IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-40112

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EBLIN FAVIEL OCAMPO-CRUZ,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 1:12-CR-668-1

Before SMITH, DeMOSS, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Elbin Faviel Ocampo-Cruz appeals from the sentence imposed by the 

district court following his guilty plea to being found in the United States after 

deportation, having previously been convicted of an aggravated felony. 

Ocampo-Cruz asserts that the district court erred by imposing a 16-level crimeof-violence enhancement due to his previous conviction under North Carolina 

General Statute § 14-32(b), which criminalizes assault with a deadly weapon 

inflicting serious injury (AWDWISI). For the following reasons, we find that 

* 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

April 4, 2014

Lyle W. Cayce

Clerk

 

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the least culpable act supporting a conviction for AWDWISI does not constitute 

a crime of violence and reverse. Ocamp-Cruz also argues that the district court 

erred in its assessment of his criminal history points. We affirm the district 

court on this issue.

I.

On October 25, 2007, Ocampo-Cruz was involved in an automobile 

accident in North Carolina. In connection with the accident, he was indicted 

for driving while impaired and AWDWISI. The indictment states that OcampoCruz “unlawfully, willfully, and feloniously did assault [the victim] with a 

motor vehicle, a deadly weapon, inflicting serious injury,” in violation of North 

Carolina General Statute § 14-32(b). After his release from prison, OcampoCruz, who had entered the country unlawfully, was deported to his native 

Honduras. 

On July 10, 2012, border patrol agents encountered Ocampo-Cruz in 

Kenedy County, Texas. He was charged with being unlawfully present in the 

United States after deportation subsequent to being convicted of an aggravated 

felony, in violation of 8 U.S.C. § 1326(a), (b). Ocampo-Cruz pleaded guilty. The 

PSR recommended a 16-level crime-of-violence enhancement pursuant to 

United States Sentencing Guidelines (U.S.S.G.) § 2L1.2(b)(1)(A)(ii) due to his 

AWDWISI conviction in North Carolina. Ocampo-Cruz objected to the 

enhancement. The district court overruled his objection on the ground that 

AWDWISI is one of the enumerated offenses identified in the Sentencing 

Guidelines as a crime of violence, specifically aggravated assault. OcampoCruz was sentenced to 96 months of imprisonment and a three year term of 

supervised release. Ocampo-Cruz now appeals the district court’s imposition 

of the crime of violence enhancement, which we review de novo. See United 

States v. Esparza-Perez, 681 F.3d 228, 229 (5th Cir. 2012).

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II.

This court uses “a common sense” approach when determining whether 

a state conviction qualifies as an enumerated offense for purposes of 

§ 2L1.2(b)(1)(A)(ii).1 United States v. Izaguirre-Flores, 405 F.3d 270, 273-74 

(5th Cir. 2005). Under the common-sense approach, we decide whether a 

violation of the statute of conviction constitutes the enumerated offense as it

is understood in its “ordinary, contemporary, [and] common meaning.” Id. at 

275 (citation omitted). “Our primary source for the generic contemporary 

meaning of aggravated assault is the Model Penal Code.” Esparza-Perez, 681 

F.3d at 231 (quoting United States v. Torres-Diaz, 438 F.3d 529, 536 (5th Cir. 

2006)). The “statute of conviction need not perfectly correlate with the Model 

Penal Code; ‘minor differences’ are acceptable.” United States v. MungiaPortillo, 484 F.3d 813, 817 (5th Cir. 2007).

The Model Penal Code provides, in relevant part, that “[a] person is 

guilty of aggravated assault if he (a) attempts to cause serious bodily injury to 

another, or causes such injury purposely, knowingly or recklessly under 

circumstances manifesting extreme indifference to the value of human life.” 

MODEL PENAL CODE § 211.1(2)(a). Model Penal Code aggravated assault, 

therefore, requires a mens rea no lower than recklessness “manifesting 

extreme indifference to the value of human life,” which we will call “extreme 

recklessness.” Section 14-32(b), the statute of conviction in this case, provides 

that “[a]ny person who assaults another person with a deadly weapon and 

inflicts serious injury shall be punished as a Class E felon.” N.C. GEN. STAT.

1 In United States v. Rodriguez, 711 F.3d 541, 552 (5th Cir.) (en banc) cert. denied, 134 

S. Ct. 512 (2013), we adopted “a plain-meaning approach when determining the ‘generic 

contemporary meaning’ of non-common-law offense categories enumerated in the federal 

sentencing enhancements.” At the same time, however, we recognized that the offense of 

assault was defined at common law. Id. at 552-53 n.16-17. Accordingly, we do not employ 

the plain-meaning approach in this case.

