IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40882

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

FABIAN FLORES-GALLO,

also known as Fabian Flores-Gallos,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before JONES, Chief Judge, and REAVLEY and HAYNES, Circuit Judges.

PER CURIAM:

Fabian Flores-Gallo appeals the district court's application of a sixteenlevel"crime of violence" enhancement pursuant to § 2L1.2(b)(1)(A)(ii) ofthe U.S.

Sentencing Guidelines. Flores-Gallo pleaded guilty to being unlawfully present

in the United States following deportation. The Presentence Report

recommended a sixteen-level "crime of violence" enhancement based on FloresGallo's two prior convictions in Kansas for aggravated battery. Over FloresGallo's objections, the district court found that the Kansas aggravated battery

offense was a "crime of violence" for sentencing purposes and imposed the

enhancement. For the following reasons, we AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

October 5, 2010

Lyle W. Cayce

Clerk
No. 09-40882

2

We review the district court's characterization of a prior offense as a crime

of violence de novo. United States v. Sanchez-Ruedas, 452 F.3d 409, 412 (5th

Cir. 2006). "Guideline commentary is given controlling weight if it is not plainly

erroneous or inconsistent with the guidelines." United States v. Velasco, 465

F.3d 633, 637 (5th Cir. 2006).

Section 2L1.2 of Sentencing Guidelines calls for a sixteen-level increase to

the base offense level ifthe defendant was previously deported after a conviction

for a "crime of violence." U.S. SENTENCING GUIDELINES MANUAL

§ 2L1.2(b)(1)(A)(ii) (2009). The commentary to § 2L1.2 defines a "crime of

violence" as

any of the following offenses under federal, state, or local law:

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 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). Thus, for one of Flores-Gallo's convictions to be

considered a "crime of violence" for sentencing purposes, it must be an offense

which either belongs to the list of enumerated offenses, or has as an element the

use, attempted use, or threatened use of force. Velasco, 465 F.3d at 637.

Because we find that the section of the Kansas statute to which Flores-Gallo

pleaded guilty has as an element of the threatened use of force, we need not

reach whether it fits within the enumerated offenses.

This court employs a categorical approach to the question of whether a

prior offense is a "crime of violence" because it has as an element the use of force.

Taylor v. United States, 495 U.S. 575, 602, 110 S. Ct. 2143, 2160 (1990); United

States v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2004) (en banc). "Under the

categorical approach set forth in [Taylor], a district court looks to the elements

of a prior offense, rather than to the facts underlying the conviction, when
No. 09-40882

3

classifying a prior offense for sentence enhancement purposes." United States

v. Garza-Lopez, 410 F.3d 268, 273 (5th Cir. 2005). Where, as here, a statute is

disjunctive, the court may look to conclusive records made or used in

adjudicating guilt to determine which part of the statute applies to the

defendant. Id. at 274. Generally, these records include the "charging document,

written plea agreement, transcript of plea colloquy, and any explicit factual

finding by the trial court judge to which the defendant assented." Shepard v.

United States, 544 U.S. 13, 16, 125 S. Ct. 1254, 1257 (2005).

Although initially charged under § 21-3414(a)(1)(A) of the Kansas

aggravated battery statute, Flores-Gallo pleaded guilty on two separate

occasions to violating subsection (1)(B) of the statute. The statute provides in

relevant part:

(a) Aggravated battery is:

(1)(A) Intentionally causing great bodily harm to another

person or disfigurement of another person; or 

(B) intentionally causing bodily harm to another person with

a deadly weapon, or in any manner whereby great bodily

harm, disfigurement or death can be inflicted; or 

(C) intentionally causing physical contact with another person

when done in a rude, insulting or angry manner with a deadly

weapon, or in any manner whereby great bodily harm,

disfigurement or death can be inflicted.

KAN. STAT. ANN. § 21-3414. Subsection (1)(B) prohibits two types of conduct.

The first type prohibits "intentionally causing bodily harm to another person

with a deadly weapon." § 21-3414(a)(1)(B). Alternatively, the second type

prohibits "intentionally causing bodily harm to another person . . . in any

manner whereby great bodily harm, disfigurement or death can be inflicted." Id.

None of the "conclusive records" to which a court may refer indicates to which

part of (1)(B) Flores-Gallo pleaded guilty. Therefore, we assume for this inquiry
No. 09-40882

4

that "his conduct constituted the least culpable act satisfying the count of

conviction." United States v. Houston, 364 F.3d 243, 247 (5th Cir. 2004).

Accordingly, we examine whether the second type of prohibited conduct

could be prosecuted without proof of the "use, attempted use, or threatened use

of physical force against the person of another." § 2L1.2 n.1(B)(iii); see also

United States v. Vargas-Duran, 356 F.3d 598, 605 (5th Cir. 2004) (en banc)

(internal quotation marks omitted) ("[I]n order for § 2L1.2 to apply, the

intentional use of force must be a constituent part of a claim that must be proved

for the claim to succeed."). The elements of the second type of conduct prohibited

by subsection (1)(B) of the Kansas statute are: (1) intentionally (2) causing bodily

harm (3) to another person (4) in any manner whereby great bodily harm,

disfigurement or death can be inflicted. KAN. STAT. ANN. § 21-3414(a)(1)(B).

Kansas courts have defined "bodily harm" and "great bodily harm" as follows:

Bodily harm has been defined as any touching of the victim against

the victim's will, with physical force, in an intentional hostile and

aggravated manner. The word "great" distinguishes the bodily

harm necessary in the offense of aggravated battery from slight,

trivial, minor or moderate harm, and as such it does not include

mere bruises, which are likely to be sustained in simple battery.

State v.Livingston, 35P.3d 918, 922 (Kan. 2001) (internal citation, brackets, and

quotation marks omitted). 

