IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-10336

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee,

v.

CURTIS MARROW HOWELL, 

 Defendant–Appellant.

Appeal from the United States District Court 

for the Northern District of Texas

Before CLEMENT and OWEN, Circuit Judges, and JORDAN, District Judge.*

PRISCILLA RICHMAN OWEN, Circuit Judge:

Curtis Marrow Howell pleaded guilty to the federal crime of possession 

of a firearm by a convicted felon, a violation of 18 U.S.C. § 922(g)(1). At 

sentencing, the district court concluded that Howell’s prior conviction under 

Texas Penal Code § 22.01(a)(1), (b)(2)(B) for assault constituted a “crime of 

violence” within the meaning of United States Sentencing Guidelines 

§ 4B1.2(a). This resulted in an enhancement to the base offense level under 

§ 2K2.1(a)(3) of the Guidelines. The district court sentenced Howell to 100 

 

* District Judge of the Southern District of Mississippi, sitting by designation.

United States Court of Appeals

Fifth Circuit

FILED

September 22, 2016

Lyle W. Cayce

Clerk

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months of imprisonment, and Howell has appealed contending that his Texas 

conviction is not a crime of violence. We affirm.

I

Howell pleaded guilty, without a plea agreement, to possession of a 

firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). The 

Presentence Report (PSR) indicated that the handgun Howell possessed was a 

semiautomatic firearm capable of accepting a large-capacity magazine, which 

increased the base offense level under certain provisions of § 2K2.1(a) of the 

Guidelines.1 The PSR also reflected that Howell had previously been convicted 

of a third-degree felony under a Texas statute, which provided that a person 

commits an offense if he or she 

intentionally, knowingly, or recklessly causes bodily injury to 

another, including the person’s spouse . . . [and] the offense is 

committed against . . . a person [who is a family member or has

another defined relationship with the defendant] . . . [and] the 

offense is committed by intentionally, knowingly, or recklessly 

impeding the normal breathing or circulation of the blood of the 

person by applying pressure to the person’s throat or neck or by 

blocking the person’s nose or mouth.2

The PSR concluded that Howell’s conviction under this statute qualified 

as a “crime of violence” within the meaning of U.S.S.G. § 4B1.2(a),3 without 

 

1 See, e.g., U.S. Sentencing Guidelines Manual § 2K2.1(a)(3) (U.S. Sentencing Comm’n 

2014) (directing a base offense level of 22 when “(A) the offense involved a . . . semiautomatic 

firearm that is capable of accepting a large capacity magazine . . . and (B) the defendant 

committed any part of the instant offense subsequent to sustaining one felony conviction of 

either a crime of violence or a controlled substance offense”).

2 Tex. Penal Code Ann. § 22.01(a)(1), (b)(2)(B) (West 2009).

3 U.S. Sentencing Guidelines Manual § 4B1.2(a) (U.S. Sentencing Comm’n 2014) (“The 

term ‘crime of violence’ means any offense under federal or state law, punishable by 

imprisonment for a term exceeding one year, that . . . (1) 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.”).

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specifying whether one or both of the two subsections of that provision

supported this conclusion. Pursuant to U.S.S.G. § 2K2.1(a)(3), the PSR 

recommended a base offense level of 22. After applying other adjustments, the 

PSR calculated a total offense level of 27 and a criminal history category of IV, 

yielding an advisory sentencing range of 100 to 120 months of imprisonment.

Howell filed written objections to the base offense level, arguing that the

prior Texas conviction at issue in this appeal did not qualify as a “‘crime of 

violence’ under U.S.S.G. § 4B1.2.” Howell advanced two arguments. First, he 

contended that the Texas offense could not be a crime of violence because the 

mens rea required in the Texas statute included “recklessly” committing the 

assault. The Texas indictment alleged that he intentionally, knowingly, and 

recklessly caused injury to another person, and he asserted in his objections to 

the PSR that his guilty plea to that indictment must be construed as a plea to 

the least culpable conduct, which was recklessness. He did not specifically 

argue that “use” as used in subsection (1) of § 4B1.2(a) could not encompass 

reckless conduct, nor did he allude to the “use” language in that subsection. 

He did expressly address the residual clause embodied in § 4B1.2(a)(2), but he 

acknowledged that his argument regarding recklessness in this context was 

foreclosed by then-existing-circuit precedent, United States v. Espinoza.4 In 

Espinoza, this court held that a violation of Texas Penal Code § 22.01(a) and 

(b)(2)(A), with a mens rea of recklessness qualified as a “violent felony” under 

the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. 

 

4 733 F.3d 568 (5th Cir. 2013).

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§ 924(e)(2)(B)(ii).5 Second, Howell objected to the PSR on the basis that the 

residual clause in § 4B1.2(a)(2) is unconstitutionally vague.

A PSR addendum recommended that the court reject Howell’s objection 

regarding recklessness as foreclosed by precedent but did not address Howell’s 

vagueness challenge. The addendum also attached the indictment, judgment, 

and judicial confession pertaining to Howell’s prior Texas conviction. 

At the sentencing hearing, Howell reaffirmed his objections to the 

offense-level enhancement for his prior Texas conviction of assault. The 

district court overruled those objections and imposed a sentence of 100 months 

of imprisonment, to be followed by two years of supervised release. Without 

the enhancement, Howell contends that his offense level would be 25, yielding

an advisory sentencing range of 84 to 105 months of imprisonment.

