IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-50022

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee 

v. 

JOSE GUSTAVO RICO-MEJIA, also known as Juan Gustavo Rico-Mejia, 

 Defendant - Appellant 

Appeal from the United States District Court 

for the Western District of Texas 

Before STEWART, Chief Judge, and KING and DENNIS, Circuit Judges. 

PER CURIAM:

Jose Gustavo Rico-Mejia pleaded guilty to illegal re-entry into the United 

States. The district court sentenced Rico-Mejia to 41 months of imprisonment 

and three years of supervised release. In making its sentencing determination, 

the district court imposed a sixteen-level enhancement for a past conviction 

under Arkansas law, on the grounds that it qualified as a “crime of violence.” 

See U.S.S.G. § 2L1.2(b)(1)(A)(ii). For the reasons that follow, we VACATE and 

REMAND for resentencing. 

I.

On January 21, 2015, Rico-Mejia was charged by indictment with 

illegally reentering the United States after deportation, in violation of 8 U.S.C. 

United States Court of Appeals

Fifth Circuit

FILED

February 10, 2017

Lyle W. Cayce

Clerk
No. 16-50022

2 

§ 1326. On March 25, 2015, Rico-Mejia pleaded guilty without benefit of a plea 

agreement. A probation officer compiled his pre-sentence report (“PSR”). 

Applying the 2014 edition of the U.S. Sentencing Guidelines (“Guidelines”), the 

PSR recommended a base offense level of eight pursuant to U.S.S.G. § 2L1.2(a). 

The PSR also recommended a sixteen-level enhancement due to Rico-Mejia’s 

September 14, 2007 conviction for terroristic threatening in violation of 

Arkansas code § 5-13-301(a)(1)—a felony in Arkansas that the PSR deemed to 

be a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii).1 Rico-Mejia was given 

a three-level reduction for acceptance of responsibility, resulting in a total 

offense level of 21. Pursuant to the Guidelines, that offense level, combined 

with a criminal history category of II, resulted in a recommended sentencing 

range of 41 to 51 months’ imprisonment. 

At the December 17, 2015 sentencing hearing, Rico-Mejia objected to the 

sixteen-level enhancement, arguing that his prior state conviction did not 

constitute a crime of violence within the meaning of § 2L1.2 because “terroristic 

threatening” is not an enumerated crime of violence and does not have “as an

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

person of another.” U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (2014). Accordingly, RicoMejia contended that he should only have received a four-level increase. The 

district court disagreed and sentenced him to 41 months of imprisonment and 

three years of supervised release, a sentence at the bottom end of the 

sentencing range. The district court acknowledged that the Arkansas statute 

could be violated by threats not involving physical force, but overruled RicoMejia’s objection because the conduct actually charged in his case involved a 

threat to kill, which the district court believed to necessarily import an element 

 

1 All references to the Sentencing Guidelines refer to the 2014 version applicable in 

this case. 
No. 16-50022

3 

of physical force. The sentencing judge also noted that he had “considered 

everything else about this case, including the conviction as well as the other 

[available] information concerning this particular defendant,” and that the 

sentence he chose “would be the same sentence that I would pronounce even if 

I would have sustained the Defendant’s objection to the Guideline 

Enhancement.” Rico-Mejia appealed, challenging the sixteen-level crime of 

violence enhancement. 

We first address whether the district court erred in imposing a sixteenlevel sentencing enhancement pursuant to § 2L1.2(b)(1)(A)(ii). Finding that the 

district court did err, we progress to examine whether that error was harmless. 

II.

Section 2L1.2 of the Guidelines states that the offense level for 

unlawfully entering or remaining in the United States is increased by sixteen 

if the defendant has previously been convicted of a “crime of violence.” U.S.S.G. 

§ 2L1.2(b)(1)(A)(ii). As the district court’s characterization of Rico-Mejia’s prior 

offense is a question of law, we review it de novo. United States v. Herrera, 647 

F.3d 172, 175 (5th Cir. 2011) (citing United States v. Hernandez-Galvan, 632 

F.3d 192, 196 (5th Cir. 2011)). 

