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United States v. Reyes

United States Court of Appeals, Fifth Circuit

August 1, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
OSMAN RUTILIO REYES, Defendant-Appellant

         Appeal from the United States District Court for the Southern District of Texas

          Before REAVLEY, OWEN, and SOUTHWICK, Circuit Judges.

          REAVLEY, CIRCUIT JUDGE

         This Court implicitly held in United States v. Velasco, 465 F.3d 633 (5th Cir. 2006), that the Illinois aggravated battery statute is divisible-meaning that if a defendant has a prior conviction under that statute and a sentencing court must determine whether this prior conviction qualifies for a sentencing enhancement, the court should look to certain records of conviction to identify the particular offense of which the defendant had been convicted. Applying Mathis v. United States, 136 S.Ct. 2243 (2016), we must decide whether that holding retains vitality. We find that it does.

         Recitation of only a few facts is necessary. In April of 2015, defendant Osman Rutilio Reyes was convicted of aggravated battery under Illinois' aggravated battery statute, 720 Ill. Comp. Stat. Ann. § 5/12-3.05. More specifically, he was convicted of aggravated battery with a deadly weapon under Section 5/12-3.05(f)(1). Reyes was deported in May of that year. By August, he was back in the country. Immigration and Customs Enforcement agents apprehended him in Texas, and he pleaded guilty to violating 8 U.S.C. § 1326.

         The district court found that Reyes' prior conviction qualified as a crime of violence for purposes of the United States Sentencing Guidelines and imposed a 16-level sentencing enhancement when calculating the applicable Guidelines range. See USSG § 2L1.2(b)(1)(A)(ii). This ruling was required by Velasco, which had held that a conviction under the Illinois aggravated battery statute for aggravated battery based on the use of a deadly weapon necessarily involved "the use of force" and therefore categorically qualified as a crime of violence. 465 F.3d at 638-40 (citing 720 Ill. Comp. Stat. 5/12-4(b)(1)). The opinion also recognized that when Illinois' aggravated battery statute cannot be "pare[d] down, " a conviction under the statute will not categorically qualify as a crime of violence because the "statute provides for the commission of the offense of aggravated battery in a number of different ways, some of which do not require the use of physical force against a person." Id. at 639 (quoting United States v. Aguilar-Delgado, 120 F.App'x 522, 523 (5th Cir. 2004)).

         Though Velasco foreclosed his argument, Reyes duly objected to a crime-of-violence sentencing enhancement on the grounds that the Illinois aggravated battery statute is indivisible. As that very case shows, a finding of indivisibility would establish the sentencing enhancement's impropriety. See Velasco, 465 F.3d at 639. On appeal, we consider Reyes' divisibility argument in light of Mathis, and review is de novo. See United States v. Sam, 467 F.3d 857, 861 (5th Cir. 2006). Because Reyes is challenging a precedent of this Court, he must show that Mathis "unequivocally abrogated" Velasco. United States v. Tanksley, 848 F.3d 347, 350 (5th Cir.), supplemented, 854 F.3d 284 (5th Cir. 2017). Mathis "is controlling regarding the methodology of the modified categorical approach, " United States v. Hinkle, 832 F.3d 569, 574 (5th Cir. 2016), so our task is to check the result of Velasco according to the method of Mathis, see Tanksley, 848 F.3d at 351.

         The broad issue in this case is whether Reyes' conviction under the Illinois aggravated battery statute properly counts as a crime of violence under the Guidelines. "To determine whether a given prior conviction qualifies for a Guidelines enhancement, courts use either (1) the categorical approach or (2) the modified categorical approach." United States v. Rico-Mejia, 859 F.3d 318, 322 (5th Cir. 2017). Courts applying the categorical approach simply "look to the elements of the offense enumerated or defined by the Guideline section and compare those elements to the elements of the prior offense for which the defendant was convicted." United States v. Howell, 838 F.3d 489, 494 (5th Cir. 2016).

