United States Court of Appeals For the First Circuit
No. 22-1687
UNITED STATES OF AMERICA,
Appellee,
v.
ÁNGEL MENÉNDEZ-MONTALVO,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
[Hon. Aida M. Delgado-Colón, U.S. District Judge]
Before
Kayatta, Lipez, and Thompson, Circuit Judges.
Samuel P. Carrión, with whom Héctor L. Ramos-Vega and Franco L. Pérez-Redondo were on brief, for appellant. Thomas F. Klumper, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.
December 12, 2023 KAYATTA, Circuit Judge. While serving a term of
supervised release arising from his conviction for a federal
firearm offense, Ángel Menéndez-Montalvo ("Menéndez") breached the
conditions of that release by violating Article 3.1 of Puerto
Rico's Domestic Violence Law. The calculation of the guidelines
sentencing range for Menéndez's supervised release violation
turned in relevant part on whether a violation of Article 3.1 is
a "crime of violence" as that term is used in section 7B1.1(a)(1)
of the United States Sentencing Guidelines. For the following
reasons, we find that it is not. We therefore vacate Menéndez's
sentence because the district court held to the contrary in
calculating a guidelines sentencing range that was higher than it
should have been.
I.
On February 8, 2019, Menéndez pled guilty to illegal
possession of a firearm by a person with a prior felony conviction,
in violation of 18 U.S.C. § 922(g)(1). He received a sentence of
12 months and one day, of which he served only four months before
beginning his three-year supervised release term on June 14, 2019.
The conditions of his supervised release prohibited Menéndez from
"committing another federal, state, or local crime." Menéndez
breached those conditions by, among other things, violating
- 2 - Article 3.1 of Puerto Rico Domestic Violence Law 54. Article 3.1
reads as follows:
Any person who employs physical force or psychological abuse, intimidation, or persecution against his/her spouse, former spouse, or the person with whom he/she cohabits or has cohabited, or the person with whom he/she shares a child in common . . . in order to cause physical harm to the person, the property held in esteem by him/her . . . or to another person, or to cause serious emotional harm, shall be guilty of a fourth- degree felony . . . .
P.R. Laws Ann. tit. 8, § 631.
The issue thus posed and contested by the parties was
whether Menéndez's violation of Article 3.1 was a Grade A or
Grade B violation under Guidelines section 7B1.1(a)(i). The
answer matters because while Menéndez's Grade A violation resulted
in a Guidelines sentencing range of 15 to 22 months, he contends
a Grade B violation would have carried a lower recommended range
of 6 to 12 months.
Section 7B1.1(a)(1) provides in relevant part that
"conduct constituting" an "offense . . . that . . . is a crime of
violence" is a Grade A violation. As the commentary to
section 7B1.1 explains, a "crime of violence" is defined in
section 4B1.2, which states:
The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . has as an element the use,
- 3 - attempted use, or threatened use of physical force against the person of another.
Menéndez offered two arguments for why a judge or jury
could properly convict a person of violating Article 3.1 without
having to find all the elements that define a crime of violence.
First, he argued that Article 3.1 indivisibly includes both
physical and psychological modalities, hence the offense could not
be said to require physical force in all circumstances. Second,
he argued that even if Article 3.1 is divisible into its physical
and psychological versions as different offenses, the physical
alternative does not require the type of violent physical force
that is required to be a crime of violence.
In rejecting these arguments, the district court found
first that Article 3.1 sets forth several divisible offenses, one
of which required the use of "physical force." The court then
detoured. Rather than asking whether the physical force element
of that version of the Article 3.1 offense required the use of
violent force sufficient to qualify as a crime of violence under
U.S.S.G. § 4B1.2, the court found that Menéndez's actual conduct
in fact involved the use of violent force. In the court's words,
"I'm looking at the actual conduct that has been described here by
the victim, which includes . . . punchings and beatings." Based
on its finding of divisibility and its review of the defendant's
conduct giving rise to the conviction, the district court concluded
- 4 - that Menéndez had committed a Grade A violation and sentenced him
to a term of 18 months imprisonment.
