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

                                                                            FILED
                                                                         October 22, 2013

                                       No. 12-41108                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,
v.

BULFRANO ALONZO–GARCIA,

                                                  Defendant - Appellant.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 2:12-CR-292-1


Before REAVLEY, ELROD, and HAYNES, Circuit Judges.
PER CURIAM:*
       Bulfrano Alonzo–Garcia (“Alonzo–Garcia”) pleaded guilty to illegal reentry
after deportation in violation of 8 U.S.C. § 1326(a) and was sentenced to thirty
months of imprisonment. Alonzo–Garcia appeals his sentence, arguing that the
district court incorrectly applied a sixteen-level “crime of violence” enhancement
based on his prior Florida conviction for aggravated assault, and that the district
court used the wrong statutory maximum in computing his sentence. Because
Alonzo–Garcia’s Florida conviction required at least the threatened use of

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-41108

physical force and because Alonzo–Garcia cannot establish that the plain error
elements are satisfied regarding the statutory maximum, we AFFIRM but
REMAND to the district court for reformation of the judgment.
                                        I.
      On April 25, 2012, a grand jury charged Alonzo–Garcia with illegal reentry
following deportation in violation of 8 U.S.C. § 1326(a). Alonzo–Garcia pleaded
guilty to the indictment in an arraignment before a magistrate judge. At the
arraignment, the magistrate judge advised Alonzo–Garcia that he was subject
to a maximum sentence of imprisonment of twenty years. The district court
subsequently accepted Alonzo–Garcia’s guilty plea and ordered the preparation
of a pre-sentence investigation report (“PSR”).
       The PSR recommended a sixteen-offense-level increase pursuant to
§ 2L1.2(b)(1)(A)(ii) of the Guidelines because Alonzo–Garcia’s 2011 Florida felony
conviction for aggravated assault was a crime of violence. According to the PSR,
this increase, combined with a base offense level of eight and a three-level
reduction for acceptance of responsibility, gave Alonzo–Garcia a total offense
level of twenty-one.     With the addition of five criminal history points,
Alonzo–Garcia’s criminal history category was III, resulting in an imprisonment
range of forty-six to fifty-seven months.
      In stating Alonzo–Garcia’s maximum term of imprisonment, the PSR was
inconsistent. On the one hand, the first page of the PSR showed that pursuant
to § 1326(b), Alonzo–Garcia was subject to a twenty-year maximum term of
imprisonment. Presumably this was a reference to the twenty-year maximum
in § 1326(b)(2). On the other hand, paragraph forty-two of the PSR, stated that
pursuant to § 1326(b)(1) Alonzo–Garcia’s maximum term of imprisonment was
ten years.
      At sentencing, neither the parties nor the district court discussed the
potential maximum term of Alonzo–Garcia’s imprisonment and the conflicting

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information provided in the PSR. Instead, the sentencing hearing focused on
PSR’s application of the sixteen-level enhancement. Alonzo–Garcia objected to
the sixteen-level enhancement, arguing, as he does before this court, that his
prior Florida conviction for aggravated assault did not constitute a crime of
violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). The district court overruled this
objection but granted Alonzo–Garcia’s request for a downward departure from
the Guidelines and sentenced him to thirty months of imprisonment.
Ultimately, however, the district court’s written judgment reflected that
Alonzo–Garcia was sentenced under the twenty-year maximum term of
imprisonment imposed by § 1326(b)(2).
                                        II.
      We first address whether Alonzo–Garcia’s 2011 Florida conviction for
aggravated assault qualifies as a crime of violence, as that term is defined in the
Guidelines. Characterization of a prior offense as a crime of violence is a
question of law that this court reviews de novo. United States v. Rodriguez, 711
F.3d 541, 548 (5th Cir. 2013) (en banc). “When determining whether a prior
conviction qualifies as a crime of violence under the Guidelines, we [use] the
categorical approach that the Supreme Court first outlined in Taylor v. United
States, 495 U.S. 575 (1990).” Id. at 549. “Under the categorical approach, the
analysis is grounded in the elements of the statute of conviction rather than a
defendant’s specific conduct.” Id.; see also United States v. Calderon–Pena, 383
F.3d 254, 257 (5th Cir. 2004) (en banc). Commentary in the Guidelines “is given
controlling weight if it is not plainly erroneous or inconsistent with the
[G]uidelines.” United States v. Velasco, 465 F.3d 633, 637 (5th Cir. 2006)
(quoting United States v. Urias–Escobar, 281 F.3d 165, 167 (5th Cir. 2002)).
      Under the Guidelines, a defendant convicted of illegal reentry is subject
to a sixteen-level sentence enhancement if he was convicted of a crime of violence
prior to his removal or deportation. U.S.S.G. § 2L1.2(b)(1)(A)(ii). The Guidelines