         Some statutes resist this approach because they "list elements in the alternative, and thereby define multiple crimes." Mathis, 136 S.Ct. at 2249. When confronted with such a statute, courts employ the modified categorical approach and examine "a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of." Id. Some statutes seem at a glance to bear this same structure but, upon examination, merely list "various factual means of committing a single element." Id. When a statute lists different possible ways of committing one crime, the modified categorical approach is impermissible. Id. at 2251.

         The Illinois aggravated battery statute is lengthy and complex. See 720 Ill. Comp. Stat. § 5/12-3.05(a)-(g). According to the government, the statute sets forth the necessary alternative elements that render the modified categorical approach permissible and allow Reyes' prior conviction to be identified as an aggravated battery involving the use of a deadly weapon. See 720 Ill. Comp. Stat. § 5/12-3.05(f)(1). According to Reyes, the statute is indivisible and "overbroad" in that it "sweeps in conduct that does not qualify as a 'crime of violence.'" Reyes' fallback position is that even if the aggravated battery statute can be narrowed to Section 5/12-3.05(f), it cannot be narrowed further. In other words, Section 5/12-3.05(f) is itself indivisible and overbroad.

         In determining if the aggravated battery statute is divisible, we look to its alternative components and ask "elements or means?" Mathis, 136 S.Ct. at 2256. State law governs this "threshold inquiry." Id. State courts are the ideal expositors of state law, but we may also examine the statutory text and structure or, if necessary, "the record of a prior conviction itself." Id. If the Illinois aggravated battery statute lists various means of committing one aggravated battery offense, it is indivisible. Hinkle, 832 F.3d at 575. In such a case, a jury need not agree on how the offense was committed, and Reyes' crime of conviction could not be narrowed to encompass any one factual theory, no matter the actual evidence or indictment in his case. Mathis, 136 S.Ct. at 2251. Elements, by contrast, are those "things the 'prosecution must prove to sustain a conviction.'" Id. at 2248 (quoting Black's Law Dictionary 634 (10th ed. 2014). Distilled to its essence, Mathis recognizes that, when applying a recidivism statute to a defendant's prior convictions, each "crime of conviction" is defined by solely by its elements. Id. at 2251. "How a given defendant actually perpetrated the crime" is irrelevant, "regardless of whether a statute omits or instead specifies alternative possible means of commission." Id.

         We first consider Reyes' broad argument: that the "aggravated battery statute contains [a] lengthy list of ways that a person can violate the statute." (Emphasis added (citing 720 Ill. Comp. Stat. § 5/12-3.05(a)-(g)).) Do its many subsections and their nested paragraphs simply establish a multiplicity of ways of committing one aggravated battery offense? No. The Supreme Court of Illinois recently analyzed the aggravated battery statute and held that it contained (at least) two different crimes requiring different proofs.[1] People v. Cherry, 63 N.E.3d 871, 877 (Ill. 2016) (discussing aggravated battery and aggravated battery with a firearm).

         The Illinois aggravated battery statute sets forth many types of aggravated battery. It is error to analyze the statute as if it instead establishes a basic aggravated battery offense that is supplemented throughout the rest of the statute by various further-aggravating circumstances. Thus, in Cherry, the Supreme Court of Illinois rejected the appellate court's conclusion that aggravated battery with a firearm was merely "an enhanced version of aggravated battery." Id. (quoting People v. Cherry, 22 N.E.3d 1277, 1283 (Ill.App.Ct. 2014)). And it chided the lower court for "wholly ignor[ing] the actual elements of these offenses." Id.

[T]he statutory elements plainly demonstrate that, rather than being an aggravated or enhanced version of aggravated battery, aggravated battery with a firearm is, like aggravated battery itself, an aggravated or enhanced version of battery. The aggravated battery and aggravated battery with a firearm statutes share an identical structure. Both offenses require the State to prove the commission of a battery, and both offenses require the State to prove the presence of an additional factor aggravating that battery.

Id. (emphases added).