On appeal, Menéndez challenges both steps in the
district court's reasoning. He first contends that the district
court erred in finding that Article 3.1 is a divisible statute,
with both physical and non-physical versions. He then argues that
even if Article 3.1 is divisible, its physical version
criminalizes the use of even de minimis force, which under
controlling precedent is not "violent" force.
II.
"The question of whether an offense qualifies as a crime
of violence is a quintessentially legal one, and our review is de
novo." United States v. Martinez, 762 F.3d 127, 133 (1st Cir.
2014). We first give a brief overview of the legal framework at
issue, and then examine the specifics of Menéndez's arguments on
appeal.
The United States Sentencing Guidelines provide for
three grades of supervised release violations, each of which carry
different sentencing range recommendations. See U.S.S.G. § 7B1.1;
United States v. Colón-Maldonado, 953 F.3d 1, 3 (1st Cir. 2020).
A "Grade B" violation is defined as "conduct constituting any other
federal, state, or local offense punishable by a term of
imprisonment exceeding one year." U.S.S.G. § 7B1.1(a)(2). The
higher "Grade A" violation, on the other hand, is triggered by
- 5 - "conduct constituting . . . a federal, state, or local offense
punishable by a term of imprisonment exceeding one year that (i) is
a crime of violence, [or] (ii) is a controlled substance offense."
U.S.S.G. § 7B1.1(a)(1). As it pertains to this case, the key
distinction between a Grade A violation and a Grade B violation is
whether the underlying conviction constitutes a "crime of
violence," which the Sentencing Guidelines define as "any offense
under federal or state law, punishable by imprisonment for a term
exceeding one year, that -- has as an element the use, attempted
use, or threatened use of physical force against the person of
another." U.S.S.G. § 4B1.2(a)(1).
To determine what constitutes such a "crime of
violence," courts apply what has come to be known as the
categorical approach. See United States v. García-Cartagena, 953
F.3d 14, 21 (1st Cir. 2020). Under this approach, "the question
turns not on whether the defendant in fact 'used, attempted to
use, or threatened to use violent force in committing the crime as
a matter of historical fact, but on whether the use, attempted
use, or threatened use of violent force is required to satisfy one
of the crime's elements.'" United States v. Williams, 80 F.4th
85, 89-90 (1st Cir. 2023) (quoting United States v. Starks, 861
F.3d 306, 315 (1st Cir. 2017)). And so a court must determine
"whether the least serious conduct for which there is a 'realistic
probability' of a charge and conviction necessarily involves the
- 6 - use of violent force." Id. at 90. If it does not, then the
statute is overbroad, which means that a court cannot automatically
treat a violation of the statute as a "crime of violence" as
necessary to support a finding of a Grade A violation. Starks,
861 F.3d at 315.
An overbroad statute, however, may still sustain a
predicate offense if it is divisible. A statute is divisible where
it "list[s] elements in the alternative, and thereby define[s]
multiple crimes." Mathis v. United States, 579 U.S. 500, 505
(2016). For example a state law that prohibits "'the lawful entry
or the unlawful entry' of a premises with intent to steal . . .
creates two different offenses" -- one involving the element of
lawful entry and one involving the element of unlawful entry. Id.
If a statute is divisible, and "some of the alternative elements
require the use, attempted use, or threatened use of physical force
while others do not," courts thereby apply a "modified" categorical
approach. King v. United States, 965 F.3d 60, 66 (1st Cir. 2020).
Pursuant to this approach, a court looks to a "specific subset of
materials, including the indictment and jury instructions, to
determine which of the enumerated alternatives within the statue
constituted the actual crime of conviction." Id. And if the
actual crime of conviction "involves the use, attempted use, or
- 7 - threatened use of physical force against the person or property of
another, then the offense qualifies as a crime of violence." Id.
A.
