     Case: 14-40019      Document: 00512858868         Page: 1    Date Filed: 12/05/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT



                                      No. 14-40019                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         December 5, 2014
UNITED STATES OF AMERICA,                                                  Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee,
v.

EDWIN ISRAEL LEAL-RAX,

                                                 Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 7:13-CR-356-1




Before DAVIS, WIENER, and HAYNES, Circuit Judges.
PER CURIAM: *
       Edwin Israel Leal-Rax was convicted of being found illegally in the
United States following a previous deportation. Over his objection, the district
court applied a 16-level enhancement based on Leal-Rax’s 2008 Utah
conviction for aggravated assault, which the court deemed a crime of violence.
His Guidelines sentencing range was 37 to 46 months of imprisonment, and



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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the court sentenced him to 37 months of imprisonment. He filed a timely notice
of appeal, arguing that his 2008 Utah conviction cannot support the 16-level
crime of violence enhancement. For the reasons set out below, we VACATE the
16-level crime of violence enhancement and REMAND for resentencing
consistent with this opinion.
I.    FACTS AND PROCEEDINGS
      Leal-Rax pleaded guilty to being an alien found knowingly and
unlawfully present in the United States after deportation, in violation of 8
U.S.C. § 1326(a). The probation officer calculated Leal-Rax’s total offense level
as 22, which the district court reduced to 21 by granting the Government’s
motion for a third point for acceptance of responsibility. As part of the
probation officer’s calculations, 16 levels were added to the base offense level
of 8 due to Leal-Rax’s 2008 Utah conviction of aggravated assault, which the
probation officer deemed a crime of violence. Leal-Rax’s criminal history score
was one, placing him in criminal history category I, and his level-21, category-
I Guidelines sentencing range was 37 to 46 months of imprisonment.
      A document created by the Utah state court listing the minutes, change
of plea, sentence, judgment, and commitment for the 2008 conviction indicated
that Leal-Rax pleaded guilty of the third-degree felony offense of aggravated
assault and was sentenced to an indeterminate term of imprisonment not to
exceed five years. The sentence was suspended, and he was required to serve
30 days in prison and was placed on probation for 36 months. The information
charging Leal-Rax alleged that he committed aggravated assault by “us[ing] a
dangerous weapon or other means or force likely to produce death or serious
bodily injury.” A probable cause affidavit incorporated into the information
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alleged that a police officer observed Leal-Rax “holding a 2x4 wooden board
and yelling at” the victim, who “stated that the defendant kicked in the front
door of the residence and hit him several times with a 2x4.”
      Leal-Rax objected to the 16-level adjustment, arguing, among other
things, that the Utah aggravated assault statute was overbroad because it
could be violated without causing serious bodily injury and could be violated
without use of a deadly or dangerous weapon when serious bodily injury is not
caused. Moreover, the statute did not necessarily contain the use of force as an
element of the offense.
      The district court overruled the objections, explaining that Utah’s
aggravated assault statute incorporated the underlying assault statute, which
required either an attempt to do bodily injury, a threat to do bodily injury, or
an act that causes bodily injury, all with force or violence. Because the district
court determined that the underlying assault statute effectively required the
use, attempted use, or threatened use of violent force, it concluded that the
aggravated attempt statute constituted a crime of violence.
      On appeal, Leal-Rax contends that the district court erred by concluding
that his Utah conviction of aggravated assault was a crime of violence
warranting the 16-level adjustment to his offense level. He argues that the
Utah aggravated assault statute fails to satisfy the generic definition of
aggravated assault and does not necessarily have as an element the use,
attempted use, or threatened use of physical force. We agree.