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commentary—specifically Application Note 1(B)(iii) to § 2L1.2—further defines
“crime of violence” in two ways: (1) as one of several enumerated offense
categories, including “aggravated assault,” and (2) in a residual clause as “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.”
      Alonzo–Garcia argues that his Florida conviction does not fall under either
of these definitions and that, therefore, the district court incorrectly imposed a
sixteen-level sentence enhancement on that basis. We disagree and hold that
Alonzo–Garcia’s Florida conviction qualifies as a crime of violence under the
residual clause of Application Note 1(B)(iii) to § 2L1.2 of the Guidelines.
Accordingly, we need not decide whether Alonzo–Garcia’s conviction qualifies as
the enumerated offense of “aggravated assault.”
      The residual clause defines “crime of violence” as any offense 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) (emphasis added). Thus,
to determine if Alonzo–Garcia’s Florida conviction qualifies as a crime of violence
under the residual clause, we must decide if Florida’s aggravated assault statute
has a physical force element. See United States v. Flores–Gallo, 625 F.3d 819,
824 (5th Cir. 2010) (holding that the Kansas aggravated battery statute has as
an element at least the threatened use physical force). Because each Florida
aggravated assault conviction requires proof of an assault—which in turn
requires a threat “to do violence” to another person—we conclude that it does.
      Florida’s aggravated assault statute prohibits “an assault: (a) with a
deadly weapon without intent to kill; or (b) with an intent to commit a felony.”
FLA. STAT. § 784.021(1). Critically for this case, the state court record does not




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indicate under which of these two subsection Alonzo–Garcia was convicted.1 As
a result, we must look for a physical force element in each subsection to
determine if Alonzo–Garcia’s conviction qualifies as a crime of violence. See
United States v. Gonzalez–Ramirez, 477 F.3d 310, 315–16 (5th Cir. 2007)
(“Absent clarification regarding the offense and conviction, this court must
consider the entire definition of [crime] . . . . including the alternative bases for
conviction . . . .”). Here, each subsection of Florida’s aggravated assault statute
contains a common element: both the “deadly weapon” subsection and the “with
intent to commit a felony” subsection require proof of an assault. FLA. STAT.
§ 784.021(1).     Accordingly, we look to Florida’s definition of “assault” to
determine if it requires the use of physical force.
       Florida’s assault statute defines “assault” as “an intentional, unlawful
threat by word or act to do violence to the person of another, coupled with an
apparent ability to do so, and doing some act which creates a well-founded fear
in such other person that such violence is imminent.” Id. § 784.011(1) (emphasis
added). Thus, whether a conviction under Florida’s aggravated assault statute
qualifies as a crime of violence boils down to whether “an intentional, unlawful
threat by word or act to do violence” requires a threat of physical force.

       1
         In state court, Alonzo–Garcia was charged with aggravated battery but pleaded nolo
contendere to the lesser charge of aggravated assault. Although the facts underlying his
original charge for aggravated battery might suggest Alonzo–Garcia was convicted under the
“deadly weapon” subsection of § 784.021(1), both parties agree here that we cannot utilize a
charging document to which Alonzo–Garcia did not plead to narrow the statutory alternatives
in this case. We explained in United States v. Bonilla–Mungia:
        If a statute contains multiple, disjunctive subsections, courts may look beyond
        the statute to certain “conclusive records made or used in adjudicating guilt” in
        order to determine which particular statutory alternative applies to the
        defendant’s conviction. See United States v. Garza–Lopez, 410 F.3d 268, 274
        (5th Cir. 2005) (discussing the parameters of our review under Taylor). These
        records are generally limited to the “charging document, written plea
        agreement, transcript of the plea colloquy, and any explicit factual finding by
        the trial judge to which the defendant assented.” Shepard v. United States, 544
        U.S. 13, 16 (2005).
422 F.3d 316, 320 (5th Cir. 2005).

