IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-40700

UNITED STATES OF AMERICA, 

Plaintiff - Appellee

v.

JUAN CARLOS HERRERA-SERRANO, 

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:15-CR-1205-1

Before STEWART, Chief Judge, and JONES and CLEMENT, Circuit Judges.

PER CURIAM:*

Appellant Juan Carlos Herrera-Serrano pled guilty to illegal reentry 

after deportation following an aggravated felony conviction. The district court 

increased Herrera-Serrano’s offense level by 16 levels because he was deported

following a conviction for a crime of violence, namely his state-court conviction 

for murder without intent while committing a felony. The district court 

overruled Herrera-Serrano’s objection to the enhancement and sentenced him 

to 46 months of imprisonment and three years of supervised release. Because 

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

August 21, 2017

Lyle W. Cayce

Clerk

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his state murder conviction qualifies as an offense characterized by the use, 

attempted use, or threatened use of physical force, the district court correctly 

applied U.S.S.G. § 2L1.2 and its sentencing judgment is AFFIRMED.

BACKGROUND

Herrera-Serrano pled guilty without the benefit of a plea agreement to 

illegal reentry after deportation following an aggravated felony conviction, in 

violation of 8 U.S.C. § 1326(a) and (b)(2). Herrera-Serrano had a prior 

Minnesota conviction for unintentional murder while committing a felony. At 

rearraignment, Herrera-Serrano admitted that he was convicted of murder in 

2007, deported in 2014, and found unlawfully present in the United States in 

2015. The presentence report (“PSR”) applied a 16-level crime of violence 

enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). Based on his total 

offense level of 21 and his criminal history category of III, the PSR calculated 

an advisory guidelines range of 46 to 57 months of imprisonment. 

Herrera-Serrano objected and the district court overruled his objection 

to the 16-level crime of violence enhancement for his prior murder conviction.

After adopting the PSR’s factual findings and Guideline calculations, the 

district court sentenced Herrera-Serrano to 46 months of imprisonment and 

three years of supervised release. Herrera-Serrano timely appealed. 

DISCUSSION

On appeal, Herrera-Serrano contends that the district court reversibly 

erred in applying the 16-level crime of violence enhancement pursuant to

U.S.S.G § 2L1.2(b)(1)(A)(ii) based on his prior unintentional murder 

conviction. Herrera-Serrano argues that his prior conviction under Minn. Stat. 

§ 609.19.2(1) does not have as an element the use, attempted use, or 

threatened use of physical force against the person of another. HerreraSerrano further asserts that his Minnesota unintentional murder offense is not 

generic murder and thus is not an enumerated crime of violence under § 2L1.2.

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This court reviews the district court’s sentencing decision for 

reasonableness. United States v. Anderson, 559 F.3d 348, 354 (5th Cir. 2009). 

Whether a prior offense qualifies as a crime of violence under the Guidelines 

is reviewed de novo. United States v. Rodriguez, 711 F.3d 541, 548 (5th Cir. 

2013) (en banc). “We may affirm an enhancement on any ground supported by 

the record.” United States v. Garcia-Gonzalez, 714 F.3d 306, 314 (5th Cir. 

2013).

Under the 2015 edition of the Sentencing Guidelines, a defendant 

convicted of illegal reentry receives a 16-level enhancement if he was 

previously deported after a felony conviction for a crime of violence for which 

he was assessed criminal history points. § 2L1.2(b)(1)(A)(ii). Crime of violence 

is defined in pertinent part as “any of the following offenses under federal, 

state, or local law: murder, manslaughter, . . . aggravated assault, . . . 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). A crime of violence under § 2L1.2 can be 

found in one of the enumerated offenses or by referencing that the offense of 

conviction “has as an element the use, attempted use, or threatened use of 

physical force against the person of another.” United States v. Herrera-Alvarez, 

753 F.3d 132, 137 (5th Cir. 2014).

Further, if the underlying statute of conviction is “divisible,” the federal 

court may consider whether the alternative crimes described in the statute are 

separately crimes of violence. The methodology for this inquiry was explained 

by the Supreme Court in Mathis v. United States, 136 S. Ct. 2243, 2248–49 

(2016), where the Court distinguished between “various means of committing 

the offense,” which evidence a “non-divisible” statute, and “alternative 

elements of each offense” embodied by the statute, which is a “divisible” statute 

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because “a jury must agree” on the elements. United States v. Howell, 838 F.3d 

489, 497 (5th Cir. 2016).

