     Case: 15-41551   Document: 00513854915        Page: 1   Date Filed: 01/30/2017




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

                                    No. 15-41551                       FILED
                                                                January 30, 2017
                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                              Clerk

             Plaintiff - Appellee

v.

EDER VLADIMIR MENDEZ-HENRIQUEZ, also known as Eder Vladimir
Henriquez,

             Defendant - Appellant




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


Before JONES, BARKSDALE, and COSTA, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:
      The one issue on appeal is whether a prior offense constitutes a crime of
violence (COV) for imposing an enhancement under the Sentencing
Guidelines. In challenging his sentence for illegal reentry after removal, in
violation of 8 U.S.C. § 1326, Eder Vladimir Mendez-Henriquez asserts his
sentence was erroneously enhanced under Guideline § 2L1.2, based on the
district court’s concluding he committed a COV; he maintains his 2008
conviction of California Penal Code § 246—for maliciously and willfully
discharging a firearm at an occupied motor vehicle—does not qualify as a COV.
AFFIRMED.
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                                 No. 15-41551
                                       I.
      Mendez was arrested in Texas on 10 May 2015. He admitted he entered
the country illegally after deportation in 2011 and 2014, and pleaded guilty to
illegal reentry after removal.
      Mendez’ presentence investigation report (PSR) recounted his criminal
background, including the 2008 conviction under California Penal Code § 246
for maliciously and willfully discharging a firearm at an occupied motor
vehicle, for which he received a five-year sentence. Section 246 provides:
            Any person who shall maliciously and willfully
            discharge a firearm at an inhabited dwelling house,
            occupied building, occupied motor vehicle, occupied
            aircraft, inhabited housecar, as defined in Section 362
            of the Vehicle Code, or inhabited camper, as defined in
            Section 243 of the Vehicle Code, is guilty of a felony,
            and upon conviction shall be punished by
            imprisonment in the state prison for three, five, or
            seven years, or by imprisonment in the county jail for
            a term of not less than six months and not exceeding
            one year.

            As used in this section, “inhabited” means currently
            being used for dwelling purposes, whether occupied or
            not.

Cal. Penal Code § 246 (2008) (emphasis added). In that regard, a felony
complaint charged Mendez, pursuant to § 246, with “willfully, unlawfully, and
maliciously discharg[ing] a firearm at an occupied motor vehicle”. The PSR
recommended the offense qualified as a COV under Guideline § 2L1.2, which
imposes a 16-level sentence enhancement. See U.S.S.G. § 2L1.2(b)(1)(A)(ii).
      Guideline § 2L1.2 defines a crime of violence as either one included in a
list of enumerated offenses, or “any other offense under federal, state, or local
law that has as an element the use, attempted use, or threated use of physical
force against the person of another”. U.S.S.G. § 2L1.2, cmt. n.1(B)(iii). As the

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                                  No. 15-41551
parties agree, § 246 is not one of the enumerated offenses. Therefore, for the
COV-enhancement to apply, “the use, attempted use, or threatened use of
physical force against the person of another” must be “an element” of § 246.
U.S.S.G. § 2L1.2, cmt. n.1(B)(iii).
      Mendez objected to the PSR, asserting § 246 is not a COV under § 2L1.2.
In addition to contending § 246 is not one of the enumerated crimes listed in
the Guideline, he asserted it did not require intent to shoot at an individual.
He also maintained § 246 is not divisible; and, in the alternative, divisibility
should not affect enhancement.        Mendez reasserted these contentions at
sentencing.
      The court overruled Mendez’ objection and applied the 16-level COV
enhancement to its calculation of the Guidelines sentencing range. After other
adjustments, the court sentenced Mendez within the advisory sentencing
range to 44-months’ imprisonment.
                                        II.