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      The government resolves this question by looking to the plain meaning of
“violence” and cites Webster’s Collegiate Dictionary, which defines “violence” as
“an exertion of physical force so as to injure or abuse.”       In addition, the
government cites a recent decision of the Eleventh Circuit, Turner v. Warden
Coleman FCI (Medium), 709 F.3d 1328, 1338 (11th Cir. 2013), which held that,
for purposes of the Armed Career Criminal Act (“ACCA”), a conviction under
Florida’s aggravated assault statute will always require a physical force element.
      Alonzo–Garcia argues that a threat “to do violence” does not always
require a threat of physical force, disqualifying if from the residual clause’s
definition of “crime of violence.” Specifically, Alonzo–Garcia argues that threats
of violence can include acts intended to cause emotional distress, which do not
necessarily involve a threat of physical force. To substantiate this argument,
Alonzo–Garcia points to the definition of “violence” in a Florida dating and
sexual violence statute, which defines “violence” to include, among other things,
“stalking and aggravated stalking.” FLA. STAT. § 784.046(1)(a). Alonzo–Garcia
cites our decision in United States v. Insaulgarat, where we held that Florida’s
aggravated stalking law does not “require any use, or threatened or attempted
use, of physical force.” 378 F.3d 456, 469 (5th Cir. 2004); see also FLA. STAT.
§ 784.048(2) (defining the offense of stalking to include “willfully, maliciously,
and repeatedly follows, harasses, or cyberstalks another person”). He lists
photographing, videotaping, and following the victim as possible violent acts
covered by the statute, none of which requires a threat of physical force.
      We agree with the government’s approach and define “violence” as used
in Florida’s assault statute according to its plain meaning, see Antonin Scalia &
Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 69 (1st ed.
2012) (explaining that the “ordinary-meaning rule is the most fundamental




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semantic rule of interpretation”), which is consistent with our precedent.2 In
Flores–Gallo, for example, we used the plain meaning of Kansas law to conclude
that the state’s aggravated battery statute contained a physical force element
and therefore qualified as a crime of violence under the residual clause of
Application Note 1(B)(iii). 625 F.3d at 823–24; see also Johnson v. United States,
559 U.S. 133, 138 (2010) (defining “physical force” as used in the ACCA
according to its ordinary meaning).
       The plain meaning of a threat “to do violence” as used in Florida’s assault
statute is a threat to use physical force.              Black’s Law Dictionary defines
“violence” as the “use of physical force, usu[ally] accompanied by fury,
vehemence, or outrage; esp[ecially], physical force unlawfully exercised with the
intent to harm.”        Black’s Law Dictionary 1705 (9th ed. 2009).                 Webster’s
Collegiate Dictionary 1396 (11th ed. 2007) likewise defines “violence” as an
“exertion of physical force so as to injure or abuse.” (emphasis added). These
dictionary definitions show that a threat of violence equates to a threat of
physical force. See Johnson, 559 U.S. 133 at 140 (citing several dictionary
definitions and explaining that “[e]ven by itself, the word “violent” in [the ACCA]
connotes a substantial degree of force”). In fact, when construed with these
definitions of “violence,” Florida’s definition of “assault” parallels, almost
identically, the residual clause of Application Note 1(B)(iii). Accordingly, we