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14-32(b). The elements of the offense are: “(1) an assault, (2) with a deadly 

weapon, (3) inflicting serious injury, (4) not resulting in death.” State v. Jones, 

538 S.E.2d 917, 922 (N.C. 2000). An assault under North Carolina law is “an 

overt act or attempt, with force or violence, to do some immediate physical 

injury to the person of another, which is sufficient to put a person of reasonable 

firmness in fear of immediate physical injury.” Id. (internal quotation marks 

and citation omitted). The crux of the disagreement between Ocampo-Cruz and 

the government concerns the mental state required for AWDWISI. OcampoCruz argues that the offense requires only a negligent state of mind, while the 

government contends that it requires recklessness. 

In State v. Jones, the Supreme Court of North Carolina held that under 

North Carolina law, “an automobile can be a deadly weapon if it is driven in a 

reckless or dangerous manner,” and that a driver may be convicted of 

AWDWISI provided “there is either an actual intent to inflict injury or culpable 

or criminal negligence from which such intent may be implied.” Id. at 922-923. 

The court further explained that “culpable or criminal negligence” means “such 

recklessness or carelessness, proximately resulting in injury or death, as 

imports a thoughtless disregard of consequences or a heedless indifference to 

the safety and rights of others.” Id. at 923 (internal quotations and citations 

omitted). Ocampo-Cruz argues that the “culpable or criminal negligence” 

described by the North Carolina courts is, at bottom, simply negligence. The 

government seizes on the language in Jones mentioning recklessness as an 

element of AWDWISI and argues that “culpable or criminal negligence” is a 

somewhat misleading label used by North Carolina courts to describe a mental 

state akin to the extreme recklessness required by Model Penal Code 

aggravated assault. 

The Fourth Circuit recently addressed the question of whether “culpable 

negligence” under North Carolina law encompasses a mens rea lower than 

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simple recklessness. United States v. Peterson, 629 F.3d 432, 437-38 (4th Cir. 

2011). The court first noted that recklessness requires at least a conscious 

disregard of the risk caused by one’s actions. Id. at 436. The court then 

contrasted the North Carolina cases describing culpable negligence as a 

“thoughtless disregard of consequences.” Id. at 436-37. It concluded that, 

although some North Carolina cases describe “culpable negligence” in terms of 

recklessness, “culpable negligence” nonetheless encompasses a thoughtless, 

rather than a conscious, disregard of the risk and therefore reflects a mens rea

lesser than even simple recklessness and more in line with simple negligence. 

Id. at 437. (“‘Thoughtless disregard’ . . . is less than ‘conscious disregard,’ which 

is the definition of recklessness under the Model Penal Code.”). We find the 

Fourth Circuit’s analysis persuasive, and therefore agree with Ocampo-Cruz 

that because AWDWISI requires only “culpable or criminal negligence,” it 

encompasses a mens rea similar to ordinary negligence and lesser than both

plain recklessness and the extreme recklessness required by Model Penal Code 

aggravated assault.

We next consider whether AWDWISI falls within the generic, 

contemporary meaning of aggravated assault, despite encompassing a mental 

state lesser than ordinary recklessness and closer to simple negligence. Several 

of our sister circuits have held that any offense with a mens rea lesser than the 

extreme recklessness required for Model Penal Code aggravated assault does

not meet the generic, contemporary meaning of “aggravated assault.” See 

United States v. McFalls, 592 F.3d 707, 717 (6th Cir. 2010) (“Because South 

Carolina courts have upheld [assault and battery of a high and aggravated 

nature] convictions in cases involving merely reckless conduct . . . [such] . . . 

conviction does not qualify categorically as a generic aggravated assault.”); 

United States v. Esparza-Herrera, 557 F.3d 1019, 1025 (9th Cir. 2009) (finding 

that defendant’s statute of conviction “encompassed ordinary recklessness, and 

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therefore his conviction was not a conviction for generic aggravated assault or 

a crime of violence”). This circuit, by contrast, has held that although the Model 

Penal Code may require something beyond simple recklessness, a statute

requiring mere reckless nonetheless falls within “the plain, ordinary meaning 

of the enumerated offense of aggravated assault,” because it contains only a 

“minor difference” from Model Penal Code aggravated assault. MungiaPortillo, 484 F.3d at 817. While distinctions between gradations of recklessness 

may reflect only minor differences, however, the same cannot be said of the 

difference between extreme recklessness required for Model Penal Code 

aggravated assault and a mens rea that is lesser than plain recklessness and 

more akin to ordinary negligence. Indeed, in the context of the enumerated 

offense of involuntary manslaughter, we have held that something beyond 

simple negligence is required. See United States v. Dominguez-Ochoa, 386 F.3d 

639, 645-46 (5th Cir. 2004). We therefore hold that AWDWISI does not qualify 

as the enumerated offense of “aggravated assault.”

