United States v. Jacinto Alvarez ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-50088
Plaintiff-Appellee,
D.C. No. 3:19-cr-
v. 05093-LAB-1
JACINTO VICTOR ALVAREZ,
AKA Jacinto Alvarez, AKA Jasinto OPINION
Alvarez,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted September 2, 2022
Pasadena, California
Filed February 16, 2023
Before: Milan D. Smith, Jr. and Ryan D. Nelson, Circuit
Judges, and Gershwin A. Drain, * District Judge.
Opinion by Judge R. Nelson
*
The Honorable Gershwin A. Drain, United States District Judge for
the Eastern District of Michigan, sitting by designation.
2 UNITED STATES V. ALVAREZ
SUMMARY **
Criminal Law
The panel affirmed a criminal judgment in a case in
which Jacinto Alvarez moved to dismiss an indictment
charging him with illegal reentry under 8 U.S.C. § 1326,
arguing that the underlying removal order was
fundamentally unfair because his prior assault conviction
under section 2903.13(A) of the Ohio Revised Code was not
a crime of violence and thus not an aggravated felony under
8 U.S.C. § 1101(a)(43)(F).
Alvarez first contended that his assault conviction is not
a crime of violence because section 2903.13(A)’s mens rea
requirement for attempt crimes is broader than the mens rea
requirement for the “attempted use . . . of physical force”
under 8 U.S.C. § 16(a). The minimum mens rea required for
attempt crimes under section 2903.13(A) is
"knowledge." Alvarez argued that the court must compare
section 2903.13(A)'s attempt crime (including its mens rea
requirement) to the generic federal definition of attempt,
which he contended requires specific intent, or
purpose. Because purpose is a higher mens rea than
knowledge, Alvarez maintained that section 2903.13(A)
criminalizes conduct that § 16(a) does not. The panel wrote
that Alvarez’s argument rests on a critical error: the court
compares section 2903.13(A) not to the generic federal
definition of attempt, but to the crime of violence definition
in § 16(a). The panel wrote that this court’s precedent
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. ALVAREZ 3
answers the question whether “knowledge” is a sufficient
mens rea under the crime of violence definition in §
16(a). The panel disagreed with Alvarez’s contention that
knowledge is not sufficient for “attempted use” because
common law attempt requires specific intent. Under this
court’s precedent, “knowledge” is a sufficient mens rea for
the crime of violence definition as a whole, including
“attempted uses” of physical force. Accordingly, the
knowledge mens rea requirement for attempt under section
2903.13(A) does not make it overbroad.
Alvarez also argued that his prior offense is not a crime
of violence because section 2903.13(A) does not require
“violent” physical force but can be violated by offensive or
de minimis contact. Noting that Alvarez must show a
realistic probability, not a theoretical possibility, that Ohio
would apply the statute to de minimis contact, the panel held
that Alvarez has not done so. The panel explained that the
text of section 2903.13(A) only criminalizes force capable
of causing physical pain or injury, and held that the type of
conduct to which section 2903.13(A) has been applied by
Ohio courts is force capable of causing physical pain or
injury.
The panel therefore concluded that section 2903.13(a) is
a crime of violence under § 16(a), it thus qualifies as an
aggravated felony under § 1101(a)(43)(F), and Alvarez’s
removal order was not fundamentally unfair.
4 UNITED STATES V. ALVAREZ
COUNSEL
Kara L. Hartzler (argued), Federal Defenders of San Diego
Inc., San Diego, California, for Defendant-Appellant.
Zachary J. Howe (argued), Charlotte E. Kaiser, and D.
Benjamin Holley, Assistant United States Attorneys; Daniel
E. Zipp, Appellate Section Chief; Randy S. Grossman,
United States Attorney; Office of the United States Attorney,
Criminal Division, United States Department of Justice, San
Diego, California; for Plaintiff-Appellee.
