UNITED STATES v. GRACIA CANTU (2019)

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 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 ––––, ––––, 2019 WL 177958, at *3 (5th Cir. Jan. 11, 2019) (unpublished).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 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.

FOOTNOTES

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.

PER CURIAM: