### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-50184 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. JOSE NAHUM RIVAS, Defendant-Appellant

Appeal from the United States District Court for the Western District of Texas USDC No. 2:09-CR-1606-1

Before WIENER, STEWART, and HAYNES, Circuit Judges. PER CURIAM: * Defendant-Appellant Jose Nahum Rivas p l e a d e d guilty to one count of illegal re-entry after deportation and was sentenced to 51 months in prison. His sentence was increased based on an incident that resulted in convictions under Washington law for third-degree assault a n d “ F e lony Harassment – Domestic Violence.” Rivas contends that neither of the Washington offenses was a crime of violence. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D Decem ber 2 9, 2 011 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-50184 Document: 00511709513 Page: 1 Date Filed: 12/29/2011No. 11-50184

Because Rivas raises the c l ai m s f o r the first time on appeal, we review

o nly for plain error. See United States v. Ramirez , 557 F.3d 200, 205 (5th C ir . 2009). To prevail, Rivas must show an error that is “clear and obvious, rather than subject to reasonable debate.” Puckett v. United States , 556 U.S. 129, 129 S. Ct. 1423, 1429 ( 2 0 0 9) ; U n ited States v. Ellis , 564 F.3d 370, 377-78 (5th Cir. 2009). He also must show that the error affected his substantial rights. Puckett , 129 S. Ct. at 1429. If he makes these showings, we have the discretion to correct the error if it “seriously affects the fairness, integrity or p ub l ic reputation of judicial proceedings.” Id. at 1429 (internal quotation marks, al t e r a t i on, and citation omitted). The relevant definition of “c ri m e o f violence” in this case is the residual definition of U.S.S.G. § 2L1.2, comment. (n.(1)(B)(iii)), which is an “offense under federal, state, or local law that has as an element the us e , attempted use, or threatened use of physical force against the person of another.” As this residual definition is indistinguishable from the “has as an element” residual definitions set forth in § 4B1.2(a)(1) and 18 U.S.C. § 1 6(a), we may rely on authorities discussing those definitions. Under the residual definition of crime of violence, “the use of physical force must be a fact that is necessary for the prosecution to

secure a conviction.” United States v. Velasco , 465 F.3d 633, 638 (5th Cir. 2006). “[T]he phra s e ‘physical force’ means violent force – that is, force capable of causing physical pain or injury to another person. ” J o hnson v. United States , 1 3 0 S. Ct. 1265, 1271 (2010) (discussing the catch-all definition found in 18 U.S.C. § 16(a)). Rivas contend s , a n d the government concedes, that the third-degree assault conviction under WA S H
. R E V
. C O D E § 9A.36.031(1)(f) was not a crime of violence because it required only “criminal negligence.” Cf. Leocal v. Ashcroft , 543 U.S. 1, 9-10 (2004) (holding that negli g e n c e do e s not satisfy the physical force re qu i r ement for a crime of violence under 18 U.S.C. § 16). We need not decide this issue however, because we affirm on the grou n d that the district
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court di d n ot commit plain error by treating Rivas’s alternate conviction for harassment under WA S H
. R E V
. C O D E § 9A.46.020(1) as a crime of violence. Section 9A.46.020(1) provides that a person commits h a r a s s ment if he knowingly threatens either to cause bodily injury, to cause physical damage to property, to subject a person “t o physical confinement or restraint;

or . . .[m]aliciously to do any other act which is intended to substantially harm the person threatened or another with respect to his or her physical or mental health or safety; and [that he] places the person thr eatened in reasonable fear that the threat will be carried out.” § 9A.46.020(1). Riv as argues only that “bodily injury” is not an element of violent force and th u s does not render a violation a crime of violence. He relies on United States v. Villegas-Hernandez , 468 F.3d 874, 879 (5th Cir. 2006), in which we held th a t a Texas statute penalizing the infliction of bodily harm did not have as an element the requisite

use of violent force required to render it a crime of violence. Villegas-Hernandez , however, did not concern a threat of harm accompanied by placing the victim in a reasonable fear of harm. See Villegas-Hernandez , 468 F.3d at 878. The government a s s e rt s that only a threat of violent force would satisfy the Washington statute’s requirement that the victim be placed in a reasonable fear of ha r m and, accordingly, that a threat of violent force is an implicit but necessary element of the Washington harassm e nt crime. There is support for the government’s position. In United States v. Mohr , 554 F.3d 604, 610 (5th Cir. 2009), we decided that a South Carolina stalking offense was a crime of violence. The stalking statute did not e xp licitly require the use of force but defined stalking as “a pattern of words

. . . or a pattern of conduct that

. . . is i ntended to cause and does cause a targeted person and would cause a reasonable person in the targeted person’s position to fear” death, assault, bodily injury, criminal sexual contact, kidnaping, or property damage. See id. at 608 ( quoting former S

. C

. C O D E AN N
. § 1 6

- 3

- 1 7 0 0 (B) (2 0 0 2) , now S .C. C O D E AN N
. § 16-3-1700(C)(2005) )

. We r e a soned that “words or conduct that are intended to cause and do cause 3 Case: 11-50184 Document: 00511709513 Page: 3 Date Filed: 12/29/2011No. 11-50184

reasonable fear of death, assault, injury etc., pose at least as much risk of physical injury as the ‘threatened use of force’ [that] automatically qualifies the offense as a crime of violence.” Id. In an analogous context, the Eleventh Circuit explicitly embraced the reasoning put forth by the government, f i n ding it “inconceivable that any act which causes the victim to fear death or great bodily har m w o u l d not involve the use or threatened use of physical force.” United States v. Lockley , 632 F.3d 1238, 1245 (11 th Cir. 2011). As this appeal involves only plain- e rr o r r eview, we are not required to decide conclu s iv e ly whether the Washington harassment offense is a crime of violence under the residual definition. This is because the government’s argument and our exa m i nation of the law reveal that Rivas’s claim is at least “subject to reasonable debate.” As such, he has not shown an error that is clear

or obvious. See Puckett , 129 S. Ct. at 1429; Ellis , 564 F.3d at 377-78. As Rivas has not shown plain error, the judgment of the district court is AFFIRMED.

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