III.

The government argues alternatively that the imposition of the crime of 

violence enhancement is still proper because Ocampo-Cruz’s North Carolina 

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

physical force against the person of another.” See U.S.S.G. § 2L1.2 cmt. 

(1)(B)(iii). Ocampo-Cruz argues that a person may be convicted under § 14-

32(b) without the intentional use of force and, as a result, the statute does not 

have as an element the use, attempted use, or threatened use of physical force 

against the person of another. He asserts that culpable negligence exists when 

a safety statute, such as driving under the influence of impairing substances, 

is violated even unintentionally when it is accompanied by criminal or culpable 

negligence. Thus, Ocampo-Cruz argues, he was convicted under a statute that 

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does not require proof of the intentional use of physical force as an element of 

the offense. 

This court employs a categorical approach to determine whether a prior 

offense is a crime of violence because it has as an element the use, attempted 

use, or threatened use of force. Taylor v. United States, 495 U.S. 575, 602 

(1990); see also Mungia-Portillo, 484 F.3d at 816. Under the categorical 

approach, this court determines the elements to which a defendant pleaded 

guilty by analyzing the statutory definition of the offense, not the defendant’s 

underlying conduct. United States v. Medina-Torres, 703 F.3d 770, 774 (5th 

Cir. 2012).

“[T]he ‘use’ of force requires that a defendant intentionally avail himself 

of that force” and “that the intentional use of force must be an element of the 

predicate offense if the predicate offense is to enhance a defendant’s sentence.” 

United States v. Vargas–Duran, 356 F.3d 598, 599-600 (5th Cir. 2004) (en 

banc). “If any set of facts would secure a conviction under the statute without 

proof of the intentional use of force against the person of another, then the 

offense cannot be characterized as a crime of violence for sentenceenhancement purposes.” United States v. Velasco, 465 F.3d 633, 638 (5th Cir. 

2006).

In United States v. Vargas–Duran, this court held that the Texas crime 

of “intoxication assault” did not constitute a crime of violence under § 2L1.2 

because physical force was not intentionally used. 356 F.3d at 605-06. The 

court first determined that the plain meaning of the word “use” requires intent. 

Id at 603. The court next looked to whether the statue of conviction had as an 

element the use of force. Id. at 605. For an element of an offense to include the 

use, attempted use, or threatened use of physical force, “the intentional use of 

force must be ‘a constituent part of a claim that must be proved for the claim 

to succeed.’” Id. at 605 (quoting United States v. Williams, 343 F.3d 423, 432 

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(5th Cir. 2003)). “If any set of facts would support a conviction without proof of 

that component, then the component most decidedly is not an element−implicit 

or explicit−of the crime.” Id. 

The Texas statute at issue in Vargas–Duran permitted conviction of 

intoxication assault when the defendant “(1) by accident or mistake, (2) while 

operating a motor vehicle in a public place while intoxicated, (3) by reason of 

that intoxication causes serious bodily injury to another.” Id. at 605 (citing TEX.

PENAL CODE ANN. § 49.07 (1994)). Because the language of the Texas statute 

did not require intentional conduct, the court held that the use of force is not 

an element of the offense of intoxication assault, and the crime of violence 

enhancement was improperly applied. Id. at 606. 

For the same reasons that the least culpable means of violating 

AWDWISI does not constitute the enumerated offense of aggravated assault, 

it likewise does not have as an element the use, attempted use, or threatened 

use of physical force against another. The least culpable means of violating 

AWDWISI includes an unintentional use of the weapon. See Jones, 538 S.E.2d 

at 923 (finding that violation of North Carolina safety statutes “which prohibit[ 

] drivers from operating motor vehicles while under the influence of impairing 

substances . . . constitutes culpable negligence as a matter of law,” and defining 

culpable negligence as “such recklessness or carelessness, proximately 

resulting in injury or death, as imports a thoughtless disregard of 

consequences or a heedless indifference to the safety and rights of others”

