IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-40838

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

SERGIO CALZADA-ORTEGA,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:12-CR-253-1

Before JOLLY, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Sergio Calzada-Ortega pled guilty to being found unlawfully present in 

the United States following deportation in violation of 8 U.S.C. § 1326(a) 

and (b). At sentencing, Calzada’s offense level was increased by 16 levels based 

on a prior Wisconsin conviction for substantial battery the district court 

concluded constituted a crime of violence. U.S.S.G. § 2L1.2(b)(1)(A)(ii). 

Calzada challenges the 16-level enhancement, arguing his prior Wisconsin 

conviction does not constitute a crime of violence under the Sentencing 

* 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

January 10, 2014

Lyle W. Cayce

Clerk

 

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Guidelines. We agree and therefore VACATE the sentence and REMAND for 

resentencing.

FACTS AND PROCEDURAL HISTORY

Calzada was sentenced following a guilty plea to being unlawfully 

present in the United States following deportation. 8 U.S.C. § 1326(a), (b). The 

presentence report (PSR) recommended that Calzada’s base offense level of 

eight be increased by 16 levels based on a prior Wisconsin state court 

conviction for “substantial battery – intend bodily harm,” and concluded that 

it was a crime of violence. U.S.S.G. § 2L1.2(b)(1)(A)(ii). The PSR also 

recommended he receive a three-level reduction for acceptance of 

responsibility, resulting in a total offense level of 21. The recommended 

criminal history score placed him in a criminal history category of III, 

producing a sentencing guidelines range of 46-57 months. Calzada filed an 

objection to the 16-level enhancement, arguing that his conviction for 

substantial battery in Wisconsin did not meet the definition of a crime of 

violence. The district court overruled the objection and imposed a bottom-ofthe-guidelines sentence of 46 months. Calzada filed a timely notice of appeal.

DISCUSSION

In illegal reentry cases, Section 2L1.2(b)(1)(A)(ii) of the Sentencing 

Guidelines provides for a 16-level increase to a defendant’s base offense level 

when the defendant was previously deported following a conviction for a felony 

that constitutes a crime of violence. An offense qualifies as a crime of violence 

if it either falls under one of the enumerated offenses, or the residual clause as 

an 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). Different tests are used to

determine whether a specific offense amounts to a crime of violence depending 

on whether the offense is an enumerated one, or has the use of physical force 

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as an element. United States v. Esparza-Perez, 681 F.3d 228, 229 (5th Cir. 

2012). The district court’s characterization of a prior offense as a crime of 

violence is a question of law that we review de novo. Id.

I. Crime of Violence Enhancement

Calzada’s prior conviction arose under Wisconsin Statute § 940.19(2). It 

provides that “[w]hoever causes substantial bodily harm to another by an act 

done with intent to cause bodily harm to that person or another is guilty of a 

Class I felony.” In overruling Calzada’s objection to the 16-level enhancement, 

the district court relied on a Seventh Circuit opinion that the same Wisconsin 

provision was a crime of violence under Section 4B1.2(a) of the Sentencing 

Guidelines. See United States v. Peters, 462 F.3d 716 (7th Cir. 2006). The 

definition of a crime of violence in Section 4B1.2(a) is broader than the 

definition in Section 2L1.2 because in addition to offenses with the use of 

physical force as an element, it includes an offense that “involves conduct that 

presents a serious potential risk of physical injury to another.” U.S.S.G. § 

4B1.2(a)(2). The court in Peters did not specify whether it considered the 

Wisconsin offense a crime of violence under the use of physical force definition

also found in Section 2L1.2, or the additional definition only found in 

Section 4B1.2. Peters, 462 F.3d at 719-20. Thus, Peters does not resolve our 

issue, which is whether the Wisconsin offense of substantial battery is a crime 

of violence pursuant to Section 2L1.2.

a. Use of physical force clause

Calzada argues his Wisconsin conviction is not a crime of violence under 

the use of physical force clause because it does not include “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. n.1(B)(iii). We have concluded that a 

similar Texas assault statute was not a crime of violence under the use of 

physical force clause because it merely required that the defendant cause 

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bodily injury to another. See United States v. Villegas-Hernandez, 468 F.3d 

874, 882 (5th Cir. 2006). We concluded that the Texas offense could be violated 

by means other than the actual, attempted, or threatened use of physical force. 

Id. at 887. The Wisconsin statute likewise requires causing substantial bodily 

harm to another, which may occur from acts other than the use of physical 

force. Because Calzada could be convicted under the Wisconsin statute for

causing substantial bodily harm without the use of physical force, his prior 

offense is not a crime of violence under § 2L1.2’s use of force clause.

b. Enumerated offense

The Guidelines do not define the enumerated offenses constituting 

crimes of violence. This court has adopted “a common sense approach, defining 

each crime by its generic, contemporary meaning.” United States v. MartinezFlores, 720 F.3d 293, 295 (5th Cir. 2013) (quotation marks omitted). This 

approach looks to the Model Penal Code, treatises, modern state codes, and 

dictionary definitions. Esparza-Perez, 681 F.3d at 229. “When comparing the 

state conviction with the generic, contemporary meaning of the crime, we 

examine the elements of the statute of conviction rather than the specifics of 

the defendant’s conduct.” Id. at 230 (citation omitted). Finally, we focus on 

the minimum conduct criminalized by the state statute in determining 

whether a prior conviction qualifies as an aggravated felony. Moncrieffe v. 

