United States Court of Appeals 

For the First Circuit 

No. 16-2008 

UNITED STATES OF AMERICA, 

Appellee, 

v. 

ISMAEL REYES-RIVAS, 

Defendant, Appellant. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF PUERTO RICO 

[Hon. Jay A. Garcia-Gregory, U.S. District Judge] 

Before 

Howard, Chief Judge, 

Selya and Barron, Circuit Judges. 

Franco L. Pérez-Redondo, Research & Writing Specialist, with 

whom Eric A. Vos, Federal Public Defender, and Vivianne M. MarreroTorres, Assistant Federal Public Defender, were on brief, for 

appellant. 

Mainon A. Schwartz, Assistant United States Attorney, with 

whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and 

Mariana E. Bauzá-Almonte, Assistant United States Attorney, were 

on brief, for appellee. 

November 28, 2018 

 
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BARRON, Circuit Judge. Ismael Reyes-Rivas ("Reyes") 

challenges his sentence of 77 months of imprisonment on the grounds 

(1) that he was improperly subjected to the career offender 

enhancement, U.S.S.G. § 4B1.1, because one of his predicate crimes 

did not qualify as a "crime of violence" under the career offender 

guideline and (2) that the District Court impermissibly considered 

an untranslated Spanish-language document in violation of the 

Jones Act, 48 U.S.C. § 864. For the reasons that follow, we vacate

and remand for further proceedings. 

I. 

 In 2015, Reyes was indicted in the District of Puerto 

Rico on one count of assault with a dangerous weapon, see 18 U.S.C. 

§ 113(a)(3), for stabbing a fellow prisoner with a "homemade 

weapon." Reyes pleaded guilty to that offense, and his case 

proceeded to sentencing. 

On April 28, 2016, the Probation Office released a 

Presentence Report ("PSR") in Reyes's case. The PSR classified 

Reyes as a career offender. See U.S.S.G. § 4B1.1(a). Under 

U.S.S.G. § 4B1.1(a), a "career offender" includes "those 

defendants who have two prior convictions, whether for a 

'controlled substance offense,' any 'crime of violence,' or any 

combination thereof." United States v. Steed, 879 F.3d 440, 443 

(1st Cir. 2018) (internal citations omitted). 
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At the time of Reyes's sentencing, the career offender 

guideline defined a "crime of violence" as: 

[A]ny offense under federal or state law, 

punishable by imprisonment for a term 

exceeding one year, that— (l) has as an 

element the use, attempted use, or threatened 

use of physical force against the person of 

another, or (2) is burglary of a dwelling, 

arson, or extortion, involves use of 

explosives, or otherwise involves conduct that 

presents a serious potential risk of physical 

injury to another. 

U.S.S.G. § 4B1.2(a) (2015). Thus, an offense could fit within the 

then-operative "crime of violence" definition if it were 

encompassed by that definition's force clause ("has as an element 

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

the person of another"), enumerated offenses clause ("is burglary 

of a dwelling, arson, or extortion, involves use of explosives"), 

or residual clause ("otherwise involves conduct that presents a 

serious potential risk of physical injury to another"). 

 The PSR determined, without express references to any of 

the clauses just referenced, that Reyes qualified as a "career 

offender" because he had two prior convictions for "crimes of 

violence." Those convictions were a 2014 federal carjacking 

conviction, see 18 U.S.C. § 2119(1), and a 2012 Puerto Rico 

conviction for aggravated battery, see P.R. Laws. Ann. tit. 33 

§ 4750. 
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 To determine whether a prior conviction qualifies as a 

"crime of violence," we apply the "categorical approach." United 

States v. Dávila–Félix, 667 F.3d 47, 55 (1st Cir. 2011) (citing 

Taylor v. United States, 495 U.S. 575, 600–02 (1990)). Under that 

approach, "we look to the statutory definition of the offense in 

question, as opposed to the particular facts underlying the 

conviction." United States v. Piper, 35 F.3d 611, 619 (1st Cir. 

1994).

 The conviction that is at issue in this appeal is the 

one for aggravated battery. The Puerto Rico aggravated battery 

statute provides that:

If the battery described in § 4749 

[misdemeanor simple battery] of this title 

causes an injury that does not leave permanent 

harm, but requires medical attention, 

specialized professional outpatient 

treatment, shall incur a fourth degree felony. 