The Government argues that since Kansas common law defines "bodily

harm" as touching with "physical force," the statute by definition has as an

element the use of "physical force." Flores-Gallo counters that this court should

look to federal law—not common law—for the definition of "physical force" and

cites the Supreme Court's recent opinion in Johnson v. United States for the

proposition that "physical force" means "violent force—that is, force capable of

causing physical pain or injury to another person." 130 S. Ct. 1265, 1271 (2010)

(emphasis omitted). He posits that the Kansas statute can be violated without

the use of such force, such as by locking someone in the car on a hot day or
No. 09-40882

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giving them the wrong medicine. We agree with Flores-Gallo that "physical

force" in the context of defining a "crime of violence" for the purposes of

construing the Sentencing Guidelines requires "force capable of causing physical

pain or injury to another person." However, we agree with the Government that

subsection (1)(B) of the Kansas aggravated battery statue requires as a

constituent element at least the threatened use of "physical force" that is

sufficient for a "crime of violence."

First, contrary to the implicit suggestion of Flores-Gallo, the element of

"bodily harm" as used in (1)(B) embodies more than mere offensive touching.

Under the common law definition of "physical force" for the crime of battery, the

offense requires that the defendant touch the victim. Johnson, 130 S. Ct. at

1270 (citing 2 W. LAFAVE & A. SCOTT, SUBSTANTIVE CRIMINAL LAW § 7.15(a),

p. 301 (1986 and Supp. 2003); BLACK'SLAW DICTIONARY 173 (9th ed. 2009); 3 W.

BLACKSTONE, COMMENTARIES *120). It is clear from the statute as a whole that

mere touching alone is not sufficient to sustain a violation of (1)(B), because that

conduct is expressly prohibited by (1)(C). KAN. STAT. ANN. § 21-3414(a)(1)(C)

(reaching conduct that "intentionally caus[es] physical contact with another

person when done in a rude, insulting or angry manner with a deadly weapon,

or in any manner whereby great bodily harm, disfigurement or death can be

inflicted"). If we were to read (1)(B) as covering mere touching, we would render

(1)(C) superfluous, violating the "'cardinal principle of statutory construction'

that 'a statute ought, upon the whole, to be so constructed that, if it can be

prevented, no clause, sentence, or word shall be superfluous, void, or

insignificant.'" TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S. Ct. 441, 449 (2001)

(citation omitted). Therefore, the physical force and resulting bodily harm as

contemplated by subsection (1)(B) must be more than the mere physical contact

covered by (1)(C).
No. 09-40882

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The Kansas common law definition of "bodily harm" requires that the

contact be "in an intentional hostile and aggravated manner." Livingston, 35

P.3d at 922. Hostile is defined as "1. Adverse. 2. Showing ill will or a desire to

harm. 3. Antagonistic; unfriendly." BLACK'SLAWDICTIONARY 806 (9th ed. 2009).

And, aggravated means "made worse or more serious by circumstances such as

violence, the presence of a deadly weapon, or the intent to commit another

crime." Id. at 75. Therefore, subsection (1)(B) requires hostile or aggravated,

intentional, physical contact that is more than mere touching. Conduct such as

that posited by the defendant—locking someone in a car on a hot day, or

deliberately giving someone the wrong medicine—is not covered by (1)(B).

But, the "bodily harm" is only half of the picture. The statute requires

that the harm must be conducted in a "manner whereby great bodily harm,

disfigurement or death can be inflicted." § 21-3414(a)(1)(B). So, in order to be

convicted under the statute the defendant must with ill will or hostility

intentionally use force that is more than mere touching and has the capability

of causing significant injury. The defendant argues that this court has found

that the mere risk of serious harm is not, by itself, sufficient to constitute use of

physical force. See Larin-Ulloa v. Gonzales, 462 F.3d 456, 466 (5th Cir. 2006).

Additionally, he cites case law that "bodily harm" alone will not meet the

definition of physical force required by § 2L1.2. Vargas-Duran, 356 F.3d at 606

("[T]he fact that the statute requires that serious bodily injury result from [the

conduct] does not mean that the statute requires that the defendant have used

the force that caused the injury."). However, we read the "bodily harm" part of

this statute as part of the whole, because statutes are not construed in a

vacuum. Leocal v. Ashcroft, 543 U.S. 1, 125 S. Ct. 377, 382 (2004) ("[W]e

construe language in its context and in light of the terms surrounding it.").

Here the hostile intent and force used in conjunction with the risk of

significant injury creates an offense which has as an element at least the
No. 09-40882

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threatened use of force that is capable of causing physical pain or injury to

another person as contemplated by Johnson. Cf. Larin-Ulloa, 462 F.3d at 466

(distinguishing offenses requiring that defendant intend to injure or that "the

physical contact itself be violent, harmful, offensive, or even non-consensual"

when determining that subsection (1)(C) did not constitute a use of physical

force); United States v. Treto-Martinez, 421 F.3d 1156, 1160 (10th Cir. 2005)

(finding that subsection (1)(C) constituted a threatened use of force because "[n]o

matter what the instrumentality of the contact, if the statute is violated by

contact that can inflict great bodily harm, disfigurement or death, it seems clear

that, at the very least, the statute contains as an element the 'threatened use of

physical force'"). The hostile elevated level of contact plus the use of an

instrumentality that is capable of significant injury is inherently threatening.

And, the statute is clear that the possible or threatened conduct involves great

bodily harm. Accordingly, we find that § 21-3414(a)(1)(B) of the Kansas

aggravated battery statute has as an element at least the threatened use of

physical force. Therefore, the application of the sixteen-level enhancement

under § 2L1.2(b)(1)(A)(ii) for a prior conviction for a "crime of violence" was

proper.

AFFIRMED.