Having established the legal background against which
our analysis proceeds, we now turn to the merits of Menéndez's
argument on appeal. Recall that in the proceedings below the
district court read Article 3.1 as presenting at least two
alternative offenses, one of which is limited to the use of
physical force. We find this reading cogent and persuasive,
particularly given the statute's use of the disjunctive "or."
Further support for this conclusion is found in Puerto Rico's model
jury instructions, which treat the physical and non-physical
modalities of Article 3.1 as alternative offenses between which a
prosecutor may pick and choose. See Proposed Jury Instructions
Book, 390-93 § 14.2 (2008) (certified translation).
That being said, we need not and do not decide whether
Article 3.1 divisibly includes as one of several offenses an
offense limited to the use of physical force. Instead, as we will
explain, even if Article 3.1 offers such an alternative, divisible
offense, that offense is itself overbroad because the degree of
force sufficient to support a conviction is less than the amount
- 8 - of "physical force" necessary to satisfy the Guidelines'
definition of a "crime of violence."
B.
Assuming that Article 3.1 contains several divisible
offenses, one of which has as an element the use of "physical
force," we consider next whether the minimum physical force
required to constitute an Article 3.1 offense satisfies the
Guidelines' definition of a crime of violence. United States v.
Faust, 853 F.3d 39, 51 (1st Cir. 2017). Before doing so, though,
we reiterate the operational order the categorical approach
requires in a case like this, as we previously explained in García-
Cartagena, 953 F.3d at 20-27. The district court properly
understood that where the Grade A classification turns not on a
conviction for a crime of violence, but rather on whether a
defendant engaged in conduct constituting such an offense, a court
may need to examine the defendant's actual conduct to determine
whether he did in fact commit the offense said to be a crime of
violence.1 However, a court engages in this fact-intensive
analysis only if it first finds that the offense said to have been
committed is categorically a crime of violence. See id. at 24.
As applied here, that mode of analysis required the
district court to determine whether the force required to sustain
1 This typically happens when the defendant has not already pled guilty to or been convicted of the underlying offense.
- 9 - a conviction under Article 3.1 is at least equal to the "physical
force" necessary to satisfy the Guidelines' definition of a "crime
of violence." If not, then whether and how Menéndez actually
committed the Article 3.1 offense is irrelevant to the question of
whether he committed an offense that is a crime of violence. To
reiterate, at this stage of the inquiry, the court must train its
attention on the requisite elements of the offense, not the manner
in which the offense was in fact committed. Id.
To that end, Menéndez contends that the physical-force
version of Article 3.1 allows for a conviction based on de minimis
force, which cannot constitute violent force as defined by the
Guidelines. The Supreme Court considered a similar question in
Johnson v. United States, 559 U.S. 133 (2010) -- whether a Florida
law that criminalized simple battery, defined as "actually and
intentionally touching" another person, was a "violent felony"
under the Armed Career Criminal Act (ACCA). In relevant part, the
ACCA provides for enhanced penalties for a person who violates 18
U.S.C. § 922(g) and has "three previous convictions" for "a violent
felony." Id. at 136. The definition of a "violent felony" parrots
the definition of a "crime of violence." See 18 U.S.C.
§ 924(e)(2)(B)(i) (defining violent felony as "any crime
punishable by imprisonment for a term exceeding one year" that
- 10 - "has as an element the use, attempted use, or threatened use of
physical force against the person of another").
In its opinion, the Johnson Court clarified that "in 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." Id. at 140.
It emphasized that "[w]hen the adjective 'violent' is attached to
the noun 'felony,' its connotation of strong physical force is
even clearer." Id. Thus because the Florida Supreme Court had
held that "the element of 'actually and intentionally touching'
under Florida's battery law is satisfied by any intentional
physical contact, 'no matter how slight,'" the state law was
necessarily overbroad and could not serve as a predicate violent
offense. Id. at 138-42.
Johnson dictates the result in this case. In the context
of a definition of "crime of violence," the phrase "physical force"
means violent force. By contrast, the Puerto Rico Supreme Court
has been clear that Article 3.1 "does not . . . offer any gradation
of physical force necessary for [a] crime to take place . . . .