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II.     Standard of Review
        This court generally reviews a district court’s interpretation or
application of the Guidelines de novo and its factual findings for clear error. 1
Because Leal-Rax objected to the crime of violence adjustment, his contentions
should be reviewed de novo. 2
III.    Analysis
        Section 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines calls for a 16-level
increase in a defendant’s base offense level if he previously was removed after
being convicted of a crime of violence and the conviction receives criminal
history points. The application notes to § 2L1.2 provide:
              “Crime of violence” means any of the following offenses
              under federal, state, or local law: Murder,
              manslaughter, kidnapping, aggravated assault,
              forcible sex offenses (including where consent to the
              conduct is not given or is not legally valid, such as
              where consent to the conduct is involuntary,
              incompetent, or coerced), statutory rape, sexual abuse
              of a minor, robbery, arson, extortion, extortionate
              extension of credit, burglary of a dwelling, 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. 3

        It is not necessary for the offense to qualify as an enumerated offense
and also have the requisite use of force in order for it to be a crime of violence. 4
Thus, Leal-Rax’s Utah aggravated assault offense qualifies for the


1 United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
2 See id.
3 § 2L1.2, comment. n.1(B)(iii).
4 See United States v. Flores-Gallo, 625 F.3d 819, 821 (5th Cir. 2010).

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enhancement if it either amounts to an enumerated offense or necessarily has
as an element the use, attempted use, or threatened use of physical force.
       A.     Categorical Approach
       This court analyzes whether a past conviction is a crime of violence under
the Guidelines by applying a categorical approach, which examines “the
elements of the statute of conviction rather than a defendant’s specific
conduct.” 5 Because this court looks to the statute of conviction rather than the
facts of the crime, this court “must presume that the conviction rested upon
nothing more than the least of the acts criminalized.” 6 After assuming that the
defendant committed the crime in the least culpable manner, this court
matches the elements of the state conviction with those of the enumerated
offense to determine whether the state conviction is the equivalent of the
generic federal offense. 7
       If the state statute of conviction is divisible, however, this court may
consult allegations in a charging instrument to which a defendant pleaded
guilty. 8 This consultation is allowed “only for the limited purpose of
ascertaining which of the disjunctive elements the charged conduct
implicated.” 9




5 United States v. Rodriguez, 711 F.3d 541, 549 (5th Cir.) (en banc), cert. denied, 134 S. Ct.
512 (2013).
6 Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013) (citation and internal quotation marks

omitted).
7 Id.
8 Rodriguez, 711 F.3d at 549 n.8 (noting the charging document, terms of a plea agreement,

and transcript of the recitation of the factual basis as examples).
9 United States v. Miranda-Ortegon, 670 F.3d 661, 663 (5th Cir. 2012).

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       B.     Generic Aggravated Assault
       This court uses “a common sense” approach when determining whether
a state conviction qualifies as an enumerated offense. 10 Under the common-
sense approach, this court decides whether a violation of the statute of
conviction constitutes the enumerated offense as it is understood in its
“ordinary, contemporary, [and] common meaning.” 11 The “primary source for
the generic contemporary meaning of aggravated assault is the Model Penal
Code.” 12 The “statute of conviction need not perfectly correlate with the Model
Penal Code; ‘minor differences’ are acceptable.” 13 The Model Penal Code
provides:
              A person is guilty of aggravated assault if he:

              (a) attempts to cause serious bodily injury to another,
              or causes such injury purposely, knowingly or
              recklessly under circumstances manifesting extreme
              indifference to the value of human life; or

              (b) attempts to cause or purposely or knowingly causes
              bodily injury to another with a deadly weapon. 14

“The generic, contemporary meaning of aggravated assault is an assault
carried out under certain aggravating circumstances.” 15 “Assault, in turn,




10 United States v. Izaguirre–Flores, 405 F.3d 270, 273–74 (5th Cir. 2005).
11 Id. at 275 (citation omitted).
12 United States v. Esparza–Perez, 681 F.3d 228, 231 (5th Cir. 2012) (quoting United States v.

