PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 11-4891

JESUS TORRES-MIGUEL, a/k/a Diego

Miguel-Torres,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of South Carolina, at Rock Hill.

Margaret B. Seymour, District Judge.

(0:10-cr-01214-MBS-1)

Argued: October 24, 2012

Decided: December 13, 2012

Before MOTZ, KING, and DIAZ, Circuit Judges.

Vacated and remanded by published opinion. Judge Motz

wrote the opinion, in which Judge King and Judge Diaz

joined.
COUNSEL

ARGUED: John Herman Hare, OFFICE OF THE FEDERAL

PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. Susan Zalkin Hitt, OFFICE OF THE UNITED STATES

ATTORNEY, Columbia, South Carolina, for Appellee. ON

BRIEF: Kimberly Albro, Research and Writing Specialist,

OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia, South Carolina, for Appellant. William N. Nettles, United

States Attorney, Columbia, South Carolina, for Appellee.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Jesus Torres-Miguel pled guilty to one count of illegal

reentry by an aggravated felon, in violation of 8 U.S.C.

§§ 1326(a) and 1326(b)(2) (2006). When sentencing him, the

district court found that his previous state conviction for a

criminal threat categorically constituted a prior "crime of violence," justifying a substantial enhancement of his sentence.

The court then sentenced Torres-Miguel, with this enhancement, to fifty-one months’ imprisonment. For the reasons that

follow, we must vacate the judgment of the district court and

remand for resentencing.

I.

In its presentence investigation report ("PSR"), the probation officer recommended a sixteen-level increase to TorresMiguel’s base offense level on the basis of his prior conviction under California Penal Code § 422(a). That statute prohibits, as a felony, willfully threatening to commit a crime

that would result in death or great bodily injury. Cal. Penal

Code § 422(a). (The record in this case contains no facts as

to this underlying conviction.)

2 UNITED STATES v. TORRES-MIGUEL
Over Torres-Miguel’s objection, the district court determined that the California threat conviction categorically constituted a crime of violence justifying a sentencing

enhancement under the United States Sentencing Guidelines

("Guidelines"). See U.S. Sentencing Guidelines Manual

§ 2L1.2(b)(1)(A)(ii) (2011). The sentencing enhancement

increased Torres-Miguel’s Guidelines sentencing range from

a period of fifteen to twenty-one months to a period of fiftyseven to seventy-one months. The PSR mistakenly calculated

the Guidelines range, after the enhancement, as fifty-one to

seventy-one months, rather than fifty-seven to seventy-one

months. The court then sentenced Torres-Miguel to the lowend of the enhanced Guidelines range as calculated in the

PSR: fifty-one months’ imprisonment. Torres-Miguel timely

noted this appeal.

"In assessing whether a sentencing court has properly

applied the Guidelines, we review factual findings for clear

error and legal conclusions de novo." United States v. Llamas,

599 F.3d 381, 387 (4th Cir. 2010). This appeal involves a

purely legal question of interpretation of the Guidelines,

which we therefore subject to de novo review.

II.

A.

The single question on appeal is: did the district court properly count Torres-Miguel’s prior conviction for a violation of

California Penal Code § 422(a) as a crime of violence, justifying a sentencing enhancement under the Guidelines? To determine whether a prior state conviction constitutes a predicate

crime of violence justifying an enhanced federal sentence, we

generally follow the categorical approach. United States v.

Seay, 553 F.3d 732, 737 (4th Cir. 2009); see also Taylor v.

United States, 495 U.S. 575, 600-02 (1990). This approach

"look[s] only to the statutory definition of the state crime and

the fact of conviction to determine whether the conduct crimiUNITED STATES v. TORRES-MIGUEL 3
nalized by the statute, including the most innocent conduct,

qualifies as a ‘crime of violence.’" United States v. DiazIbarra, 522 F.3d 343, 348 (4th Cir. 2008).

In a "narrow range of cases," however, we may apply a

modified categorical approach. Taylor, 495 U.S. at 602. The

modified categorical approach permits a court to consider

whether the specific conduct underlying a defendant’s prior

state conviction constitutes a crime of violence by examining

"the terms of the charging document, . . . a plea agreement,

. . . [a] transcript of colloquy between judge and defendant,

. . . or . . . some comparable judicial record" revealing the

"factual basis for the plea." Shepard v. United States, 544

U.S. 13, 26 (2005).