OPINION
R. NELSON, Circuit Judge:
Under the Immigration and Nationality Act (INA), an
illegal alien who has been convicted of an aggravated felony
is subject to expedited removal. 8 U.S.C. § 1228. A crime
can qualify as an aggravated felony in several ways, one of
which is by satisfying the INA’s definition of a “crime of
violence.” We address whether section 2903.13(A) of the
Ohio Revised Code—an assault statute—categorically fits
the crime of violence definition. We agree with the Sixth
Circuit that it does.
I
Jacinto Alvarez came to the United States and settled in
Ohio. In 2007, a jury convicted Alvarez of felonious assault
on a peace officer under section 2903.13(A) of the Ohio
Revised Code and misdemeanor resisting arrest. Alvarez
was sentenced to eighteen months in prison for the assault
with six months concurrent for resisting arrest.
UNITED STATES V. ALVAREZ 5
While Alvarez was in prison, he was served with a
“Notice of Intent to Issue a Final Administrative Removal
Order.” The notice alleged that Alvarez was a Mexican
citizen in the country illegally who had been convicted of an
aggravated felony—assaulting a police officer under section
2903.13(A)—and was thus removable. The notice alleged
that his conviction qualified as an aggravated felony because
it was a crime of violence under the INA.
Alvarez signed the notice and checked a box indicating
that he wished to contest his removal, but he never did. The
final removal order was entered, and after Alvarez finished
his prison term, he was removed to Mexico.
Alvarez attempted to reenter the country illegally several
times. After his first attempt, Alvarez pled guilty to illegal
reentry, was sentenced to twenty-one months in prison, and
was deported upon release. He later returned to the United
States and pled guilty to misdemeanor illegal entry, was
sentenced to three months in custody, and was then deported.
He attempted to reenter again and pled guilty to felony
illegal reentry, was sentenced to twenty-four months in
prison, and was again deported.
Alvarez most recently attempted to reenter the country
in 2019. Once again, he was caught, arrested, and charged
with illegal reentry under 8 U.S.C. § 1326. Alvarez moved
to dismiss the indictment, arguing that his section
2903.13(A) assault conviction was not an aggravated felony.
The district court denied Alvarez’s motion, holding that
Alvarez’s section 2903.13(A) conviction was an aggravated
felony and that he was not prejudiced by any defects in his
deportation proceeding. The district court denied Alvarez’s
motion for reconsideration as well.
6 UNITED STATES V. ALVAREZ
Alvarez negotiated a conditional plea that allowed him
to appeal the district court’s denial of both motions. He was
sentenced to forty months in prison and three years of
supervised release. This timely appeal followed.
II
We have jurisdiction under 28 U.S.C. § 1291 and review
the denial of a motion to dismiss an indictment under 8
U.S.C. § 1326(d) de novo. United States v. Martinez-
Hernandez, 932 F.3d 1198, 1202 (9th Cir. 2019). “We
review questions of law de novo, including whether a state
statutory crime qualifies as an aggravated felony . . . .”
Jauregui-Cardenas v. Barr, 946 F.3d 1116, 1118 (9th Cir.
2020). We review a district court’s denial of a motion to
reconsider for an abuse of discretion. See Lona v. Barr, 958
F.3d 1225, 1229 (9th Cir. 2020).
III
When an illegal alien “has been convicted of an
aggravated felony, the Attorney General may commence
deportation proceedings.” United States v. Garcia-
Martinez, 228 F.3d 956, 960 (9th Cir. 2000) (citing 8 U.S.C.
§ 1228(b)). These expedited removal proceedings
commence “when an issuing Service officer determines that
sufficient evidence supports removal and serves the alien
with a Notice of Intent.” Id. (citing 8 C.F.R. § 238.1(b)(1)).