Torres–Diaz, 438 F.3d 529, 536 (5th Cir. 2006)).
13 United States v. Mungia–Portillo, 484 F.3d 813, 817 (5th Cir. 2007).
14 Model Penal Code § 211.1(2).
15 Esparza-Perez, 681 F.3d at 231 (citation omitted).

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requires proof that the defendant either caused, attempted to cause, or
threatened to cause bodily injury or offensive contact to another person.” 16
      The mens rea required for aggravated assault under the Model Penal
Code is extreme recklessness. 17 However, this court has held that ordinary
recklessness was sufficient to place a state aggravated assault offense within
the Guidelines definition, as long as the state statute otherwise matched up
with the generic offense. 18
      The two most common factors raising an assault to an aggravated
assault are “the causation of serious bodily injury and the use of a deadly
weapon.” 19 “Physical force in the context of § 2L1.2 requires force capable of
causing pain or injury to another person.” 20 Offensive touching, without more,
does not constitute the type of violent force typically associated with the
generic offense of aggravated assault. 21 However, “the touching of an
individual with a deadly weapon creates a sufficient threat of force to qualify
as a crime of violence.” 22 Moreover, a defendant need not actually employ force;
the threatened use of force is sufficient. 23 This court has “not recognized any
distinction between a dangerous weapon and a deadly one,” 24 so the reference


16 Id. (citations omitted).
17 See United States v. Ocampo-Cruz, 561 F. App’x 361, 364 (5th Cir. 2014) (per curiam)
(construing North Carolina statute).
18 See United States v. Guerrero-Robledo, 565 F.3d 940, 947-48 (5th Cir. 2009) (construing

South Carolina statute); Mungia-Portillo, 484 F.3d at 817 (construing Tennessee statute).
19 Mungia-Portillo, 484 F.3d at 817.
20 United States v. Garcia-Figueroa, 753 F.3d 179, 185 (5th Cir. 2014) (internal quotation

marks and citation omitted).
21 United States v. Herrera-Alvarez, 753 F.3d 132, 141 (5th Cir. 2014).
22 United States v. Dominguez, 479 F.3d 345, 348 (5th Cir. 2007).
23 Garcia-Figueroa, 753 F.3d at 185-86.
24 United States v. Padilla-Loera, 559 F. App’x 410, 412 (5th Cir. 2014) (per curiam).

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to a “dangerous weapon” in Leal-Rax’s state charging document is of no
concern.
         C.     Applicable Utah Statutes
         The version of Utah’s aggravated assault statute in place when Leal-Rax
was convicted in 2008, Utah Code Ann. § 76-5-103, defined the offense as
follows:
                (1) A person commits aggravated assault if he commits
                assault as defined in Section 76-5-102 and he:

                       (a) intentionally causes serious bodily injury to
                       another or;

                       (b) under circumstances not amounting to a
                       violation of Subsection (1)(a), uses a dangerous
                       weapon as defined in Section 76-1-601 or other
                       means or force likely to produce death or serious
                       bodily injury.

                (2) A violation of Subsection (1)(a) is a second degree
                felony.

                (3) A violation of Subsection (1)(b) is a third-degree
                felony. 25

Thus, commission of an aggravated assault under § 76-5-103 requires
commission of an underlying assault, defined under § 76-5-102(1) as
                (a) an attempt, with unlawful force or violence, to do
                bodily injury to another;

                (b) a threat, accompanied by a show of immediate force
                or violence, to do bodily injury to another; or



25   Utah Code Ann. § 76-5-103 (West 2008).
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              (c) an act, committed with unlawful force or violence,
              that causes bodily injury to another or creates a
              substantial risk of bodily injury to another. 26