         Cherry thus forecloses Reyes' argument that the entirety of the aggravated battery statute is indivisible. Accordingly, our focus shifts to one particular subsection, Section 5/12-3.05(f). Reyes' "crime of conviction" for purposes of Mathis is either a Section 5/12-3.05(f) violation (aggravated battery based on the use of a weapon or device) or a 5/12-3.05(f)(1) violation (aggravated battery involving the use of a deadly weapon). See 136 S.Ct. at 2251.

         In its entirety, subsection (f) reads as follows:

Offense based on use of a weapon or device. A person commits aggravated battery when, in committing a battery, he or she does any of the following:
(1) Uses a deadly weapon other than by discharge of a firearm, or uses an air rifle as defined in Section 24.8-0.1 of this Code.
(2) Wears a hood, robe, or mask to conceal his or her identity.
(3) Knowingly and without lawful justification shines or flashes a laser gunsight or other laser device attached to a firearm, or used in concert with a firearm, so that the laser beam strikes upon or against the person of another.
(4) Knowingly video or audio records the offense with the intent to disseminate the recording.

720 Ill. Comp. Stat. Ann. 5/12-3.05(f).

         As can be seen from the statute, if Reyes' crime of conviction is aggravated battery based on the use of a weapon or device, then the conviction would not categorically qualify as a crime of violence under the Guidelines; the conviction could be based on wearing a hood while committing a non-violent battery, for instance. But if the crime of conviction is aggravated battery involving the use of a deadly weapon it categorically qualifies as a crime of violence under the Guidelines. United States v. Sanchez-Sanchez, 779 F.3d 300, 305 (5th Cir. 2015). We must determine the nature of Section 5/12-3.05(f). Do paragraphs (1) through (4) itemize means of committing a single crime, or do paragraphs (1) through (4) represent distinct crimes with distinct elements? See Hinkle, 832 F.3d at 575.

         We are aware of no Illinois case describing aggravated battery based on the use of a weapon or device as a unitary offense, which offense may be proven by showing that Section 5/12-3.05(f) was violated in any one of four ways enumerated in paragraphs (1) through (4) of that subsection. Compare Mathis, 136 S.Ct. at 2256 (finding the Iowa burglary statute indivisible because of a state supreme court holding that "[t]he listed premises in Iowa's burglary law . . . are 'alternative method[s]' of committing one offense, so that a jury need not agree whether the burgled location was a building, other structure, or vehicle" (quoting State v. Duncan, 312 N.W.2d 519');">312 N.W.2d 519, 523 (Iowa 1981))). But nor can we find cases holding that Section 5/12-3.05(f) describes four different crimes with four distinct sets of elements. Compare United States v. Uribe, 838 F.3d 667, 670 (5th Cir. 2016) (holding that the Texas burglary statute, which describes three forms of burglary, is divisible because the Texas Court of Criminal Appeals had previously held that each "type" of burglary had its own set of elements (citing Day v. State, 532 S.W.2d 302, 306 (Tex. Crim. App. 1975))).

         There are cases, however, that answer the precise question necessary to resolve this case: whether Section 5/12-3.05(f)(1) is a distinct crime (aggravated battery involving the use of a deadly weapon) that includes, as an element, use of a deadly weapon in the commission of a battery. We return to Cherry, where Illinois' high court said exactly this. There, the court used a wide-ranging discussion of the Illinois aggravated battery statute to explain its ultimate holding-that aggravated battery with a firearm is a separate offense from aggravated battery. In the process, it asked the reader to consider the example of aggravated battery "involving the use of a deadly weapon other than a firearm." Cherry, 63 N.E.3d at 877. To "prove" this "offense, " the court said, "the State must prove that the defendant: 'in committing a battery, used a deadly weapon other than by the discharge of a firearm.'" Id. (quoting 720 Ill. Comp. Stat. Ann. 5/12-4(b)(1)) (cleaned up). Thus, aggravated battery involving the use of a deadly weapon is not a way of committing aggravated battery or even aggravated battery based on the use of a weapon or device; it is a distinct offense requiring proof of the use of a deadly weapon. And there is no shortage of consistent Illinois decisions.[2] There is also an abundance of cases that do not address the issue but demonstrate that defendants accused of violating 5/12-3.05(f)(1) are charged with and convicted of violating 5/12-3.05(f)(1).[3] Any purported Illinois crime known as aggravated battery based on the use of a weapon or device is a chimera; the crime of aggravated battery involving the use of a deadly weapon is routinely charged and proven.