Howell has appealed.

II

Because we conclude that Howell’s prior Texas assault offense “has as 

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

the person of another,” within the meaning of § 4B1.2(a)(1) of the Guidelines, 

we do not reach the constitutional vagueness challenge to the “residual” clause 

of this Guidelines provision set forth in § 4B1.2(a)(2). The “residual” clause in 

§ 4B1.2(a)(2) is identical in its wording to the “residual” clause in the ACCA,6

with the exception of the inclusion of the words “of a dwelling” after “burglary” 

in the Guidelines section. While Howell’s appeal was pending, the Supreme 

 

5 Id. at 572-74.

6 Compare U.S. Sentencing Guidelines Manual § 4B1.2(a)(2) (Sentencing Comm’n. 

2014), with 18 U.S.C. § 924(e)(2)(B)(ii). 

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Court held in Johnson v. United States that the residual clause in the ACCA is 

unconstitutionally vague.7 

In light of Johnson, some of the reasoning in our decision in United 

States v. Espinoza8 remains persuasive, but its holding is no longer binding 

precedent, since the Espinoza opinion concluded that the Texas offense of 

assault, for which Howell was convicted, was a “violent felony” under the 

residual clause of the ACCA,9 and that clause is no longer an enforceable part 

of the ACCA.

However, the issue of whether the residual clause in § 4B1.2(a)(2) (as 

distinguished from the residual clause of the ACCA) is void for vagueness 

presents a constitutional issue that our court did not address in Espinoza. The 

Courts of Appeals that have considered the issue have divided: the Eleventh 

Circuit has held that none of the Sentencing Guidelines’ provisions can be 

attacked as unconstitutional;10 the Third, Sixth, Seventh, and Tenth Circuits 

have held that § 4B1.2(a)(2) is unconstitutionally vague.11 The Supreme Court 

may soon resolve the question; it has granted a petition for writ of certiorari in 

 

7 135 S. Ct. 2551, 2563 (2015).

8 733 F.3d 568 (5th Cir. 2013).

9 Id. at 569, 573.

10 See United States v. Matchett, 802 F.3d 1185, 1196 (11th Cir. 2015), reh’g en banc 

denied, No. 14-10396, 2016 WL 4757211 (September 13, 2016); see also United States v. 

Gonzalez-Longoria, No. 15-40041, 2016 WL 4169127, at *6, *8 (5th Cir. Aug. 5, 2016) (Jones, 

J., concurring) (contending that the majority opinion’s holding that 18 U.S.C. § 16(b) is not 

unconstitutionally vague “could have been obviated with a holding that neither the U.S. 

Sentencing Guidelines, nor extrinsic statutes cross-referenced in the Guidelines, are subject 

to challenges based on the Due Process Clause’s prohibition of vague laws” and that “Due

process requires only notice and predictability in the statutory range of punishments 

following conviction. . . . [and] vagueness challenges cannot stand against a discretionary 

scheme of sentencing within that range”).

11 See United States v. Calabretta, No. 14-3969, 2016 WL 3997215, at *4 (3d Cir. July 

26, 2016); United States v. Pawlak, 822 F.3d 902, 903 (6th Cir. 2016); United States v. 

Hurlburt, No. 14-3611, 2016 WL 4506717, at *1 (7th Cir. Aug. 29, 2016); United States v. 

Madrid, 805 F.3d 1204, 1212 (10th Cir. 2015).

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Beckles v. United States,12 and the issue is presented in that case. However, 

we are obliged to consider non-constitutional issues that would be dispositive 

of the appeal before we reach a constitutional question.13 We therefore first

consider the Government’s contention that Howell’s Texas conviction is a 

“crime of violence” within the meaning of § 4B1.2(a)(1). The Government 

contends that the Texas assault offense “has as an element the use, attempted 

use, or threatened use of physical force against the person of another.”14

III

“For properly preserved claims, this court reviews the district court’s 

interpretation and application of the Sentencing Guidelines de novo.”15 It is at 

least subject to debate, however, whether Howell preserved a claim that his 

prior offense did not have “as an element the use, attempted use, or threatened 

use of physical force against the person of another.” 

Conspicuously absent from the Government’s brief is a statement or 

argument as to the standard of review that we should apply. Nor does the 

 

12 136 S.Ct. 2510 (2016).

13 See, e.g., Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 205 (2009) 

(“[I]t is a well-established principle governing the prudent exercise of this Court’s jurisdiction 

that normally the Court will not decide a constitutional question if there is some other ground 

upon which to dispose of the case.”) (quoting Escambia Cty v. McMillan, 466 U.S. 48, 51 

(1984) (per curiam)); Jean v. Nelson, 472 U.S. 846, 854 (1985) (“Prior to reaching any 

constitutional questions, federal courts must consider nonconstitutional grounds for 

decision.”) (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 99 (1981)); Clay v. Sun Ins. Office 

Ltd., 363 U.S. 207, 209 (1960) (“By the settled canons of constitutional adjudication the 

constitutional issue should have been reached only if, after decision of two non-constitutional 

questions, decision was compelled.”); Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347

(1936) (Brandeis, J., concurring) (“The Court will not pass upon a constitutional question 

although properly presented by the record, if there is also present some other ground upon 

which the case may be disposed of. . . . Thus, if a case can be decided on either of two grounds, 

one involving a constitutional question, the other a question of statutory construction or 

general law, the Court will decide only the latter.”). 14 U.S. Sentencing Guidelines Manual § 4B1.2(a)(1) (Sentencing Comm’n. 2014)

15 United States v. Cedillo-Narvaez, 761 F.3d 397, 401 (5th Cir. 2014).

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Government contend that Howell’s objections in the district court were 

inadequate to preserve each of his contentions on appeal. We will assume, 

without deciding, that Howell’s objections were sufficient to preserve the 

contention that his offense is not one involving a use of force, since we conclude 

that under either a de novo standard or the plain error standard of review, the 

district court did not err in determining that the prior Texas offense was a 

crime of violence.

