In support of its argument that Kinzy's indictment corresponds only to subsection (4), the Government cites this court's decisions in United States v. Sanchez-Espinal, 762 F.3d 425, 430 (5th Cir. 2014), and United States v. Torres-Jaime, 821 F.3d 577, 580-51 (5th Cir. 2016). But, far from supporting the Government's position here, those cases further illustrate why Kinzy's indictment fails to identify a subsection of conviction.
The Government cites several Texas aggravated assault cases in which a confrontation with a peace officer involved the defendant's use of physical force. In resolving the issue, we first note that recklessness is a sufficient mens rea for a crime of violence under Section 16. United States v. Sanchez-Espinal, 762 F.3d 425, 431 (5th Cir. 2014). Similarly, hypotheticals about ways that bodily-injury assault may be committed without force are not dispositive. "Being able to imagine unusual ways the crime could be committed without the use of physical force does not prevent it from qualifying as a crime of violence under § 16(b)."
The standard provided by 18 U.S.C. § 16(b) can be straightforwardly applied to Gonzalez-Longoria's prior offense, as is evidenced by this court's ease in applying the definition to other, similar offenses in the past. For example, in United States v. Sanchez–Espinal , 762 F.3d 425 (5th Cir. 2014), a panel of this court held that a New York felony conviction for aggravated criminal contempt qualifies as a “crime of violence” under 18 U.S.C. § 16(b) for purposes of the same eight-level guidelines enhancement at issue here. Id. at 431.
If “a statute contains multiple, disjunctive subsections,” we apply a modified categorical approach. See United States v. Sanchez–Espinal, 762 F.3d 425, 429 (5th Cir.2014). Under this approach, we “look beyond the statute to certain conclusive records made or used in adjudicating guilt in order to determine which particular statutory alternative applies to the defendant's conviction,” and apply the categorical approach to that version of the crime. Id. (quoting United States v. Bonilla–Mungia, 422 F.3d 316, 320 (5th Cir.2005)). A court may review “the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented” in order to determine under which elements the defendant was charged.
Cf. United States v. Zarco-Beiza, 24 F.4th 477, 482, n.4 (5th Cir. 2022) (holding that a defendant's written objection to the PSR that "he is presumed innocent of any arrests or apprehension not resulting in a conviction" did not "reasonably 'inform[] the court of the legal error at issue'i.e., improper reliance on a bare arrest record" (quoting Holguin-Hernandez v. United States, 140 S.Ct. 762, 766 (2020)); United States v. Sanchez-Espinal, 762 F.3d 425, 429 (5th Cir. 2014) ("[T]he objections raised to the PSR and at the sentencing hearing did not put the district court on notice" of defendant's argument.). Plain error review requires that Curry establish an error that is clear or obvious.
We reject Lassend's assertion that the indictment must expressly cite § 120.05(7) for the documents to establish that he was convicted under that statutory provision. See United States v. Sanchez-Espinal, 762 F.3d 425, 430 (5th Cir. 2014) (holding that "[a] charging [document] that closely tracks the language of a particular statute can establish that the defendant was charged under that section"). We also reject Lassend's claim that the documents do not establish that he was convicted under § 120.05(7) because the plea-colloquy transcript shows that he pled guilty to "attempted assault" whereas the indictment charged assault.
As such, our review is for plain error only, of which we perceive none. Escobar is able to direct us only to allegedly analogous, out-of-circuit authority in support of his arguments, and the position that he asks us to adopt is not a "straightforward application of the Guidelines."United States v. Sanchez–Espinal, 762 F.3d 425, 429 (5th Cir. 2014).Id.
See Garland, 615 F.3d at 394. Jackson also relies on United States v. Sanchez-Espinal, 762 F.3d 425 (5th Cir. 2014), but that is not a Supreme Court decision, so it cannot satisfy the first prong of the Reyes-Requena test. See Reyes-Requena, 243 F.3d at 904.
Because his objection did not put the district court on notice as to whether it should include a cautionary instruction, we review his claim for plain error. See United States v. Sanchez–Espinal, 762 F.3d 425, 429 (5th Cir.2014) (holding that plain error review applies where a party fails to raise an objection “specific enough to put the district court on notice of potential issues for appeal and allow the district court to correct itself”); Escotto, 121 F.3d at 85 (citing Fed.R.Crim.P. 51). “Plain error exists if (1) there is an error, (2) the error is plain, ... (3) the error affect[s] substantial rights and (4) the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”
To preserve in district court a claim for appellate review, a party “must raise objections that are specific enough to put the district court on notice of potential issues for appeal and allow the ... court to correct itself”. United States v. Sanchez–Espinal, 762 F.3d 425, 429 (5th Cir.2014). As discussed infra, Rosenthal did not meet this standard.