United States v. Luis Hernandez-Hernandez , 817 F.3d 207 ( 2016 )


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  •      Case: 15-40480         Document: 00513428051          Page: 1     Date Filed: 03/17/2016
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 15-40480                                FILED
    March 17, 2016
    Lyle W. Cayce
    UNITED STATES OF AMERICA,                                                            Clerk
    Plaintiff - Appellee
    v.
    LUIS HERNANDEZ-HERNANDEZ,
    Defendant - Appellant
    Appeal from the United States District Court
    for the Southern District of Texas
    Before JONES and SMITH, Circuit Judges, and BOYLE, * District Judge.
    JANE J. BOYLE, District Judge:
    Luis Hernandez-Hernandez appeals his 16-level “crime of violence”
    enhancement under § 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines based
    upon a prior conviction for assaulting a federal officer and inflicting bodily
    injury, in violation of 18 U.S.C. § 111 (a)(1) and (b). 1 In his sole issue on appeal,
    *   District Judge of the Northern District of Texas, sitting by designation.
    1 The forcible acts described in subpart (a)(1) of § 111—“forcibly assaults, resists,
    opposes, impedes, intimidates, or interferes”—are necessary elements of all § 111 offenses,
    hence the reference to subpart (a)(1). For clarity, our analysis centers on § 111(b) and whether
    that particular subpart constitutes a crime of violence. Thus, we primarily reference § 111(b)
    in this analysis.
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    Hernandez argues that his § 111 conviction did not constitute a crime of
    violence   under     §   2L1.2(b)(1)(A)(ii)   because   it   is   neither   one   of
    § 2L1.2(b)(1)(A)(ii)’s enumerated offenses nor does it require “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). Whether Hernandez’s crime of
    conviction under § 111(a)(1) and (b) for assaulting a federal officer and
    inflicting bodily injury constitutes a crime of violence under § 2L1.2(b)(1)(A)(ii)
    is a question of first impression for this Court. Finding that Hernandez’s
    conviction under § 111(a)(1) and (b) necessarily required proof that he used,
    attempted to use, or threatened to use physical force against the person of
    another, we AFFIRM the judgment of the district court.
    I.
    Hernandez pleaded guilty to illegal reentry following a conviction for an
    aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b). At the time of his
    plea, he had two prior convictions under 18 U.S.C. § 111 for assaulting a federal
    officer, one in 2002, the other in 2005. Both were referenced in the PSR and
    relied upon by the district court in assessing the 16-level enhancement. The
    2002 offense was under § 111(a), which covers misdemeanors and less serious
    felony conduct. The 2005 conviction was under § 111(a)(1) and (b), the more
    serious felony provision of the statute which includes the element of the
    infliction of bodily injury or the use of a deadly or dangerous weapon and
    carries up to 20 years in prison. The parties have focused their arguments
    regarding the 16-level enhancement on the 2005 felony offense under § 111 (b).
    The Court will do likewise. The dispute boils down to whether Hernandez’s
    conviction qualifies as a crime of violence under § 2L1.2(b)(1)(A)(ii)’s use of
    force provision. That question requires us to determine whether Hernandez’s
    conviction under § 111(a) and (b) necessarily requires proof of “the use,
    attempted use, or threatened use of physical force against the person of
    2
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    another” as required for an enhancement under § 2L1.2(b)(1)(A)(ii). U.S.S.G.
    § 2L1.2, cmt. n. 1 (B)(iii).
    II.
    In deciding whether Hernandez’s conviction under § 111 constitutes a
    crime of violence, we look to the specific Guidelines provision from which the
    16-level enhancement derives—§ 2L1.2(b)(1)(A)(ii). That provision calls for a
    16-level increase to the base offense level for illegal reentry if the defendant
    was previously convicted for a crime of violence and the prior conviction
    receives criminal history points. United States v. Ceron, 
    775 F.3d 222
    , 227 (5th
    Cir. 2014) (citing U.S.S.G. § 2L1.2(b)(1)(A)(ii)). To qualify for the enhancement
    under § 2L1.2(b)(1)(A)(ii), the crime of conviction must fall within one of two
    discrete categories of offenses. The first is a list of enumerated offenses, none
    of which apply here. The other, applicable to Hernandez’s conviction, is a
    “catch-all” provision, 2 which defines a crime of violence as 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.”                           
    Ceron, 775 F.3d at 227
    (citing U.S.S.G. § 2L1.2, cmt. n. 1 (B)(iii)).