It is not entirely clear if the district court considered whether Howell’s 

Texas assault conviction has as an element the “use” of physical force under 

subsection (a)(1) of § 4B1.2. We may nevertheless affirm the district court’s 

application of the Guidelines on any ground supported by the record.16

IV

The Government maintains that we need not consider whether 

committing the Texas offense at issue with the mental state of recklessness 

constitutes a crime of violence under § 4B1.2 because, the Government asserts,

Howell judicially admitted in the state court of conviction that he acted 

intentionally in committing the assault. The state court records reflect that 

Howell pled guilty to the allegations in the indictment that he acted 

“intentionally, knowingly and recklessly.” 

This court’s decisions as to the effect of such a plea are in tension. Before 

we consider those decisions, however, an explanation of the so-called 

“categorical” and “modified categorical” approaches is necessary. In 

determining if a prior conviction is for an offense enumerated or defined in a 

Guidelines provision, we generally apply the categorical approach and look to 

 

16 See, e.g., United States v. Garcia-Gonzalez, 714 F.3d 306, 314 (5th Cir. 2013) (“We 

may affirm an enhancement on any ground supported by the record.”) (citing United States 

v. Jackson, 453 F.3d 302, 308 n.11 (5th Cir. 2006)).

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the elements of the offense enumerated or defined by the Guideline section and 

compare those elements to the elements of the prior offense for which the 

defendant was convicted.17 We do not consider the actual conduct of the 

defendant in committing the offense.18 If the offense is an enumerated offense, 

such as burglary, we first determine the elements contained in the generic, 

contemporary meaning of that offense.19

In one of several decisions on the subject, the Supreme Court explained 

the application of the categorical approach in Descamps v. United States.20 The 

 

17 United States v. Hinkle, No. 15-10067, 2016 WL 4254372, at *2 (5th Cir. Aug. 11, 

2016).

18 Id. See, e.g., United States v. Carrasco-Tercero, 745 F.3d 192, 195 (5th Cir. 2014) 

(“This court employs a categorical approach in determining whether an offense qualifies as a 

crime of violence under § 2L1.2. ‘[W]e examine the elements of the offense, rather than the 

facts underlying the conviction or the defendant’s actual conduct, to determine whether an 

offense meets the definition of a [crime of violence].’” (quoting United States v. Ortiz-Gomez, 

562 F.3d 683, 684 (5th Cir. 2009))).

19 See, e.g., Taylor v. United States, 495 U.S. 575, 598 (1990) (construing the ACCA, 

18 U.S.C. § 924(e), and concluding that “[a]lthough the exact formulations vary, the generic, 

contemporary meaning of burglary contains at least the following elements: an unlawful or 

unprivileged entry into, or remaining in, a building or other structure, with intent to commit 

a crime.”).

20 133 S. Ct. 2276, 2283 (2013) (citations omitted) (construing the ACCA):

Sentencing courts may “look only to the statutory definitions”—i.e., the 

elements—of a defendant’s prior offenses, and not “to the particular facts 

underlying those convictions.” If the relevant statute has the same elements 

as the “generic” ACCA crime, then the prior conviction can serve as an ACCA 

predicate; so too if the statute defines the crime more narrowly, because anyone 

convicted under that law is “necessarily . . . guilty of all the [generic crime’s] 

elements.” But if the statute sweeps more broadly than the generic crime, a 

conviction under that law cannot count as an ACCA predicate, even if the 

defendant actually committed the offense in its generic form. The key, we 

emphasized, is elements, not facts. So, for example, we held that a defendant 

can receive an ACCA enhancement for burglary only if he was convicted of a 

crime having “the basic elements” of generic burglary—i.e., “unlawful or 

unprivileged entry into, or remaining in, a building or structure, with intent to 

commit a crime.” And indeed, we indicated that the very statute at issue here, 

§ 459, does not fit that bill because “California defines ‘burglary’ so broadly as 

to include shoplifting.”

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Supreme Court also explained in Descamps, as it had in prior opinions, that 

when a statute defines more than one crime, and not all of them constitute an 

enumerated generic offense, courts employ the “modified categorical approach” 

to “determine which crime formed the basis of the defendant’s conviction.”21 

Courts may consult certain records pertaining to the prior offense to ascertain 

if the conviction rested on the generic or defined crime or instead was an overinclusive offense that could not support a sentence enhancement.22 But, if the 

statute of conviction is not divisible, “[t]he modified [categorical] approach . . . 

has no role to play.”23

 

21 Id. at 2283-84; see also id. 2284-85 (citations omitted):

We recognized that when a statute so “refer[s] to several different crimes,” not 

all of which qualify as an ACCA predicate, a court must determine which crime 

formed the basis of the defendant’s conviction. That is why, we explained, 

Taylor and Shepard developed the modified categorical approach. By 

reviewing the extra-statutory materials approved in those cases, courts could 

discover “which statutory phrase,” contained within a statute listing “several 

different” crimes, “covered a prior conviction.” And a year later, we repeated 

that understanding of when and why courts can resort to those documents: 

“[T]he ‘modified categorical approach’ that we have approved permits a court 

to determine which statutory phrase was the basis for the conviction.” 

