     Case: 09-40882     Document: 00511254254          Page: 1    Date Filed: 10/05/2010




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

                                                  FILED
                                                                           October 5, 2010

                                       No. 09-40882                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

FABIAN FLORES-GALLO,
also known as Fabian Flores-Gallos,

                                                   Defendant-Appellant




                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 7:09-CR-527-1


Before JONES, Chief Judge, and REAVLEY and HAYNES, Circuit Judges.
PER CURIAM:*
        Fabian Flores-Gallo appeals the district court's application of a sixteen-
level "crime of violence" enhancement pursuant to § 2L1.2(b)(1)(A)(ii) of the U.S.
Sentencing Guidelines. Flores-Gallo pleaded guilty to being unlawfully present
in the United States following deportation.                    The Presentence Report
recommended a sixteen-level "crime of violence" enhancement based on Flores-
Gallo's two prior convictions in Kansas for aggravated battery. Over Flores-


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40882

Gallo's objections, the district court found that the Kansas aggravated battery
offense was a "crime of violence" for sentencing purposes and imposed the
enhancement. For the following reasons, we AFFIRM.
         We review the district court's characterization of a prior offense as a crime
of violence de novo. United States v. Sanchez-Ruedas, 452 F.3d 409, 412 (5th
Cir. 2006). "Guideline commentary is given controlling weight if it is not plainly
erroneous or inconsistent with the guidelines." United States v. Velasco, 465
F.3d 633, 637 (5th Cir. 2006).
         Section 2L1.2 of Sentencing Guidelines calls for a sixteen-level increase to
the base offense level if the defendant was previously deported after a conviction
for    a   "crime   of   violence."    U.S.    S ENTENCING    G UIDELINES    M ANUAL
§ 2L1.2(b)(1)(A)(ii) (2009).     The commentary to § 2L1.2 defines a "crime of
violence" as
         any of the following offenses under federal, state, or local law:
         murder, manslaughter, kidnapping, aggravated assault, forcible sex
         offenses . . . 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.
§ 2L1.2 cmt. n.1(B)(iii).      Thus, for one of Flores-Gallo's convictions to be
considered a "crime of violence" for sentencing purposes, it must be an offense
which either belongs to the list of enumerated offenses, or has as an element the
use, attempted use, or threatened use of force.          Velasco, 465 F.3d at 637.
Because we find that the section of the Kansas statute to which Flores-Gallo
pleaded guilty has as an element of the threatened use of force, we need not
reach whether it fits within the enumerated offenses.
         This court employs a categorical approach to the question of whether a
prior offense is a "crime of violence" because it has as an element the use of force.
Taylor v. United States, 495 U.S. 575, 602, 110 S. Ct. 2143, 2160 (1990); United

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States v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2004) (en banc). "Under the
categorical approach set forth in [Taylor], a district court looks to the elements
of a prior offense, rather than to the facts underlying the conviction, when
classifying a prior offense for sentence enhancement purposes." United States
v. Garza-Lopez, 410 F.3d 268, 273 (5th Cir. 2005). Where, as here, a statute is
disjunctive, the court may look to conclusive records made or used in
adjudicating guilt to determine which part of the statute applies to the
defendant. Id. at 274. Generally, these records include the "charging document,
written plea agreement, transcript of plea colloquy, and any explicit factual
finding by the trial court judge to which the defendant assented." Shepard v.
United States, 544 U.S. 13, 16, 125 S. Ct. 1254, 1257 (2005).
      Although initially charged under § 21-3414(a)(1)(A) of the Kansas
aggravated battery statute, Flores-Gallo pleaded guilty on two separate
occasions to violating subsection (1)(B) of the statute. The statute provides in
relevant part:
      (a) Aggravated battery is:

            (1)(A) Intentionally causing great bodily harm to another
            person or disfigurement of another person; or

            (B) intentionally causing bodily harm to another person with
            a deadly weapon, or in any manner whereby great bodily
            harm, disfigurement or death can be inflicted; or