         It is true that Cherry's discussion of Section 5/12-3.05(f)(1) is dicta. We follow it for several reasons. First, a federal court tasked with interpreting state law must give state supreme court dicta great weight.[4] Avakian v. Citibank, N.A., 773 F.3d 647, 651-52 (5th Cir. 2014). Second, the statements in Cherry follow from its parsing of the relevant statutory language. Velasco reached the same result based on a similar parsing, 465 F.3d at 639-40, and Mathis endorses examinations of the statutory text when no state supreme court decision provides a definitive answer, 136 S.Ct. at 2256. Third, under Illinois' Murderer and Violent Offender Against Youth Registration Act, a "violation or attempted violation" of Section 5/12-3.05(f)(1) can constitute a "violent offense against youth, " but subsections 5/12-3.05(f)(2)-(4) are not listed as qualifying offenses. 730 Ill. Comp. Stat. Ann. 154/5(b)(4.4). This works only if Section 12-3.05(f)(1) describes a discrete offense.

         The Dissent announces it has found a Mathis-approved state court decision that conclusively resolves the question, People v. Diaz, 614 N.E.2d 268 (Ill.App.Ct. 1993). But Diaz turns out to be (1) Illinois law on the permissibility of general verdicts where a defendant is charged with multiple and distinct offenses, and is unrelated to the present case where conviction matches the crime charged and satisfies federal sentencing requirements; (2) a mere intermediate state court opinion, (3) a case that did not consider the statute before us and was in fact decided before both Section 12-3.05 and its predecessor statute (discussed in Cherry) were ever enacted, and (4) a case simply not involving statutory language, design, or meaning. Inasmuch as Diaz does not address Section 12-3.05(f) and therefore could not have possibly determined its divisibility, it is legally off-topic. Inasmuch as it deals with a situation where the prosecution seeks to convict under two different "definitions" of aggravated battery, it is factually inapt. But even if we overlook all of this and proceed as if Diaz muddled the picture, a return to our Mathis-mandated order of operations confirms our conclusion that Reyes' prior conviction qualifies as a crime of violence.

         Diaz plainly does not "definitively answer[] the question" before us. Mathis, 136 S.Ct. at 2256. Accordingly, if the Dissent is not convinced by Cherry (and the host of intermediate appellate court decisions we have cited that do involve the relevant statute), it should next examine the statutory text-which, as we have noted, Cherry does. Id. And if there is still no good answer, "federal judges have another place to look: the record of a prior conviction itself." Id. At this third Mathis step, courts utilize record documents as an aid in determining a statute's divisibility. See id. at 2257 n. 7 ("[W]hen state law does not resolve the means-or-elements question, courts should 'resort[ ] to the [record] documents' for help in making that determination.'" (quoting Descamps v. United States, 133 S.Ct. 2276, 2285 n.2 (2013)) (alterations in original)).

         An indictment can resolve the elements-means question "by referencing one alternative term to the exclusion of all others, " thereby indicating "that the statute contains a list of elements, each one of which goes toward a separate crime." Id. Here, Reyes' indictment is in the record. In Count 1-the count to which he pleaded guilty-Reyes was charged with "committing a battery . . . by use of a deadly weapon" and, more specifically still, with "a violation of 720 ILCS 5/12-3.05(f)(1)." There is no mention of Section 12-3.05(f)'s remaining provisions. This "peek" at the indictment was not necessary to determine Section 12-3.05(f) is divisible. But it demonstrates that Diaz has no application. "As was charged in this case, a person commits aggravated battery when he intentionally or knowingly without legal justification uses a deadly weapon other than a firearm to cause bodily harm to an individual." Marston, 818 N.E.2d at 1267 (emphasis added).