      Because Mendez appeals only the enhancement, at issue is whether his
conviction under California Penal Code § 246 qualifies as a COV under
Guideline § 2L1.2. Although the Guidelines are advisory only post-Booker, the
district court must avoid significant procedural error, such as improperly
calculating the Guidelines sentencing range. Gall v. United States, 552 U.S. 38,
48–51 (2007). Where a defendant preserves error by objecting at sentencing, as
Mendez did here, the court’s findings of fact are reviewed for clear error; its
application of the Guidelines, de novo. E.g., United States v. Gomez-Alvarez, 781
F.3d 787, 791 (5th Cir. 2015). Along that line, this court reviews “de novo whether
a prior conviction qualifies as a [COV] within the meaning of the Guidelines”.
United States v. Rodriguez, 711 F.3d 541, 548 (5th Cir. 2013) (en banc).
      During the pendency of this appeal, the Supreme Court rendered two
decisive opinions on statutory interpretation for sentencing enhancement:
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                                  No. 15-41551
Voisine v. United States, 136 S. Ct. 2272 (2016); and Mathis v. United States, 136
S. Ct. 2243 (2016). While both concerned the Armed Career Criminal Act,
rather than the Guidelines, each has already been imported by our court for
Guidelines analysis. See United States v. Uribe, 838 F.3d 667, 670 (5th Cir.
2016); United States v. Howell, 838 F.3d 489, 501 (5th Cir. 2016); United States
v. Hinkle, 832 F.3d 569, 574 (5th Cir. 2016); United States v. Conley, No. 15-
10550, 2016 WL 7187376, at *1 (5th Cir. 2016) (concerning a controlled-
substance offense rather than a COV); United States v. Bryant, No. 14-11012,
2016 WL 5795772, at *1 (5th Cir. 2016).           Mathis provides guidance on
divisibility vel non and the modified categorical approach because “the primary
focus of the Court’s decision in Mathis was how to determine whether a statute
is ‘divisible’”. Hinkle, 832 F.3d at 574. In conducting that analysis, Voisine is
instructive; it is “illuminating as to the backdrop against which the Sentencing
Commission defined a ‘crime of violence’ as including ‘use’ of force against
another person”.     Howell, 838 F.3d at 501.      These two recent—and very
welcome—Supreme Court decisions clarify long-debated interpretation of
sentencing enhancement, and we are, of course, bound by them—even where
our court ruled to the contrary previously. Hinkle, 832 F.3d at 574–75.
      Again, for the COV enhancement to apply in this instance, “the use,
attempted use, or threatened use of physical force against the person of
another” must be an element of § 246. U.S.S.G. § 2L1.2, cmt. n.1(B)(iii). The
analytical method for determining whether a predicate offense merits COV
sentencing-enhancement varies by whether the statute for the offense is
divisible or indivisible. Mathis, 136 S. Ct. at 2249. A statute is divisible if it
“list[s] elements in the alternative, and thereby define[s] multiple crimes”. Id.
      If the statute is indivisible, (containing “a single . . . set of elements to
define a single crime”), the sentencing court utilizes a categorical analysis. Id.
at 2248. “The court then lines up that crime’s elements alongside those of the
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                                  No. 15-41551
generic offense and sees if they match.” Id. If they match, or if the generic
offense is broader, the enhancement is applicable. Id. at 2248–49.
      If the statute is divisible, the Court has “approved the ‘modified
categorical approach’ for use with statutes having multiple alternative
elements”. Id. at 2249 (citing Shepard v. United States, 544 U.S. 13, 26 (2005));
see also United States v. Herrara-Alvarez, 753 F.3d 132, 138 (5th Cir. 2014)
(specific to COV analysis). The modified categorical approach permits analysis
to extend beyond statutory language:
            [A] sentencing court looks to a limited class of
            documents (for example, the indictment, jury
            instructions, or plea agreement and colloquy) to
            determine what crime, with what elements, a
            defendant was convicted of. The court can then
            compare that crime, as the categorical approach
            commands, with the relevant generic offense.

Mathis, 136 S. Ct. at 2249 (internal citations omitted); see also United States v.
Carbajal-Diaz, 508 F.3d 804, 810 (5th Cir. 2007) (specific to COV analysis).
                                        A.
      Our first inquiry is the divisibility vel non of § 246, which covers “any
person who shall maliciously and willfully discharge a firearm at [, inter alia,]
an inhabited dwelling house, occupied building, [or] occupied motor vehicle”.
Cal. Penal Code § 246. Again, a statute is divisible if it “list[s] elements in the
alternative, and thereby define[s] multiple crimes”. Mathis, 136 S. Ct. at 2249.
“The first task for a sentencing court faced with an alternatively phrased statute
is . . . to determine whether its listed items are elements or means.” Id. at 2256.
Therefore, we inquire whether the list of targets in § 246, including “inhabited
dwelling house, occupied building, [or] occupied motor vehicle”, provides
multiple crimes, or merely lists alternative means for committing a single
crime. Cal. Penal Code § 246.


