          United States Court of Appeals
                      For the First Circuit


No. 16-2008

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                       ISMAEL REYES-RIVAS,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF PUERTO RICO

        [Hon. Jay A. Garcia-Gregory, U.S. District Judge]


                              Before

                       Howard, Chief Judge,
                Selya and Barron, Circuit Judges.


     Franco L. Pérez-Redondo, Research & Writing Specialist, with
whom Eric A. Vos, Federal Public Defender, and Vivianne M. Marrero-
Torres, Assistant Federal Public Defender, were on brief, for
appellant.
     Mainon A. Schwartz, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Mariana E. Bauzá-Almonte, Assistant United States Attorney, were
on brief, for appellee.


                        November 28, 2018
             BARRON, Circuit Judge.         Ismael Reyes-Rivas ("Reyes")

challenges his sentence of 77 months of imprisonment on the grounds

(1) that he was improperly subjected to the career offender

enhancement, U.S.S.G. § 4B1.1, because one of his predicate crimes

did not qualify as a "crime of violence" under the career offender

guideline and (2) that the District Court impermissibly considered

an untranslated Spanish-language document in violation of the

Jones Act, 48 U.S.C. § 864.       For the reasons that follow, we vacate

and remand for further proceedings.

                                      I.

             In 2015, Reyes was indicted in the District of Puerto

Rico on one count of assault with a dangerous weapon, see 18 U.S.C.

§ 113(a)(3), for stabbing a fellow prisoner with a "homemade

weapon."     Reyes pleaded guilty to that offense, and his case

proceeded to sentencing.

             On April 28, 2016, the Probation Office released a

Presentence Report ("PSR") in Reyes's case.              The PSR classified

Reyes as a career offender.           See U.S.S.G. § 4B1.1(a).         Under

U.S.S.G.     § 4B1.1(a),    a     "career    offender"     includes   "those

defendants     who   have   two   prior     convictions,    whether   for   a

'controlled substance offense,' any 'crime of violence,' or any

combination thereof."       United States v. Steed, 879 F.3d 440, 443

(1st Cir. 2018) (internal citations omitted).




                                    - 2 -
             At the time of Reyes's sentencing, the career offender

guideline defined a "crime of violence" as:

             [A]ny offense under federal or state law,
             punishable   by   imprisonment  for   a   term
             exceeding one year, that— (l) has as an
             element the use, attempted use, or threatened
             use of physical force against the person of
             another, or (2) is burglary of a dwelling,
             arson,   or   extortion,   involves   use   of
             explosives, or otherwise involves conduct that
             presents a serious potential risk of physical
             injury to another.

U.S.S.G. § 4B1.2(a) (2015).      Thus, an offense could fit within the

then-operative     "crime   of   violence"   definition   if   it   were

encompassed by that definition's force clause ("has as an element

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

the person of another"), enumerated offenses clause ("is burglary

of a dwelling, arson, or extortion, involves use of explosives"),

or residual clause ("otherwise involves conduct that presents a

serious potential risk of physical injury to another").

             The PSR determined, without express references to any of

the clauses just referenced, that Reyes qualified as a "career

offender" because he had two prior convictions for "crimes of

violence."      Those convictions were a 2014 federal carjacking

conviction, see 18 U.S.C. § 2119(1), and a 2012 Puerto Rico

conviction for aggravated battery, see P.R. Laws. Ann. tit. 33

§ 4750.




                                  - 3 -
            To determine whether a prior conviction qualifies as a

"crime of violence," we apply the "categorical approach."             United

States v. Dávila–Félix, 667 F.3d 47, 55 (1st Cir. 2011) (citing

Taylor v. United States, 495 U.S. 575, 600–02 (1990)).            Under that

approach, "we look to the statutory definition of the offense in

question,   as   opposed   to    the    particular    facts   underlying   the

conviction."     United States v. Piper, 35 F.3d 611, 619 (1st Cir.

1994).

            The conviction that is at issue in this appeal is the

one for aggravated battery.            The Puerto Rico aggravated battery

statute provides that:

            If    the    battery    described  in   § 4749
            [misdemeanor simple battery] of this title
            causes an injury that does not leave permanent
            harm,    but    requires   medical  attention,
            specialized        professional     outpatient
            treatment, shall incur a fourth degree felony.