Applied in that way—which is the only way we have ever allowed—the 

modified approach merely helps implement the categorical approach when a 

defendant was convicted of violating a divisible statute. The modified 

approach thus acts not as an exception, but instead as a tool. It retains the 

categorical approach’s central feature: a focus on the elements, rather than the 

facts, of a crime. And it preserves the categorical approach’s basic method: 

comparing those elements with the generic offense’s. All the modified 

approach adds is a mechanism for making that comparison when a statute lists 

multiple, alternative elements, and so effectively creates “several 

different . . . crimes.” If at least one, but not all of those crimes matches the 

generic version, a court needs a way to find out which the defendant was 

convicted of. That is the job, as we have always understood it, of the modified 

approach: to identify, from among several alternatives, the crime of conviction 

so that the court can compare it to the generic offense.

22 See, e.g., Shepard v. United States, 544 U.S. 13, 26 (2005). 23 Descamps, 133 S. Ct. at 2285.

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The Government contends that Howell’s statute of conviction is divisible 

and therefore that his guilty plea and accompanying admissions establish that 

he was convicted of intentionally impeding the breath or circulation of the 

victim. Howell disagrees, observing that in United States v. Espinoza, this 

court said that the defendant’s “judicial confession is simply a blanket 

statement admitting that he committed the assault with every listed category 

of mental culpability,” but that “[t]his does not support a finding that Espinoza 

committed the act intentionally and knowingly and not recklessly.”24 We 

concluded in Espinoza that “we apply the ‘least culpable means’ analysis to 

this case and assume that Espinoza’s offense was committed recklessly.”25

The Government contends that Espinoza failed to adhere to prior, 

binding precedent of this court, and that our court has disapproved of 

Espinoza’s conclusion regarding the import of a guilty plea. The Government

cites our decision in United States v. Conde-Castaneda, which said:

Espinoza cannot overturn the earlier decided case of Garcia–

Arellano. To the extent that the holding of Espinoza is inconsistent 

with Garcia–Arellano, Garcia–Arellano controls. Espinoza cited 

no authority when it stated that the judicial confession failed to 

support the enhancement. Espinoza’s scant reasoning indicates 

either that the case is a true outlier in our caselaw, that its 

pronouncement was dicta, or both.26

In Conde-Castaneda, we considered a Texas burglary statute that set forth 

three subsections describing what constituted burglary of a habitation, and

concluded that it contained divisible crimes.27 We therefore held “that the 

 

24 733 F.3d 568, 572 (5th Cir. 2013). 25 Id. (quoting United States v. Houston, 364 F.3d 243, 246 (5th Cir. 2004)). 26 753 F.3d 172, 178 (5th Cir. 2014) (citations omitted) (referencing United States v. 

Garcia-Arellano, 522 F.3d 477 (5th Cir. 2008)).

27 Id. at 176 (examining Tex. Penal Code § 30.02(a)).

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modified categorical approach applies here,” and we relied on the defendant’s 

written confession in concluding that he had been convicted of the generic 

crime of burglary,28 which constituted a “crime of violence” within the meaning 

of § 2L1.2(b)(1)(A)(ii) of the Guidelines.29

The Conde-Castaneda decision discussed United States v. GarciaArellano, in which this court was reviewing a Guidelines sentencing 

enhancement for plain error.30 The prior offense was a conviction under Texas 

Health and Safety Code section 481.112(a), which the district court held was a 

“drug trafficking offense” under § 2L1.2(b)(1)(B) of the Guidelines.31 We

recognized that the Texas statute at issue, section 481.112(a), “encompasses 

‘both conduct that does constitute a drug trafficking offense . . . and conduct 

that does not (offering to sell cocaine).’”32 But we concluded that based on the 

record in that case, there was a means of determining whether the conviction 

was for conduct that did constitute a drug trafficking offense. The GarciaArellano decision held that “a written judicial confession also constitutes a 

‘comparable judicial record’ under Shepard, and that it may be considered in 

determining whether a defendant’s prior conviction constitutes a drug 

trafficking offense under the guidelines.”33 Because Garcia-Arellano had 

judicially admitted the Texas indictment’s charges against him and admitted 

that he knowingly and intentionally delivered a controlled substance as well 

 

28 Id. at 177-78.

29 U.S. Sentencing Guidelines Manual § 2L1.2(b)(1)(A)(ii) (Sentencing Comm’n. 2013).

30 522 F.3d 477, 480 (5th Cir. 2008).

31 Id. at 479.

32 Id. at 480 (quoting United States v. Morales-Martinez, 496 F.3d 356, 358 (5th Cir. 

2007), and citing United States v. Gonzales, 484 F.3d 712, 714-15 (5th Cir. 2007)).