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                                   No. 15-41551
      “[I]f state law fails to provide clear answers, federal judges” may look to the
record of the prior conviction; and if the indictment references “one alternative
term to the exclusion of all others”, divisibility is strongly suggested. Mathis, 136
S. Ct. at 2256–57. We are not aware of definitive California case law providing
whether § 246’s alternative items—inter alia, “an inhabited dwelling house,
occupied building, [or] occupied motor vehicle”—constitute alternative means
of committing a single offense. Persuasively, the California Supreme Court
identified “shooting at an inhabited house” as an element of the § 246 offense,
to the exclusion of the other targets. See People v. Ramirez, 201 P.3d 466, 469
(Cal. 2009) (identified two offense elements in discharging a firearm at an
inhabited dwelling house, in violation of § 246:         “(1) acting willfully and
maliciously, and (2) shooting at an inhabited house”). While the court offered
no blanket statement for each of the § 246 targets, the decision implies the
statute lists alternative elements, rather than means. See id.
      We turn, then, to the charging documents for Mendez’ predicate offense.
As noted, Mendez was charged with “willfully, unlawfully, and maliciously
discharg[ing] a firearm at an occupied motor vehicle”, to the exclusion of, inter
alia, at “an inhabited dwelling house” or “occupied building”. Cal. Penal Code
§ 246. Pursuant to Mathis, we hold § 246 is divisible: the statute enumerates
alternative elements for committing a felony, rather than alternative means of
satisfying a particular element of a crime. See Mathis, 136 S. Ct. at 2249.
                                         B.
      Because § 246 is divisible, the modified categorical analysis is employed
to assess whether “maliciously and willfully discharg[ing] a firearm at an . . .
occupied motor vehicle” contains as an element the Guidelines’ required “use,
attempted use, or threatened use of physical force against the person of
another” to qualify as a COV. U.S.S.G. § 2L1.2, cmt. n.1(B)(iii); e.g., Mathis,
136 S. Ct. at 2245–46.
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                                 No. 15-41551
      It is well established that the modified categorical approach does not
permit our considering the facts of Mendez’ predicate offense, e.g., Hinkle, 832
F.3d at 575–76; but, as discussed, we may look to, inter alia, his charging
documents to better understand what elements of § 246 he violated and
whether they constitute a COV under Guideline § 2L1.2, Mathis, 136 S. Ct. at
2249. Again, Mendez was charged with “willfully, unlawfully, and maliciously
discharg[ing] a firearm at an occupied motor vehicle”.
                                       1.
      Mendez contends: the COV qualification under Guideline § 2L1.2 requires
specific intent in the predicate offense; and “discharg[ing] a firearm at an
occupied motor vehicle” lacks such intent. We disagree in the light of Voisine.
      This court has yet to publish post-Voisine precedent analyzing Guideline
§ 2L1.2. Here, we weigh pre-Voisine analysis of Guideline § 2L1.2, and post-
Voisine analysis of an identically-worded Guideline.
      Before Mathis and Voisine, our court analyzed Guideline § 2L1.2 in United
States v. Vargas-Duran, 356 F.3d 598, 600 (5th Cir. 2004) (en banc). There,
our en-banc court held the “use of physical force” requirement in § 2L1.2
requires more than “accidental” conduct; defendant must “intentionally avail
himself of that force”. Id. at 602, 604. Vargas’ prior crime was “intoxication
assault”, a violation of Texas law committed by a person who, “by accident or
mistake, while operating an aircraft, watercraft or motor vehicle in a public
place while intoxicated, by reason of that intoxication causes serious bodily
injury to another”. Tex. Penal Code Ann. § 49.07 (1994). Vargas, 356 F.3d at
600. Far from the “malicious[] and willful[]” shooting criminalized by the
California statute at issue, the predicate offense in Vargas was, by definition,
committed “by accident or mistake”. Tex. Penal Code Ann. § 49.07 (1994).
Even without considering the facts of Vargas, the predicate offenses are
markedly distinguishable.
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      But, only ten months after Vargas was decided, requiring “intention” for
“use”, the Supreme Court rendered Leocal v. Ashcroft, addressing a statutory
definition nearly identical to Guideline § 2L1.2’s commentary: inter alia, “the
use . . . of physical force against the person or property of another”. 543 U.S.
1, 5 (2004) (quoting 18 U.S.C. § 16). Voisine reminds us that Leocal held use
of physical force against another’s person or property “excludes ‘merely
accidental’ conduct”. Voisine, 136 S. Ct. at 2279 (quoting Leocal, 543 U.S. at
9). “[I]ndeed, Leocal itself recognized the distinction between accidents and
recklessness, specifically reserving the issue whether the definition in § 16
[“the use . . . of physical force against the person or property of another”]
embraces reckless conduct . . . .” Voisine, 136 S. Ct. at 2279–80 (citing Leocal,
543 U.S. at 13). Our court’s “intentional”/“accidental” dichotomy for “use of
force” was no longer certain.
      Twelve years later, the Court undercut our dichotomy expressly: Voisine
held “use of force” “embraces reckless conduct”. Voisine, 136 S. Ct. at 2279–80;
see also Howell, 838 F.3d at 501 (“[T]he Supreme Court’s subsequent decision
in Voisine substantially undercuts the statements in Vargas–Duran that ‘use’
of force encompasses only intentional conduct”.).      Under Voisine, “use” “is
indifferent as to whether the actor has the mental state of intention,
knowledge, or recklessness with respect to the harmful consequences of his
volitional conduct”. Voisine, 136 S. Ct. at 2279.
      In other words, “the word ‘use’ does not demand that the person applying
force have the purpose or practical certainty that it will cause harm, as
compared with the understanding that it is substantially likely to do so”. Id.
(emphasis added). Thus, post-Voisine, while “accidental” is still outside the
realm of “use of force”, our court’s Vargas mandate of “intentionally avail[ing]”,
356 F.3d at 602, is too narrow in scope. The Vargas dissent said as much.


