                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0857n.06

                                        Case No. 13-2148                                 FILED
                                                                                   Nov 14, 2014
                          UNITED STATES COURT OF APPEALS                       DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                             )
                                                      )
       Plaintiff-Appellee,                            )
                                                      )     ON APPEAL FROM THE UNITED
v.                                                    )     STATES DISTRICT COURT FOR
                                                      )     THE WESTERN DISTRICT OF
ISRAEL GONZALES MENDEZ,                               )     MICHIGAN
                                                      )
       Defendant-Appellant.                           )




       BEFORE: MOORE and COOK, Circuit Judges; STEEH, District Judge*

       COOK, Circuit Judge. A jury convicted Israel Gonzales Mendez of possession with

intent to distribute 500 grams or more of cocaine, and the district court sentenced him to 360

months’ imprisonment. Mendez raises an evidentiary and a sentencing challenge with this

appeal. We AFFIRM.

                                                 I.

       When a Michigan deputy sheriff found nearly $100,000 worth of cocaine during a traffic

stop in late 2012, the vehicle’s occupants agreed to cooperate with federal and state authorities to

lure their source to Michigan to retrieve the drugs.        As a result of arrangements by the


       *
       The Honorable George C. Steeh, United States District Judge for the Eastern District of
Michigan, sitting by designation.
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United States v. Mendez


cooperators, Mendez came to Michigan and picked up the drugs, after which the police arrested

him.

       A grand jury indicted Mendez for possession with intent to distribute 500 grams or more

of cocaine. As part of its trial preparation, the government sought a ruling on the admissibility of

Mendez’s prior drug convictions. The court barred as too remote evidence of Mendez’s 1998

convictions, but it agreed to permit the government to introduce evidence of his 2004 marijuana-

dealing conviction as relevant to proving both Mendez’s intent-to-distribute and knowledge-of-

possession. With that and other evidence, a jury found Mendez guilty.

       The Probation Department then prepared a presentence report that classified Mendez as a

career offender, counting his 2004 marijuana conviction and a previous felony-battery conviction

as predicate offenses. That enhancement increased the sentencing guidelines range from 210–

262 months to 360 months to life. Mendez objected, arguing that his prior felony-battery

conviction did not qualify as a “crime of violence” under the guidelines and thus could not serve

as a predicate to career-offender status. The court ruled that Mendez’s battery conviction was

categorically a crime of violence because it required the “use or attempted use or threatened use

of physical force against another person,” and imposed a 360-month sentence. This appeal

followed.

                                                II.

       Mendez argues that the district court erred by permitting the jury to hear evidence of his

2004 drug conviction. Though Rule 404(b) prohibits using prior convictions to show propensity,

it allows their limited use to prove, among other things, the defendant’s knowledge and intent.

Mendez acknowledges his 2004 conviction but challenges the probative value of disclosing it to

the jury deciding guilt in his cocaine trial given the two crimes’ differing circumstances and the

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United States v. Mendez


significant lapse of time between them. Compare United States v. Bell, 516 F.3d 432, 443–44

(6th Cir. 2008) (requiring that evidence of prior distributions belong to the same scheme or plan

or involve a similar modus operandi), with United States v. Hardy, 643 F.3d 143, 152 (6th Cir.

2011) (declining to follow Bell as contrary to circuit precedent), and United States v. Matthews,

440 F.3d 818, 830 (6th Cir. 2006) (affirming decision to admit evidence of eight-year-old

distributions apparently unrelated to charged conduct).

       We need not address this argument, however, because any error was harmless. As the

government notes, Mendez’s counsel conceded the issue of knowledge in closing arguments,

contesting only Mendez’s intent to distribute the drugs. And the record included ample evidence

supporting the jury’s verdict on that disputed point. Aside from the quantity and value of the

cocaine found in Mendez’s possession, the jury heard evidence of exchanges between the

cooperators, their supplier, and Mendez showing that Mendez worked as a drug courier for the

supplier. The jury also heard prison phone calls between Mendez and various family members in

which he essentially confessed his guilt. In short, any error in admitting evidence of the 2004

conviction was harmless because “the properly admissible evidence of the defendant’s guilt was

overwhelming.” Hardy, 643 F.3d at 153; see also United States v. Finnell, 276 F. App’x 450,

455 (6th Cir. 2008) (holding that decision to admit evidence of prior drug-trafficking conviction

to show intent constituted harmless error in part because other evidence belied the defense theory

of personal use).

                                               III.

       Mendez argues that the district court erred in categorizing his felony-battery conviction

as a crime of violence, thereby triggering the sentencing guideline’s career-offender



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United States v. Mendez


enhancement. We review the court’s crime-of-violence determination de novo. United States v.

Wynn, 579 F.3d 567, 570 (6th Cir. 2009).