33 Id. at 481 (citing Shepard v. United States, 544 U.S. 13, 26 (2005)).

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as admitting to an offer to sell, our court concluded that the Texas conviction 

qualified as a drug trafficking offense under the Guidelines.34

Six years after our decision in United States v. Garcia-Arellano, the

Supreme Court emphasized, in United States v. Castleman, that if a statute is 

“divisible,” meaning that it sets forth separate offenses, then it is permissible 

to consult the defendant’s guilty plea to determine which offense was the basis 

for the prior conviction.35 The Court held that because Castleman had pleaded 

guilty to knowingly and intentionally causing bodily injury, he had committed 

a predicate offense within the meaning of 18 U.S.C. § 922(g)(9).36

The Government recognizes in its briefing in the present case that a 

court may only apply the so-called modified categorical approach discussed in 

Shepard and other cases if the statute of conviction is “divisible,” citing the 

Supreme Court’s decision in Descamps v. United States.37 The issue that has 

divided courts, and with great respect to the Supreme Court, confused courts 

attempting to apply Descamps and the decisions preceding it,38 is how to 

determine if a statute is “divisible.”

 

34 Id. 35 134 S. Ct. 1405, 1414 (2014) (“[T]he parties do not contest that [the Tennessee 

statute under which the defendant was previously convicted] is a ‘divisible statute’ . . . . We 

may accordingly apply the modified categorical approach, consulting the indictment to which

Castleman pleaded guilty in order to determine whether his conviction did entail the 

elements necessary to constitute the generic federal offense.”).

36 Id. 37 133 S. Ct. 2276, 2281 (2013).

38 See Mathis v. United States, 136 S. Ct. 2243, 2251 (2016) (recognizing “a Circuit 

split over whether ACCA’s general rule—that a defendant’s crime of conviction can count as 

a predicate only if its elements match those of a generic offense—gives way when a statute 

happens to list various means by which a defendant can satisfy an element”) (citing United 

States v. Mathis, 786 F.3d 1068 (8th Cir. 2015) (recognizing such an exception); United States 

v. Ozier, 796 F.3d 597 (6th Cir. 2015) (same); United States v. Trent, 767 F.3d 1046 (10th Cir.

2014) (same); Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014) (rejecting that exception); 

Omargharib v. Holder, 775 F.3d 192 (4th Cir. 2014) (same)).

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While this appeal was pending, the Supreme Court issued its decision 

in Mathis v. United States,39 which provided needed guidance on when a 

statute of conviction is divisible. Though Mathis dealt with the ACCA, rather 

than the Guidelines, the methodology of determining whether a statute is 

divisible and therefore whether the modified categorical approach may be 

employed, is the same, unless the Guidelines were to specify otherwise. The 

Supreme Court explained that if a statute sets forth only various means of 

committing the offense, it is not divisible, but if the statute sets forth more 

than one offense by including alternative elements of each offense, then the 

statute is divisible.40 The test to distinguish means from elements is whether 

a jury must agree.41

In Mathis, an Iowa burglary statute criminalized entry into or onto 

locations that included a building, a structure, land, water, or an air vehicle.42

Because generic burglary does not proscribe burglary of vehicles, the Iowa 

offense was overly inclusive; it included conduct that was not generic 

burglary.43 The sentencing court considered documents pertaining to Mathis’s 

prior convictions, which reflected that Mathis had burgled structures not 

vehicles, and the district court concluded that the sentencing enhancement 

 

39 136 S. Ct. 2243 (2016).

40 See id. at 2256 (explaining that a “sentencing court faced with an alternatively 

phrased statute” must first decide if the “listed items are elements or means. If they are 

elements, the court should [apply the categorical approach]. . . . But if instead they are 

means, the court has no call to decide which of the statutory alternatives was at issue in the 

earlier prosecution.”). 41 See id. at 2249 (explaining that the jurors in the Mathis case did not need to make 

any specific finding as to where the crime occurred, where the statute merely “itemize[d] the 

various places that crime could occur as disjunctive factual scenarios rather than separate 

elements”). 42 Id. at 2250.

43 Id. at 2256.

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under the ACCA applied.44 The Eighth Circuit affirmed, holding that whether 

the itemized list of places “amount[ed] to alternative elements or merely 

alternative means to fulfilling an element, the statute is divisible, and we must 

apply the modified categorical approach.”45 The Supreme Court reversed the 

Eighth Circuit because the Iowa Supreme Court has held that the Iowa statute 

sets forth “alternative method[s] of committing [the] single crime,” and an Iowa 

“jury need not agree on which of the locations was actually involved.”46

We recently discussed the import of Mathis in United States v. Hinkle:

The decision in Mathis instructs that there is a difference 

between alternative elements of an offense and alternative means 

of satisfying a single element. 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.47

In light of Mathis, we know that we must determine whether “listed 

items” in a state statute “are elements or means,” and if “a state court decision 

definitively answers the question” our inquiry is at an end.48 The Texas Court 

of Criminal Appeals has held that the three mental states listed in section 

22.01(a) do not describe three distinct offenses. The Texas court has said:

This actus reus [which the court held is “causing bodily 

injury”] must be accompanied by a culpable mental state. In its 

“bodily injury” assault subsection [22.01(a)], the legislature stated 

that any of three culpable mental states suffices: intentionally, 

knowingly, or recklessly causing bodily injury. The legislature was 

apparently neutral about which of these three mental states 

 

