a recommended 4-level enhancement under

U.S.S.G.      §     2L1.2(b)(1)(D).         Under      the    new   calculation,      the

advisory guidelines range was significantly reduced to 24 to 30

months; the government did not object to the revised PSR.

       At     the    sentencing        hearing,     somewhat        to    the   parties’

surprise, the district court stated that it had “a hard time

figuring out why a 16-level adjustment” was not appropriate.

J.A.    28.       Relying   on    an    unpublished        Tenth    Circuit     decision,

United States v. Arellano-Sandoval, 506 F. App’x 827 (10th Cir.

2013), and its own determination that § 22.02(a) is divisible,

the district court applied the modified categorical approach and

                                            4
concluded that, because Barcenas-Yanez was specifically charged

with    “intentionally         and     knowingly      caus[ing]          serious        bodily

injury,” the applicable elements of § 22.02(a) matched those of

the generic aggravated assault offense enumerated as a “crime of

violence” under U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii).                              J.A. 27–35;

see id. at 31 (observing that the charging document in the 1997

case    “seems    to    read    reckless      right       out    of   the    conviction”).

After     determining          that    the        16-level       crime       of       violence

enhancement       was    appropriate,         the     district         court      calculated

Barcenas-Yanez’s advisory guidelines range at 77 to 96 months.

Ultimately,      the    court     sentenced        Barcenas-Yanez           to    a    variant

sentence of 60 months’ imprisonment.

       Barcenas-Yanez      filed       this   timely       appeal,      contending         that

the    district    court       erred    in    using       the    modified        categorical

approach to determine that his 1997 conviction for aggravated

assault under § 22.02(a) constituted a crime of violence for

purposes of U.S.S.G. § 2L1.2(b)(1)(A).                      We        review      de       novo

whether a district court erred in determining that a defendant’s

prior conviction qualifies as a crime of violence for purposes

of the reentry guideline.              United States v. Aparicio-Soria, 740

F.3d 152, 154 (4th Cir. 2014) (en banc).

       U.S. Sentencing Guideline § 2L1.2, the reentry guideline,

“advises    federal       district      judges       to    increase         by    twelve    or

sixteen the offense level of a defendant convicted of unlawfully

                                              5
entering or remaining in the United States if that defendant has

a    prior   felony    conviction         for       a    ‘crime      of    violence.’”        Id.

(quoting     U.S.S.G.       §    2L1.2(b)(1)(A)).               The       commentary     to   the

reentry      guideline          defines     “crime         of     violence”        as    certain

enumerated          offenses,        such           as     “[m]urder,             manslaughter,

kidnapping,      [and]      aggravated       assault,”          or    “any      other    offense

under federal, state, or local law that has as an element the

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

the person of another.”             U.S.S.G. § 2L1.2 cmt. n. 1(B)(iii).

       At sentencing, the district court correctly determined that

a violation of § 22.02(a) could potentially qualify as a crime

of    violence       because       “aggravated            assault”         is     one    of   the

enumerated     offenses         listed    in     the      commentary         to    the   reentry

guideline.      Consequently, the court correctly viewed its task as

determining whether “the elements of [a § 22.02(a) violation]

‘correspond[] in substance’ to” those of the generic definition

of aggravated assault.               United States v. Cabrera-Umanzor, 728

F.3d 347, 350 (4th Cir. 2013) (second alteration in original)

(quoting Taylor v. United States, 495 U.S. 575, 599 (1990)).

       In so doing, courts must look exclusively to “the elements

of the prior offense rather than the conduct underlying the”

particular     conviction.            Id.           This    categorical           analysis     is

tweaked, however, if the statute of conviction is “divisible”--

meaning      that     the       statute’s       elements        are       set     out    in   the

                                                6
alternative, providing for multiple versions of the same crime.

Id.    In the case of a divisible statute, the court employs a

modified     categorical      approach        and    is    permitted         to    “consult

certain approved ‘extra-statutory materials . . . to determine

which statutory phrase was the basis for the conviction.’”                                Id.

(quoting    Descamps     v.     United      States,       133    S.    Ct.     2276,      2285

(2013)).      The    Supreme       Court    has     explained        that    the   modified

categorical approach “serves a limited function” and that the

approved    extra-statutory         materials,       or    Shepard        documents,       may

only   be   consulted    when       a    statute     “list[s]        potential       offense

elements in the alternative, render[ing] opaque which element

played a part in the defendant’s conviction” and not when the

statute     merely    defines       the     offense    broadly.             Id.    (quoting

Descamps, 133 S. Ct. at 2283).

       Here, like the district court, the parties first focus on

whether     the     inclusion       of     recklessness         as    a     mental       state

sufficient to satisfy § 22.02(a)’s mens rea element takes the

statute out of the ambit of the “generic” aggravated assault

offense, which is a categorical crime of violence.                                 We think

that the district court and the parties are correct on that

score; inclusion of a mere reckless state of mind renders the

statute broader than the generic offense.                       See United States v.