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                                   No. 15-41551
              Despite the plain language of the § 2L1.2 [COV]
              definition, the court’s opinion inserts the word
              ‘intentional’ before the word ‘use.’ There is no mens
              rea language with respect to the ‘use of force’ element
              in the § 2L1.2 definition. . . . Thus, the court’s opinion
              makes the mens rea language purposely included by
              the Sentencing Commission [elsewhere] in this
              guideline superfluous, and departs from clear
              precedent governing statutory construction.

Id. at 611, 612 (Garza, J., dissenting) (internal citations omitted).
        That is not to say Voisine merely moved a marker on a sliding scale of
“use” to “non-use”. To the contrary, Voisine articulated a separate dichotomy
of volitional and non-volitional conduct, discussed infra. See Voisine, 136 S.
Ct. at 2279–80. Vargas remains good law to the extent it echoes Leocal that
accidental conduct is not volitional, and, therefore, does not constitute “use of
force”. See Voisine, 136 S. Ct. at 2279–80; see also Vargas, 356 F.3d at 602,
604.     But, because Mendez was charged with “malicious[] and willful[]”
conduct, that still-binding portion of Vargas is inapplicable to the case at hand.
Cal. Penal Code § 246.
        In Howell, our court conducted a post-Mathis and Voisine analysis of the
Guidelines, though not specific to § 2L1.2.       838 F.3d at 499–503.       Howell
analyzed the “crime of violence” standard of Guideline § 4B1.2, identical to the
COV definition in the commentary of § 2L1.2: “has as an element the use,
attempted use, or threatened use of physical force against the person of
another”. See id. at 490–92 (quoting U.S.S.G. § 4B1.2); § 2L1.2, cmt. n.1(B)(iii).
        Guideline § 4B concerns career offenders and criminal livelihood;
Guideline § 2L, offenses involving immigration, naturalization, and passports.
Under the in pari materia rule of statutory interpretation, effectively imported
to Guidelines’ interpretation, our court’s interpretation of § 4B1.2 informs our
interpretation of § 2L1.2, given the two Guidelines’ identical language and

