     Case: 17-10487      Document: 00514791130         Page: 1    Date Filed: 01/11/2019




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

                                      No. 17-10487                          FILED
                                                                     January 11, 2019
                                                                       Lyle W. Cayce
UNITED STATES OF AMERICA,                                                   Clerk

              Plaintiff - Appellee,

v.

JULIO CESAR DE LA ROSA,

              Defendant - Appellant.



                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-488-1


Before JONES, HAYNES, and OLDHAM, Circuit Judges.
PER CURIAM:*
       Julio Cesar De La Rosa kicked a peace officer in the genitals. He pleaded
guilty to assault on a peace officer and was sentenced to three years in prison.
The question presented is whether that constitutes a crime of violence (“COV”)
under the Sentencing Guidelines. The district court said yes. We affirm.
                                             I.
       De La Rosa entered the United States illegally at least ten times. He
was granted voluntary departure after his first five detentions: on May 30,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-10487
2001; April 23, 2003; September 26, 2007; February 13, 2008; and June 30,
2008. After his next four, De La Rosa was formally removed: on July 11, 2008;
December 30, 2009; December 10, 2010; and December 6, 2012.
      After his eighth illegal entry—to be more precise, the eighth shown in
this record—De La Rosa was arrested in Dallas, Texas. He was charged with
attempted retaliation, unlawful carrying of a weapon, and failure to identify.
He pleaded guilty to those charges and was sentenced to five months in jail.
While serving his sentence, De La Rosa kicked a correctional officer in the
genitals. De La Rosa was angry because he wanted a toothbrush. He pleaded
guilty to assault on a peace officer and was sentenced to three years in prison. 1
The United States again removed him.
      He again came back (for at least the tenth time). He again was arrested.
And he again was indicted for illegal reentry under 8 U.S.C. § 1326(a) and
(b)(2). De La Rosa again pleaded guilty. This marked the fourth time he was
convicted of unlawful entry or reentry.
      At sentencing, the district court imposed an eight-level COV
enhancement for De La Rosa’s assault conviction. Under the applicable 2015
version of the U.S. Sentencing Guidelines Manual (“Guidelines”), that
enhancement applies “[i]f the defendant previously was deported, or
unlawfully remained in the United States, after . . . a conviction for an
aggravated felony.”      U.S.S.G. § 2L1.2(b)(1)(C) (2015).         The Guidelines’
definition of “aggravated felony” incorporates the “crime of violence” definition
from 18 U.S.C. § 16. See U.S.S.G. § 2L1.2 cmt. 3(A); 8 U.S.C. § 1101(a)(43)(F).
Accordingly, an aggravated felony includes:




      1He was convicted and sentenced under the name “Julio Delacerda.” That is one of
De La Rosa’s eight known aliases. For ease of reference, we refer to him as De La Rosa
throughout.
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      (a) an offense that has as an element the use, attempted use, or
          threatened use of physical force against the person or property
          of another [use-of-force clause], or
      (b) any other offense that is a felony and that, by its nature,
          involves a substantial risk that physical force against the
          person or property of another may be used in the course of
          committing the offense [residual clause].

18 U.S.C. § 16. The presentence report (“PSR”) concluded assaulting a peace
officer was an aggravated felony conviction and recommended an eight-level
enhancement. U.S.S.G. § 2L1.2(b)(1)(C) (2015). That brought De La Rosa’s
offense level to 13. His lengthy and violent criminal record placed him in
criminal history category VI. That produced an advisory sentencing range of
33 to 41 months of imprisonment.
       De La Rosa objected that assaulting a peace officer is not a COV. His
objections were threefold: (1) Texas assault can be committed recklessly;
(2) “the Texas assault statute lacks force as an element”; and (3) the residual
clause is unconstitutionally vague. The district court disagreed and accepted
the PSR. It sentenced De La Rosa to 38 months in prison. De La Rosa appeals
the COV enhancement. 2
                                            II.
      We review De La Rosa’s “preserved challenge to the district court’s
application of the Sentencing Guidelines de novo.” United States v. Piedra-
Morales, 843 F.3d 623, 624 (5th Cir. 2016) (per curiam). To determine whether
the district court erred by applying the eight-level sentencing enhancement,