Any kind of physical force or violence, moderate or severe, is
sufficient for this crime." Pueblo v. Roldán López, 158 D.P.R.
54, 58 (2002) (emphasizing that "[t]he gravity or severity of the
physical force used . . . is not an element in determining whether
the [offense] as such was committed or not"); see also Pueblo v.
- 11 - Ayala García, 186 D.P.R. 196, 213 (2012) ("Article 3.1 does not
demand that the physical force used is severe; any degree of force
is sufficient to configure the offense if employed with the
intention of causing damage." (emphasis added)). And as this
circuit's precedent holds, where a state statute recognizes that
"any physical force" is sufficient, then it cannot meet the
definition of "violent felony" under federal law. United States
v. Mulkern, 854 F.3d 87, 93-94 (1st Cir. 2017); id. at 93 ("The
word 'any' is a powerful beacon to us here, making clear that the
crime does not require a showing of force 'capable of causing
physical pain or injury' -- something short of that will do.").
The government responds that this court's decision in
United States v. Serrano-Mercado dictates that "the text of
Article 3.1 suggests that something more than a mere non-
consensual touching is required to satisfy" the element of physical
force. 784 F.3d 838, 845 (1st Cir. 2015). In that case, the panel
considered the law's requirement that the physical force be
intended to cause "physical harm" together with the Puerto Rico
Supreme Court's holding that "any degree of force is sufficient to
configure the offense if . . . employed with the intention of
causing some damage." Id. The panel found that distinction enough
to "strongly suggest the statute's physical-force element involves
the kind of violent force 'capable of causing physical pain or
injury to another person.'" Id. But as this circuit has
- 12 - subsequently emphasized, the Serrano-Mercado court "reviewed the
issue [of divisibility] for plain error," and thus that portion of
the opinion "wasn't a 'ruling on the merits.'" Colón-Maldonado,
953 F.3d at 7. It therefore does not demand a similar holding in
this case.
The government argues that we should nevertheless find
persuasive the Serrano-Mercado court's reasoning that intent to
cause physical harm -- coupled with the use of any amount of force
-- qualifies as violent force. But there is a distinction between
a person's intent to do harm and the steps taken to carry out that
intent. A person could, after all, intend to do someone harm even
while ineffectually taking no actions that can reasonably be said
to constitute "violent force -- that is, force capable of causing
physical pain or injury to another person." United States v.
Edwards, 857 F.3d 420, 423 (1st Cir. 2017). And it is a core tenet
of our justice system that a defendant must have committed the
prohibited act itself to merit criminal sanction. See United
States v. Aguilar, 515 U.S. 593, 604 (1995) ("The actus reus
element must be independently satisfied."). Adopting the
government's proposed intent standard comes dangerously close to
imposing liability based on a person's mindset alone.
The government responds that we have already considered
whether intent to cause physical harm qualifies as violent force.
It gestures to United States v. García-Ortiz, in which we held
- 13 - that "[a] threat to poison another imposes a 'fear of injury' . . .
to one's person," and that "placing someone in fear of bodily
injury" constitutes violent force under Johnson. 904 F.3d 102,
107-08 (1st Cir. 2018). But a threat to cause injury is quite
clearly different from an intent to cause injury. While the former
typically requires some outward act, the latter can exist with no
physical manifestation at all. García-Ortiz is therefore an inapt
comparison.2
The government also posits that Johnson "does not
require any particular degree of likelihood or probability that
the force used will cause physical pain or injury; only
potentiality." See Stokeling v. United States, 139 S. Ct. 544,
554 (2019). But this argument confuses how likely an attempt is
to succeed with the force used to effectuate that attempt. Taking
the government's argument to its logical conclusion, even a light
touch might have the potential to cause physical pain or injury,
however remote. But that would therefore imply that a mere touch
2 And to the extent the government is arguing that García- Ortiz stands for the proposition that a threat alone, regardless of the degree of force threatened, constitutes a crime of violence, we also remain unconvinced. The court in García-Ortiz was careful to note that "a threat to poison someone involves the threatened use of force capable of causing physical injury, and thus does involve violent force." 904 F.3d at 107 (emphasis added). Central to its reasoning, therefore, was the fact that the content of the threat was of a violent nature, rather than the mere fact of the threat's existence.