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                                  No. 15-41551
closely aligned purposes. E.g., United States v. Arnold, 213 F.3d 894, 896 (5th
Cir. 2000) (ultimate conclusion reached by “reading the sentencing guidelines
in pari materia”).
      Howell considered whether a prior conviction for reckless conduct under
Texas law contained, inter alia, “the use of force” as an element within the
meaning of Guideline § 4B1.2(a)(1). Howell, 838 F.3d at 501. Our court held
recklessness was sufficient in the light of Voisine’s holding: “the word ‘use’
. . . is indifferent as to whether the actor has the mental state of intention,
knowledge, or recklessness with respect to the harmful consequences of his
volitional conduct”. Id.; see Voisine, 136 S. Ct. at 2279.
      Because the pertinent language of §§ 4B1.2 and 2L1.2 is identical, and
because we are bound by the new standards of Mathis and Voisine, we look to
Howell over Vargas where the two diverge in pertinent analysis. Thus, post-
Voisine, as applied within our circuit, Guidelines provisions using the language
“has as an element the use, attempted use, or threatened use of physical force
against the person of another” are indifferent to mens rea:           we concern
ourselves only with whether Mendez’ predicate conduct was volitional. 136 S.
Ct. at 2279; Howell, 838 F.3d at 501; U.S.S.G. § 4B1.2; § 2L1.2, cmt. n.1(B)(iii).
As noted supra, the offense charged against Mendez under § 246 confirms the
volitional nature of his crime.
      Voisine holds “use” separates volitional acts from involuntary motion; not
recklessness from intention. 136 S. Ct. at 2278–79. Thus, “use of force” requires
that the act be more than involuntary, but does not imply a requisite mental state.
See id.    Because the fuller § 246 language, “maliciously and willfully
discharg[ing] a firearm at an . . . occupied motor vehicle”, is clearly more than
involuntary, Mendez’ predicate offense was based on a volitional act. Cal.
Penal Code § 246 (emphasis added). Therefore, Mendez’ predicate offense
satisfies the “use of force” portion of Guideline § 2L1.2.
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                                  No. 15-41551
                                        2.
      Again, the pertinent § 2L1.2 commentary is: “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) (emphasis added).           Having
established that California Penal Code § 246 and Mendez’ conviction under it
constitute “use of force”, next at issue is whether “maliciously and willfully
discharg[ing] a firearm at an . . . occupied motor vehicle” satisfies the
commentary’s sub-element “against the person of another”. Cal. Penal Code
§ 246; U.S.S.G. § 2L1.2, cmt. n.1(B)(iii).
      Prior decisions’ Guidelines analyses turned on whether a firearm was
discharged against a building or a vehicle—and sometimes held back when a
state statute named both targets, discussed infra. Again, although California
Penal Code § 246 also includes, inter alia, inhabited dwelling houses and
occupied buildings as targets, our analysis is specific to “discharg[ing] a
firearm at an . . . occupied motor vehicle” because, as discussed supra, that is
the specific offense charged against Mendez. See Cal. Penal Code § 246; see
also United States v. Estrella, 758 F.3d 1239, 1249 (11th Cir. 2014) (when the
state law’s “type-of-structure” element is divisible, the modified categorical
approach may be invoked specifically toward the targeting element at issue in
a given case, i.e., “targeting ‘a vehicle . . . occupied by a person’”). Holding to
the volition-versus-intent distinction drawn in Voisine, our decision does not
turn on whether a person in the occupied vehicle was the target.
      Mendez highlights fifth circuit decisions in which similar statutes
concerning discharging firearms at occupied buildings—rather than occupied
vehicles—were deemed not COVs. See United States v. Hernandez-Perez, 589
F. App’x 282, 283–84 (5th Cir. 2015) (concerning a North Carolina statute);
United States v. Alfaro, 408 F.3d 204, 209 (5th Cir. 2005) (concerning a Virginia
statute).
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      Hernandez was unpublished, thus not binding, see 5th Cir. R. 47.5; but,
it is in any event not inconsistent with our holding today. It concerned a
predicate offense of shooting into a building, rather than a vehicle; leans on a
prior fifth circuit decision also concerning shooting at a building; and was
resolved without reaching modified categorical analysis.             See generally
Hernandez, 589 F. App’x 282.         There, this court merely applied Alfaro,
discussed below—as was appropriate at that time. Id. at 283. The critical
element for our purposes in Hernandez, especially when considered in the light
of Voisine and Mathis, is highlighted in its fourth footnote: “We emphasize
that our holding is limited to Hernandez-Perez’s conviction. We are not
deciding, for example, whether violating [the North Carolina statute] by
shooting into a vehicle would be a crime of violence.” Id. at 284 n.4 (emphasis
added).
      Alfaro interpreted a Virginia statute similar to the California statute at
issue here, though, as noted, that case concerned shooting at a building rather
than a vehicle. 408 F.3d at 208. Our court held shooting at a building was not a
COV because “a defendant could violate this statute merely by shooting a gun at
a building that happens to be occupied without actually shooting, attempting to
shoot, or threatening to shoot another person”. Id. at 209. Likewise, the tenth
circuit rejected the imputation of shooting at an occupied building as a use of force
against a person inside. See United States v. Ford, 613 F.3d 1263, 1271–72 (10th
Cir. 2010).
      On the other hand, specific to firing a gun at an occupied vehicle, the
seventh circuit found a COV under Guideline § 4B1.2 in United States v. Curtis,
645 F.3d 937, 941 (7th Cir. 2011). While the eleventh circuit would later assert
the seventh circuit’s decision in Curtis “repeatedly emphasized that the statute
it considered . . . permitted conviction only if the shooter knew or reasonably
should have known that the vehicle was occupied”, Estrella, 758 F.3d at 1251,