            If the battery causes an injury that requires
            hospitalization or extended treatment, or
            causes permanent harm, the perpetrator shall
            incur a third degree felony.    This modality
            also includes mayhem, those that transmit an
            illness, syndrome or condition requiring
            prolonged physical treatment, or those that
            require prolonged psycho-emotional treatment.

P.R. Laws. Ann. tit. 33 § 4750.                A separate provision of that

statute defines simple battery as occurring when "[a]ny person who

illegally through any means or form inflicts injury to the bodily

integrity of another[.]"        Id. § 4749.




                                       - 4 -
               Reyes    objected    to   the     PSR   on      the      ground   that   his

conviction for aggravated battery was not a "crime of violence."

The Probation Office responded to Reyes's objection with an email

that       stated   that    Reyes's   conviction         was      for    "fourth   degree

aggravated battery" and that this conviction was for an offense

that qualified as a "crime of violence"1 under the "force clause."

The government asserted the same conclusion in its Response to the

Defendant's Objection to the Presentence Report.

               To support that assertion, the government attached as

"Exhibit 1" a Spanish-language copy of a Puerto Rico judgment of

conviction for the offense at issue and requested that the District

Court grant the government ten days to file a certified translation

of   the     judgment.       The   government      did      not    thereafter      file   a

translation.

               The District Court then held a sentencing hearing on

June 24, 2016.          Reyes argued at the hearing that the aggravated

battery conviction did not qualify as a "crime of violence."

Specifically,          he   contended     that     the       "crime        of    violence"


       1
       Although an aggravated battery conviction in the third
degree is more serious than a conviction in the fourth degree, the
third-degree variant expressly covers injuries "that transmit an
illness . . . or those that require prolonged psycho-emotional
treatment." P.R. Laws. Ann. tit. 33 § 4750. The fourth-degree
variant, on the other hand, does not mention those types of
injuries. Thus, according to the parties, there is more ambiguity
that a third-degree conviction would require physical force or
present risk of physical injury such that it would fall within the
crime of violence definition.


                                         - 5 -
definition's enumerated offenses clause did not encompass his

offense of conviction because that offense was not "burglary of a

dwelling, arson, or extortion" and did not "involve[] use of

explosives."    U.S.S.G. § 4B1.2(a)(2) (2015).    Reyes also argued

that the "crime of violence" definition's residual clause could

not encompass his offense of conviction because that clause was

unconstitutional under Johnson v. United States, 135 S. Ct. 2551,

2563   (2015)   ("Johnson   II"),   which   had   struck   down   as

unconstitutionally vague an analogous residual clause in the Armed

Career Criminal Act of 1984 ("ACCA"), 18 U.S.C. § 924(e)(2)(B).

Finally, Reyes argued that the "crime of violence" definition's

force clause did not encompass his offense of conviction because,

he contended, that offense did not have as an element the use or

threatened use of "force capable of causing physical pain or injury

to another person."   See Johnson v. United States, 559 U.S. 133,

140 (2010) ("Johnson I").

          For its part, the government made no argument at the

hearing that Reyes's offense of conviction qualified as a "crime

of violence" based on either the enumerated offenses clause or the

residual clause.    Instead, the government informed the District

Court that it was proceeding on the understanding that the residual

clause was, as Reyes contended, unconstitutional under Johnson II.

But, the government argued, Reyes's conviction for aggravated

battery did qualify as a "crime of violence" under the force clause


                               - 6 -
because that offense had as an element the infliction of bodily

injury requiring medical attention and thus necessarily required

the   use   of      the   degree    of    force    that   the   Supreme   Court     had

determined was necessary to satisfy that clause.

              In presenting their conflicting arguments at the hearing

about   the    career       offender     guideline's      application     to   Reyes's

conviction, neither Reyes nor the government directly addressed

whether Reyes's conviction was for aggravated battery in the third

or fourth degree.          Nor did either Reyes or the government directly

address whether the aggravated battery statute was divisible along

that dimension, such that a conviction under the statute could be

for one of the two variants rather than for aggravated battery as

a categorical whole.

              The    District      Court    then   ruled    that,   based      on   "the

arguments      that       [it   had]     heard,"   Reyes's      aggravated     battery

conviction qualified as a "crime of violence" and that Reyes was

thus a career offender.                On the basis of that conclusion, the

District Court assigned Reyes a guideline sentencing range of 77

to 96 months of imprisonment.              The District Court sentenced Reyes

to a prison sentence at the low end of that range: 77 months.