(internal quotations and citations omitted)); State v. Johnson, 325 S.E.2d 253, 

255 (N.C. App. 1985) (finding that “driving under the influence of alcohol 

constitutes a thoughtless disregard of consequences or a heedless indifference 

to the safety and rights of others . . . . [t]his is culpable negligence” (internal 

quotations omitted)); State v. McGill, 336 S.E.2d 90, 92-93 (N.C. 1985) (finding 

that in the context of a AWDWISI violation, “[a]n intentional, wilful or wanton 

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violation of a statute . . . designed for the protection of human life or limb, 

which proximately results in injury or death, is culpable negligence” (internal 

quotations and citations omitted)). Such unintentional use of a weapon does 

not fall under the “use, attempted use, or threatened use of the weapon” of 

physical force convention. See Vargas-Duran, 356 F.3d at 603 (“[H]ow could 

one intentionally attempt to unintentionally use force, or intentionally 

threaten to unintentionally use force? The force, so to speak, of this rhetorical 

question only bolsters our belief that ‘use’ requires intent.”); see also Leocal v. 

Ashcroft, 543 U.S. 1, 9-10 (2004) (finding in the context of an 18 U.S.C. §16(b) 

case involving a Florida conviction for driving under the influence and causing 

bodily injury that “use” requires active employment, because “[w]hile one may, 

in theory, actively employ something in an accidental manner, it is much less 

natural to say that a person actively employs physical force against another 

person by accident”).

The government attempts to distinguish Vargas-Duran on the basis that 

the statutory language in the Texas statute differed from the language in the 

North Carolina statute; specifically that the elements of the Texas statute 

include the accidental use of a weapon. This argument misses the point. The 

conduct that supports an AWDWISI conviction includes a similar lack of 

intentional conduct, which was insufficient to support a crime of violence 

enhancement in Vargas-Duran. 356 F.3d at 604.2

2 The government cites to Bland v. United States, to support its contention that the 

North Carolina statute has as an element the use, attempted use, or threatened use of 

physical force against the person of another. In Bland v. United States, No. 10-CV-3249, 2012 

WL 6962906, at *14 (E.D.N.Y. Sept. 18, 2012), the magistrate judge issued a report holding

that a conviction for AWDWISI satisfied the residual clause of the Armed Career Criminal 

Act because a conviction under the North Carolina statute could not be obtained based on 

strict liability, omissions, negligence, or recklessness. The Government notes that the 

magistrate judge found AWDWISI required a showing of either intent or implied intent and, 

as a result, was not akin to drunk driving statutes that do not contain a mens rea 

requirement. Id. at 15. Although our holding arguably conflicts with the magistrate judge’s 

decision in Bland, we cannot ignore the precedent from the North Carolina Supreme Court 

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As such, we find that a conviction for AWDWISI does not have as an 

element the use, attempted use, or threatened use of physical force against the 

person of another, sufficient to impose a crime of violence enhancement. 

IV.

Finally, Ocampo-Cruz also asserts that the district court erred in 

counting the criminal history points for his sentence for driving while impaired 

and AWDWISI separately, thereby assessing six, rather than three, criminal 

history points. Because the sentences were imposed on the same day and there 

was no intervening arrest, Ocampo-Cruz is correct that the district court 

should not have counted the two sentences separately. U.S.S.G § 4A1.2(a)(2) 

(“If there is no intervening arrest, prior sentences are counted separately 

unless . . . the sentences were imposed on the same day.”). The government 

concedes as much. However, Ocampo-Cruz failed to raise this issue with 

district court, so our review is for plain error only. United States v. Tuma, 738 

F.3d 681, 690 (5th Cir. 2013). Accordingly, we will only vacate the sentence if 

the district court’s error affected Ocampo-Cruz’s substantial rights. Id. The 

district court’s error did not lead to any change in his criminal history category 

and therefore did not “affect[] the outcome of the district court proceedings.” 

Puckett v. United States, 556 U.S. 129, 135 (2009) (internal quotation marks 

and citation omitted). As a result, he cannot show plain error. Id.

AFFIRMED in part; REVERSED in part and REMANDED for resentencing.

when it held that defendant may be convicted of AWDWISI provided there was “culpable or 

criminal negligence, defined as “such recklessness or carelessness, proximately resulting in 

injury or death, as imports a thoughtless disregard of consequences or a heedless indifference 

to the safety and rights of others.” State v. Jones, 538 S.E.2d 917, 923 (N.C. 2000) (internal 

quotations and citations omitted) (emphasis added). 

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