44 Id. at 2250. 

45 United States v. Mathis, 786 F.3d 1068, 1075 (8th Cir. 2015).

46 Mathis, 136 S. Ct. at 2250 (citing State v. Duncan, 312 N.W.2d 519, 523 (Iowa 1981)).

47 No. 15-10067, 2016 WL 4254372, at *4 (5th Cir. Aug. 11, 2016) (citations omitted).

48 Mathis, 136 S. Ct. at 2256.

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accompanied the forbidden conduct because all three culpable 

mental states are listed together in a single phrase within a single 

subsection of the statute. There is no indication that the 

legislature intended for an “intentional” bodily injury assault to be 

a separate crime from a “knowing” bodily injury assault or that 

both of those differ from a “reckless” bodily injury assault. All 

three culpable mental states are strung together in a single phrase 

within a single subsection of the statute. All result in the same 

punishment. They are conceptually equivalent.49

Though this decision of the Texas court is not definitive in the sense that 

it did not explicitly consider the “intentionally, knowingly, or recklessly” 

mental states set forth in subsection 22.01(b)(2)(B), it is clear from the court’s 

reasoning that it would not construe the import of listing these mental states 

any differently than it construed the same listing in the preceding subsection 

of the statute. Nor can we discern any basis for the conclusion that the Texas 

Legislature intended to create three separate offenses depending on the mental 

state under subsection (b)(2)(B) but did not intend to do so when it used the 

same language in subsection (a). 

This means that the offense for which Howell was convicted is not 

divisible on the basis of a defendant’s mental state. A jury could permissibly 

find a defendant guilty even though some jurors might conclude the accused 

acted “intentionally,” others might conclude that the accused acted

“knowingly,” and others might find only that the accused acted “recklessly,” as 

long as the jury found that the accused “intentionally, knowingly, or recklessly

imped[ed] the normal breathing or circulation of the blood of the person”

assaulted.50

 

49 Landrian v. State, 268 S.W.3d 532, 537 (Tex. Crim. App. 2008) (citations omitted).

50 Price v. State, 457 S.W.3d 437, 442 (Tex. Crim. App. 2015) (emphasis added) 

(holding that “the offense defined by sections 22.01(a)(1) and (b)(2)(B) has three parts, two of 

which include culpable mental states” and that “intentionally, knowingly, or recklessly” in 

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Accordingly, the modified categorical approach cannot be employed to 

“narrow” the statute of conviction, and Howell’s admission of guilt does not 

establish that he was convicted of a distinct offense of intentionally causing 

the specified bodily injury as distinguished from recklessly causing the injury. 

We therefore must consider whether recklessly causing bodily injury by 

recklessly impeding breathing or circulation51 “has as an element the use, 

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

another.”52

V

The Government contends, as an alternative ground for affirming the 

district court’s judgment, that every means of committing the offense for which 

Howell was convicted has as an element the use of force. Howell responds that 

our court’s decision in United States v. Vargas-Duran53 has construed “use” of 

physical force to require that a defendant intentionally use force. Howell also 

relies on a footnote in the Supreme Court’s decision in United States v. 

Castleman, which said, “[a]lthough Leocal reserved the question whether a 

reckless application of force could constitute a ‘use’ of force, the Courts of 

Appeals have almost uniformly held that recklessness is not sufficient.”54

The Supreme Court did not resolve in Castleman whether “reckless

causation of bodily injury” could constitute the use of force.55 In Castleman, 18 

 

the third part modifies “impeding the normal breathing or circulation of the blood of the 

person”).

51 See id. 52 U.S. Sentencing Guidelines Manual § 4B1.2(a)(1) (Sentencing Comm’n. 2014)

53 356 F.3d 598, 603 (5th Cir. 2004).

54 134 S. Ct. 1405, 1414 n.8 (2014) (internal citations omitted) (citing Leocal v. 

Ashcroft, 543 U.S. 1, 13 (2004)).

55 Id. at 1413; see also Voisine v. United States, 136 S. Ct. 2272, 2277 (2016) (“[W]e 

expressly left open [in Castleman] whether a reckless assault also qualifies as a ‘use’ of 

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U.S.C. § 922(g)(9) “forbade the possession of firearms by anyone convicted of ‘a 

misdemeanor crime of domestic violence,’” and the Court concluded that 

Castleman’s conviction under a Tennessee statute for knowingly or 

intentionally causing bodily injury to the mother of his child was a 

“misdemeanor crime of domestic violence.”56

However, while the present appeal was pending, the Supreme Court held 

in Voisine v. United States, that “misdemeanor assault convictions for reckless 

(as contrasted to knowing or intentional) conduct trigger the statutory firearms 

ban” in 18 U.S.C. § 922(g)(9).57 The phrase “misdemeanor crime of domestic 

violence,” used in § 922(g)(9), was defined in another section of the statute:

[T]he term “misdemeanor crime of domestic violence” means 

an offense that--

(i) is a misdemeanor under Federal, State, or Tribal law; and

(ii) has, as an element, the use or attempted use of physical 

force, or the threatened use of a deadly weapon, committed by a 

current or former spouse, parent, or guardian of the victim, by a 

person with whom the victim shares a child in common, by a 

person who is cohabiting with or has cohabited with the victim as 

a spouse, parent, or guardian, or by a person similarly situated to 

a spouse, parent, or guardian of the victim.58

Accordingly, as the Supreme Court recognized, “Congress defined that 

phrase to include crimes that necessarily involve the ‘use . . . of physical 

force.’”59 The Supreme Court held, “[r]eckless assaults, no less than the 

knowing or intentional ones we addressed in Castleman, satisfy that 

 

force—so that a misdemeanor conviction for such conduct would trigger § 922(g)(9)’s firearms 

ban.”).