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                                   No. 15-41551
we view Curtis differently.         More than prescribing a narrow set of
circumstances in which shooting at an occupied vehicle constitutes a COV,
Curtis prescribed a narrow set of attenuated circumstances in which shooting
at an occupied vehicle would not constitute a COV. See Curtis, 645 F.3d at 942.
Moreover, the seventh circuit dismissed the hypothetical in Curtis in which an
accused “fired in the direction of a car he should not have reasonably known to
be occupied” and was threatened with a COV enhancement. Id. (emphasis in
original).   There, the accused “could not be convicted of this aggravated
discharge of a firearm offense because that action would be akin to criminal
damage to property—not aggravated discharge of a firearm”, thus a COV
enhancement under the Guidelines would never be at issue. Id.
              By contrast, if the shooter ignored telltale signs of the
              vehicle’s occupancy, such as its presence at a toll booth
              where the shooter “reasonably should know” the
              vehicle is occupied, the shooter’s intentional or
              knowing discharge of a firearm in the direction of the
              vehicle would violate [the state statute at issue] and in
              turn, such conduct would constitute a § 4B1.2(a)(1)
              “[COV].” Although the shooter may not have known of
              the vehicle’s occupancy, the shooter still used,
              attempted to use, or threatened to use physical force
              against another person.

Id.
        In Estrella, the earlier-referenced eleventh-circuit decision, a Florida
statute that criminalized, inter alia, “targeting ‘a vehicle being used or
occupied by any person’” was deemed not a COV under Guideline § 2L1.2. 758
F.3d at 1249 (citing Fla. Stat. § 790.19).        The eleventh circuit reasoned
Guideline § 2L1.2 “should not be interpreted in a way that risks application of
the enhancement to true property offenses”. Id. at 1252. The court explained:
“Where an element would permit conviction whenever the defendant targets
property that happens to be occupied, that element is ‘akin to criminal damage
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                                  No. 15-41551
to property,’ and covers conduct broader than the crimes against persons to
which” the Guideline should apply. Id. (quoting Curtis, 645 F.3d at 942)
(internal citation omitted).
       As noted in, and one year prior to, Estrella, the Florida Supreme Court
ruled the same statute “necessarily involves the use or threat of physical force
or violence against an individual”. Estrella, 758 F.3d at 1249 n.4 (quoting Paul
v. State, 129 So. 3d 1058, 1059 (Fla. 2013)).      The state court’s reasoning
persuasively tracked that of Curtis:         shooting at an occupied vehicle
“necessarily involves the use or threat of physical force or violence to an
individual”. Paul, 129 So. 3d at 1065.
       While we acknowledge the eleventh circuit’s ruling that the holdings in
Alfaro, Ford, and Curtis “all support the conclusion that directing physical
force against an occupied vehicle, without more, does not permit application of
the U.S.S.G. § 2L1.2 [COV] enhancement”, we disagree because that ruling has
been overtaken and undermined by Mathis and Voisine. Estrella, 758 F.3d at
1251 (emphasis added).
       Along that line, and returning to the reasoning of Curtis and the Florida
Supreme Court, shooting at an occupied vehicle involves “the use, attempted
use, or threatened use of physical force against the person of another”. See
U.S.S.G. § 2L1.2, cmt. n.1(B)(iii); Curtis, 645 F.3d at 941–42; Paul, 129 So. 3d
at 1065. While the modified categorical approach bids us dissect divisible
elements from a state statute, we are not so called to dissect the general federal
law in play. As Curtis considered the full “use, attempted use, or threatened
use” language of Guideline § 4B1.2, so do we embrace the full “use, attempted
use, or threatened use” language of Guideline § 2L1.2. See Curtis, 645 F.3d at
941.
       The statute under which Mendez was convicted requires not only
directing force against an occupied vehicle, but doing so “maliciously and
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                                  No. 15-41551
willfully”. Cal. Penal Code § 246. The Florida statute at issue in Estrella read
“wantonly or maliciously”. 758 F.3d at 1243 (citing Fla. Stat. § 790.19). Given
those requirements, we are not concerned, as the eleventh circuit seemed to
be, that individuals who meant no harm to others will be convicted of these
statutes and subject to COV enhancements.           See Curtis, 645 F.3d at 942
(neither is the seventh circuit concerned). At the very least, even when no one
is targeted, volitionally employing physical force through shooting at an
occupied vehicle “threaten[s] use of physical force against the person of
another”. § 2L1.2, cmt. n.1(B)(iii).
      In addition, “more” is involved with the California statute at issue. The
language of California Penal Code § 246 is more specific than the Illinois
statute at issue in Curtis. The Illinois statute merely prohibited discharging a
firearm “‘in the direction of another person or in the direction of a vehicle [the
offender] knows or reasonably should know to be occupied by a person’”.
Curtis, 645 F.3d at 940 (quoting 720 Ill. Comp. Stat. 5/24-1.2(a)(2)). Here, § 246
proscribes shooting “at”, not merely “in the direction of”, a vehicle; and the
object is definitively “an . . . occupied motor vehicle”, not merely “a vehicle [the
shooter] knows or reasonably should know to be occupied”. The California
statute falls far more in line within the Guidelines’ requisite “force against the
person of another”. § 2L1.2, cmt. n.1 (B)(iii).
In applying the modified categorical approach—against this backdrop of
precedent—for deciding whether a COV is present, we cannot overstate the
authority of Mathis and Voisine. “The Mathis decision is controlling regarding
the methodology of the modified categorical approach, and we must apply its
holdings, even if they are contrary to prior precedent of this court.” Hinkle,
832 F.3d at 574. Accordingly, we hold “maliciously and willfully discharg[ing]
a firearm at an . . . occupied motor vehicle” constitutes the “threatened use of