Alvarez moved to dismiss his indictment for illegal
reentry under § 1326(d). That provision allows an alien to
challenge the validity of his removal order if he shows that
“(1) [he] exhausted any administrative remedies that may
have been available to seek relief against the order; (2) the
deportation proceedings at which the order was issued
improperly deprived [him] of the opportunity for judicial
UNITED STATES V. ALVAREZ 7
review; and (3) the entry of the order was fundamentally
unfair.” § 1326(d). To successfully challenge his removal
order, Alvarez must satisfy all three requirements. United
States v. Palomar-Santiago, 141 S. Ct. 1615, 1620–21
(2021).
Under the third prong of § 1326(d), “[a]n underlying
removal order is ‘fundamentally unfair’ if: (1) [a
defendant’s] due process rights were violated by defects in
[the] underlying deportation proceeding, and (2) he suffered
prejudice as a result of the defects.” United States v. Ubaldo-
Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004) (second
alteration in original) (citation omitted). An alien can show
that his due process rights were violated by defects in his
deportation proceeding if he shows that his underlying state
conviction was not, in fact, an aggravated felony. United
States v. Martinez, 786 F.3d 1227, 1230 (9th Cir. 2015).
An aggravated felony includes “a crime of violence . . .
for which the term of imprisonment [is] at least one year.” 8
U.S.C. § 1101(a)(43)(F). A “crime of violence” is defined
as “an offense that has as an element the use, attempted use,
or threatened use of physical force against the person or
property of another.” 18 U.S.C. § 16(a). As long as the
underlying offense requires one of the specified uses of
force—actual, attempted, or threatened—it qualifies as a
crime of violence. See United States v. Ladwig, 432 F.3d
1001, 1005 (9th Cir. 2005).
To determine whether Alvarez’s Ohio assault conviction
under section 2903.13(A) is a crime of violence, we apply
the categorical approach set forth in Taylor v. United States,
495 U.S. 575, 600–02 (1990). Under this approach, we
determine whether “even the least egregious conduct
[section 2903.13(A)] covers” is encompassed by the crime
8 UNITED STATES V. ALVAREZ
of violence definition in § 16(a). 1 United States v. Walton,
881 F.3d 768, 771 (9th Cir. 2018) (quoting United States v.
Lopez-Solis, 447 F.3d 1201, 1206 (9th Cir. 2006)).
Section 2903.13(A) states that “[n]o person shall
knowingly cause or attempt to cause physical harm to
another or to another’s unborn.” Alvarez argues that this
Ohio statute criminalizes conduct that the crime of violence
definition does not reach, and is therefore not an aggravated
felony. The Sixth Circuit has already concluded that section
2903.13(A) is a crime of violence. United States v.
Raymore, 965 F.3d 475, 487–91 (6th Cir. 2020). We agree.
A
Alvarez first contends that his assault conviction is not a
crime of violence because section 2903.13(A)’s mens rea
requirement for attempt crimes is broader than the mens rea
requirement for the “attempted use . . . of physical force”
under § 16(a). 2 The minimum mens rea required for attempt
crimes under section 2903.13(A) is “knowledge.” Ohio Rev.
Code §§ 2923.02(A), 2901.22(B). Alvarez argues that we
must compare section 2903.13(A)’s attempt crime
(including its mens rea requirement) to the generic federal
definition of attempt, which he contends requires specific
intent, or purpose. Because purpose is a higher mens rea
1
Because the Government agrees with Alvarez that section 2903.13(A)
is indivisible as between attempted and completed crimes, we assume
arguendo that section 2903.13(A) is indivisible and that we need not
apply the modified categorical approach. See Mathis v. United States,
579 U.S. 500, 505–06 (2016).
2
Because the parties agree that section 2903.13(A) is categorically
overbroad as to “use” and “threatened use,” we address only whether
section 2903.13(A) has as an element the “attempted use” of physical
force.
UNITED STATES V. ALVAREZ 9
than knowledge, Alvarez concludes section 2903.13(A)
criminalizes conduct that § 16(a) does not.