Ordinary recklessness suffices as the mens rea for aggravated assault not
involving the intentional infliction of serious bodily injury. 27
       Thus, the Utah statute applicable in 2008 on its face was divisible
between an assault resulting in serious bodily injury and an assault using “a
dangerous weapon . . . or other means or force likely to produce death or serious
bodily injury.” 28 The statute also could be violated by attempted or threatened
assaults using such means. 29
       D.     Analysis
       The charging information alleged that Leal-Rax “did commit assault as
defined in Utah Code 76-5-102 and used a dangerous weapon or other means
or force likely to produce death or serious bodily injury.” Because Leal-Rax was
charged under the “dangerous weapons or other means or force” prong of the
statute, § 76-5-103(1)(b), this court need only address that prong of the
aggravated assault statute, including the underlying assault statute.
       A careful review of the applicable statutes reveals the least culpable act
required for a conviction of aggravated assault under § 76-5-103(1)(b) falls
outside the generic definition of aggravated assault. The information alleging
that Leal-Rax committed aggravated assault by using a dangerous weapon or



26 Utah Code Ann. § 76-5-102(1) (West 2008).
27 See State v. McElhaney, 579 P.2d 328, 329 (Utah 1978); State v. Loeffel, 300 P.3d 336, 339
(Utah Ct. App. 2013).
28 § 76-5-103(1)(a), (b); State v. Magnum, 318 P.3d 250, 251-52 (Utah Ct. App. 2013).
29 See §§ 76-5-102(1), -103.

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other means or force did not indicate which portion of the underlying assault
statute was implicated by Leal-Rax’s offense. Violation of this aggravated
assault statute requires violation of the underlying assault statute, § 76-5-102,
by either an attempted assault, a threatened assault, or “an act, committed
with unlawful force or violence, that causes bodily injury to another or creates
a substantial risk of bodily injury to another.” 30 Leal-Rax argues that the mere
creation of risk under this statute is insufficient to qualify as a generic
aggravated assault, and it does not necessarily qualify as “the use, attempted
use, or threatened use of physical force against the person of another.”
              1.      Generic Assault
       In United States v. Esparza-Perez, 681 F.3d 228 (5th Cir. 2012), this
court analyzed Arkansas’s aggravated assault statute and determined that it
did not satisfy the requirements for the generic offense of aggravated assault. 31
This court noted the requirement of the Model Penal Code generic offense that
a person must cause or attempt to cause serious bodily injury, then contrasted
that requirement with the Arkansas statute, which “requires that a defendant
engage in conduct that creates a substantial danger of death or serious
physical injury.” 32 Creation of a substantial danger “does not require any
contact or injury or attempt or threat of offensive contact or injury.” 33 This




30 § 76-5-102(1).
31 681 F.3d at 231-32.
32 Id. at 231.
33 Id. at 231-32 (emphasis in original).

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court found that the Arkansas statute differed from the Model Penal Code
definition of aggravated assault sufficiently to remove it from that definition. 34
       Utah, like Arkansas, allows a conviction for assault (distinct from
attempt or threat, which are covered in separate and divisible subsections)
based on the mere creation of a risk of injury, which is included in the same
subsection with “an act . . . that causes bodily injury to another.” 35 For example,
in Utah, a defendant was found to have committed assault when he entered a
female friend’s house, “began to tear things off the wall and ransacked the
house” in the friend’s presence. 36 Because § 76-5-102(1)(c), like the Arkansas
statute, covers conduct falling outside of the generic offense of aggravated
assault, it cannot qualify as a crime of violence under the enumerated offense
test. 37
              2.     Element of Force
       Having determined that § 76-5-102(1)(c) in the underlying assault
statute does not satisfy the generic offense of aggravated assault, we must next
determine whether § 76-5-102(1)(c) necessarily “has as an element the use,
attempted use, or threatened use of physical force against the person of
another.” 38 An assault under the plain terms of § 76-5-102(1)(c) may include


34 Id.
35 Id. at 231.
36 State v. Wareham, 143 P.3d 302, 304, 308 (Utah Ct. App. 2006) (internal quotation marks

omitted) (reviewing for plain error and citing both the threat and creation of risk portions of
the assault statute).
37 See Esparza-Perez, 681 F.3d at 231. The Model Penal Code defines reckless endangerment

as “recklessly engag[ing] in conduct which places or may place another person in danger of
death or serious bodily injury.” Model Penal Code § 211.2. The Model Penal Code does not
provide for reckless endangerment as a basis for aggravated assault.
38 U.S.S.G. § 2L1.2, comment. n.1(B)(iii).