If the battery causes an injury that requires 

hospitalization or extended treatment, or 

causes permanent harm, the perpetrator shall 

incur a third degree felony. This modality 

also includes mayhem, those that transmit an 

illness, syndrome or condition requiring 

prolonged physical treatment, or those that 

require prolonged psycho-emotional treatment. 

P.R. Laws. Ann. tit. 33 § 4750. A separate provision of that 

statute defines simple battery as occurring when "[a]ny person who 

illegally through any means or form inflicts injury to the bodily 

integrity of another[.]" Id. § 4749. 
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Reyes objected to the PSR on the ground that his 

conviction for aggravated battery was not a "crime of violence." 

The Probation Office responded to Reyes's objection with an email 

that stated that Reyes's conviction was for "fourth degree 

aggravated battery" and that this conviction was for an offense 

that qualified as a "crime of violence"1 under the "force clause." 

The government asserted the same conclusion in its Response to the 

Defendant's Objection to the Presentence Report. 

To support that assertion, the government attached as 

"Exhibit 1" a Spanish-language copy of a Puerto Rico judgment of 

conviction for the offense at issue and requested that the District 

Court grant the government ten days to file a certified translation 

of the judgment. The government did not thereafter file a 

translation. 

The District Court then held a sentencing hearing on 

June 24, 2016. Reyes argued at the hearing that the aggravated 

battery conviction did not qualify as a "crime of violence." 

Specifically, he contended that the "crime of violence" 

 1 Although an aggravated battery conviction in the third 

degree is more serious than a conviction in the fourth degree, the 

third-degree variant expressly covers injuries "that transmit an 

illness . . . or those that require prolonged psycho-emotional 

treatment." P.R. Laws. Ann. tit. 33 § 4750. The fourth-degree 

variant, on the other hand, does not mention those types of 

injuries. Thus, according to the parties, there is more ambiguity 

that a third-degree conviction would require physical force or 

present risk of physical injury such that it would fall within the 

crime of violence definition. 
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definition's enumerated offenses clause did not encompass his 

offense of conviction because that offense was not "burglary of a 

dwelling, arson, or extortion" and did not "involve[] use of 

explosives." U.S.S.G. § 4B1.2(a)(2) (2015). Reyes also argued 

that the "crime of violence" definition's residual clause could 

not encompass his offense of conviction because that clause was 

unconstitutional under Johnson v. United States, 135 S. Ct. 2551, 

2563 (2015) ("Johnson II"), which had struck down as 

unconstitutionally vague an analogous residual clause in the Armed 

Career Criminal Act of 1984 ("ACCA"), 18 U.S.C. § 924(e)(2)(B). 

Finally, Reyes argued that the "crime of violence" definition's 

force clause did not encompass his offense of conviction because, 

he contended, that offense did not have as an element the use or 

threatened use of "force capable of causing physical pain or injury 

to another person." See Johnson v. United States, 559 U.S. 133, 

140 (2010) ("Johnson I"). 

For its part, the government made no argument at the 

hearing that Reyes's offense of conviction qualified as a "crime 

of violence" based on either the enumerated offenses clause or the 

residual clause. Instead, the government informed the District 

Court that it was proceeding on the understanding that the residual 

clause was, as Reyes contended, unconstitutional under Johnson II. 

But, the government argued, Reyes's conviction for aggravated 

battery did qualify as a "crime of violence" under the force clause 
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because that offense had as an element the infliction of bodily 

injury requiring medical attention and thus necessarily required 

the use of the degree of force that the Supreme Court had 

determined was necessary to satisfy that clause. 

In presenting their conflicting arguments at the hearing 

about the career offender guideline's application to Reyes's 

conviction, neither Reyes nor the government directly addressed 

whether Reyes's conviction was for aggravated battery in the third 

or fourth degree. Nor did either Reyes or the government directly 

address whether the aggravated battery statute was divisible along 

that dimension, such that a conviction under the statute could be 

for one of the two variants rather than for aggravated battery as 

a categorical whole. 

The District Court then ruled that, based on "the 

arguments that [it had] heard," Reyes's aggravated battery 

conviction qualified as a "crime of violence" and that Reyes was 

thus a career offender. On the basis of that conclusion, the 

District Court assigned Reyes a guideline sentencing range of 77 

to 96 months of imprisonment. The District Court sentenced Reyes 

to a prison sentence at the low end of that range: 77 months. 