    To trigger the 16-level enhancement under the catch-all definition, “the
    intentional use of force must be a constituent part of a claim that must be
    proved for the claim to succeed.” United States v. Calderon-Pena, 
    383 F.3d 254
    ,
    260 (5th Cir. 2004) (en banc) (quoting United States v. Vargas-Duran, 
    356 F.3d 589
    , 605 (5th Cir. 2004) (en banc)). 3 “If any set of facts would support a
    conviction without proof of [the intentional use of force], then the [intentional
    2   We alternatively refer to this provision as the “catch-all” or “use of force” provision.
    3 The definition of “crime of violence” has been rearranged in § 2L1.2 of the Guidelines
    since Calderon-Pena and Vargas-Duran were decided. In any event, the language of the
    catch-all provision in the 2014 version of the Guidelines, at issue in this case, is identical to
    that examined in Calderon-Pena and Vargas-Duran. See 
    Calderon-Pena, 383 F.3d at 256
    ,
    n.2; U.S.S.G.§ 2L1.2, cmt. n. 1 (B)(iii).
    3
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    use of force] most decidedly is not an element—implicit or explicit—of the
    crime.” 
    Calderon-Pena, 383 F.3d at 260
    (quoting 
    Vargas-Duran, 356 F.3d at 605
    ) (emphasis added).       In other words, if the crime upon which the
    enhancement is based can be proven without evidence that the defendant
    intentionally used force against the person of another, then the offense does
    not qualify as a crime of violence under § 2L1.2(b)(1)(A)(ii). United States v.
    Velasco, 
    465 F.3d 633
    , 638 (5th Cir. 2006).
    So our task here is to determine whether Hernandez’s conviction under
    § 111 (b) “necessarily require[d] a finding that [Hernandez] used, attempted to
    use, or threatened to use physical force against the person of another.” 
    Ceron, 775 F.3d at 227
    (emphasis added) (quoting United States v. Herrera-Alvarez,
    
    753 F.3d 132
    , 134 (5th Cir. 2014)). In making this determination, we utilize
    the categorical approach, first announced in Taylor v. United States, 
    495 U.S. 575
    , 602 (1990), which centers our inquiry on “the elements of the statute of
    conviction” not on the defendant’s actual conduct in committing the crime.
    
    Ceron, 775 F.3d at 227
    (quoting United States v. Rodriguez, 
    711 F.3d 541
    , 549
    (5th Cir. 2013) (en banc)). If “we determine that the statute of conviction as a
    whole does not categorically qualify as a crime of violence, but the statute is
    divisible, then we apply a variant of the categorical approach—the ‘modified
    categorical approach.’” 
    Herrera-Alvarez, 753 F.3d at 138
    (quoting Descamps v.
    United States, 
    133 S. Ct. 2276
    , 2281 (2013)).
    A statute is divisible when it “sets forth multiple separate offenses or
    sets forth one or more elements of an offense in the alternative,” not all of which
    may qualify as a crime of violence. 
    Id. at 134.
    Once a statute is deemed
    divisible, the task for the court—under the modified categorical approach—is
    to determine “which [of the statute’s alternative bases for committing the
    crime] formed the basis of the defendant’s conviction.” 
    Descamps, 133 S. Ct. at 2284
    (citation omitted). This entails looking beyond the statute to certain
    4
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    “extra-statutory” records to isolate the actual elements underlying the
    defendant’s conviction and then assessing—from the narrowed elements—
    whether the defendant’s crime constitutes a crime of violence under the
    applicable enhancement provision. Here we examine § 2L1.2’s use of force
    provision. The permissible “extra-statutory” records, known as               documents,
    include the “charging document, written plea agreement, transcript of plea
    colloquy, and any explicit factual finding by the trial judge to which the
    defendant assented.”          
    Ceron, 775 F.3d at 227
    (quoting United States v.
    Elizondo-Hernandez, 
    755 F.3d 779
    , 781 (5th Cir. 2014)). Once the elements
    comprising the underlying conviction have been identified, the court applies
    the categorical approach to the crime of conviction to ascertain whether that
    offense necessarily “has as an element the use, attempted use, or threatened
    use of physical force against the person of another.” 
    Herrera-Alvarez, 753 F.3d at 137
    .
    III.
    We conduct a de novo review of a district court’s determination that a
    conviction constitutes a crime of violence. United States v. Flores-Gallo,
    
    625 F.3d 819
    , 821 (5th Cir. 2010). “Guideline commentary is given controlling
    weight if it is not plainly erroneous or inconsistent with the guidelines.” 