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                                 No. 15-41551
physical force against the person of another”. Cal. Penal Code § 246; U.S.S.G.
§ 2L1.2, cmt. n.1(B)(iii).
      The dissent at 1 maintains “use, attempted use, or threatened use” is not
a requisite element of § 246, because, for the predicate conviction at hand, the
State would be required to prove only that defendant willfully and maliciously
shot a firearm and did so at an occupied motor vehicle.         In other words,
according to the dissent at 1, the State would not also be required to prove
“defendant used, attempted to use, or threatened to use force against a person”.
      But, obviously, the two elements for § 246 advanced by the dissent
subsume “the use, attempted use, or threatened use of physical force against
the person of another”; the statute’s pertaining to an “occupied”, as opposed to
an unoccupied, motor vehicle says as much. Re-stated, at the very least,
willfully and maliciously shooting at an occupied motor vehicle has, as a
subsumed element, the threatened use of force against a person. To hold
otherwise would be to allow such use, attempted use, or threatened use to serve
as the requisite “element” for imposing the § 2L1.2 COV enhancement only if
the exact language is in the statute for the predicate offense. And, for obvious
reasons, that is not the required standard. See, e.g., Voisine, 136 S.Ct. at 2280
(“A person who assaults another recklessly ‘use[s]’ force”); Howell, 838 F.3d at
501–02 (holding “use of force” within a Texas statute that does not use the word
“force”).
      In sum, because under the modified categorical approach, California
Penal Code § 246 (and Mendez’ conviction) “has as an element the use,
attempted use, or threatened use of physical force against the person of
another”, Guideline § 2L1.2, cmt. n.1(B)(iii), his predicate offense is a COV. As
a result, in applying the 16-level sentencing enhancement, the district court
did not err in concluding Mendez’ conviction for “maliciously and willfully
discharg[ing] a firearm at an . . . occupied motor vehicle” qualified as a COV.
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                           No. 15-41551
                                III.
  For the foregoing reasons, judgment is AFFIRMED.




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                                 No. 15-41551


GREGG COSTA, Circuit Judge, dissenting:
      I agree that the California statute is divisible, and Mendez’s conviction
can thus be narrowed to discharging a firearm at an occupied vehicle. CAL.
PENAL CODE § 246. I also agree that the offense of discharging a firearm at an
occupied vehicle poses a greater risk of injury to the occupant than the offense
of discharging a firearm at an occupied building.          The Guideline we are
applying, however, says nothing about risk. Contrast 18 U.S.C. § 924(c)(3)(B);
U.S.S.G. 4B1.2 (2014) (residual clauses both focusing on a “serious potential
risk” of injury). It looks only at whether the state offense “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) (emphasis added). The California
statute does not have such an element. An element, of course, is something
the government must provide to convict someone of the crime. The pattern
jury instruction for section 246 requires the government to prove only two
elements: that 1) the “defendant willfully and maliciously shot a firearm,” and
2) the “defendant shot the firearm at an occupied motor vehicle.” CAL. CRIM.
JURY INSTR. § 965 (2016); see also People v. Ramirez, 45 Cal. 4th. 980, 985
(2009). A jury does not have to find that the defendant used, attempted to use,
or threatened to use force against a person.
      That should end this appeal. The pattern charge embraced by the state
supreme court means the California shooting-at-an-occupied-vehicle statute
has the same defect as the North Carolina and Virginia shooting-at-an-
occupied-building statutes that we held were not crimes of violence. United
States v. Hernandez-Perez, 589 F. App’x 282, 283–84 (5th Cir. 2015) (per
curiam); United States v. Alfaro, 408 F.3d 204, 209 (5th Cir. 2005). I would
adopt the view of the Tenth and Eleventh Circuits that the undisputed lack of
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                                       No. 15-41551

