IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________

No. 15-41688

__________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RAUL MARTINEZ-RODRIGUEZ,

Defendant-Appellant.

_____________________

Appeal from the United States District Court

for the Southern District of Texas

_____________________

Before JONES and OWEN, Circuit Judges, and ENGELHARDT, District 

Judge.∗

KURT D. ENGELHARDT, District Judge:

Martinez-Rodriguez appeals his sentence, contending that the district 

court erred by treating his prior conviction for the offense of causing injury to 

a child, under Texas Penal Code § 22.04(a)(3), as an aggravated felony on 

account of it being a crime of violence. Martinez-Rodriguez argues that 

§ 22.04(a), which can be violated by act or omission, is neither categorically a 

crime of violence nor a divisible statute. Therefore, he posits, the modified 

 

* District Judge of the Eastern District of Louisiana, sitting by designation.

United States Court of Appeals

Fifth Circuit

FILED

May 12, 2017

Lyle W. Cayce

Clerk
No. 15-41688

2

categorical approach should not have been used at sentencing to narrow his 

prior conviction under the Texas state statute.

I. FACTUAL AND PROCEDURAL HISTORY

On August 12, 2015, Martinez-Rodriguez was charged with knowingly 

being present in the United States after deportation, without having obtained 

consent to re-enter the country from the Attorney General or from the 

Secretary of Homeland Security, in violation of 8 U.S.C. § 1326(a) and (b). 

Martinez-Rodriguez ultimately entered a guilty plea, without a plea 

agreement, and, on December 15, 2015, was sentenced to 30 months 

imprisonment.

In the presentence report (PSR) prepared by the United States Probation 

Office in anticipation of sentencing, the probation officer recommended that 

Martinez-Rodriguez receive an enhancement under § 2L1.2(b)(1)(C) (2014), 

which calls for an eight-point increase in offense level “[i]f the defendant was 

deported, or unlawfully remained in the United States, after . . . a conviction

for an aggravated felony. . . .” As noted, the probation officer made this 

recommendation based Martinez-Rodriguez’s 2008 conviction for causing 

injury to a child under Texas Penal Code § 22.04(a)(3) – an offense 

characterized in the PSR as a crime of violence and thus an aggravated felony.

ROA.98-100 (PSR ¶¶ 12, 22). Attached to the PSR were the judgment of a state 

district court in Travis County, Texas, sentencing Mr. Martinez-Rodriquez to 

three years of prison for the prior conviction, ROA.107-109, as well as plearelated documents, ROA.110-113, and the indictment. ROA.114. The 

indictment charged that Martinez-Rodriquez did “intentionally and knowingly 

cause bodily injury to [a named victim], a child 14 years of age or younger, by 

grabbing [the named victim] by the arm and throwing her to the floor.” 

ROA.114.
No. 15-41688

3

At sentencing, the district court overruled Martinez-Rodriguez’s written 

objection to the treatment of his prior conviction as an aggravated felony. As a 

result of that treatment, the court ultimately fashioned a sentence within a 

guideline range that reflected an enhancement under USSG § 2L1.2(b)(1)(C)

and convicted and sentenced him under 8 U.S.C. § 1326(b)(2), on that same 

basis. Martinez-Rodriguez now appeals, placing before us the issue of whether 

Texas Penal Code § 22.04(a) is a divisible statute – a question previously 

answered in the affirmative by this Court in Perez-Munoz v. Keisler, 507 F.3d 

357 (5th Cir. 2007). 