1
Alvarez’s argument rests on a critical error: in this case,
we compare section 2903.13(A) not to the generic federal
definition of attempt, but to the crime of violence definition
in § 16(a). In United States v. Door, 917 F.3d 1146, 1152–
53 (9th Cir. 2019), we addressed whether a Washington state
conviction for felony harassment qualifies as a crime of
violence under the United States Sentencing Guidelines.3
The criminal defendant argued that his Washington state
conviction was not a crime of violence because the state
statute incorporated aiding and abetting liability, and
Washington’s version of aiding and abetting was “broader
than the federal definition of aiding and abetting.” Id. at
1152.
We disagreed because the categorical approach analysis
differs depending on what type of crime of violence is
alleged. Id. at 1149. Under the Sentencing Guidelines, a
prior offense can be a crime of violence because it is one of
the enumerated offenses listed as such or because it “has as
3
Door involved the definition from the United States Sentencing
Guidelines instead of § 16(a). But “[t]he key language in this
definition—‘the use, attempted use, or threatened use of physical force
against the person of another’—is used in a number of statutes and
Guidelines sections, including 18 U.S.C. § 16(a) (defining ‘crime of
violence’), the Armed Career Criminal Act (ACCA), 18 U.S.C. §
924(e)(2)(B)(i) (defining the term ‘violent felony’); and U.S.S.G. §
2L1.2 app. 2 (establishing a sentencing enhancement for prior crimes of
violence).” United States v. Perez, 932 F.3d 782, 785 n.2 (9th Cir. 2019).
Accordingly, cases interpreting and applying this language in contexts
other than § 16(a) are equally instructive. See id.
10 UNITED STATES V. ALVAREZ
an element the use, attempted use, or threatened use of
physical force against the person of another.” Id. at 1150
(citation omitted). When the prior offense is one of the
enumerated offenses, we ask whether “the elements of one
of the generic federal crimes listed in that clause fully
subsume the elements of the crime of conviction.” Id. at
1151. But when the prior offense is alleged to have “as an
element the use, attempted use, or threatened use of physical
force against the person of another,” we only ask whether the
prior offense does in fact have one of those elements. See
id. at 1150–51 (citation omitted).
This distinction applies to the aggravated felony analysis
in INA cases like this one as well. In Door, we discussed
how this framework applied in United States v. Valdivia-
Flores, 876 F.3d 1201 (9th Cir. 2017), an INA case. We
explained that the analysis in Valdivia-Flores “involved
comparing the elements of the Washington drug trafficking
crime with the generic federal offense of drug trafficking
because ‘drug trafficking’ is listed in the INA as an
‘aggravated felony.’” Door, 917 F.3d at 1153 (citation
omitted). “In other words, the categorical analysis employed
in Valdivia-Flores mirrors the inquiry under the enumerated
offenses clause of” the sentencing guidelines. Id. (citation
omitted).
We again applied this framework in Amaya v. Garland,
15 F.4th 976 (9th Cir. 2021), another INA case. We
explained that a prior offense can qualify as an aggravated
felony by matching one of the statute’s enumerated offenses.
See id. at 986 n.9. Or, a prior offense can qualify as an
aggravated felony because it matches “a class of offenses
defined by ‘the use, attempted use, or threatened use of
physical force.’” Id. at 985 (citation omitted). Unlike
comparing a prior offense to one of the enumerated offenses,
UNITED STATES V. ALVAREZ 11
which is “an exercise in mapping a state crime onto a federal
crime,” we “need not compare the elements of the crime of
conviction with the elements of the generic federal crime
when analyzing whether an offense qualifies as a crime of
violence pursuant to” § 16(a). Id. at 985–86 (citations
omitted).
Here, Alvarez’s conviction under section 2903.13(A) is
alleged to be an aggravated felony under the crime of
violence definition for having “as an element the use,
attempted use, or threatened use of physical force against the
person or property of another.” § 16(a). Thus, we must
determine whether “knowledge”—the mens rea requirement
for attempt under section 2903.13(A)—is broader than the
mens rea requirement for the crime of violence definition in
§ 16(a); comparison to the generic federal definition of
attempt is improper here. Amaya, 15 F.4th at 985–86; Door,
917 F.3d at 1150–53.
Alvarez contends that our decision in United States v.