    Id. (quoting United
    States v. Velasco, 
    465 F.3d 633
    , 637 (5th Cir. 2006)).
    The parties do not dispute that § 111 as a whole criminalizes “a broader
    swath of conduct” than the conduct covered by § 2L1.2(b)(1)(A)(ii)’s use of force
    provision. 
    Descamps, 133 S. Ct. at 2281
    . But the parties agree, and our cases
    confirm, that § 111 is divisible. See United States v. Ramirez, 
    233 F.3d 318
    ,
    321 (5th Cir. 2000), overruled on other grounds by United States v. Cotton,
    
    535 U.S. 625
    , 629–31 (2000).                Our precedent establishes that § 111
    4   Shepard v. United States, 
    544 U.S. 13
    , 26 (2005).
    5
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    encompasses “three separate offenses” including: “(1) simple assault; (2) more
    serious assaults but not involving a dangerous weapon; and (3) assault with a
    dangerous weapon.” 
    Id. (citation omitted).
    The first offense, simple assault
    under § 111(a), is a misdemeanor and does not require “any physical contact.”
    
    Id. at 321–22.
    The second offense under § 111(a) is a felony punishable by up
    to 8 years in prison, and requires either physical contact or the “intent to
    commit another felony” when committing the acts proscribed in § 111(a) (i.e.,
    “forcibly assaulting, resisting, opposing, impeding, intimidating or interfering
    with any person . . . while engaged in or on account of the performance of official
    duties”) but does not require a showing of bodily injury or use of a deadly
    weapon. 18 U.S.C. §111(a)(1); United States v. Williams, 
    602 F.3d 313
    , 317
    (5th Cir. 2010) (quoting United States v. Gagnon, 
    553 F.3d 1021
    , 1026 (6th Cir.
    2009)). The third offense, under § 111(b), is a felony carrying a maximum
    penalty of up to 20 years in prison, and requires proof of the use of a deadly
    weapon or the infliction of bodily injury “in the commission of any of the acts
    described in subsection (a).” 18 U.S.C. § 111(b).
    The version of § in place at the time of Hernandez’s 2005 conviction
    provided in pertinent part:
    § 111. Assaulting, resisting, or impeding certain officers or
    employees
    (a) In general.—Whoever—
    (1) forcibly assaults, resists, opposes, impedes, intimidates, or
    interferes with any person designated in section 1114 of this title
    while engaged in or on account of the performance of official duties;
    …shall, where the acts in violation of this section constitute only
    simple assault, be fined under this title or imprisoned not more than
    one year, or both, and in all other cases, be fined under this title or
    imprisoned not more than 8 years, or both.
    5 § 111 was amended in 2008. The changes to the statute, however, do not affect our
    analysis and therefore will not be addressed.
    6
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    (b) Enhanced penalty.—Whoever, in the commission of any acts
    described in subsection (a), uses a deadly or dangerous weapon
    (including a weapon intended to cause death or danger but that fails to
    do so by reason of a defective component) or inflicts bodily injury, shall
    be fined under this title or imprisoned not more than 20 years, or both.
    18 U.S.C. § 111 (Nov. 2, 2002).
    Because § 111 is a divisible statute, the modified categorical approach
    permits us to consult the Shepard documents to determine which of the
    alternative statutory phrases formed the basis for Hernandez’s 2005 § 111
    conviction.   The available Shepard documents include the indictment,
    judgment, and plea agreement. The indictment charges that Hernandez “did
    knowingly and forcibly assault Kevin Estrada, a United States Bureau of
    Prisons Correctional Officer…while the officer was engaged in and on account
    of the performance of official duties, inflicting bodily injury upon the officer…in
    violation of Title 18 United States Code, Section 111(a)(1) and (b).” The written
    Plea Agreement and Statement of Facts Relevant to Sentencing reflects the
    following agreed factual basis for Hernandez’s guilty plea:
    On June 9, 2003, defendant-inmate LUIS HERNANDEZ-HERNANDEZ
    was walking through a metal detector near the entrance of a housing unit
    within the United States Penitentiary - High Security in Florence,
    Colorado. Defendant was contacted by Senior Officer Specialist Kevin
    Estrada, who ordered defendant to submit to a “pat-down” search.
    Defendant became enraged and forcefully threw a portable -“Walkman-
    type”- radio at Officer Estrada. The radio struck Officer Estrada in the
    forehead, causing a cut in the skin.