         Reyes was charged and convicted of violating Section 5/12-3.05(f)(1). Aggravated battery involving use of a deadly weapon under Section 5/12-3.05(f)(1) is a discrete offense requiring proof of the use of a deadly weapon. It has been established, categorically, that the offense of which he was convicted represents a crime of violence under the Guidelines. The district court did not err in following Velasco and applying the crime-of-violence enhancement.

         Illinois' aggravated battery statute is complex and has many parts. We have held that its Section 5/12-3.05(f) is divisible and that a conviction under Section 5/12-3.05(f)(1) requires proof of the use of a deadly weapon. We have no occasion to examine the statute further. Mathis did not abrogate Velasco, and the sentence is AFFIRMED.

          LESLIE H. SOUTHWICK, Circuit Judge, concurring:

         I concur in the decision to affirm the sentence. Where I depart from Judge Reavley is that I do not conclude that the Illinois Supreme Court clearly resolved our issue in People v. Cherry, 63 N.E.3d 871 (Ill. 2016). As a result, I find it necessary to look elsewhere to be sure this statute is divisible.

         Cherry held that aggravated battery "involving the use of a deadly weapon other than a firearm" requires the State to "prove" a defendant used "a deadly weapon other than by the discharge of a firearm[.]" Id. at 877 (quoting 720 Ill. Comp. Stat. § 5/12-4(b)(1) (West 2010)). The court referred to the use of a deadly weapon other than by discharge of a firearm as an "element[]" that "serve[s] to aggravate [the] battery." Id. at 878. What concerns me is that there is Illinois caselaw that suggests the use of the term "element" in Cherry might not have been with the same meaning as the United States Supreme Court meant in Mathis. See Mathis v. United States, 136 S.Ct. 2243, 2256-57 (2016).

         Cherry said it would discuss two "forms" of aggravated battery under the 2010 aggravated-battery statute: (1) causing great bodily harm under Section 5/12-4(a), and (2) using a deadly weapon other than by discharge of a firearm under Section 5/12-4(b)(1). See Cherry, 63 N.E.3d at 877-78. It analyzed these forms of aggravated battery in order to determine whether aggravated battery could be the predicate offense for another crime Cherry committed, which was armed violence. Id. at 876-77. There is no need to get into the nuances of that issue other than to pull a few points from the state court's analysis. First, the aggravated-battery statute, 2010 edition, required that a battery be committed. That also is the case for the statute under which Reyes was convicted. Second, the crime was aggravated if the State could "prove the presence of an additional factor aggravating that battery." Id. at 877.

         In the course of its analysis, the Cherry court said that "[t]he aggravated battery and aggravated battery with a firearm statutes share an identical structure. Both offenses require the State to prove the commission of a battery, and both offenses require the State to prove the presence of an additional factor aggravating that battery." Id. The court did not have before it the issue of whether jurors would need to be unanimous regarding any one form of aggravated battery.

         My uncertainties partly arise from an earlier Illinois intermediate appellate court decision. See People v. Diaz, 614 N.E.2d 268 (Ill.App.Ct. 1993). The Diaz court dealt with jury unanimity, which in substance is our issue. Jurors were given a verdict form which provided they could find Diaz guilty of aggravated battery if he "[1] intentionally and knowingly caused great bodily harm . . . or . . . [2] knowingly and intentionally caused bodily harm . . . and used a deadly weapon." Id. at 270. The offenses the Diaz court considered on the issue of juror unanimity are quite similar to the offenses the Cherry court considered on an unrelated issue of sentencing.