Reyes next filed a motion for reconsideration, in which 

he argued for a reduced term of imprisonment based on factors in 

18 U.S.C. § 3553(a). The District Court does not appear to have 

ruled on this motion.
- 8 - 

Reyes filed a timely notice of appeal of his sentence, 

and the government thereafter filed a "motion requesting 

certification and forwarding of modified record on appeal." In 

that motion, the government stated that it had failed to file a 

translated version of the judgment of Reyes's aggravated battery 

conviction and requested to supplement the record on appeal 

pursuant to Federal Rule of Appellate Procedure 10(e)(2)(B) by 

including the translated document. The District Court granted the 

government's motion. 

At that point, Reyes filed an opposition to the 

government's motion on the ground that Rule 10(e)(2)(B) "is an 

inadequate procedural vehicle for curing violations to the Jones 

Act's English-language requirement." Reyes also filed a second 

motion for reconsideration, in which he stated that his counsel 

had changed and that this change had delayed his response to the 

government's motion to supplement the record with the translated 

judgment of conviction. 

The District Court acknowledged that it had "used an 

untranslated version [of the state court judgment] at sentencing," 

granted Reyes's motion for reconsideration, and vacated the order 

granting the government's motion for certification and forwarding 

of supplemental record on appeal. Prior to oral argument in this 

appeal, however, the government moved for summary disposition. In 

doing so, the government admitted that "due to an oversight, the 
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translation [of the judgment of conviction] was not filed" and 

requested that we remand the case for de novo resentencing because 

"the record appears to have been insufficiently developed for 

applying the modified categorical approach on appeal." Reyes 

opposed that motion on that ground that any remand should be 

limited in scope and should preclude the government from presenting 

new evidence of Reyes's prior conviction. We denied the 

government's motion, and the case proceeded to oral argument. 

II.

 Reyes contends on appeal that, under the Jones Act, the 

District Court's use of the untranslated judgment of conviction at 

his sentencing requires that we vacate his sentence. The Jones 

Act "requires that '[a]ll pleadings and proceedings in the United 

States District Court for the District of Puerto Rico . . . be 

conducted in the English language.'" United States v. RiveraRosario, 300 F.3d 1, 5–6 (1st Cir. 2002) (alteration in original) 

(quoting 48 U.S.C. § 864). 

 The government contends that there was no violation of 

the Jones Act because the District Court did not consider the 

untranslated document in determining Reyes's sentence. The 

government does not dispute, however, that it provided the District 

Court with an untranslated copy of the judgment of conviction. 

See Rivera-Rosario, 300 F.3d at 5-6 (noting neither party disputed 

that there was a Jones Act violation where the government provided 
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untranslated Spanish language materials to the District Court). 

Moreover, the District Court itself stated in an order that it had 

"used an untranslated version [of the state court judgment] at 

sentencing." (emphasis added). We thus conclude that there was 

a Jones Act violation, see United States v. Millán-Isaac, 749 F.3d 

57, 64 (1st Cir. 2014), and the government makes no argument that, 

insofar as there was a violation, the sentence may stand. See 

Rivera-Rosario, 300 F.3d at 10 ("[V]iolations of the English 

language requirement will constitute reversible error whenever the 

appellant can demonstrate that the untranslated evidence has the 

potential to affect the disposition of an issue raised on appeal. 

Absent that potential, there is no prejudice from the violation of 

the Jones Act that warrants relief.") 

 We do note that the government -- apparently on the 

assumption that no Jones Act violation occurred -- does separately 

argue that Reyes's conviction qualifies as one for a "crime of 

violence." In pressing that contention on appeal, however, the 

government has abandoned the argument that it made below -- namely, 

that Reyes's conviction qualifies as a "crime of violence" under 

the force clause. Rather, the government now argues that, in light 

of Beckles v. United States, 137 S. Ct. 886 (2017), which was 

decided after Reyes's sentencing, "[Reyes's] conviction for 

fourth-degree aggravated battery qualifies as a crime of violence 

under the residual clause," (emphasis added). See id. at 892 
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(holding that, notwithstanding Johnson II, the residual clause in 

the career offender guideline is not unconstitutionally vague).2 

 But, because the Jones Act requires that we set aside 

the untranslated document concerning Reyes's judgment of 

conviction, we have no basis for concluding that the District Court 

permissibly found that Reyes's conviction was for aggravated 

battery in the fourth degree. Nor does the government argue 

otherwise. In fact, the government asserts that the District Court 

"focused solely on the question of whether [the statutory offense 

of aggravated battery], as a categorical whole, qualified as a 

crime of violence under the force clause." And thus we have no 

reason to consider the government's new argument for finding that 

Reyes's conviction qualifies as a crime of violence, as the 

government at no point argues to us that the residual clause 

encompasses the offense of aggravated battery even if it is in the 

fourth degree. 