       As pertinent to this appeal, the guidelines define a “crime of violence” as any felony that

“has as an element the use, attempted use or threatened use of physical force against the person

of another . . . or otherwise involves conduct that presents a serious potential risk of physical

injury to another.” U.S. Sentencing Guidelines Manual § 4B1.2(a). In evaluating whether an

offense constitutes a crime of violence, we look to the statutory definition of the crime and not

the facts underlying the conviction. United States v. Ford, 560 F.3d 420, 422 (6th Cir. 2009)

(citing Taylor v. United States, 495 U.S. 575, 602 (1990)).

       Mendez admits that his previous conviction fell under the Class D felony-battery portion

of the relevant Indiana statute criminalizing battery “result[ing] in bodily injury to . . . the other

person.” Ind. Code § 35-42-2-1(a)(2) (2004) (current version at Ind. Code § 35-42-2-1.3(b)(1)).

He contends, however, that the statute’s “bodily injury” requirement does not necessarily

encompass “the use, attempted use or threatened use of physical force.” U.S.S.G. § 4B1.2(a).

We disagree.

       The Supreme Court holds that “physical force,” in the context of crimes of violence,

means “violent force—that is, force capable of causing physical pain or injury to another

person.” Johnson v. United States, 559 U.S. 133, 140 (2010). Force that would result in mere

offensive touching is not “violent force.” Id. at 139 (“All of these definitions suggest a degree of

power that would not be satisfied by the merest touching.”). Although Johnson construed the

Armed Career Criminal Act, this court recognizes that the ACCA’s definition of “violent felony”

closely resembles the guidelines’ definition of “crime of violence.”           See United States v.

Sawyers, 409 F.3d 732, 740 n.9 (6th Cir. 2005), abrogated on other grounds by United States v.

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United States v. Mendez


Vanhook, 640 F.3d 706 (6th Cir. 2011). Like the statute at issue in Johnson, the Indiana Class D

felony-battery statute requires that a person actually “knowingly or intentionally touch[] another

person.” Ind. Code § 35-42-2-1(a) (emphasis added); Johnson, 559 U.S. at 135 (focusing on

whether the portion of the Florida statute defining battery as “[a]ctually and intentionally

touch[ing]” another person constitutes a “violent felony” under the Armed Career Criminal Act)

(emphasis added). The statute thus falls squarely within Johnson’s definition of “physical”

force. Johnson, 559 U.S. at 138.

       Unlike the statute at issue in Johnson, the Indiana statute, when read as a whole, requires

bodily contact “capable of causing physical pain or injury to another person” beyond mere

offensive touching. Id. at 140. Another part of the Indiana statute defines bodily injury as “any

impairment of physical condition, including physical pain.” Ind. Code § 35-41-1-4. Although

that definition does not specify that the degree of bodily injury must be greater than mere

offensive touching, a comparison of the definition of a Class B misdemeanor and a Class A

misdemeanor or Class D felony under the statute makes clear that the degree of bodily injury

required must be greater than mere offensive touching.         If a person only “knowingly or

intentionally touches another person in a rude, insolent, or angry manner”—what would appear

to be akin to mere offensive touching—the Indiana statute provides that the person has

committed a “Class B misdemeanor.”         Id. § 35-42-2-1(a).   A person commits a Class A

misdemeanor if he or she “knowingly or intentionally touches another person in a rude, insolent,

or angry manner . . . [and] it results in bodily injury.” Ind. Code § 35-42-2-1(a)(1)(A). The

Class D felony-battery provision applies if these same two elements are met and the person was

previously convicted of committing a battery against the other person. Ind. Code § 35-42-2-

1(a)(2)(D).   Therefore, “bodily injury” must require something more than mere offensive

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United States v. Mendez


touching; otherwise, its inclusion as a basis upon which a Class B misdemeanor for only “rude,

insolent, or angry” touching is elevated to a Class A misdemeanor or Class D felony with

additional circumstances would make no sense.

       Mendez nevertheless argues that a statute must require proof of serious bodily injury to

qualify as a § 4B1.2 crime of violence, pointing to this court’s decision in United States v.

Castleman, 695 F.3d 582 (6th Cir. 2012) (holding that a “misdemeanor crime of domestic

violence” under 18 U.S.C. § 922(g)(9) requires more than minor injury). But the Supreme Court

reversed Castleman, thus negating its holding. United States v. Castleman, 134 S. Ct. 1405,

1413 (2014) (concluding that a § 922(g)(9) predicate offense need not involve any bodily injury).

More fundamentally, even the Sixth Circuit’s now-reversed decision in Castleman does not help

Mendez’s argument because the statute at issue in that case encompassed conduct that could be

construed as mere offensive touching. United States v. Castleman, 695 F.3d 582, 590 (6th Cir.

2012). But as previously discussed, the Indiana statute at issue in this case excludes such minor

injury. Thus, even if the 2012 decision were still good law, Mendez’s reliance on that case

would be unavailing.

                                              IV.

       For these reasons, we AFFIRM.




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