Holder, 133 S. Ct. 1678, 1684 (2013).

The government argues Calzada’s offense qualifies as the enumerated 

offense of aggravated assault. It contends that the modifier “substantial” 

implies a degree of injury sufficiently close to the generic definition of 

aggravated assault as to be equivalent to the enumerated offense. One generic 

definition of aggravated assault is in the Model Penal Code. It provides that a 

person commits the offense when he “attempts to cause serious bodily injury 

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

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circumstances manifesting extreme indifference to the value of human 

life . . . .” MODEL PENAL CODE § 211.1(2)(a). Serious bodily injury is defined

as injury “which creates a substantial risk of death or which causes serious,

permanent disfigurement, or protracted loss or impairment of the function of 

any bodily member or organ.” Id. § 210.0(3). 

Wisconsin has a graduated scale of battery offenses beginning with 

bodily harm battery, proceeding to substantial bodily harm battery, and 

escalating to great bodily harm battery. See WIS. STAT. § 940.19. He argues 

that his conviction for the intermediate offense of substantial bodily harm

battery requires a lesser injury than aggravated assault, taking it out of the 

common sense definition of aggravated assault. Substantial bodily harm is 

defined as “bodily injury that causes a laceration that requires stitches, 

staples, or a tissue adhesive; any fracture of a bone; a broken nose; a burn; a 

petechia; a temporary loss of consciousness, sight or hearing; a concussion; or 

a loss or fracture of a tooth.” WIS. STAT. § 939.22(38). Great bodily harm 

battery in Wisconsin, much like the generic definition of aggravated assault,

involves injuries that create a substantial risk of death or cause serious 

permanent disfigurement or permanent or protracted loss of a bodily function. 

See WIS. STAT. § 940.19(4); § 939.22(14). Calzada argues that the statutory 

difference in Wisconsin between substantial and serious bodily injury is 

enough to take his conviction out of the common sense definition of aggravated 

assault. 

We have evaluated a similar statutory scheme in New Jersey where 

assault is differently punished based on gradations of injury. See MartinezFlores, 720 F.3d at 295. Martinez-Flores was convicted under New Jersey law

of a third degree offense for causing “significant bodily injury,” defined as 

“injury which creates a temporary loss of the function of any bodily member or 

organ or temporary loss of any one of the five senses.” Id. at 296 (quoting N.J.

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STAT. ANN. § 2C:11-1d). The New Jersey statute also provided for second 

degree aggravated assault involving “serious bodily injury,” defined as injury 

which creates “a substantial risk of death or which causes serious, permanent 

disfigurement, or a protracted loss or impairment of any function of the body 

member or organ.” Id. (quoting N.J. STAT. ANN. §2C:12-1b(1)). We determined 

that the intermediate level of assault in New Jersey was intended to include

offenses greater than simple assault, but causing less than the injury required 

for aggravated assault. Id. at 298. The difference between significant and 

serious bodily injury in New Jersey was enough to remove Martinez-Flores’s 

offense from the common sense definition of aggravated assault. Id. at 297-98.

Similarly, Calzada was convicted of an intermediate battery offense

involving a degree of harm less than serious bodily injury. The Wisconsin 

statute is drafted, like New Jersey, to include graduated offenses of battery 

making distinctions between substantial and great bodily harm based on the 

nature, extent, and duration of the injury inflicted. See id. at 298. Important 

to whether an offense constitutes aggravated assault is whether it includes 

“the two most common aggravating factors — causation of serious bodily injury 

and use of a deadly weapon.” Id. at 298. Substantial battery involves nonpermanent injuries that do not create a substantial risk of death, meaning it 

lacks the important aggravating factor of serious bodily injury. Id. at 298-99 

(citing BLACK’S LAW DICTIONARY 130 (9th ed. 2009)). Focusing on the 

minimum conduct criminalized by the Wisconsin statute, substantial battery

does not fall within the common sense meaning of aggravated assault. See id.

at 299 (citing Moncrieffe, 133 S. Ct. at 1684). It was error for the district court 

to impose the 16-level crime of violence enhancement.

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II. Harmless Error

The Government did not argue that error, if it occurred, was harmless. 

Nevertheless, having concluded that an error occurred, we will consider its 

harmfulness. To prove harmless error, the Government must prove both “(1) 

that the district court would have imposed the same sentence had it not made 

the error, and (2) that it would have done so for the same reasons it gave at the 

prior sentencing.” United States v. Ibarra-Luna, 628 F.3d 712, 714 (5th Cir. 

2010). Calzada received a 46 month sentence with the 16-level enhancement. 

Absent the 16-level enhancement, his total offense level would have been 13, 

with a 21-27 month sentencing range. At the very least, the 16-level 

enhancement provided for a sentence increased by 19 months.

The district court did not state that it would impose the same sentence 

absent the 16-level crime of violence enhancement, and the Government does 

not contend the court would have imposed the same sentence if there had been 

no error in calculating the guidelines range. Thus, the error cannot be deemed 

harmless. See Martinez-Flores, 720 F.3d at 300-01.

Accordingly, we VACATE the judgment of sentence and REMAND for 

resentencing.

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