 Accordingly, we vacate and remand the sentence. That 

way, the District Court may determine on the basis of the record 

 2 While arguments not made before the District Court are 

ordinarily deemed waived, see Me. Green Party v. Me., Sec'y of 

State, 173 F.3d 1, 4 (1st Cir. 1999), we have held that where a 

party relied on Johnson II in waiving an argument on the assumption 

that the Guidelines' residual clause was unconstitutional -- like 

the government did here -- "[w]e are not bound by [that party's] 

concession, which, while understandable before Beckles, turned out 

to be incorrect," United States v. Thompson, 851 F.3d 129, 131 

(1st Cir. 2017). 
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as it existed at the time of sentencing, but without consideration 

of the untranslated document that it "used" at that sentencing, 

the type of aggravated battery of which Reyes was convicted and 

whether that offense is a "crime of violence."3 

 We note, moreover, that the government is limited in the 

arguments that it may make on remand regarding the application of 

the career offender guideline. The government chose to abandon on 

appeal the only ground that the District Court appears to have 

relied upon below in finding, "based on the arguments that [it 

had] heard," that the offense was a "crime of violence" -- namely, 

that Reyes committed an offense encompassed by the force clause of 

the career offender guideline's "crime of violence" definition. 

Instead, the government chose to defend the sentence -- insofar as 

it was not tainted by a Jones Act violation -- solely by contending 

that the residual clause encompasses fourth-degree aggravated 

 3 We note in this regard that the untranslated document was 

not in evidence and thus any certified translation of the same 

document would necessarily constitute new evidence. But, we have 

not allowed the government to introduce additional evidence in 

cases "where the government asked for the enhancement but failed 

to adduce sufficient proof for its imposition -- a situation in 

which there would not likely be reason to permit a second bite at 

the apple." United States v. Román-Huertas, 848 F.3d 72, 78 (1st 

Cir. 2017) (quoting United States v. Montero-Montero, 370 F.3d 

121, 124 (1st Cir. 2004)). In cases like Reyes's, the government 

"had every incentive to ensure that the [D]istrict [C]ourt relied 

only on evidence presented in the English language," id., and 

therefore the government may not present new evidence of Reyes's 

prior conviction on remand. 
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battery and that Reyes was convicted of that variant of the offense 

and no other. It is thus limited to that argument on remand. 

 We make one final observation. The District Court is 

bound on remand to apply the version of the Sentencing Guidelines 

that contained the residual clause, just as it relied on that 

version of the guidelines (though not the clause itself) when it 

sentenced Reyes the first time. See 18 U.S.C. § 3742(g)(1) ("[T]he 

court shall apply the guidelines issued by the Sentencing 

Commission . . . that were in effect on the date of the previous 

sentencing of the defendant prior to the appeal."). But, we note 

that the United States Sentencing Commission, five months prior to 

Reyes's original sentencing, voted to adopt an amendment that would 

eliminate the residual clause from the definition of "crime of 

violence" in the Guidelines. See U.S. Sentencing Comm'n, U.S. 

Sentencing Commission Adopts Amendment to Definition of “Crime of 

Violence” in Federal Sentencing Guidelines and Proposes Additional 

Amendments (Jan. 8, 2016), https://www.ussc.gov/about/news/pressreleases/january-8-2016. Therefore, although the amendment itself 

was not effective until August 1, 2016, about a month after Reyes's 

June 24 sentencing, the District Court would have been aware of 

the upcoming change. See Supplement to the 2015 Guidelines Manual, 

Appendix C, amendment 798 (U.S. Sentencing Comm'n 2016). We leave 

it to the District Court to determine in the first instance what 

impact, if any, those actions by the Commission should have on 
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sentencing Reyes in the event that the District Court were to 

determine (for the first time) that, solely in consequence of the 

residual clause, his conviction was for a "crime of violence." 

III.

 For the foregoing reasons, we vacate Reyes's sentence 

and remand for resentencing consistent with this opinion.