II. DISCUSSION

The 2014 version of § 2L1.2(b)(1)(C) at issue herein, see ROA.98 (PSR 

¶ 10), provides that a defendant’s offense level shall be increased by eight 

levels if the defendant was deported after an aggravated felony conviction, see

§ 2L1.2(b)(1)(C) (2014). Section 1326(b)(2) permits, inter alia, a maximum 

sentence of 20 years when an alien has been previously removed after an 

aggravated felony conviction. See 8 U.S.C. § 1326(b)(2). For purposes of both 

§ 2L1.2 and § 1326(b)(2), the term “aggravated felony” has the meaning set 

forth in 8 U.S.C. § 1101(a)(43). See § 2L1.2, comment. (n.3(A)) (2014); United 

States v. Castaneda-Lozoya, 812 F.3d 457, 459 (5th Cir. 2016). Whether an 

offense qualifies as an aggravated felony is purely a legal question, reviewed 

by this Court de novo, Patel v. Mukasey, 526 F.3d 800, 802 (5th Cir. 2008), as 

are interpretations of the Guidelines themselves. United States v. Conner, 

537 F.3d 480, 489 (5th Cir. 2008). 

Under § 1101(a)(43), the term “aggravated felony” is defined, in 

pertinent part, as the crime-of-violence offense set forth in 18 U.S.C. § 16 for 

which a prison term of at least one year has been imposed. 8 U.S.C.

§ 1101(a)(43)(F). Section 16 defines a “crime of violence” as either “(a) an 
No. 15-41688

4

offense that has as an element the use, attempted use, or threatened use of 

physical force against the person or property of another,” or “(b) any other 

offense that is a felony and that, by its nature, involves a substantial risk that 

physical force against the person or property of another may be used in the 

course of committing the offense.” 18 U.S.C. §16(a), (b).

To determine whether a prior conviction constitutes a generic offense,

such as a crime of violence and thus an aggravated felony, this court generally 

employs the categorical approach – the focus of which is on the elements of the 

offenses, not the underlying facts of the prior conviction. See United States v. 

Hinkle, 832 F.3d 569, 572 (5th Cir. 2016); see also Franco-Casasola v. Holder, 

773 F.3d 33, 36 (5th Cir. 2014) (discussing “how to determine whether a prior 

offense qualifies as an aggravated felony,” beginning with the categorical 

approach). So long as the relevant statutes state a single, or indivisible, set of 

elements, application of the categorical approach is a rote exercise. See Mathis, 

136 S. Ct. at 2248. Courts simply line up the elements of the two offenses to 

determine whether they match. Id. If the elements of the prior offense are the 

same or narrower than those of the generic offense, then it qualifies for

whatever consequences under federal law attach to the generic offense. Id.

However, if its elements are broader, then the prior offense is not treated as 

an equivalent to the generic offense. Id.; see also Gomez-Perez v. Lynch, 

829 F.3d 323, 326-27 (5th Cir. 2016) (applying the categorical approach in a 

case involving the Immigration and Nationality Act). 

If a statute sets forth elements in an alternative or disjunctive structure,

it is considered divisible, and a second approach is available to the courts. See 

Descamps v. United States, 133 S. Ct. 2276, 2283-84 (2013). Known as the 

modified categorical approach, this approach allows a court to pare down a 

prior conviction under a divisible statute by consulting certain materials such 
No. 15-41688

5

as, in the case of a plea bargain, “the statutory definition, charging document, 

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

finding by the trial judge to which the defendant assented.” See Shephard v. 

United States, 544 U.S. 13, 16 (2005). Thus, unlike the categorical approach 

which concerns elements only, underlying facts are relevant to the modified 

categorical approach. 

In Mathis v. United States, the Supreme Court provided guidance on 

when a statute is divisible and, thus, when the modified categorical approach 

is available. 136 S. Ct. 2243, 2248-54 (2016). It clarified that the approach is 

to be applied only to statutes that list alternative elements and not to statutes 

that list alternative means of satisfying elements. Id. The distinction between 

the elements and means is critical to the divisibility of a statute. See id. at 2256 

(“The task for a sentencing court faced with an alternatively phrased statute 

is thus to determine whether its listed items are elements or means.”). “The 

test to distinguish means from elements is whether a jury must agree.” United 

States v. Howell, 838 F.3d 489, 497 (5th Cir. 2016). “Elements must be agreed 

upon by a jury. When a jury is not required to agree on the way that a 

particular requirement of an offense is met, the way of satisfying that 

requirement is a means of committing an offense not an element of the offense.” 