If a statute is divisible, though it does not on its face qualify as a crime 

of violence pursuant to § 2L1.2, federal courts may employ a modified 

categorical approach and rely on a limited class of documents from the 

underlying conviction to determine which alternative elements formed the 

conviction’s basis. Shepard v. United States, 544 U.S. 13, 16, 20–21 (2005).

Here, the Minnesota statute provides that a person is guilty of 

unintentional murder in the second degree if he or she:

(1) causes the death of a human being, without intent to effect the 

death of any person, while committing or attempting to commit 

a felony offense other than criminal sexual conduct in the first 

or second degree with force or violence or a drive-by shooting.

Minn. Stat. § 609.19.2(1). Because this statute does not “define what 

constitutes ‘a felony offense,’” State v. Anderson, 666 N.W.2d 696, 698 (Minn. 

2003), we consult “authoritative sources of state law,” Mathis, 136 S. Ct. at 

2256, and learn that Minnesota limits the application of § 609.19.2(1) to 

killings resulting from felonies that involve a “special danger to human life.” 

State v. Smoot, 737 N.W.2d 849, 851–52 (Minn. Ct. App. 2007); Anderson, 

666 N.W.2d at 700–01. More importantly, Minnesota requires the jury to be 

instructed as to the elements of the underlying felony. “While the state is not 

required to prove that the defendant intended to effect the death of the victim, 

it must prove that the defendant committed the predicate felony.” State v. 

Charles, 634 N.W.2d 425, 430 (Minn. Ct. App. 2001) (citing State v. Cole, 

542 N.W.2d 43, 51 (Minn. 1996)). Consequently, the statute is divisible 

because the underlying felony offense and its elements must be proven to the 

jury. 

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Herrera-Serrano’s principal objection to the statute’s divisibility lies in 

citing two cases in which he claims two predicate offenses were referenced in 

a single § 609.19.2(1) count. Anderson, 666 N.W.2d at 697; Cole, 542 N.W.2d 

at 52. In Anderson, however, the only issue before the court was dismissal of 

an indictment, and in Cole there is likewise no information about how the 

offense was charged or whether jury unanimity was required for proof of the 

underlying felony offenses. Neither case overrides our divisibility conclusion.

Herrera-Serrano was charged with, and pled guilty to: “unlawfully, 

wrongfully caus[ing] the death of a human being, [the victim], without intent 

to effect the death of any person, while committing or attempting a felony 

offense, assault in the first degree.”

From this charge, it is a short step to decide that the offense of conviction 

has as an element the use of physical force against the person of the victim. 

§ 2L1.2, cmt n.1(B)(iii). The crime of first degree assault in Minnesota is based 

on an assault that “inflicts great bodily harm.” Minn. Stat. § 609.221, subd.1. 

An assault is defined, in pertinent part, as “the intentional infliction of or 

attempt to inflict bodily harm upon another.” Minn. Stat. § 609.02, subd. 10. 

“Great bodily harm” is just that: inter alia, bodily injury that creates a high 

probability of death, or causes serious permanent disfigurement. Minn. Stat. 

§ 609.02, subd. 8. And the Minnesota statutes clearly require the harm to be 

inflicted with purpose, knowledge, or belief that the result specified will occur. 

Minn. Stat. § 609.02, subd. 9(3), (4). It is no surprise then that our sister circuit 

has held that Minnesota assault of the third-degree, Minn. Stat. § 609.223 

subd. 1, has as an element the use of force. Roberts v. Holder, 745 F.3d 928, 

931 (8th Cir. 2014). Similarly, this court recently held that intentional, 

knowing, or reckless causing of bodily injury to another (the Texas offense of 

domestic abuse by impeding breathing or circulation) has as an element the 

use of force. Howell, 838 F.3d at 501–03; See also United States v. Castleman, 

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134 S. Ct. 1405, 1414 (2014) (“‘physical force’ is simply ‘force exerted by and 

through concrete bodies.’”). We therefore conclude that the Minnesota offense 

of conviction has as an element the use of physical force.

For all these reasons, Herrera-Serrano’s base offense level was properly 

enhanced because of his prior crime of violence, and we need not discuss the 

government’s alternative theories for upholding the sentence. AFFIRMED.

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