Gomez-Hernandez, 680 F.3d 1171 (9th Cir. 2012), says
otherwise. Gomez-Hernandez involved an Arizona
attempted aggravated assault conviction. Id. at 1176. After
determining that the generic federal definition of attempt
requires specific intent, we compared the Arizona statute to
the generic federal definition and concluded that because
“attempted aggravated assault under Arizona law covers
only intentional conduct. . . . Arizona’s attempted
aggravated assault offense . . . does not encompass a lesser
mens rea than the generic definition of aggravated assault.”
Id. at 1175–76.
Alvarez argues that under Gomez-Hernandez, an attempt
crime must incorporate a specific intent mens rea to qualify
as a crime of violence because the generic federal definition
12 UNITED STATES V. ALVAREZ
of attempt requires specific intent. But he is incorrect.
Gomez-Hernandez is consistent with the framework set forth
in Door and Amaya. The attempted aggravated assault
statute in Gomez-Hernandez was allegedly a crime of
violence because attempted aggravated assault “is
specifically enumerated in the [Sentencing Guidelines] as a
crime of violence.” Id. at 1174. We noted that the attempted
aggravated assault conviction was not alleged to be a crime
of violence for having as an element the use, attempted use,
or threatened use of physical force. See id. at 1177 n.7.
Thus, as Door and Amaya instruct, we properly compared
the prior offense to the generic federal definition because the
prior offense was allegedly a crime of violence as an
enumerated offense rather than an offense covered by the
crime of violence definition in § 16(a). See id. at 1175–76;
Amaya, 15 F.4th at 985–86; Door, 917 F.3d at 1150–53.
2
The remaining question is whether “knowledge” is a
sufficient mens rea under the crime of violence definition in
§ 16(a). Our precedent answers this question. In United
States v. Linehan, 56 F.4th 693, 705 (9th Cir. 2022), the
defendant argued that if the “attempted use” element from
the crime of violence definition is the source of liability, the
court “must import a specific intent mens rea that is
associated with attempt offenses, so that a predicate offense
. . . that requires merely ‘knowing’ misconduct is
insufficient.” We rejected that argument because the crime
of violence definition already requires that the underlying
predicate offense have a mens rea of “knowledge or intent,
or at the very least extreme recklessness.” Id. (citing Borden
v. United States, 141 S. Ct. 1817, 1825 (2017); United States
v. Begay, 33 F.4th 1081, 1093–94 (9th Cir. 2022) (en banc)).
Requiring “an additional and even higher mens rea” in the
UNITED STATES V. ALVAREZ 13
crime of violence definition for “attempted uses” of force,
we explained, “would confusingly layer multiple mens rea
requirements into the same elements clause.” Id. The
“‘attempted use’ of force,” we held, “does not also impose a
further mens rea requirement beyond the one that the
elements clause already requires.” Id.This holding tracks our precedent that “knowledge, or
general intent, remains a sufficient mens rea to serve as the
basis for a crime of violence.” United States v. Werle, 877
F.3d 879, 882 (9th Cir. 2017) (per curiam); see also Amaya,
15 F.4th at 983 (“We have squarely held that ‘knowledge’ as
defined in Washington satisfies 18 U.S.C. § 16(a).”); 4
United States v. Melchor-Meceno, 620 F.3d 1180, 1186 (9th
Cir. 2010) (“[T]o knowingly place another person in fear of
imminent serious bodily harm . . . includes the requisite mens
rea of intent for a crime of violence.” (citing United States
v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009)).
Alvarez argues that these cases do not apply because
they compared the underlying crime to the “use” or
“threatened use” definitions, while this case requires us to
compare section 2903.13(A) to the “attempted use”
definition. Alvarez contends that knowledge is not sufficient
for “attempted use” because common law attempt requires
specific intent.