- 14 - constitutes violent force -- exactly what the Supreme Court
rejected in Johnson.
Finally, the government faults Menéndez for failing to
point to any cases in which a Puerto Rico court has applied
Article 3.1 to convict the use of de minimis physical force.
Certainly the categorical approach requires "a realistic
probability, not a theoretical possibility, that the [s]tate would
apply its statute to conduct that falls outside" the ambit of what
is defined in the Sentencing Guidelines. Moncrieffe v. Holder,
569 U.S. 184, 191 (2013). And, at least when the state statute
may not be obviously overbroad, that typically requires the
assurance provided by "cases in which the state courts in fact did
apply the statute in the special (nongeneric) manner for which he
argues." Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007);
see also Da Graca v. Garland, 23 F.4th 106, 113 (1st Cir. 2022)
("[W]here a state statute is 'plainly' overbroad, a petitioner
need not produce an actual case to satisfy the realistic
probability test." (quoting Swaby v. Yates, 847 F.3d 62, 66 (1st
Cir. 2017)).
Here, though, it appears that Puerto Rico courts have
applied the law to encompass the kind of less-than-violent force
for which Menéndez argues. See Pueblo v. Figueroa Santana, 154
D.P.R. 717, 731 (2001) (Article 3.1 "ensure[s] aggressions between
couples, however insignificant they may seem, . . . are not
- 15 - considered as small or minor crimes" and extends to altercation in
which "the physical damage caused to the victim . . . was
minimal"); Roldán López, 158 D.P.R. at 56 (lower court erred in
overturning a conviction based on prosecution's failure to
"present evidence to establish that . . . a violent blow was
actually inflicted . . capable of attempting or causing harm");
id. at 61 (lower court's holding that "it is necessary to present
evidence about how intense the blow or assault was to determine if
it is capable of causing harm" was "totally wrong and contrary
to . . . public policy"). That is enough to demonstrate a
"realistic probability" that Puerto Rico applies Article 3.1 in a
way that precludes the law's use as a predicate offense for a
Grade A violation.
III.
We recognize that, as the foregoing illustrates, the law
governing this issue of sentencing may seem counterintuitive.
Given that the obvious aim of the Grade A classification is to
propose longer sentences for felonies committed with violent
force, and given the need to assess conduct in determining whether
a defendant has committed the alleged violation, one might well
think that a finding that the conduct includes clearly violent
force would suffice to warrant a Grade A classification. But
- 16 - neither Congress nor the Sentencing Commission opted for such an
approach.
None of this is to say that the district court on remand
may not consider Menéndez's conduct while on supervised release as
it bears on the factors specified in 18 U.S.C. § 3583(e), which
include "the nature and circumstances of the offense and
characteristics of the defendant," 18 U.S.C. § 3553(a)(1).
Accordingly, when making its final sentencing calculus, the
district court has "wide discretion" to weigh the "serious nature
of [Menéndez's] domestic violence offense and the circumstances
surrounding it." United States v. Daoust, 888 F.3d 571, 576-77
(1st Cir. 2018). The ascertainment of a sentence, though, need
begin with a proper classification of the violation, and that
classification requires an assessment of the elements of the
offense said to have been committed rather than the means by which
it was committed. For that reason, we vacate the sentence and
remand to the district court for further proceedings consistent
with this opinion.
Given the possibility that the district court in its
discretion may (but need not) issue a shorter sentence on remand,
if the government knows that it is not going to seek rehearing it
shall so promptly inform the court of appeals clerk so that the
mandate may then be issued forthwith.
- 17 -