Hinkle, 832 F.3d at 575. Ultimately, “the court has no call to decide which of . . . 

alternative[ ] [means] was at issue in [an] earlier prosecution.” Mathis, 

136 S. Ct. at 2256.

According to Mathis, a determination of means versus elements is often 

easy to make, as federal courts are to follow definitive state court decisions on 

the issue. Id. at 2256 (“When a ruling of that kind exists, a sentencing judge 

need only follow what it says.”). In prior opinions, this Court has recognized 

that “[t]he Mathis decision is controlling regarding the methodology of the 
No. 15-41688

6

modified categorical approach, and we must apply its holdings, even when they 

are contrary to prior precedent of this court.” See Hinkle, 832 F.3d at 574 

(applying methodology addressed in Mathis to a Guidelines issue); see also

Gomez-Perez v. Lynch, 829 F.3d 323, 328 n. 5 (5th Cir. 2016) (recognizing that 

Mathis overruled certain prior cases insofar as they found a particular “statute 

to be divisible and subject to the modified categorical approach”).

As noted by the parties in this case, the Fifth Circuit has previously held 

that causing injury to a child under Texas Penal Code § 22.04(a) is not 

categorically a crime of violence for purposes of the aggravated felony 

enhancement of § 2L1.2, because such offenses may be committed by both acts 

and omissions. See United States v. Gracia-Cantu, 302 F.3d 308, 310, 312-13 

(5th Cir. 2002). Furthermore, as noted, this court analyzed § 22.04(a) in PerezMunoz v. Keisler, applying the modified categorical approach. 507 F.3d 357, 

358-59, 361-62 (5th Cir. 2007). In doing so, the Perez-Munoz court found that 

the Texas statute was divisible because it involved multiple offenses, 

specifically because it criminalized both acts and omissions causing injury to a 

child. Id. at 362; see also Carmona-Castillo v. Mukasey, 300 F. App’x 287, 288 

(5th Cir. 2008) (observing that § 22.04(a) was divisible because it defined 

multiple offenses). Since the Descamps and Mathis decisions, however, it is 

now clear that an elements-focused analysis is the only approved method for 

determining the divisibility of the statute.

Now, guided by the Mathis decision in particular, the Court must revisit

Texas Penal Code § 22.04(a), to consider whether its listed items, namely 

committing an offense by act or by omission, are alternative elements of an 

offense or alternative means of commission. We find that the Texas Court of 

Criminal Appeals has answered this precise question by concluding that the 

Texas Legislature intended the “act or omission” language in § 22.04(a) to 
No. 15-41688

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“constitute the means of committing the course of conduct element of injury to 

a child” rather than elements of the offense “about which a jury must be 

unanimous.” Jefferson v. State, 289 S.W.3d 305. 312 (Tex. Crim. App. 2006); 

see also Villanueva v. State, 227 S.W.3d 744, 749 (Tex. Crim. App. 2007) 

(holding, for purposes of double jeopardy, that the act and omission 

components of Tex. Penal Code § 22.04(a) “were simply two means of alleging 

and/or proving the same offense . . . .”). Accordingly, our analysis must rest

upon those definitive state law decisions. Therefore, we too conclude that 

§ 22.04(a) is an indivisible statute, as a result of its alternative components 

being means and not elements. As such, the modified categorical approach 

should have played no role in the district court’s sentencing decision. 

Furthermore, because the offense of causing injury to a child is broader under 

the Texas statute than a crime of violence, the sentencing court erred when, 

without the benefit of Mathis, it considered more than statutory elements to 

discern the means by which Martinez-Rodriguez committed the offense, for 

purposes of enhancement under USSG § 2L1.2(b)(1)(C) (2014) and sentencing 

under 8 U.S.C. § 1326(b)(2). 

III. CONCLUSION

For the foregoing reasons, we VACATE Martinez-Rodriguez’s sentence 

and REMAND for resentencing in accordance with this opinion.