    Officer Estrada attempted to restrain defendant; defendant became further
    enraged and engaged Officer Estrada in physical combat. Defendant bit
    the arm of Officer Estrada. With assistance from other corrections officers,
    Officer Estrada was able to restrain defendant and place him into
    handcuffs.
    7
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    The parties agree that the Government’s evidence would establish that
    Officer Estrada received some bodily injury as a result of defendant’s
    assault.
    The judgment in the 2005 case reflects that Hernandez was convicted of
    “Assault on a Correctional Officer” in violation of § 111(a)(1) and (b) and was
    sentenced to 84 months in custody.
    From the foregoing Shepard documents, it is a simple matter to deduce
    that Hernandez’s conviction was under § 111(b), the more serious felony
    provision of the statute. 6 First, the citation to § 111(a)(1) and (b) in the
    indictment and judgment indicates that subpart (b) was the operative
    statutory provision. 7      Further, Hernandez’s admission in the written plea
    papers that he “forcefully” “struck” and “bit” the corrections officer and that
    these actions caused “bodily injury” to the officer, demonstrate that his
    conviction fell under subpart (b) as opposed to (a). In contrast to subpart (b),
    neither of the offenses described in subpart (a) of § 111—misdemeanor or
    felony—requires proof of both assaultive conduct and bodily injury for a
    conviction. 
    Williams, 602 F.3d at 317
    (quoting 
    Gagnon, 553 F.3d at 1027
    )
    (describing the misdemeanor provision of § 111(a) as requiring proof of a
    forcible act without the intent to cause physical contact and the felony portion
    of (a) requiring proof of a forcible act with the intent to commit a felony or
    resulting in physical contact). Section 111(b), from the plain language of the
    6  As mentioned, the parties do not really dispute that Hernandez’s 2005 § 111
    conviction fell under subpart (b); rather, they contest the level of force required under subpart
    (b). In any event, because we must apply the categorical and modified categorical approaches
    to § 111, as a divisible statute, to discern “which [of the statute’s alternative bases for
    committing the crime] formed the basis of [Hernandez’s] conviction,” 
    Descamps, 133 S. Ct. at 2284
    , and then decide if the underlying elements required the type of force defined under
    § 2L1.2, we include the Shepard analysis set forth above.
    7 As addressed, the acts described in subpart (a)(1) of § 111—forcibly assaults, resists,
    opposes, impedes, intimidates, or interferes—are, by the very language of the statute,
    necessary elements of all § 111 offenses; ergo, a citation to (a)(1) reveals less about the
    specific statutory provision at play than a citation to subpart (b).
    8
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    statute, requires proof of both assaultive conduct and bodily injury to sustain
    a conviction. 8 See United States v. Juvenile Female, 
    566 F.3d 943
    , 946–47 (9th
    Cir. 2009) (agreeing with seven other circuits that § 111(b) describes an
    “assault involving a deadly or dangerous weapon or resulting in bodily injury”)
    (collecting cases). Both assaultive conduct and bodily injury are charged in
    Hernandez’s indictment. Finally, Hernandez’s 84-month sentence reflected in
    the judgment accompanied by a citation to § 111(a)(1) and (b) further supports
    our conclusion that Hernandez’s conviction was based on § 111(b).
    Going a step further, drawing from the Shepard documents, we identify
    the elements underlying Hernandez’s § 111(b) conviction. Those elements can
    be distilled to: (1) a knowing and forcible assault of a federal corrections officer
    that (2) involved physical contact and that (3) inflicted bodily injury. 9 The
    question then becomes whether Hernandez’s conviction, narrowed to the
    foregoing elements, categorically constitutes a crime of violence under
    § 2L1.2(b)(1)(A)(ii). Stated another way, we must decide whether Hernandez’s
    crime of conviction—as narrowed—necessarily requires a finding that he
    intentionally used, attempted to use, or threatened to use physical force
    against the person of another. U.S.S.G. § 2L1.2, cmt. n. 1 (B)(iii); Herrera-
    Alvarez, 
    753 F.3d 132
    , 140–41 (5th Cir. 2014).                  “Physical force” under
    § 2L1.2(b)(1)(A)(ii) requires a showing of “violent force—that is, force capable
    of causing physical pain or injury to another person.” 
    Flores-Gallo, 625 F.3d at 822
    –23 (quoting Johnson v. United States, 
    559 U.S. 133
    , 140 (2010)).