       2
         We decline to define “violence” in Florida’s assault statute by borrowing from Florida’s
dating and sexual violence statute. Although we generally recognize the in pari materia canon
of statutory construction, see, e.g., Little v. Shell Exploration & Prod. Co., 690 F.3d 282, 289
(5th Cir. 2012), it does not apply here. Section 784.046, which contains the definitions for
Florida’s dating and sexual violence statute, limits its definitions—including its definition of
“violence”—to that section only. Fla. Stat. § 784.046(1). In addition, “a conventional limit on
the canon is that courts should harmonize only those ‘statutes addressing the same subject
matter.’” Little, 690 F.3d at 289 (quoting Wachovia Bank v. Schmidt, 546 U.S. 303, 316
(2006)). Here, Florida’s dating and sexual violence statute addresses a specific range of
criminal activities, see Fla. Stat. § 784.046(1), and we decline to shoe-horn its technical
definition of “violence” into a generic assault statute.

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conclude that both subsections of Florida’s aggravated assault statute have as
an element the use, attempted use, or threatened use of physical force against
the person of another.3
       Therefore, we hold that Alonzo–Garcia’s 2011 Florida conviction qualifies
as a crime of violence under the Guidelines and that the district court did not
incorrectly apply a sixteen-level enhancement to Alonzo–Garcia’s sentence.
                                              III.
       We now address whether the written judgment reflecting that
Alonzo–Garcia was sentenced under a twenty-year maximum term of
imprisonment, rather than a ten-year maximum, requires resentencing or, in the
alternative, reformation of the judgment. We conclude that resentencing is not
required, but we will remand the case for reformation of the judgment to reflect
sentencing under the ten-year statutory maximum.
       In this case, the PSR is inconsistent as to which maximum term of
imprisonment applied: the first page of the PSR showed that Alonzo–Garcia was
subject to a twenty-year maximum term of imprisonment, whereas paragraph
forty-two of the PSR stated that Alonzo–Garcia was subject to only a ten-year
statutory maximum pursuant to § 1326(b)(1). Neither the parties nor the
district court discussed this inconsistency during the sentencing hearing.
However, the district court’s written judgment reflected that Alonzo–Garcia was



       3
         This result is consistent with the Eleventh Circuit’s decision in Turner, where the
court held that “a conviction under [Florida’s aggravated assault statute] will always include
as an element the . . . threatened use of physical force against the person of another.” 709 F.3d
at 1338 (second alteration in original) (internal quotation marks omitted)). Although Turner
dealt with an interpretation of the ACCA, we frequently rely on the analysis of decisions
interpreting the ACCA when interpreting the Guidelines due to their similarity. See, e.g.,
United States v. Stoker, 706 F.3d 643, 648–49 (5th Cir. 2013). Here, the residual clause of
Application Note 1(B)(iii) tracks identically the statutory language in ACCA, and thus Turner
is persuasive authority here. Cf. Stoker, 706 F.3d at 652–54 (Jones, J., concurring) (listing
several distinctions between the ACCA and the Guidelines and cautioning in general against
substituting analysis of one for the other).

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                                       No. 12-41108

sentenced under the twenty-year maximum term of imprisonment imposed by
§ 1326(b)(2).
       Alonzo–Garcia argues on appeal that his sentence was improperly
influenced by the district court’s incorrect belief that he was subject to a twenty-
year maximum term of imprisonment for a prior aggravated felony. He argues
that his 2011 Florida conviction does not qualify as an aggravated felony and
that he should have been subject to the ten-year maximum in § 1326(b)(1), which
only requires proof of a prior felony conviction. According to Alonzo–Garcia, this
error could have influenced the district court’s selection of a sentence.
       The government concedes that Alonzo–Garcia’s 2011 Florida conviction
does not qualify as an aggravated felony for purposes of § 1326,4 and that the
judgment should be reformed to reflect conviction under the ten-year maximum
term of imprisonment. Even so, the government argues that Alonzo–Garcia did
not raise this issue before the district court and that, under plain error review,
the district court’s error does not require resentencing. We agree.
       A review of the record shows that Alonzo–Garcia did not object to his
sentence on this ground before the district court. Although Alonzo–Garcia
argued that his 2011 Florida conviction did not qualify as an aggravated felony,
he did so only to assert that he should not be subject to an offense-level
enhancement under the Guidelines. He never objected to being subject to the
twenty-year maximum term of imprisonment imposed by § 1326(b)(2).
Accordingly, we review for plain error. United States v. Olano, 507 U.S. 725, 732
(1993).
       Under plain error review, Alonzo–Garcia must show: (1) an error, (2) that