According to the Guidelines, a “crime of violence” consists of: 

[A]ny of the following offenses under federal, state, or 

local law: murder, manslaughter, kidnapping, 

aggravated assault, forcible sex offenses (including 

where consent to the conduct is not given or is not 

legally valid, such as where consent to the conduct is

involuntary, incompetent, or coerced), 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. 
No. 16-50022

4 

U.S.S.G. § 2L1.2, cmt. n.1(B)(iii) (2014). This court has interpreted this 

provision to mean that a prior offense qualifies as a crime of violence if that 

offense “(1) has physical force as an element, or (2) qualifies as one of the 

enumerated offenses.” Herrera, 647 F.3d at 175 (quoting United States v. 

Gomez-Gomez, 547 F.3d 242, 244 (5th Cir. 2008) (en banc), superseded by 

regulation on other grounds, as recognized in United States v. Diaz-Corado, 648 

F.3d 290, 294 (5th Cir. 2011)). Because “terroristic threatening” is not included 

in the list of enumerated offenses above, we must now determine whether RicoMejia’s conviction for terroristic threatening includes physical force as an 

element. 

On appeal, Rico-Mejia argues that the district court erred in increasing 

his offense level by sixteen pursuant to § 2L1.2(b)(1)(A)(ii), contending that his 

prior Arkansas conviction for “terroristic threatening” does not constitute a 

crime of violence, since a person could “cause death or serious physical injury” 

even without using physical force and because the offense includes property 

damage while crimes of violence only involve injuries to people. In support of 

this contention, he cites United States v. Johnson, 286 F. App’x 155, 157 (5th 

Cir. 2008) (per curiam), an unpublished decision in which we held that a 

conviction for terroristic threatening under the same Arkansas statute did not 

qualify as a violent felony under 18 U.S.C. § 924(e)(2)(B)(i). There, we reasoned 

that even though the conduct in that case involved a threat to kill, a person 

could cause physical injury without using physical force. Id.; see also United 

States v. Villegas-Hernandez, 468 F.3d 874, 879 (5th Cir. 2006) (“There is . . . 

a difference between a defendant’s causation of injury and the . . . use of 

force.”); United States v. De La Rosa-Hernandez, 264 F. App’x 446 (5th Cir. 

2008) (per curiam) (“As in Villegas, a defendant could violate [the California 

Terroristic Threats law], for example, by threatening either to poison another 
No. 16-50022

5 

or to guide someone intentionally into dangerous traffic, neither of which 

involve ‘force’, as that term is defined by our court.”). 

The Government responds that these cases have been overruled by 

United States v. Castleman, 134 S. Ct. 1405, 1414 (2014), which held that a 

defendant’s guilty plea to having “intentionally or knowingly cause[d] bodily 

injury” to the mother of his child constituted “the use of physical force” required 

for a misdemeanor crime of domestic violence as defined in 18 U.S.C. § 

921(a)(33)(A). The Government points out that as part of the Supreme Court’s 

reasoning in that decision, it applied a definition of “use of physical force” that 

was much broader than that described in the above cases—one that could 

involve harm caused both directly and indirectly and that would include 

administering poison or similar actions. Id. at 1413–15. 

Arkansas law decrees that a person is guilty of first-degree terroristic 

threatening if: 

(A) With the purpose of terrorizing another person, the person 

threatens to cause death or serious physical injury or 

substantial property damage to another person; or 

(B) With the purpose of terrorizing another person, the person 

threatens to cause physical injury or property damage to a 

teacher or other school employee acting in the line of duty. 

Ark. Code Ann. § 5-13-301(a)(1). To determine whether a given prior conviction 

qualifies for a Guidelines enhancement, courts use either (1) the categorical 

approach or (2) the modified categorical approach. United States v. Hinkle, 832 

F.3d 569, 574 (5th Cir. 2016) (“[W]e have generally used the categorical and 

modified categorical approaches in applying the federal sentencing 

Guidelines.”). The district court in this instance determined that the Arkansas 

statute was divisible under the modified categorical approach, and, 
No. 16-50022

6 

accordingly, referred to the charging document to conclude that physical force 

was an element of terroristic threatening. 

The Supreme Court’s decision in Mathis v. United States, 136 S. Ct. 2243, 

2248–57 (2016) addressed when and how courts may use the modified 

categorical approach in the context of federal sentencing. See also Hinkle, 832 

F.3d at 574 (noting that although Mathis did not explicitly involve the federal 

sentencing Guidelines, it was nonetheless controlling in this circuit as concerns 

application of the modified categorical approach in the context of those 

Guidelines). This court has observed that Mathis “instructs that there is a 

difference between alternative elements of an offense and alternative means of 

satisfying a single element,” and that when a court confronts an alternativelyphrased statute, it must first “determine whether listed items in a statute are 

elements or means.” Id. at 575 (internal quotation marks and citation omitted). 