    8As set out in the statute, § 111(b) may also be violated by the “use of a deadly or
    dangerous weapon.”
    9   Hernandez maintains in his briefing that only a “simple assault” was involved but
    fails to provide any support for this argument from the Shepard documents.
    9
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    Here, because we are dealing with a federal statute, we look to federal
    law for guidance as to the requirements of § 111(b). Unfortunately, § 111 is
    not a model of clarity and does not specify the level of force required for a
    violation of § 111(b). Nor does the statute define “bodily injury” as that term
    is used in § 111(b). Such a definition, if contained in the statute, would likely
    shed some light on the amount of force required for a conviction under § 111(b)
    which, in turn, might reveal whether that level of force equals that required by
    § 2L1.2. For his part, Hernandez argues that the bodily injury element of
    § 111(b) can be proven without a showing of violent or destructive force and,
    therefore, that § 111(b) does not categorically qualify as a crime of violence.
    Hernandez specifically maintains that § 111(b) can be violated by “non-forceful
    acts” including “simple assault,” “spitting,” or “projecting bodily fluids” onto the
    person of another. But none of the cases he cites stand for this proposition or
    even address whether § 111(b) qualifies as a crime of violence under § 2L1.2’s
    use of force provision. The government counters that the definition of “bodily
    injury” for § 111(b) can be drawn from the Fifth Circuit Pattern Jury
    10  Typically, the crime of violence at issue in our cases is a state offense so we look to
    the relevant state law for assistance in analyzing the “nature” of the crime of conviction to
    decide if it satisfies § 2L1.2’s use of force requirements. United States v. Martinez-Flores,
    
    720 F.3d 293
    , 297 (5th Cir. 2013) (quoting United States v. Izaguirre-Flores, 
    405 F.3d 270
    ,
    273 (5th Cir. 2005)). For example, in cases involving state assault crimes, we have looked to
    the definition of “bodily injury” under the statute of conviction to determine whether a
    violation of the statute necessarily required proof of § 2L1.2’s use of force requirements. 
    Id. at 297–98.
    11 Hernandez relies heavily on United States v. Ramirez, 
    233 F.3d 316
    , 321-22 (5th Cir.
    2000) to support his argument. But Ramirez addressed the sufficiency of the evidence
    underlying a § 111(a) conviction, not whether § 111(b) constitutes a crime of violence. He
    also unpersuasively cites to United States v. Gonzales-Chavez, 
    432 F.3d 334
    , 338 n.6 (5th Cir.
    2005), for support. That case involved a Florida aggravated battery statute where the record
    was unclear as to which part of the multipart statute the defendant was convicted under.
    Because at least one of the subparts could be violated by actions not involving a crime of
    violence, we remanded the case to the district court. 
    Id. Neither Ramirez
    nor Gonzales-
    Chavez provides support for Hernandez’s argument that § 111(b) does not constitute a crime
    of violence.
    10
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    Instructions, which define bodily injury as “a painful and obvious injury or is
    of a type for which medical attention ordinarily would be sought.” Fifth Circuit
    Pattern Jury Instruction (Criminal) § 2.07 (2015) (“FCPJI-C”). Under that
    definition, the government maintains, Hernandez’s offense of conviction—as
    narrowed by the Shepard documents—necessarily requires a showing of force
    “capable of causing pain and injury” as required under § 2L1.2. This, the
    government argues, is because the elements underlying his conviction
    demonstrate that force that was not only capable of causing, but that “indeed
    did cause physical pain to another person,” was an essential element of proof.
    In deciding this issue of first impression, we find that the government has the
    better argument.
    First, as noted, § 111(b) is the most serious of the three separate offenses
    encompassed by the statute, carrying a term of imprisonment of up to 20 years.
    Section 111(b) is also the only subpart of the three that, by its plain terms,
    requires proof of forcible conduct as described in subpart (a) and proof that the
    forcible conduct resulted in the infliction of bodily injury. The fact that the
    bodily injury element is included in § 111(b) but not in (a) indicates that
    § 111(b) requires a greater baseline showing of force—enough to cause bodily
    injury—than that required under § 111(a). The bodily injury requirement in
    (b) further indicates that minimally forceful, albeit repugnant, conduct such as
    spitting or the projecting of bodily fluids—that Hernandez argues can underlie
    a § 111(b) violation—is instead covered by subpart (a). The Ramirez case, cited
    12 The government refers to the 2001 version of the Fifth Circuit Pattern Jury
    Instructions but that definition is identical to that contained in the 2015 version cited above.