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either “an act, committed with unlawful force or violence” that either “causes
bodily injury to another or creates a substantial risk of bodily injury to
another.” 39 Although the statute requires that “force or violence” be used, the
use of the words “force or violence” is not dispositive of whether an offense is a
crime of violence. 40 By its plain language, the underlying assault statute does
not necessarily require that the unlawful force or violence be directed “against
the person of another” for creation of a risk of injury. The analysis is not
changed by the aggravated assault statute’s requirement that a dangerous
weapon be used. Because § 76-5-102(1)(c) does not necessarily require the use
of physical force against the person of another, we conclude that it cannot be a
crime of violence under that test.
             3.     Conclusion
       In sum, the Utah aggravated assault statute under which Leal-Rax was
convicted, § 76-5-103(1)(b), permits conviction under a subsection of the
incorporated assault statute, § 76-5-102(1)(c), for an offense which does not
qualify as a crime of violence under the Guidelines. We must conclude that the
district court erred by using Leal-Rax’s 2008 Utah aggravated assault
conviction as the basis of a 16-level enhancement under U.S.S.G. § 2L1.2.
       E.    Remedy
       We turn now to Leal-Rax’s remedy. The Government argues that the
sentencing error was harmless in this case. We have held that “the harmless



39Utah Code Ann. § 76-5-102(1)(c) (West 2008) (emphasis added).
40See United States v. Miranda-Ortegon, 670 F.3d 661, 663-64 (5th Cir. 2012) (holding that
Oklahoma assault and battery statute did not have force as an element despite using the
term “force and violence”).
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error doctrine applies only if the proponent of the sentence convincingly
demonstrates both (1) that the district court would have imposed the same
sentence had it not made the error, and (2) that it would have done so for the
same reasons it gave at the prior sentencing.” 41 We elaborated:
                 [A]n incorrect Guidelines calculation will usually
                 invalidate the sentence, even when the district court
                 chose to impose a sentence outside the Guidelines
                 range. Although it may well be that the same
                 explanation the court gave for imposing a sentence
                 outside the miscalculated range could also support a
                 sentence outside the correctly calculated range, the
                 harmless error doctrine requires the proponent of the
                 sentence to convincingly demonstrate that the court
                 actually would have followed the very same reasoning
                 absent the error. This is a heavy burden. 42

         Here, it is clear that the district court erred in calculating the Guidelines
range. With the 16-level enhancement, Leal-Rax’s Guidelines range was
calculated at 37 to 46 months. Without the 16-level enhancement, Leal-Rax
would have been subject to a far lesser Guidelines sentencing range, perhaps
12 to 18 months. The record does not show that the district court would have
imposed the same sentence regardless of the Guidelines range. Although the
district court stated that it believed the 37-month sentence it imposed would
satisfy the 18 U.S.C. § 3553(a) factors even if it improperly characterized the
2008 Utah conviction, the district court also explicitly based its sentence on the
lower end of the wrongfully calculated Guidelines range: “The Court believes



41   United States v. Ibarra-Luna, 628 F.3d 712, 714 (5th Cir. 2010).
42   Id. at 717 (emphasis in original; footnotes omitted).
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that, under the circumstances, sentencing within the guideline range is
warranted. The Court will sentence you at the low end to a term of 37 months
in custody.” The Government has failed to carry its “heavy burden” that the
district court would have imposed the same sentence absent the error.
Accordingly, we vacate and remand for resentencing.
IV.     CONCLUSION
        For the reasons set out above, we VACATE the 16-level crime of violence
enhancement and REMAND for resentencing consistent with this opinion.




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