At the sentencing hearing, the district court responded to Rico-Mejia’s 

argument that physical force was not an element of the previous conviction 

because a conviction could be obtained under § 5-13-301(a)(1) without proof 

that a defendant threatened to use physical force by asking, “[H]ow else would 

you threaten to kill someone unless you’re going to use some type of force to 

bring about death, the actual killing? You can’t wish somebody dead, right?” 

The answer to the district court’s question is provided by the analysis set forth 

in Johnson, Villegas-Hernandez, and De La Rosa-Hernandez. These cases

clarify that even if the district court correctly resorted to the modified 

categorical approach, § 5-13-301(a)(1)(A) cannot constitute a crime of violence 

under § 2L1.2(b)(1)(A)(ii) because it lacks physical force as an element. 

The Government’s contention regarding Castleman must be rejected. By 

its express terms, Castleman’s analysis is applicable only to crimes categorized 

as domestic violence, which import the broader common law meaning of 
No. 16-50022

7 

physical force. Castleman is not applicable to the physical force requirement 

for a crime of violence, which “suggests a category of violent, active crimes” 

that have as an element a heightened form of physical force that is narrower 

in scope than that applicable in the domestic violence context. 134 S. Ct. 1411 

n.4. Accordingly, Castleman does not disturb this court’s precedent regarding 

the characterization of crimes of violence, and § 5-13-301(a)(1)(A) cannot 

constitute a crime of violence under § 2L1.2(b)(1)(A)(ii) because it lacks 

physical force as an element. See Herrera, 647 F.3d at 175.

III.

The Government also contends that even if the district court erred in 

determining that the sixteen-level enhancement applied, that error was 

harmless because of the district court’s admonition that it would have imposed 

the same sentence even if it had sustained Rico-Mejia’s objection to that 

enhancement. 

The district court indicated that it considered multiple factors in 

imposing Rico-Mejia’s sentence, including: (1) the PSR; (2) Rico-Mejia’s 

personal characteristics; (3) the 18 U.S.C. § 3553(a) sentencing factors; (4) “the 

serious nature of the offense” and “particularly the quick turn-around between 

his last deportation from this country, and then his re-entry.” The district court 

then indicated that it also had considered Rico-Mejia’s conviction history—

which included convictions for driving while intoxicated, a previous illegal 

entry, and terroristic threatening—and the sentences imposed pursuant to 

those prior convictions. The district court also indicated that it did not consider 

arrests that did not lead to convictions. The district court then concluded that 

to “promote respect for our laws, to discourage future criminal misconduct, 

which . . . is important considering his extensive criminal history, the quick 

turn-arounds in violation of our Immigration laws, including this one,” it was 
No. 16-50022

8 

pronouncing the same sentence it would have pronounced even if the it had 

sustained Rico-Mejia’s objection to the sixteen-level enhancement. The district 

court further added that “even if [terroristic threatening] wasn’t a crime of 

violence, it could still be used as a conviction and considered as a factor for 

sentencing and promoting and considering public safety issues, as well as 

respect for our laws.” 

While a district court undoubtedly commits procedural error in 

improperly calculating the Guidelines range, see United States v. Richardson, 

676 F.3d 491, 511 (5th Cir. 2012), that error can be considered harmless 

provided that the sentence did not result from the error. United States v. TzepMejia, 461 F.3d 522, 526–27 & n.6 (5th Cir. 2006). One way to demonstrate 

that the sentence was not imposed as a result of the Guidelines error is to show 

that the district court considered the correct Guidelines range and 

subsequently indicated that it would impose the same sentence even if that 

range applied. Id. at 526 & n.6. 

However, where the district court does not consider the correct 

guidelines range, a determination of harmlessness requires the proponent of 

the sentence to “convincingly demonstrate[] 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). This court has 

noted that such a showing involves a heavy burden, requiring the proponent 

to “point to evidence in the record that will convince [the appellate court] that 

the district court had a particular sentence in mind and would have imposed 

it, notwithstanding the error.” Richardson, 676 F.3d at 511 (quoting IbarraLuna, 628 F.3d at 717, 718) (internal quotation marks omitted). As there is no 

explicit or particularized statement from the district court showing that it 
No. 16-50022

9 

calculated or considered the correct Guidelines range, our harmless error 

analysis must take place in the more demanding Ibarra-Luna scenario. 