We can apply the modified categorical approach only if the

prior state conviction rests on a statute that "contains divisible

categories of proscribed conduct, at least one of which

constitutes—by its elements—a violent felony." United States

v. Gomez, 690 F.3d 194, 199 (4th Cir. 2012). The predicate

state statute at issue here, California Penal Code § 422(a),

includes no such "divisible categories." Therefore, as the parties agree, we cannot apply the modified categorical approach

in this case. (We note that even if § 422(a) contained "divisible categories of proscribed conduct," Gomez, 690 F.3d at

199, we could not apply the modified categorical approach

here because the record contains no charging document, plea

agreement, or other document approved in Shepard, 544 U.S.

at 26.)

Thus, we proceed to consider whether Torres-Miguel’s

prior conviction under § 422(a) categorically constitutes a

crime of violence.

B.

Section 422(a), the California statute under which TorresMiguel was previously convicted, provides:

4 UNITED STATES v. TORRES-MIGUEL
Any person who willfully threatens to commit a

crime which will result in death or great bodily

injury to another person, with the specific intent that

the statement . . . is to be taken as a threat, even if

there is no intent of actually carrying it out, which,

on its face and under the circumstances in which it

is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate

prospect of execution of the threat, and thereby

causes that person reasonably to be in sustained fear

for his or her own safety or for his or her immediate

family’s safety, shall be punished by imprisonment

. . . .

Cal. Penal Code § 422(a) (emphasis added).

The applicable Sentencing Guideline defines a crime of

violence as:

[A]ny of the following offenses . . . : murder, manslaughter, kidnapping, aggravated assault, forcible

sex offenses . . . , statutory rape, sexual abuse of a

minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any other

offense . . . that has as an element the use, attempted

use, or threatened use of physical force against the

person of another.

U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (emphasis added).

We have not previously considered whether California

Penal Code § 422(a) categorically constitutes a crime of violence under this definition. Our sister circuits have divided on

the question. Compare United States v. Cruz-Rodriguez, 625

F.3d 274, 277 (5th Cir. 2010) (holding a conviction under

§ 422(a) not categorically a crime of violence), with United

States v. Villavicencio-Burruel, 608 F.3d 556, 563 (9th Cir.

UNITED STATES v. TORRES-MIGUEL 5
2010) (holding a conviction under § 422(a) categorically a

crime of violence).1 We now turn to that question, particularly

focusing on the rationale offered by the Ninth Circuit in

reaching its conclusion that § 422(a) categorically constitutes

a crime of violence, a rationale on which the Government

heavily relies before us.

III.

The Ninth Circuit expressly "rest[ed]" its holding on the

"plain text" or "plain language" of § 422(a). VillavicencioBurruel, 608 F.3d at 562. The court reasoned that because the

elements of § 422(a) "necessarily include a threatened use of

physical force capable of causing physical pain or injury to

another person," the statute necessarily constituted a crime of

violence for purposes of the Guidelines enhancement. Id.

(internal quotation marks omitted).

That rationale relies on a fundamental misreading of

§ 422(a). The plain language of the statute requires only that

the offender "threatens to commit a crime which will result in

death or great bodily injury to another." Cal. Penal Code

§ 422(a) (emphasis added). Contrary to the suggestion of the

Ninth Circuit, no element of § 422(a) "necessarily include[s]

a threatened use of physical force" to accomplish that "result."

This misreading of § 422(a) is critical, for the Guidelines provide that, to constitute a crime of violence, a prior offense

must have "as an element the use or . . . threatened use of

physical force." See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii)

(emphasis added). An offense that results in physical injury,

but does not involve the use or threatened use of force, simply

1The Government suggests that the Eighth Circuit has also held that

conviction under § 422(a) categorically constitutes a crime of violence.

But actually the Eighth Circuit only stated, when denying a defendant’s

ineffective assistance of counsel claim on habeas review, that "[a]t the

time of [the defendant’s] sentencing, violation of [§ 422(a)] constituted a

violent felony" under Ninth Circuit law. Toledo v. United States, 581 F.3d

678, 680 (8th Cir. 2009). 