56 134 S. Ct. at 1414.

57 136 S. Ct. 2272, 2276 (2016).

58 18 U.S.C. § 921(a)(33)(A) (emphasis added).

59 Voisine, 136 S. Ct. at 2278.

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definition.”60 The Court reasoned that “[d]ictionaries consistently define the 

noun ‘use’ to mean the ‘act of employing’ something,”61 and that “[o]n that 

common understanding, the force involved in a qualifying assault must be 

volitional; an involuntary motion, even a powerful one, is not naturally 

described as an active employment of force.”62 The Court also reasoned that 

“[t]he harm [reckless behavior] causes is the result of a deliberate decision to 

endanger another—no more an ‘accident’ than if the ‘substantial risk’ were 

‘practically certain.’”63 The Court observed that “the word ‘use’ . . . is 

indifferent as to whether the actor has the mental state of intention, 

knowledge, or recklessness with respect to the harmful consequences of his 

volitional conduct.”64 

This court’s reasoning in an earlier, en banc, decision on which Howell 

relies, United States v. Vargas-Duran,65 is similar in many respects to the 

reasoning in Voisine. In Vargas-Duran, the defendant had previously been 

convicted under a Texas statute that provided a person is guilty of intoxication 

assault if he or she “by accident or mistake, while operating an aircraft, 

watercraft or motor vehicle in a public place while intoxicated, by reason of 

that intoxication causes serious bodily injury to another.”66 We held that this 

prior offense was not a crime of violence within the meaning of § 2L1.2 of the 

 

60 Id. (citing United States v. Castleman, 134 S. Ct. 1405 (2014)). 61 Id. (citing Webster's New International Dictionary 2806 (2d ed. 1954) (“[a]ct of 

employing anything”); Random House Dictionary of the English Language 2097 (2d ed. 1987) 

(“act of employing, using, or putting into service”); Black's Law Dictionary 1541 (6th ed. 1990) 

(“[a]ct of employing,” “application”)). 62 Id. at 2278-79.

63 Id. at 2279.

64 Id. 65 356 F.3d 598 (5th Cir. 2004).

66 Id. at 600 (quoting Tex. Penal Code Ann. § 49.07 (West 1994)) (internal quotation 

marks omitted).

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Guidelines. The commentary to this section of the Guidelines defined “crime 

of violence” to include “an 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.”67 Like the Supreme Court in Voisine, we consulted 

dictionary definitions of “use” and concluded that “‘use of force’ means ‘the act 

of employing force for any . . . purpose,’ or ‘to avail oneself of force.’”68 We also 

indicated that “the dictionary definitions of ‘use’ indicate that the word ‘refers 

to volitional, purposeful, not accidental, employment of whatever is being 

‘used.’”69 We were not presented in Vargas-Duran with an offense in which 

recklessness was an element or means; the Texas statute specified “accident” 

or “mistake” as the levels of culpability. We concluded that the “use . . . of 

physical force” phrase in § 2L1.2 of the Guidelines “requires that a defendant 

intentionally avail himself of that force.”70 We had no cause to consider, and 

we did not consider, whether “use” of physical force could encompass 

recklessness.

We conclude that Vargas-Duran is not controlling in the present case, 

for at least three reasons. First, as just noted, we did not have occasion to 

decide, and did not consider, whether an offense involving “recklessness” under 

at least some statutes could have as an element “use” of force. Second, though 

a somewhat technical matter, the decision in Vargas-Duran concerned § 2L1.2, 

not § 4B1.2, of the Guidelines. Third, the Supreme Court’s subsequent decision 

 

67 Id. (quoting U.S.S.G. Application Note 1(B)(ii)(I)) (internal quotation marks 

omitted).

68 Id. at 603 (quoting Webster’s Third New International Dictionary of the English 

Language Unabridged 2523 (1993)).

69 Id. at 604 (quoting United States v. Chapa-Garza, 243 F.3d 921, 926 (5th Cir. 2001)).

70 Id. at 599; see also id. at 600 (“We further hold that the intentional use of force must 

be an element of the predicate offense if the predicate offense is to enhance a defendant’s 

sentence.”).

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in Voisine substantially undercuts the statements in Vargas-Duran that “use” 

of force encompasses only intentional conduct.

The Supreme Court’s discussion in Voisine of the history of modern 

assault statutes is also illuminating as to the backdrop against which the 

Sentencing Commission defined a “crime of violence” as including “use” of force 

against another person. The Supreme Court noted in Voisine that “[s]everal

decades” before Congress enacted the ACCA, “the Model Penal Code had taken 

the position that a mens rea of recklessness should generally suffice to 

establish criminal liability, including for assault.”71 The Court observed that 

thereafter, “States quickly incorporated that view into their misdemeanor 

assault and battery statutes. So in linking § 922(g)(9) to those laws, Congress 

must have known it was sweeping in some persons who had engaged in 

reckless conduct.”72 The Sentencing Commission similarly must have known 

that the Model Penal Code had taken the position that a mens rea of 

recklessness should establish criminal liability, and that various states 

incorporated that view into assault statutes. In any event, the Commission 

has largely modeled the “crime of violence” definition that includes of “use” of 

force after the ACCA’s similar “use” of force provision.