              Reyes next filed a motion for reconsideration, in which

he argued for a reduced term of imprisonment based on factors in

18 U.S.C. § 3553(a).            The District Court does not appear to have

ruled on this motion.


                                           - 7 -
             Reyes filed a timely notice of appeal of his sentence,

and   the    government    thereafter          filed   a    "motion    requesting

certification and forwarding of modified record on appeal."                      In

that motion, the government stated that it had failed to file a

translated version of the judgment of Reyes's aggravated battery

conviction    and   requested     to   supplement      the    record   on   appeal

pursuant to Federal Rule of Appellate Procedure 10(e)(2)(B) by

including the translated document.             The District Court granted the

government's motion.

             At   that   point,   Reyes    filed       an    opposition     to   the

government's motion on the ground that Rule 10(e)(2)(B) "is an

inadequate procedural vehicle for curing violations to the Jones

Act's English-language requirement."              Reyes also filed a second

motion for reconsideration, in which he stated that his counsel

had changed and that this change had delayed his response to the

government's motion to supplement the record with the translated

judgment of conviction.

             The District Court acknowledged that it had "used an

untranslated version [of the state court judgment] at sentencing,"

granted Reyes's motion for reconsideration, and vacated the order

granting the government's motion for certification and forwarding

of supplemental record on appeal.          Prior to oral argument in this

appeal, however, the government moved for summary disposition.                   In

doing so, the government admitted that "due to an oversight, the


                                       - 8 -
translation [of the judgment of conviction] was not filed" and

requested that we remand the case for de novo resentencing because

"the record appears to have been insufficiently developed for

applying the modified categorical approach on appeal."               Reyes

opposed that motion on that ground that any remand should be

limited in scope and should preclude the government from presenting

new   evidence    of   Reyes's   prior    conviction.    We   denied   the

government's motion, and the case proceeded to oral argument.

                                    II.

           Reyes contends on appeal that, under the Jones Act, the

District Court's use of the untranslated judgment of conviction at

his sentencing requires that we vacate his sentence.           The Jones

Act "requires that '[a]ll pleadings and proceedings in the United

States District Court for the District of Puerto Rico . . . be

conducted in the English language.'"           United States v. Rivera-

Rosario, 300 F.3d 1, 5–6 (1st Cir. 2002) (alteration in original)

(quoting 48 U.S.C. § 864).

           The government contends that there was no violation of

the Jones Act because the District Court did not consider the

untranslated     document   in   determining   Reyes's   sentence.     The

government does not dispute, however, that it provided the District

Court with an untranslated copy of the judgment of conviction.

See Rivera-Rosario, 300 F.3d at 5-6 (noting neither party disputed

that there was a Jones Act violation where the government provided


                                   - 9 -
untranslated Spanish language materials to the District Court).

Moreover, the District Court itself stated in an order that it had

"used an untranslated version [of the state court judgment] at

sentencing."      (emphasis added).   We thus conclude that there was

a Jones Act violation, see United States v. Millán-Isaac, 749 F.3d

57, 64 (1st Cir. 2014), and the government makes no argument that,

insofar as there was a violation, the sentence may stand.            See

Rivera-Rosario, 300 F.3d at 10 ("[V]iolations of the English

language requirement will constitute reversible error whenever the

appellant can demonstrate that the untranslated evidence has the

potential to affect the disposition of an issue raised on appeal.

Absent that potential, there is no prejudice from the violation of

the Jones Act that warrants relief.")

             We do note that the government -- apparently on the

assumption that no Jones Act violation occurred -- does separately

argue that Reyes's conviction qualifies as one for a "crime of

violence."     In pressing that contention on appeal, however, the

government has abandoned the argument that it made below -- namely,

that Reyes's conviction qualifies as a "crime of violence" under

the force clause. Rather, the government now argues that, in light

of Beckles v. United States, 137 S. Ct. 886 (2017), which was

decided   after    Reyes's   sentencing,   "[Reyes's]   conviction   for

fourth-degree aggravated battery qualifies as a crime of violence

under the residual clause," (emphasis added).           See id. at 892


                                 - 10 -
(holding that, notwithstanding Johnson II, the residual clause in

the career offender guideline is not unconstitutionally vague).2

          But, because the Jones Act requires that we set aside

the   untranslated    document    concerning    Reyes's     judgment    of

conviction, we have no basis for concluding that the District Court

permissibly   found   that   Reyes's   conviction   was   for   aggravated

battery in the fourth degree.          Nor does the government argue

otherwise. In fact, the government asserts that the District Court

"focused solely on the question of whether [the statutory offense

of aggravated battery], as a categorical whole, qualified as a

crime of violence under the force clause."          And thus we have no

reason to consider the government's new argument for finding that

Reyes's conviction qualifies as a crime of violence, as the

government at no point argues to us that the residual clause

encompasses the offense of aggravated battery even if it is in the

fourth degree.