            (C) intentionally causing physical contact with another person
            when done in a rude, insulting or angry manner with a deadly
            weapon, or in any manner whereby great bodily harm,
            disfigurement or death can be inflicted.
K AN. S TAT. A NN. § 21-3414. Subsection (1)(B) prohibits two types of conduct.
The first type prohibits "intentionally causing bodily harm to another person
with a deadly weapon." § 21-3414(a)(1)(B). Alternatively, the second type
prohibits "intentionally causing bodily harm to another person . . . in any

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manner whereby great bodily harm, disfigurement or death can be inflicted." Id.
None of the "conclusive records" to which a court may refer indicates to which
part of (1)(B) Flores-Gallo pleaded guilty. Therefore, we assume for this inquiry
that "his conduct constituted the least culpable act satisfying the count of
conviction." United States v. Houston, 364 F.3d 243, 247 (5th Cir. 2004).
      Accordingly, we examine whether the second type of prohibited conduct
could be prosecuted without proof of the "use, attempted use, or threatened use
of physical force against the person of another." § 2L1.2 n.1(B)(iii); see also
United States v. Vargas-Duran, 356 F.3d 598, 605 (5th Cir. 2004) (en banc)
(internal quotation marks omitted) ("[I]n order for § 2L1.2 to apply, the
intentional use of force must be a constituent part of a claim that must be proved
for the claim to succeed."). The elements of the second type of conduct prohibited
by subsection (1)(B) of the Kansas statute are: (1) intentionally (2) causing bodily
harm (3) to another person (4) in any manner whereby great bodily harm,
disfigurement or death can be inflicted. K AN. S TAT. A NN. § 21-3414(a)(1)(B).
Kansas courts have defined "bodily harm" and "great bodily harm" as follows:
      Bodily harm has been defined as any touching of the victim against
      the victim's will, with physical force, in an intentional hostile and
      aggravated manner. The word "great" distinguishes the bodily
      harm necessary in the offense of aggravated battery from slight,
      trivial, minor or moderate harm, and as such it does not include
      mere bruises, which are likely to be sustained in simple battery.
State v. Livingston, 35 P.3d 918, 922 (Kan. 2001) (internal citation, brackets, and
quotation marks omitted).
      The Government argues that since Kansas common law defines "bodily
harm" as touching with "physical force," the statute by definition has as an
element the use of "physical force." Flores-Gallo counters that this court should
look to federal law—not common law—for the definition of "physical force" and
cites the Supreme Court's recent opinion in Johnson v. United States for the



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proposition that "physical force" means "violent force—that is, force capable of
causing physical pain or injury to another person." 130 S. Ct. 1265, 1271 (2010)
(emphasis omitted). He posits that the Kansas statute can be violated without
the use of such force, such as by locking someone in the car on a hot day or
giving them the wrong medicine. We agree with Flores-Gallo that "physical
force" in the context of defining a "crime of violence" for the purposes of
construing the Sentencing Guidelines requires "force capable of causing physical
pain or injury to another person." However, we agree with the Government that
subsection (1)(B) of the Kansas aggravated battery statue requires as a
constituent element at least the threatened use of "physical force" that is
sufficient for a "crime of violence."
      First, contrary to the implicit suggestion of Flores-Gallo, the element of
"bodily harm" as used in (1)(B) embodies more than mere offensive touching.
Under the common law definition of "physical force" for the crime of battery, the
offense requires that the defendant touch the victim. Johnson, 130 S. Ct. at
1270 (citing 2 W. L AF AVE & A. S COTT, S UBSTANTIVE C RIMINAL L AW § 7.15(a),
p. 301 (1986 and Supp. 2003); B LACK'S L AW D ICTIONARY 173 (9th ed. 2009); 3 W.
B LACKSTONE, C OMMENTARIES *120). It is clear from the statute as a whole that
mere touching alone is not sufficient to sustain a violation of (1)(B), because that
conduct is expressly prohibited by (1)(C). K AN. S TAT. A NN. § 21-3414(a)(1)(C)
(reaching conduct that "intentionally caus[es] physical contact with another
person when done in a rude, insulting or angry manner with a deadly weapon,
or in any manner whereby great bodily harm, disfigurement or death can be
inflicted"). If we were to read (1)(B) as covering mere touching, we would render
(1)(C) superfluous, violating the "'cardinal principle of statutory construction'
that 'a statute ought, upon the whole, to be so constructed that, if it can be
prevented, no clause, sentence, or word shall be superfluous, void, or
insignificant.'" TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S. Ct. 441, 449 (2001)