6 UNITED STATES v. TORRES-MIGUEL
does not meet the Guidelines definition of a crime of violence.

Of course, a crime may result in death or serious injury

without involving use of physical force. For example, as the

Fifth Circuit has noted, a defendant can violate statutes like

§ 422(a) by threatening to poison another, which involves no

use or threatened use of force. See Cruz-Rodriguez, 625 F.3d

at 276 (adopting the reasoning of United States v. De La

Rosa-Hernandez, 264 Fed. App’x 446, 449 (5th Cir. 2008));

see also United States v. Ortiz-Gomez, 562 F.3d 683, 687 (5th

Cir. 2009) (holding Pennsylvania terroristic threat conviction

not a predicate crime of violence under the Guidelines

because the statute "does not have as an element the use,

attempted use, or threatened use of force").

Other courts have similarly recognized that, to constitute a

predicate crime of violence justifying a sentencing enhancement under the Guidelines, a state offense must constitute a

use or threatened use of violent force, not simply result in

physical injury or death. Thus, the Second Circuit has held

that Connecticut third degree assault does not constitute a

crime of violence justifying a sentencing enhancement

because "there is a difference between the causation of an

injury," which is all that the Connecticut statute (like

§ 422(a)) required, "and an injury’s causation by the use of

physical force." Chrzanoski v. Ashcroft, 327 F.3d 188, 194

(2d Cir. 2003) (internal quotation marks omitted); see also

Dalton v. Ashcroft, 257 F.3d 200, 207 (2d Cir. 2001) ("There

are many crimes that involve a substantial risk of injury but

do not involve the use of force. Crimes of gross negligence or

reckless endangerment, such as leaving an infant alone near

a pool, involve a risk of injury without the use of force.").

For the same reasons, the Tenth Circuit has held that Colorado third degree assault does not categorically constitute a

crime of violence. See United States v. Perez-Vargas, 414

F.3d 1282, 1287 (10th Cir. 2005). The court explained that,

UNITED STATES v. TORRES-MIGUEL 7
although the Colorado statute required bodily injury, imposing that injury does not "necessarily include the use or threatened use of ‘physical force’ as required by the Guidelines,"

and so the Colorado crime was not "categorically a crime of

violence under U.S.S.G. § 2L1.2." Id.2

Not to recognize the distinction between a use of force and

a result of injury is not to recognize the "logical fallacy . . .

that simply because all conduct involving a risk of the use of

physical force also involves a risk of injury then the converse

must also be true." Dalton, 257 F.3d at 207. Accordingly, we

must conclude that, contrary to the Ninth Circuit’s holding,

the plain language of § 422(a) does not contain an element

requiring the use or threatened use of physical force. Thus, it

seems clear that § 422(a) is not categorically a crime of violence as defined in Guidelines § 2L1.2.

IV.

Although, as noted above, the Ninth Circuit expressly

"rest[ed]" its holding on its view of the "plain language" of

§ 422(a), a view we find erroneous, it also quoted a portion

of the Supreme Court’s opinion in Gonzales v. DuenasAlvarez, 549 U.S. 183 (2007), suggesting it believed that case

lent support to its holding. Before us, the Government heavily

relies on this alternative rationale. But the argument fails

2The drafters of the Guidelines certainly understood the difference

between use or threatened use of physical force, on the one hand, and causation of injury, on the other, because on multiple occasions they have

revised the Guidelines to reflect this difference. Before 1989, the Guidelines definition of crime of violence under the career offender provision

referred to 18 U.S.C. § 16, requiring use of force. See Chrzanoski, 327

F.3d at 195 n.11. In 1989, the drafters broadened the crime of violence

definition to require resultant injury, but not necessarily use of force. See

id. More recently, the drafters changed the Guidelines definition back to

one requiring use of force. Thus the Sentencing Commission has repeatedly recognized the important distinction between use of force and injury

caused by force. See U.S.S.G. § 4B1.2(a)(1). 

8 UNITED STATES v. TORRES-MIGUEL
because it wrenches the Supreme Court’s language in

Duenas-Alvarez from its context.

In the paragraph on which the Ninth Circuit relied, the

Supreme Court stated that:

To find a state statute creates a crime outside the

generic definition of a listed crime . . . requires a

realistic probability . . . that the State would apply its

statute to conduct that falls outside the generic definition of a crime. To show that realistic possibility,

an offender . . . must at least point to his own case

or other cases in which the State courts in fact did

apply the statute in the special (nongeneric) manner

for which he argues.