    13 Section 111(b) also prohibits the use of a deadly or dangerous weapon in the
    commission of any acts under § 111(a). We have previously held in an unpublished opinion
    that the deadly weapon portion of § 111(b) constitutes a crime of violence under U.S.S.G.
    §§ 4B1.1 and 4B1.2. United States v. Mitchell, 
    253 F.3d 702
    (5th Cir. 2001) (table), 
    2001 WL 498464
    (Apr. 11, 2001) (per curiam) (unpublished).
    11
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    above, involved just such a scenario where an inmate who flung a urine-feces
    mixture at a corrections officer was convicted under the felony provision of
    § 111(a).    
    Ramirez, 233 F.3d at 322
    (citing a collection of cases involving
    conduct such as “bumping an Assistant United States Attorney,” “spitting in
    the face of a mail carrier,” “grabbing a federal wildlife agent’s jacket,” and
    “poking [an] IRS agent in the chest,” all of which were prosecuted under
    § 111(a)). The Ramirez court specifically noted the lack of allegations or proof
    of bodily injury in concluding that the case fell under the felony provision of
    subpart (a). 
    Id. In sum,
    the foregoing factors compel the conclusion that a
    greater baseline level of force is required for convictions under subpart (b) than
    subpart (a), and that conduct such as spitting and projecting bodily fluids are
    covered by the latter and not the former.
    Finally, we must determine whether the force required to violate § 111(b)
    necessarily requires a showing of the type of “violent force…capable of causing
    physical pain or injury to another person,” and thus constitutes a crime of
    violence under § 2L1.2’s use of force provision. See 
    Flores-Gallo, 625 F. at 822
    –
    23 (quoting 
    Johnson, 559 U.S. at 140
    ). This is not a difficult task. Although
    the statute itself provides little guidance in this regard, resort to the Fifth
    Circuit Pattern Jury Instructions, as suggested by the government, provides
    significant assistance. As already discussed, “bodily injury” is defined under
    the FCPJI-C as “an injury that is painful and obvious, or is of a type for which
    medical attention ordinarily would be sought.” Fifth Circuit Pattern Jury
    Instruction (Criminal) § 2.07 (2015). This “painful and obvious injury” element
    required for a conviction under § 111(b) readily meets § 2L1.2’s use of force
    definition, which requires only force capable of causing physical pain or injury
    14This definition is adopted from the definition of “bodily injury” contained in U.S.S.G.
    § 1B1.1, cmt. n. 1 (2012).
    12
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    to another person and not actual bodily injury. Here, the Shepard documents
    identify that the elements underlying Hernandez’s conviction included both
    assaultive conduct and the infliction of bodily injury by demonstrating that he
    “forcefully” “struck” and “bit” the corrections officer and that these actions
    caused the officer “bodily injury.” In 
    Ceron, 775 F.3d at 228
    –29, we considered
    whether a Florida aggravated battery statute, which had as elements
    “intentional touching” plus “great bodily harm,” qualified as a crime of violence
    under § 2L1.2. We held that, while “touching another person is not, by itself,
    the ‘use of force[,]’” and “causing ‘bodily injury’ could be committed in ways that
    do not necessarily involve the use of force,” the two, taken together, necessarily
    require the use of force sufficient to qualify an offense as a crime of violence.
    See 
    id. That same
    logic applies here, but even more so. Section 111(b), as
    addressed above, requires forcible, assaultive conduct that extends beyond
    mere touching which, as we discussed above, is covered by subpart (a). The
    added requirement under subpart (b) that the forcible, assaultive conduct
    result in bodily injury, defined by the FCPJI-C as painful and obvious injury,
    renders the conclusion that we reached in Ceron, that the defendant’s crime of
    conviction was a crime of violence, a foregone conclusion.
    Accordingly, because we find that Hernandez’s crime of conviction under
    § 111(b) necessarily required a finding that he intentionally used, attempted to
    use, or threatened to use physical force against the person of another, U.S.S.G.
    § 2L1.2(b)(1)(A)(ii), we hold that § 111(b) is categorically a crime of violence
    and AFFIRM the judgment of the district court.
    15The FCPJI-C definition of bodily further supports our conclusion that conduct such
    as simple assault, spitting, or the projection of bodily fluids is not covered under § 111(b),
    given that these actions are not the type of conduct, standing alone, that could inflict “painful
    and obvious” bodily injury or injury that requires medical attention.
    13