The Government points to several pieces of evidence in an effort to carry 

its burden. These include the various considerations listed by the district court 

in imposing the sentence and the district court’s statement that it had 

“considered everything else about this case,” which the Government argues 

would include Rico-Mejia’s objection and the suggested sentencing range of 8–

14 months contained within it. 

Meanwhile, Rico-Mejia points to the facts that (1) the difference between 

his actual sentencing range and possible lesser sentencing ranges is significant 

(at least 20 months)2, and (2) his sentence corresponded precisely to the bottom 

of the incorrectly calculated sentencing range. Rico-Mejia draws a parallel 

between his situation and the situation of the defendant in United States v. 

Martinez-Romero, 817 F.3d 917 (5th Cir. 2016), where the lowest end of the 

improperly calculated guideline range became the defendant’s precise 

sentence, an occurrence which the court refused to attribute to “mere 

serendipity.” Id. at 926. Key to the court’s decision was the recognition that, 

despite the district court’s “multitude of reasons” for its choice of sentence, a 

review of the record disclosed “no indication that the court’s decision to select 

the exact low and high ends of the improper range was independent of the 

erroneous calculation that called the court’s attention to that range in the first 

instance.” Id. Accordingly, the court’s choice to impose a guidelines sentence at 

precisely the bottom of the range was found to be influenced by the erroneous 

 

2 Rico-Mejia avers that the highest his sentencing range could be without the sixteenlevel enhancement is 15 to 21 months, based on a categorization of his prior conviction as an 

aggravated felony. Yet even in advancing this argument he maintains that the correct range

is 8–14 months. 
No. 16-50022

10

Guidelines calculation, even though the district court stated several times that 

it would have imposed the same sentence regardless of error. Id. at 925.

The facts of this case are similar to those of Martinez-Romero in two key 

ways. Both cases involve: (1) sentences that correspond precisely to the bottom 

of an erroneous guidelines calculation; (2) statements by the district court 

regarding criminal history and willingness to impose sentences regardless of 

error in guideline calculation.3 The key potential difference between them 

relates to the presence of evidence to indicate that the court’s decision to select 

precisely the bottom of the recommended Guidelines range was independent of 

the erroneous calculation. In Martinez-Romero there was no such evidence at 

all. Id. at 926. Here, there is some inferential evidence to be accounted for—

although the district court never explicitly stated that it had calculated the 

Guidelines range that would have applied absent the sixteen-level upward 

adjustment, it did say that it had considered “everything else about this case,” 

and Rico-Mejia’s preferred calculation was included with his objection to the 

PSR. The combination of these facts could support the inference that the 

district court was not influenced by the incorrect calculation, but rather chose 

its sentence from among alternatives solely for the reasons it stated. 

This potential distinction notwithstanding, we hold that the 

Government’s reference to the district court’s vague and unparticularized 

statement as the basis for a speculative inference that the district court 

considered alternative ranges that it did not calculate is insufficient to carry 

its heavy burden under Richardson. 676 F.3d at 511. This is especially true in 

light of the district court’s choice to impose a sentence that corresponded 

 

3 Indeed, the court in Martinez-Romero stated no less than three times “that even if 

the 16-level enhancement for the attempted kidnapping was incorrect, it would nonetheless 

impose the same 46-month sentence.” Martinez-Romero, 817 F.3d at 925. 
No. 16-50022

11

precisely to the bottom of the erroneous guidelines range, which constitutes 

evidence that the range impacted the district court’s decision. See MartinezRomero, F.3d 917 at 925–26. Moreover, the district court’s other statements at 

the sentencing hearing do nothing to prove that the erroneous Guidelines 

calculation did not impact the sentence ultimately imposed. Accordingly, and 

akin to the situation in Martinez-Romero, we find that the Government is 

unable to convincingly show that the sentence imposed on Rico-Mejia was

uninfluenced by the erroneous Guidelines calculation, such that we are

“convince[d] . . . that the district court had a particular sentence in mind and 

would have imposed it, notwithstanding the error.” 676 F.3d at 511; see also 

Ibarra-Luna, 628 F.3d at 718–19. 

IV.

On these facts, the Government has failed to meet its heavy burden to 

convincingly demonstrate that the district court would have imposed the same 

sentence regardless of its erroneous calculation. We therefore VACATE RicoMejia’s sentence and REMAND to the district court for resentencing.