      2  De La Rosa also argues his sentence violates the Due Process Clause because the
indictment did not allege a certain prior conviction that was used to invoke the sentencing
enhancement in 8 U.S.C. § 1326(b)(2). But, as he properly concedes, that argument is
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 226–27 (1998); see also
United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007) (“Because the Supreme
Court treats Almendarez-Torres as binding precedent, [appellant’s] argument is fully
foreclosed from further debate.”). De La Rosa does not otherwise challenge the statute of
conviction, instead focusing his arguments on the Guidelines enhancement.
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we must decide whether De La Rosa’s assault conviction constitutes a COV
under 18 U.S.C. § 16. This, of course, requires us to identify the crime of
conviction and determine what De La Rosa necessarily admitted when he
pleaded guilty. See Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). Then
we must assess whether the statutory elements of that offense satisfy either
the use-of-force clause or the residual clause. See United States v. Reyes-
Contreras, 910 F.3d 169, 179 (5th Cir. 2018) (en banc). They do, so we affirm.
                                      A.
      To determine whether a defendant’s prior conviction is a COV, we apply
a categorical approach. See United States v. Hernandez-Avila, 892 F.3d 771,
773 (5th Cir. 2018) (per curiam). The categorical approach requires us to look
at the statutory elements of the predicate offense, “not to the facts of [the]
defendant’s conduct.” Taylor v. United States, 495 U.S. 575, 600–02 (1990).
But when we face “an alternatively phrased statute,” as we do here, we face a
threshold inquiry—whether a statute is divisible into multiple offenses with
distinct elements, or whether it merely lists different ways of committing a
single offense. See Mathis, 136 S. Ct. at 2256.
      If a statute is divisible, we apply the modified categorical approach: We
“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, and apply the categorical approach to
that version of the crime.” United States v. Ceron, 775 F.3d 222, 227 (5th Cir.
2014) (per curiam) (quotation omitted).         Even employing the modified
categorical approach, we do not consider “[h]ow a given defendant actually
perpetrated the crime,” but only whether the elements of the crime of
conviction fit within the COV definition. Mathis, 136 S. Ct. at 2251.
      In this case, De La Rosa effectively concedes divisibility. Both parties
agree De La Rosa was convicted of a particular assault offense—assault on a
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peace officer under Texas Penal Code § 22.01(b)(1). We agree. The judgment
of conviction expressly states De La Rosa was convicted of “Assault On a Peace
Officer,” making it easy to identify the specific elements of his predicate
offense. See Mathis, 136 S. Ct. at 2256–57 (allowing judges to look at “the
record of a prior conviction itself ” to determine the elements of the offense). To
commit this type of assault, a person must:
      intentionally, knowingly, or recklessly cause[ ] bodily injury
      to . . . a person the actor knows is a public servant while the public
      servant is lawfully discharging an official duty, or in retaliation or
      on account of an exercise of official power or performance of an
      official duty as a public servant.

TEX. PENAL CODE § 22.01(a)(1), (b)(1) (2009). Thus, the only question before us
is whether these statutory elements make assaulting a peace officer a COV
under 18 U.S.C. § 16.
                                        B.
      For assault on a peace officer to qualify as a COV, it must satisfy either
the use-of-force clause or the residual clause.         The government argues
assaulting a peace officer satisfies both. De La Rosa counters it satisfies
neither and, even if it satisfies the residual clause, that clause is
unconstitutionally vague. Because we conclude assaulting a peace officer is a
COV under the use-of-force clause, we need not reach the parties’ arguments
about the residual clause.
      Under the use-of-force clause, an offense is a COV if it “has as an element
the use, attempted use, or threatened use of physical force against the person
or property of another.” 18 U.S.C. § 16(a). As we recently explained while
sitting en banc, “the ‘use of force’ does not require intent because it can include
knowing or reckless conduct.” Reyes-Contreras, 910 F.3d at 183. Nor does
§ 16(a) contain a “directness-of-force requirement for a COV.” Id. Instead,
assaulting a peace officer is a COV under § 16(a) if a conviction requires
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proving the defendant (1) intentionally, knowingly, or recklessly (2) “employs
a force capable of causing physical pain or injury” (3) against the person of
another. See id. at 183, 185.
       Assault on a peace officer requires all three. First, the defendant must
have acted “intentionally, knowingly, or recklessly.”                    TEX. PENAL CODE
§ 22.01(a)(1) (2009). Second, the defendant must have “cause[d] bodily injury,”
id., which is defined as “physical pain, illness, or any impairment of physical
condition,” id. § 1.07(a)(8). That definition necessarily means the defendant
has used “force capable of causing physical pain or injury.” Reyes-Contreras,
910 F.3d at 185; see also United States v. Castleman, 572 U.S. 157, 169–70
(2014) (explaining “the knowing or intentional causation of bodily injury
necessarily involves the use of physical force” and “a ‘bodily injury’ must result
from ‘physical force.’ ”). 3 Finally, the offense requires the use of force against
the person of another—specifically, a public servant.                     TEX. PENAL CODE
§ 22.01(b)(1) (2009). A conviction for assaulting a peace officer is therefore a
COV under the use-of-force clause.
       The sentence is AFFIRMED.




       3  We assume without deciding that “impairment of physical condition,” TEX. PENAL
CODE § 1.07(a)(8), could be interpreted to include an injury that occurred without physical
force, see Castleman, 572 U.S. at 170 (acknowledging, without deciding, that when “bodily
injury” is defined broadly it may contain forms of injury that do not require violent force).
But that theoretical possibility is insufficient to show assaulting a peace officer is not a COV.
Rather, “there must be a realistic probability, not a theoretical possibility, that the State
would apply its statute to conduct that falls outside the [use-of-force clause].” Reyes-
Contreras, 910 F.3d at 184 & n.35 (quotation omitted). “In short, without supporting state
case law, interpreting a state statute’s text alone is simply not enough to establish the
necessary ‘realistic probability.’ ” United States v. Castillo-Rivera, 853 F.3d 218, 223 (5th Cir.
2017) (en banc) (quoting Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)). De La Rosa
failed to make this realistic probability showing.
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