Louisiana Aggravated Battery Not Categorically § 2L1.2 COV Because It Includes Administering Poison

United States v. Herrera-Alvarez, No. 12-41425 (5th Cir. May 22, 2014) (Davis, Garza, Dennis)

Herrera-Alvarez was convicted of illegal reentry and had a prior Louisiana conviction for aggravated battery under Louisiana Revised Statutes section 14:34.  The panel determines that section 14:34 as a whole is not categorically a § 2L1.2 crime of violence (“COV”) because it “criminalizes aggravated batteries committed by administering poison, which does not necessarily entail the use of destructive or violent physical force.” 

However, under the modified categorical approach, Herrera-Alvarez’s aggravated battery conviction is a COV.  Under Louisiana law, “[b]attery is the intentional use of force or violence upon the person of another; or the intentional administration of a poison or other noxious liquid or substance to another.”  Herrera-Alvarez’s charging document specifically said that he committed aggravated battery with a dangerous weapon, to wit: a knife, thereby excluding the possibility that the aggravated battery was committed by means of poisoning. 

The panel reasons that the touching of an individual with a deadly weapon is a sufficient threat of force to qualify as a COV.  Thus, Herrera-Alvarez’s conviction is a COV because it necessarily contains, as an element, the use, attempted use, or threatened use of force by requiring both physical contact and the use of a dangerous weapon used in a manner calculated or likely to produce death or great bodily harm.  The panel affirmed the 16-level enhancement and rejected Herrera-Alvarez’s arguments that the statute only requires offensive touching and that the offense can be committed while merely possessing the dangerous weapon, not touching an individual with it.

As a side note, the panel also explains why the instant case was not controlled by decisions finding that Louisiana aggravated battery is a COV under § 4B1.2(a) and a “serious violent felony” for purposes of 18 U.S.C. § 3559(c).  The panel explains that there is a “salient statutory distinction among the statutes and Guidelines provisions at issue,” so the other precedent does not control the § 2L1.2 determination.  For example, Louisiana aggravated battery is a COV under the residual clause of § 4B1.2(a) because it involves conduct that presents “a serious potential risk of physical injury to another’ and is “purposeful, violent, and aggressive.”  Section 2L1.2, however, does not have a comparable residual clause.  This is an important reminder to be sure to address the correct COV definition when analyzing and researching a COV issue because it can make a difference.