       4
         In order to qualify as an aggravated felony under § 1326, a conviction must have
resulted in a sentence of at least one year of imprisonment. See United States v.
Banda–Zamora, 178 F.3d 728, 730 (5th Cir. 1999). Here, Alonzo–Garcia’s 2011 Florida
conviction did not result in any term of imprisonment; rather, he received a sentence of three
years of probation.

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is plain, (3) and that affected his substantial rights. Id. After this showing, we
will exercise discretion to correct the error (4) “only if the error seriously affect[s]
the fairness, integrity, or public reputation of judicial proceedings.” United
States v. Escalante–Reyes, 689 F.3d 415, 419 (5th Cir. 2012) (en banc)
(alterations in original) (quoting Puckett v. United States, 556 U.S. 129, 135
(2009)). Because the parties agree that under the plain text of the statute
applied to the facts the district court incorrectly sentenced Alonzo–Garcia using
a twenty-year, rather than a ten-year, maximum term of imprisonment, prongs
one and two of plain error review have been met.
      Under prong three of the plain-error analysis, Alonzo–Garcia must show
a “reasonable probability that the result of the proceedings would have been
different but for the error.” Olano, 507 U.S. at 734. He has not met this burden.
Nothing in the record indicates that the twenty-year maximum term of
imprisonment played a role in the district court’s sentencing decision, which was
below the Guidelines range and well below the correct statutory maximum of ten
years. Nor does his ultimate sentence of thirty months reflect any reliance on
either statutory maximum. See United States v. Mondragon–Santiago, 564 F.3d
357, 369 (5th Cir. 2009) (holding that a district court’s incorrect understanding
of the statutory maximum sentence did not affect the defendant’s substantial
rights when “the record [did] not indicate the district court’s sentence was
influenced” by that understanding). To the contrary, neither the district court
nor the parties discussed the issue at sentencing.
      Alonzo–Garcia argues that the statutory maximum “could well have
influenced” the district court’s selection of a sentence.           Where, as here,
Alonzo–Garcia bears the burden to prove that the error affected the outcome in
the district court, this bare allegation is not sufficient to show a “reasonable
probability” that his sentence would have been different absent the error.
Alonzo–Garcia cites no cases suggesting that a district court’s use of an incorrect

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                                  No. 12-41108

maximum term of imprisonment, standing alone, is sufficient to meet this
burden. See, e.g., Mondragon–Santiago, 564 F.3d at 369 (holding that there was
no reversible error under plain error review because the defendant did “not
shown how, on [the] record, the error affected the outcome in the district court”).
      Finally, even assuming arguendo that the error was plain and affected
Alonzo–Garcia’s substantial rights, Alonzo–Garcia has not shown a miscarriage
of justice that requires us to exercise our discretion under prong four of
plain-error review. Escalante–Reyes, 689 F.3d at 419. We do not view this
fourth prong as automatically met and therefore cannot correct an error simply
because the first three prongs of plain-error review have been satisfied. United
States v. Garza, 706 F.3d 655, 663 (5th Cir. 2013). “[W]hether a sentencing error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings is dependent upon the degree of the error and the particular facts
of the case.” United States v. Garcia–Gonzalez, 714 F.3d 306, 319 (5th Cir. 2013)
(alteration in original) (quoting United States v. John, 597 F.3d 263, 288 (5th
Cir. 2010)). On these facts, Alonzo–Garcia cannot establish that this error
seriously affected the fairness, integrity, or public reputation of judicial
proceedings.
                                       IV.
      For the foregoing reasons, we AFFIRM the district court’s application of
a sixteen-level enhancement, but REMAND to the district court for reformation
of the judgment to reflect conviction and sentencing under 8 U.S.C. § 1326(b)(1),
rather than § 1326(b)(2).




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