Duenas-Alvarez, 549 U.S. at 193 (emphasis added). The

Ninth Circuit appeared to believe that this language created a

rule applicable even when the prior state offense is not a

"listed crime" (i.e., a crime enumerated in a list of predicate

state offenses in a federal statute or Sentencing Guideline)

with a "generic definition." See Villavicencio-Burruel, 608

F.3d at 561. But the quoted language, by its own terms,

applies only to determinations of whether "a state statute

creates a crime outside the generic definition of a listed

crime," not to every possible state predicate. Duenas-Alvarez,

549 U.S. at 193 (emphasis added).

Duenas-Alvarez involved just such a listed crime—theft.

See id. at 185. "Theft" has a generic definition. See id. at 189-

90. Thus the Supreme Court cautioned that a defendant could

avoid treatment of his prior state offense as a predicate crime

for federal purposes only by demonstrating that the state

offense did not fit within the generic definition of theft. See

id. at 193-94. Similarly, when we have applied this teaching

from Duenas-Alvarez, the state predicate crime was another

listed crime—"sexual abuse of a minor"—that has a generic

definition. See Diaz-Ibarra, 522 F.3d at 349. The defendant

UNITED STATES v. TORRES-MIGUEL 9
in that case maintained that his prior convictions were not

crimes of violence because they fell outside the generic definition of sexual abuse of a minor. See id. at 347. There,

requiring the defendant to show that the state statute realistically covered conduct falling outside the generic definition of

the listed crime was both mandated by Duenas-Alvarez and

entirely logical.

But § 422(a) is not a "listed crime" with a "generic definition." Neither the Government nor the Ninth Circuit suggests

that it is. Section 422(a) qualifies as a crime of violence only

if it fits in the residual category of violent crimes, i.e., "any

other offense . . . that has as an element the use, attempted

use, or threatened use of physical force." U.S.S.G. § 2L1.2

cmt. n.1(B)(iii). To require a defendant to demonstrate that his

prior state offense does not fall within this residual category

by proving that it is not a "generic" "other offense" is to

require the impossible, for there is no generic "other offense,"

or even a generic "threat" crime.3

Accordingly, we must conclude that the Supreme Court’s

statement in Duenas-Alvarez involving "listed crimes," on

3We note that even if there were a generic "threat" crime, it is hardly

clear that this generic threat crime would constitute a crime of violence.

Indeed, states have frequently explicitly outlawed threat crimes that

involve no threat of physical force. See, e.g., Del. Code Ann. tit. 11, § 621

(criminalizing false statements "likely to cause evacuation" or other "serious inconvenience" and acts committed "with intent of causing an individual to believe that the individual has been exposed to a substance that will

cause the individual death or serious injury"); Ga. Code Ann. § 16-11-

37(a) (criminalizing threats to release hazardous substances or burn or

damage property); Kan. Stat. Ann. § 21-3419(a) (repealed 2011) (criminalizing threats to contaminate food, drugs, or a public water supply, or

expose animals to disease); Mo. Ann. Stat. § 574.115(1) (criminalizing

"communicat[ing] a knowingly false report of an incident or condition

involving danger to life, or knowingly caus[ing] a false belief or fear that

an incident has occurred or that a condition exists involving danger to

life"); 18 Pa. Cons. Stat. Ann. § 2706(a) (criminalizing threats to cause

evacuation or otherwise cause serious public inconvenience). 

10 UNITED STATES v. TORRES-MIGUEL
which the Ninth Circuit appeared to rely, simply does not

apply to § 422(a), which is not a listed crime with a generic

definition.

V.

In sum, we reject both rationales suggested by the Ninth

Circuit and adopted by the Government as to why § 422(a)

categorically constitutes a crime of violence. We are left with

a case in which "the full range of conduct covered by the

[predicate] state statute" does not fall within the Guidelines

definition of crime of violence. See Villavicencio-Burruel,

608 F.3d at 561 (internal quotation marks omitted). As the

Ninth Circuit itself has recognized, in such a situation, a court

must find—as the Fifth Circuit did—that a conviction under

the predicate state statute is not, categorically, a crime of violence. See id.

Therefore, Torres-Miguel’s sixteen-level sentencing

enhancement cannot stand. For these reasons, we must vacate

his sentence and remand for resentencing.

VACATED AND REMANDED

UNITED STATES v. TORRES-MIGUEL 11