Garcia-Jimenez, 807 F.3d 1079, 1086 (9th Cir. 2015) (“That a

substantial       majority    of    U.S.    jurisdictions            require      more    than

                                             7
extreme indifference recklessness to commit aggravated assault

is a compelling indication that the federal generic definition

of    aggravated   assault      also    requires    more   than    that     mental

state.”).     Therefore, and again as the district court correctly

perceived, the dispositive question becomes whether the Texas

legislature, in setting out alternative means of satisfying the

mens   rea   element     of   the   Texas    statute,   rendered   the    statute

divisible such that the state law can be said to have created

two    offenses,   one    involving     a    reckless   mens   rea,   the   other

involving a knowing or intentional mens rea.               We hold, applying

settled Circuit precedent, that the answer to this latter query

is “no.”

       Texas law prohibits simple and aggravated assault.                     Tex.

Penal Code §§ 22.01, 22.02.            As relevant here, 2 a person commits

simple “bodily injury” assault if he “intentionally, knowingly,

or recklessly causes bodily injury to another, including the

person’s spouse.”        § 22.01(a)(1).        A violation of § 22.01(a)(1)

generally qualifies as a Class A misdemeanor.                  § 22.01(b).     On

the other hand, a person commits aggravated assault, a felony,

§ 22.02(b), if he commits simple assault, as defined in § 22.01,



       2
       The Texas Penal Code also prohibits two other “distinct
assaultive crimes,” Landrian v. State, 268 S.W.3d 532, 536 (Tex.
Crim. App. 2008), but neither is relevant to the present appeal,
§ 22.01(a)(2)–(3).



                                         8
and “uses or exhibits a deadly weapon during the commission of

the assault,” § 22.02(a)(2).

     In     arguing    that   the   Texas     statute    is    divisible,     the

government contends, unremarkably, that we may consider the text

of the statute, together with state court opinions interpreting

the statute.      But the government goes much further to argue that

we may also consider, in light of state court practice, any

charging documents it is able to obtain from the state courts,

such as the charging document relied on by the district court in

this case.        In still another giant leap, the government even

suggested    at   oral   argument   that    we   may    take   account   of   the

description of charging documents contained in unrelated state

court    opinions. 3     We   decline   the   government’s      invitation     to

embark on such a journey, for we have already settled on our

preferred path to divisibility determinations.

     Indeed,      we   have   explained     this   Circuit’s      approach    to

divisibility analysis with unmistakable clarity:

     A statute is indivisible when the jury need not agree
     on anything past the fact that the statute was
     violated.    Any statutory phrase that—explicitly or
     implicitly—refers to multiple, alternative means of

     3 At oral argument the government acknowledged that under
its approach to divisibility analysis, a statute would sometimes
be deemed divisible and sometimes not, depending on how a local
prosecutor elected to word the charges. We find little in such
a rule to commend itself to us, even were we free to adopt it,
which we are not.



                                        9
     commission must still be regarded as indivisible if
     the jurors need not agree on which method of
     committing the offense the defendant used. Thus, mere
     use of the disjunctive “or” in the definition of a
     crime does not automatically render it divisible.
     Only when [the] law requires that in order to convict
     the defendant the jury must unanimously agree that he
     committed a particular substantive offense contained
     within the disjunctively worded statute are we able to
     conclude   that   the  statute   contains  alternative
     elements and not alternative means.

United States v. Fuertes, 805 F.3d 485, 498 (4th Cir. 2015)

(alteration in original) (citations and internal quotation marks

omitted); see also United States v. Vinson, 805 F.3d 120, 125

(4th Cir. 2015) (“[W]hether a statute or criminal offense is

divisible depends on the existence of alternate elements and a

matching category—that is, the alternate elements must create at

least one category or form of an offense that matches up to the

elements of the generic federal offense in question.”); Cabrera–

Umanzor, 728 F.3d at 350 (“Where the statute defines the offense

broadly rather than alternatively, the statute is not divisible,

and the modified categorical approach simply ‘has no role to

play.’” (quoting Descamps, 133 S. Ct. at 2285)).

     In a holding imbued with an equal measure of unmistakable

clarity, the Texas Court of Criminal Appeals has determined that

jury unanimity as to mens rea is not required for an aggravated

assault conviction under § 22.02(a)(1), (2).       Landrian v. State,

268 S.W.3d 532, 537 (Tex. Crim. App. 2008).             Accordingly, the

Texas   aggravated   assault   offense   created   in    §   22.02(a)   is

                                  10
broader than the federal generic “aggravated assault” offense

qualifying under the reentry guideline as supporting an enhanced

sentencing range, is not divisible, and therefore cannot support

the   application    of   a    16-level        enhancement    under   the    reentry

guideline.     In so holding, we respectfully disagree with the

contrary, pre-Descamps opinion (and its progeny) of the Fifth

Circuit.     See United States v. Guillen–Alvarez, 489 F.3d 197,

199 (5th Cir. 2007).

      We   acknowledge        that   it    is    understandably       tempting    to

examine Shepard-approved documents earlier rather than later in

the sentencing process.              As this case demonstrates, however,

when such documents are examined too early, a risk arises that

the   divisibility    analysis        required      under     Descamps      and   our

Circuit precedent may be skewed.                 It should be clear that the

modified categorical approach may not be employed to determine

whether the modified categorical approach may be employed. 4



                                                             VACATED AND REMANDED




      4 We have fully considered and find no merit in the
government’s alternative arguments that (1) a § 22.02(a)
conviction for aggravated assault constitutes a categorical
crime of violence under the force clause of the reentry
guideline and (2) even with a reckless mens rea element,
violation of the Texas statute constitutes a crime of violence.



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