the element the Guideline requires—use, attempted use, or threatened use of
force against a person—is also dispositive in statutes involving shooting at an
occupied vehicle. United States v. Estrella, 758 F.3d 1239, 1251–52 (11th Cir.
2014); United States v. Ford, 613 F.3d 1263, 1272 (10th Cir. 2010) (both
applying the reasoning of Alfaro to occupied vehicles). 1
       The broad application California courts have given section 246 provides
even stronger support for that view. Not only does the statute not require the
government to prove use of force against a person, but it is also not necessary
that the defendant have demonstrated a conscious disregard for the life or
safety of others. In re Daniel R., 20 Cal. App. 4th 239, 246 (1993). The
California court wrote, “To violate section 246 in this context it is not strictly
necessary for a human being to be the target of the assault or that defendant’s
acts demonstrate a conscious disregard for the life and safety of others. It is
sufficient if the probable consequence of the defendant’s acts is the shots fired
will make contact with the occupied vehicle itself.” Id. In keeping with this
principle, a California court upheld a conviction under section 246 for shooting
at the unoccupied trailer of an occupied tractor–trailer rig. People v. Buttles,
223 Cal. App. 3d 1631, 1637–38 (1990).



       1 Neither United States v. Voisine, 136 S. Ct. 2272 (2016), nor Mathis v. United States,
136 S. Ct. 2243 (2016), undermine Alfaro, Estrella, or Ford. Mathis addresses when a statute
is divisible so that a court may use the modified categorical approach to consider whether a
narrower violation of the statute is a categorical match. I agree with the majority opinion’s
application of Mathis to narrow Mendez’s crime to shooting at an occupied vehicle (as opposed
to shooting at an occupied building which is also a crime under § 246).
        As the majority opinion goes on to note, Voisine addresses the means rea required for
the “use of force” aspect of the Guideline. I agree that the California statute meets the lower
Voisine threshold that only requires the discharge of the firearm to be voluntary (that is, it
need not be intentional; reckless discharge is enough).
        The majority opinion then recognizes that a separate question remains whether
California’s crime of shooting at an occupied vehicle has the element of “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) (emphasis added). It does not, so the enhancement should not apply. This final
portion of the analysis is the issue for which Estrella, Ford, and Alfaro are relevant.
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                                 No. 15-41551

      I recognize that common sense would lead most to conclude that the
crime of shooting a firearm at an occupied vehicle is a violent one. And at least
in part because of numerous counterintuitive results like this one, this
question would not matter if Mendez committed his illegal reentry offense
today. Effective November 1 of last year, the Guidelines for illegal reentry
have ditched the enhancements that focus on the categorical nature of prior
offenses in favor of focusing on the length of the sentences received for those
offenses. U.S.S.G. § 2L1.2(b)(2); cf. Almanza-Arenas v. Lynch, 815 F.3d 469,
482 (9th Cir. 2016) (Owens, J., concurring) (recommending the same change to
the immigrations laws governing removability because a regime based on the
length of a prior sentence while not “foolproof . . . cannot be worse than what
we have now”). But under the old Guideline that governs this case, the focus
is on the elements of the offense whether we like it or not. See generally United
States v. Bernel-Aveja, 844 F.3d 206, 214-215 (5th Cir. 2016) (Higginbotham,
J., concurring) (discussing the traditional Guidelines approach). And when the
old regime did produce a result that a prior conviction was not a match with
the Guideline, the effect was not to preclude any consideration of the prior
offense. In exercising its discretion under United States v. Booker, 543 U.S.
220 (2005), the district court can consider the relative severity of the
defendant’s actual prior criminal conduct as opposed to the theoretical inquiry
the categorical approach requires. See 18 U.S.C. § 3553(a)(1).
      I would thus vacate the sentence and remand so the district court can
make that more holistic assessment of Mendez’s history.




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