         The defendant in Diaz argued that the general verdict form was fatally flawed because the jury did not need to be unanimous regarding the two theories of aggravated battery. Id. The court disagreed, holding the jury needed to be unanimous regarding the defendant's guilt of the crime charged, not the "'alternate ways in which the crime can be committed[.]'" Id. at 271 (quoting People v. Travis, 525 N.E.2d 1137, 1147 (Ill.App.Ct. 1988)). That would indicate at least some of the aggravating factors in the aggravated battery statute are means, not elements.

         There are Illinois Supreme Court decisions that, like Diaz, fully embrace general verdicts for offenses that can be committed in disparate ways, a fact recognized in the court's approved pattern jury instructions.[1] We read too much into Cherry to conclude it definitely meant "elements" in the Mathis-sense when that was not the court's concern.

         Diaz must be viewed for what it is: an earlier decision of an intermediate court dealing with an earlier aggravated-battery statute. Even so, because the opinions were discussing different legal issues, I do not believe the Diaz decision which indicates the two forms of battery it was discussing should be considered two different means, and Cherry which uses "elements" for quite similar offenses, are necessarily inconsistent. Hence, my uncertainty.

         Still, Cherry does not discuss Diaz. It did not need to as its issue was different. Perhaps Cherry implies that, if put to the test, the Illinois Supreme Court would hold that the forms of aggravated battery under Section 5/12-3.05(f)(1)-(4) contain separate Mathis elements. We have considered cases before that imply divisibility. See, e.g., United States v. Mendez-Henriquez, 847 F.3d 214, 219 (5th Cir. 2017). The implication is strengthened when we see that the Diaz court recognized there are "due process limitations on a 'State's capacity to define different courses of conduct, or states of mind, as merely alternative means of committing a single offense[.]'" Diaz, 614 N.E.2d at 272 (quoting Schad v. Arizona, 501 U.S. 624, 632 (1991)). The variation among the forms of aggravated battery in the four subparts of Subsection (f) are quite different from each other, except for the two (Subparts (1) and (3)) that both deal with the use of a deadly weapon.

         All that said, I see Judge Reavley's interpretation of Cherry just to be one possible view. Our task certainly does not end, though, even if Cherry does not provide clear answers. See Mathis, 136 S.Ct. at 2256-57. We can also examine whether "the statute on its face" resolves the issue, as Judge Reavley notes. Id. at 2256. The section of the Illinois statute at issue here does not seem to be providing "illustrative examples" but instead identifying widely different crimes, suggesting "elements." See id. Further, looking at the entire statute, the final Subsection (h) specifies different classifications for some but not all of the specific aggravated-battery provisions, which leads to different sentences. See 720 Ill. Comp. Stat. § 5/12-3.05(h). The provision at issue in our case is not identified in Subsection (h) as having a specific sentence range, but this part of the statute provides some evidence regarding the entire statute. When "statutory alternatives carry different punishments, then under Apprendi they must be elements." Mathis, 136 S.Ct. at 2256.

         So far, the evidence points towards the subparts of Subsection (f) containing different elements. Still, if doubt remains, we examine "the record of a prior conviction itself." Id. In one case where "state law [did] not give us a clear answer" on this issue, we held the statute was divisible because the defendant "actually pleaded guilty" to a specific element, and the documents in the record made clear that the statute set forth elements. Ibanez-Beltran v. Lynch, 858 F.3d 294, 298 (5th Cir. 2017). In another case, we first took note of one state court decision that "implie[d] the statute list[ed] alternative elements, " but turned to the record of conviction because that case was not dispositive. See Mendez-Henriquez, 847 F.3d at 219. Because the defendant was charged with one element to the exclusion of all others, we held that "the statute enumerates alternative elements for committing a felony[.]" Id.

         This record contains a copy of Reyes's indictment. He was charged with a violation of Section 5/12-3.05(f)(1). The indictment said a dangerous weapon was used, specifically a machete. It contained no citation to or inclusion of language from any other subpart, i.e., no reference to hoods or robes or ...


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