          Accordingly, we vacate and remand the sentence.              That

way, the District Court may determine on the basis of the record


      2While arguments not made before the District Court are
ordinarily deemed waived, see Me. Green Party v. Me., Sec'y of
State, 173 F.3d 1, 4 (1st Cir. 1999), we have held that where a
party relied on Johnson II in waiving an argument on the assumption
that the Guidelines' residual clause was unconstitutional -- like
the government did here -- "[w]e are not bound by [that party's]
concession, which, while understandable before Beckles, turned out
to be incorrect," United States v. Thompson, 851 F.3d 129, 131
(1st Cir. 2017).



                                 - 11 -
as it existed at the time of sentencing, but without consideration

of the untranslated document that it "used" at that sentencing,

the type of aggravated battery of which Reyes was convicted and

whether that offense is a "crime of violence."3

          We note, moreover, that the government is limited in the

arguments that it may make on remand regarding the application of

the career offender guideline.   The government chose to abandon on

appeal the only ground that the District Court appears to have

relied upon below in finding, "based on the arguments that [it

had] heard," that the offense was a "crime of violence" -- namely,

that Reyes committed an offense encompassed by the force clause of

the career offender guideline's "crime of violence" definition.

Instead, the government chose to defend the sentence -- insofar as

it was not tainted by a Jones Act violation -- solely by contending

that the residual clause encompasses fourth-degree aggravated




     3 We note in this regard that the untranslated document was
not in evidence and thus any certified translation of the same
document would necessarily constitute new evidence. But, we have
not allowed the government to introduce additional evidence in
cases "where the government asked for the enhancement but failed
to adduce sufficient proof for its imposition -- a situation in
which there would not likely be reason to permit a second bite at
the apple." United States v. Román-Huertas, 848 F.3d 72, 78 (1st
Cir. 2017) (quoting United States v. Montero-Montero, 370 F.3d
121, 124 (1st Cir. 2004)). In cases like Reyes's, the government
"had every incentive to ensure that the [D]istrict [C]ourt relied
only on evidence presented in the English language," id., and
therefore the government may not present new evidence of Reyes's
prior conviction on remand.


                              - 12 -
battery and that Reyes was convicted of that variant of the offense

and no other.   It is thus limited to that argument on remand.

           We make one final observation.       The District Court is

bound on remand to apply the version of the Sentencing Guidelines

that contained the residual clause, just as it relied on that

version of the guidelines (though not the clause itself) when it

sentenced Reyes the first time. See 18 U.S.C. § 3742(g)(1) ("[T]he

court   shall   apply   the   guidelines   issued   by   the   Sentencing

Commission . . . that were in effect on the date of the previous

sentencing of the defendant prior to the appeal.").        But, we note

that the United States Sentencing Commission, five months prior to

Reyes's original sentencing, voted to adopt an amendment that would

eliminate the residual clause from the definition of "crime of

violence" in the Guidelines.       See U.S. Sentencing Comm'n, U.S.

Sentencing Commission Adopts Amendment to Definition of “Crime of

Violence” in Federal Sentencing Guidelines and Proposes Additional

Amendments (Jan. 8, 2016), https://www.ussc.gov/about/news/press-

releases/january-8-2016. Therefore, although the amendment itself

was not effective until August 1, 2016, about a month after Reyes's

June 24 sentencing, the District Court would have been aware of

the upcoming change. See Supplement to the 2015 Guidelines Manual,

Appendix C, amendment 798 (U.S. Sentencing Comm'n 2016).         We leave

it to the District Court to determine in the first instance what

impact, if any, those actions by the Commission should have on


                                 - 13 -
sentencing Reyes in the event that the District Court were to

determine (for the first time) that, solely in consequence of the

residual clause, his conviction was for a "crime of violence."

                              III.

          For the foregoing reasons, we vacate Reyes's sentence

and remand for resentencing consistent with this opinion.




                             - 14 -
