Louisiana Aggravated Battery Is Not a § 2L1.2 Crime of Violence

United States v. Hernandez-Rodriguez, No. 14-40321 (5th Cir. June 5, 2015) (Clement, Prado, Elrod)

This case involved determining whether the least culpable means of committing aggravated battery under Louisiana law involves conduct within the scope of the generic, contemporary meaning of “aggravated assault.” This classification determines whether the district court’s application of a sixteen-level enhancement for a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) is valid. The panel considers both the force clause and the enumerated offence clause for COV classification.

The Louisiana statue under which Hernandez-Rodriguez was convicted defines aggravated battery as “a battery committed with a dangerous weapon.” La. Rev. Stat. § 14:34. Louisiana’s criminal code then defines battery as either (1) “the intentional use of force or violence upon the person of another” or (2) “the intentional administration of a poison or other noxious liquid or substance to another.” Under state law, the term “dangerous weapon” includes any liquid, gas, substance or instrument that “in the manner used, is calculated or likely to produce death or great bodily harm.” § 14:2(A)(3).

This does not qualify under the force prong of § 2L1.2 because there are no Shepard-compliant documents identifying the subpart of the statute that forms the basis of his conviction.  Since the administration of poison alternative cannot be excluded, the least culpable act did not necessarily involve destructive or violent force.  United States v. Herrera-Alvarez, 753 F.3d 132 (5th Cir. 2014).

Nor does it qualify as a generic aggravated assault.  Under the Model Penal Code, a person is guilty of aggravated assault if he/she “attempts to cause serious bodily injury to another” or causes such injury “purposely, knowingly, or recklessly” or if he/she “attempts to cause” or “purposely or knowingly causes bodily injury to another with a deadly weapon.” Thus, the generic definition of aggravated assault requires a showing of specific intent, while the Louisiana offense of aggravated battery is a general intent offense.  Moreover, the requisite intent for Louisiana aggravated battery relates only to the defendant’s conduct, not to the infliction of serious bodily harm or the intent to inflict serious injury as in the Model Penal Code.  The panel provides a detailed example from Louisiana case law of how it is broader than generic aggravated assault and vacates the sentence and remands for resentencing.

Thanks to FPD Intern Samantha Canava for this blog post.