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(citation omitted). Therefore, the physical force and resulting bodily harm as
contemplated by subsection (1)(B) must be more than the mere physical contact
covered by (1)(C).
      The Kansas common law definition of "bodily harm" requires that the
contact be "in an intentional hostile and aggravated manner." Livingston, 35
P.3d at 922. Hostile is defined as "1. Adverse. 2. Showing ill will or a desire to
harm. 3. Antagonistic; unfriendly." B LACK'S L AW D ICTIONARY 806 (9th ed. 2009).
And, aggravated means "made worse or more serious by circumstances such as
violence, the presence of a deadly weapon, or the intent to commit another
crime." Id. at 75. Therefore, subsection (1)(B) requires hostile or aggravated,
intentional, physical contact that is more than mere touching. Conduct such as
that posited by the defendant—locking someone in a car on a hot day, or
deliberately giving someone the wrong medicine—is not covered by (1)(B).
      But, the "bodily harm" is only half of the picture. The statute requires
that the harm must be conducted in a "manner whereby great bodily harm,
disfigurement or death can be inflicted." § 21-3414(a)(1)(B). So, in order to be
convicted under the statute the defendant must with ill will or hostility
intentionally use force that is more than mere touching and has the capability
of causing significant injury. The defendant argues that this court has found
that the mere risk of serious harm is not, by itself, sufficient to constitute use of
physical force. See Larin-Ulloa v. Gonzales, 462 F.3d 456, 466 (5th Cir. 2006).
Additionally, he cites case law that "bodily harm" alone will not meet the
definition of physical force required by § 2L1.2. Vargas-Duran, 356 F.3d at 606
("[T]he fact that the statute requires that serious bodily injury result from [the
conduct] does not mean that the statute requires that the defendant have used
the force that caused the injury."). However, we read the "bodily harm" part of
this statute as part of the whole, because statutes are not construed in a



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vacuum.    Leocal v. Ashcroft, 543 U.S. 1, 125 S. Ct. 377, 382 (2004) ("[W]e
construe language in its context and in light of the terms surrounding it.").
      Here the hostile intent and force used in conjunction with the risk of
significant injury creates an offense which has as an element at least the
threatened use of force that is capable of causing physical pain or injury to
another person as contemplated by Johnson. Cf. Larin-Ulloa, 462 F.3d at 466
(distinguishing offenses requiring that defendant intend to injure or that "the
physical contact itself be violent, harmful, offensive, or even non-consensual"
when determining that subsection (1)(C) did not constitute a use of physical
force); United States v. Treto-Martinez, 421 F.3d 1156, 1160 (10th Cir. 2005)
(finding that subsection (1)(C) constituted a threatened use of force because "[n]o
matter what the instrumentality of the contact, if the statute is violated by
contact that can inflict great bodily harm, disfigurement or death, it seems clear
that, at the very least, the statute contains as an element the 'threatened use of
physical force'").   The hostile elevated level of contact plus the use of an
instrumentality that is capable of significant injury is inherently threatening.
And, the statute is clear that the possible or threatened conduct involves great
bodily harm.    Accordingly, we find that § 21-3414(a)(1)(B) of the Kansas
aggravated battery statute has as an element at least the threatened use of
physical force. Therefore, the application of the sixteen-level enhancement
under § 2L1.2(b)(1)(A)(ii) for a prior conviction for a "crime of violence" was
proper.
      AFFIRMED.




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