United States v. Jose Gracia-Cantu

920 F.3d 252

Opinion

PER CURIAM:

We WITHDRAW our prior panel opinion and SUBSTITUTE this opinion. Jose Prisciliano Gracia-Cantu appeals the district court's determination that a conviction under Texas Penal Code §§ 22.01(a)(1) and (b)(2) for "Assault-Family Violence" qualifies as a crime of violence under 18 U.S.C. § 16 , and is therefore an aggravated felony for purposes of 8 U.S.C. § 1101 (a)(43)(F) and U.S.S.G. § 2L1.2(b)(1)(C). Consistent with our recent en banc decision in *254 United States v. Reyes-Contreras , 910 F.3d 169 (5th Cir. 2018) (en banc), we hold that a conviction under Texas Penal Code §§ 22.01(a)(1) and (b)(2) falls within the definition of a crime of violence under 18 U.S.C. § 16 (a). We therefore AFFIRM Gracia-Cantu's sentence.

Section 16(a) defines a "crime of violence" as "an offense that 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). We recently explained en banc that this definition does not include a "directness-of-force requirement." Reyes-Contreras , 910 F.3d at 183 . Even indirect applications of force will do. Instead, all that this definition requires is that the statute of prior conviction criminalize only conduct that: (1) is committed intentionally, knowingly, or recklessly; and (2) "employs a force capable of causing physical pain or injury"; (3) against the person of another. Id. at 183 , 185 ; see also United States v. De La Rosa , No. 17-10487, --- Fed.Appx. ----, ----, 2019 WL 177958 , at *3 (5th Cir. Jan. 11, 2019) (unpublished).

Texas "Assault-Family Violence" fits the bill. First, the statute requires that the offense be committed "intentionally, knowingly, or recklessly." Tex. Penal Code § 22.01(a)(1). Second, the statute requires that the defendant "cause[ ] bodily injury," id. , which is defined as "physical pain, illness, or any impairment of physical condition," id. § 1.07(a)(8). Third, the statute requires that the injury be caused to "another," id. § 22.01(a)(2) -specifically, against a family member, as defined by certain provisions of the Texas Family Code, id. § 22.01(b)(2). This statute therefore meets the definition of a "crime of violence" under § 16(a). See also United States v. Gomez , 917 F.3d 332 , 334 (5th Cir. 2019) (holding that aggravated assault-which shares the same predicate offense, simple assault, as the statute in the instant case-is a "crime of violence" under § 16(a) ); De La Rosa , --- Fed.Appx. at ----, 2019 WL 177958 , at *3 (holding that assault against a peace officer, which also shares simple assault as a predicate offense, is a "crime of violence" under § 16(a) ).

Post- Reyes-Contreras , Gracia-Cantu has only two remaining arguments. We reject both. First, he asserts that the degree of force required by the Texas statute-reaching to "any impairment of physical condition," Tex. Penal Code § 1.07(a)(8), even minor injuries-is too minimal to constitute a crime of violence. See Curtis Johnson v. United States , 559 U.S. 133 , 140, 130 S.Ct. 1265 , 176 L.Ed.2d 1 (2010) ("[I]n the context of a statutory definition of ' violent felony,' the phrase 'physical force' means violent force-that is, force capable of causing physical pain or injury to another person.") (emphasis in original). But Gracia-Cantu must show more than a "theoretical possibility" that the statute could be enforced and applied this way; he must show a "realistic probability ... 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. In the absence of "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) (quoting Gonzales v. Duenas-Alvarez , 549 U.S. 183 , 193, 127 S.Ct. 815 , 166 L.Ed.2d 683 (2007) ).

Gracia-Cantu fails to provide that case law. The state-court cases he relies on-two finding bodily injury when defendants knowingly transmitted HIV 1 and one finding *255 bodily injury when a defendant knowingly injected bleach through an IV into a victim's bloodstream 2 -involve force "capable of causing physical pain or injury" to the degree contemplated by Curtis Johnson . Reyes-Contreras , 910 F.3d at 185 . These instruments-HIV and intravenous bleach-are no different from the "deadly instruments" in Mr. Reyes-Contreras's state-court case law: a gun, poison-laced orange juice, and a plastic bag. Id. Just as in Reyes-Contreras , the state-court case law that Gracia-Cantu relies on involves the "knowing[ ] employ[ment of] deadly instruments ... with the understanding that those instruments were substantially likely to cause physical pain, injury, or ... death." 3 Id.

Gracia-Cantu's second remaining argument post- Reyes-Contreras is that applying Reyes-Contreras "retroactively" to his sentence would violate the Constitution's protection against "unforeseeable judicial enlargement[s] of ... criminal statute[s]." Bouie v. City of Columbia , 378 U.S. 347 , 353, 84 S.Ct. 1697 , 12 L.Ed.2d 894 (1964). Gracia-Cantu, however, is not the first to raise this defense against the application of Reyes-Contreras , and our court has already rejected it. Gomez , 917 F.3d at 333 (" Reyes-Contreras did not make previously innocent activities criminal. It merely reconciled our circuit precedents with the Supreme Court's decision in Castleman .").

* * *

Reyes-Contreras applies to Gracia-Cantu's sentence and renders his prior conviction for Texas "Assault-Family Violence" a "crime of violence" under 18 U.S.C. § 16 (a). Accordingly, we AFFIRM the district court's sentence.

1 Billingsley v. State , No. 11-13-00052-CR, 2015 WL 1004364 , at *1-2 (Tex. App.-Eastland Feb. 27, 2015, pet. ref'd) (unpublished); Padieu v. State , 05-09-00796-CR, 2010 WL 5395656 , at *1 (Tex. App.-Dallas Dec. 30, 2010, pet. ref'd) (unpublished).

2 Saenz v. State , 479 S.W.3d 939 , 949-50 (Tex. App.-San Antonio 2015, pet. ref'd).

3 Gracia-Cantu also suggests that the Texas statute criminalizes assault through the use of force that is non-physical altogether. For this claim, he points to an indictment of a defendant who sent a tweet with an animation of strobe lights designed to trigger the recipient's epileptic seizures, which they did. See Indictment, State v. Rivello , Case No. F-1700215-M (Crim. Dist. Ct. No. 5, Dallas Co., Tex. Mar. 20, 2017). Even if an indictment alone can show a realistic probability that a state criminal statute will be interpreted a certain way-an issue we need not address today-this argument would fall short. In United States v. Castleman , the Supreme Court explained that "the knowing or intentional causation of bodily injury necessarily involves the use of physical force." 572 U.S. 157 , 169, 134 S.Ct. 1405 , 188 L.Ed.2d 426 (2014) ; see also Reyes-Contreras , 910 F.3d at 182 ("We hold that, as relevant here, Castleman is not limited to cases of domestic violence ..."). Seizures are a form of bodily injury. Knowingly or intentionally causing them, therefore, necessarily involves the use of physical force.