We therefore conclude that the mental state of recklessness may qualify 

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

use of physical force against the person of another” within the meaning of 

§ 4B1.2(a)(1) of the Guidelines. We further conclude from the terms of the 

 

71 Voisine v. United States, 136 S. Ct. 2272, 2280 (2016) (citing Model Penal Code 

§ 2.02(3), cmts 4-5, at 243-44 (explaining that “purpose, knowledge, and recklessness are 

properly the basis for” such liability) and § 211.1 (defining assault to include “purposely, 

knowingly, or recklessly caus[ing] bodily injury”)). 72 Id. (citing United States v. Bailey, 34 U.S. 238, 256 (1835) (Story, J.) (“Congress 

must be presumed to have legislated under this known state of the laws”)).

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Texas statute under which Howell was convicted that the use of physical force 

against the person of another is an element of the crime described. The Texas 

statute at issue provided in pertinent part:

(a) A person commits an offense if the person:

(1) intentionally, knowingly, or recklessly causes bodily 

injury to another, including the person’s spouse;

. . .

(b) An offense under Subsection (a)(1) is a Class A 

misdemeanor, except that the offense is a felony of the third degree 

if the offense is committed against:

. . .

(2) a person whose relationship to or association with the 

defendant is described by Section 71.0021(b), 71.003, or 71.005, 

Family Code, if:

. . .

(B) the offense is committed by intentionally, knowingly, or 

recklessly impeding the normal breathing or circulation of the 

blood of the person by applying pressure to the person’s throat or 

neck or by blocking the person’s nose or mouth. . . .73

The Texas Court of Criminal Appeals has held that “impeding normal 

breathing” within the context of § 22.01(b)(2)(B) “is per se a bodily injury,” 

which is defined by the Texas Penal Code as “physical pain, illness, or any 

impairment of physical condition.”74

To obtain a conviction for the least culpable Texas offense for which 

Howell was convicted, a jury would be required to find the defendant recklessly 

caused bodily injury committed by recklessly impeding the normal breathing 

or circulation of the blood of the person by applying pressure to the person’s 

 

73 Tex. Penal Code § 22.01(a)(1), (b)(2)(B) (West 2009).

74 See Marshall v. State, 479 S.W.3d 840, 843-44 (Tex. Crim. App. 2016) (citing Tex. 

Penal Code § 1.07(a)(8)).

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throat or neck or by blocking the person’s nose or mouth. It is difficult to 

conceive of how applying pressure to either a person’s throat or neck in a

manner that resulted in “impeding the normal breathing or circulation” could 

not involve the use of physical force. The same is true of blocking a person’s 

nose or mouth resulting in “impeding the normal breathing or circulation of 

the blood of the person.”

Howell hypothesizes that the statute would be violated “[i]f a defendant 

allows a plastic bag to ‘block’ a victim’s mouth or nose, and is reckless about 

the effect that might have.” But the statute does not contemplate that a bag 

might somehow, due to the recklessness of a defendant, block a victim’s nose. 

The statute’s operative language in this regard is “blocking,” which connotes 

an affirmative action taken to block the nose or mouth. Howell’s other 

examples are that a defendant “while carelessly performing yardwork . . . 

causes a substantial amount of dirt to fall on the victim’s face” or that “[i]f a 

victim’s necktie or scarf gets caught up in a piece of equipment used by the 

defendant, then that defendant might end up applying pressure to the victim’s 

neck or throat without intentionally using force.” But again, the operative 

language in the statute is “by applying pressure to the person’s throat” or “by 

blocking the person’s nose or mouth,” indicating affirmative action on the part 

of the defendant that is more direct than the examples given. 

More importantly, as the Supreme Court has held, 

to find that a state statute creates a crime outside the generic 

definition of a listed crime in a federal statute requires more than 

the application of legal imagination to a state statute’s language.

It requires a realistic probability, not a theoretical possibility, that 

the State would apply its statute to conduct that falls outside the 

generic definition of a crime. To show that realistic probability, an 

offender, of course, may show that the statute was so applied in his 

own case. But he must at least point to his own case or other cases 

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in which the state courts in fact did apply the statute in the special 

(nongeneric) manner for which he argues.75

Howell has not pointed to any case in which Texas courts have applied the 

statute in such a manner.

* * *

For the foregoing reasons, the judgment of the district court is 

AFFIRMED.

 

75 Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007).

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DANIEL P. JORDAN III, concurring: 

I concur in the ultimate holding but take no stand with respect to the 

discussion of the modified categorical approach. Assuming arguendo that 

Howell correctly urges the court to take the categorical approach, Texas Penal 

Code § 22.01(a)(1), (b)(2)(B) “has as an element the use, attempted use, or 

threatened use of physical force against the person of another.” U.S.S.G. § 

4B1.2(a). Howell’s primary argument is that a reckless breach of the Texas 

statute cannot constitute “use . . . of physical force.” Id. But “[n]othing in the 

word ‘use’ . . . indicates that [§ 4B1.2(a)] applies exclusively to knowing or 

intentional” conduct. Voisine v. United States, 136 S. Ct. 2272, 2278 (2016). 

When one “recklessly imped[es] the normal breathing or circulation of the 

blood of the person by applying pressure to the person’s throat or neck or by 

blocking the person’s nose or mouth,” Tex. Penal Code Ann. § 22.01(a)(1), 

(b)(2)(B) (West 2013), that person “[uses] physical force against the person of 

another,” U.S.S.G. § 4B1.2(a)(1). See Voisine, 136 S. Ct. at 2278. I therefore 

agree that the District Court should be affirmed.

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