We disagree. Our prior holdings that knowledge is
enough were not limited to the “use” or “threatened use” of
physical force, nor did we suggest that § 16(a)’s mens rea
requirement differentiates between the “use, attempted use,
4
We find no material difference between Washington’s definition of
knowledge and Ohio’s definition of knowledge. Compare Wash. Rev.
Code § 9A.08.010(1)(b) with Ohio Rev. Code § 2901.22(B).
14 UNITED STATES V. ALVAREZ
or threatened use” of physical force. See Amaya, 15 F.4th at
983; Werle, 877 F.3d at 882; Melchor-Meceno, 620 F.3d at
1186; Grajeda, 581 F.3d at 1197. In these cases, we spoke
in terms of the mens rea requirement for the crime of
violence definition as a whole. Amaya, 15 F.4th at 983 (“We
have squarely held that ‘knowledge’ as defined in
Washington satisfies 18 U.S.C. § 16(a).”); Werle, 877 F.3d
at 882 (“[K]nowledge, or general intent, remains a sufficient
mens rea to serve as the basis for a crime of violence.”);
Melchor-Meceno, 620 F.3d at 1184 (“[T]he predicate
offense of menacing, a general intent crime, includes the
requisite mens rea of intent for a crime of violence.”);
Grajeda, 581 F.3d at 1197 (“[The underlying statute]
requires proof of sufficiently intentional conduct to satisfy
the mens rea requirement for a crime of violence . . . .”). 5
Even if Alvarez is correct that these cases did not address
the “attempted use” of physical force, Linehan eliminates
any lingering doubt that knowledge is not a sufficient mens
rea for the “attempted use” element of § 16(a). In Linehan,
we expressly addressed the “attempted use” element and
rejected the argument that there is an additional, higher mens
rea requirement for attempted uses of physical force under
the crime of violence definition. 56 F.4th at 704–05. We
held that “knowledge” is a sufficient mens rea for the crime
of violence definition as a whole, including “attempted uses”
5
Alvarez also argues that these cases could not have held that knowledge
is a sufficient mens rea under § 16(a) for the “attempted use” of physical
force because under Gomez-Hernandez, 680 F.3d at 1175, attempt
crimes require specific intent to qualify as crimes of violence. But as
discussed, Gomez-Hernandez is inapplicable here because it only
analyzed whether the underlying crime was an enumerated offense. Id.
at 1174, 1177 n.7.
UNITED STATES V. ALVAREZ 15
of physical force. Id. 6
In sum, a crime with a mens rea of knowledge qualifies
as a crime of violence under § 16(a). Accordingly, the
knowledge mens rea requirement for attempt under section
2903.13(A) does not make it overbroad.
B
Alvarez also argues that his prior offense is not a crime
of violence because section 2903.13(A) does not require
“violent” physical force but can be violated by offensive or
de minimis contact. Once again, we apply the categorical
approach. “‘[E]ven the least egregious conduct the statute
covers must qualify’ as a violent felony for a defendant’s
6
In Linehan, we concluded that even if “the ‘attempted use’ of force
means that the predicate offense must require a mens rea commensurate
with that required for attempt crimes,” the underlying crime of
transporting an explosive, 18 U.S.C. § 844(d), still has as an element the
“attempted use” of physical force. 56 F.4th at 705–06. We reasoned that
§ 844(d) “does not require mere ‘knowledge’ of some bare facts, nor
does it criminalize the mere knowing transportation or receipt of an
explosive.” Id. at 706. Instead, it requires “‘knowledge or intent that
[the explosive] will be used to kill, injure, or intimidate’ a person or
damage property. Id. (quoting § 844(d)). Thus, we held, “[a] person
who acts with such knowledge is not engaged in innocent behavior” so
“even on [the] mistaken view that ‘attempted uses’ of force require a
higher mens rea,” § 844(d) “contains a mens rea requirement that enables
it to categorically qualify as an attempted use of force[.]” Id.
The same is true of section 2903.13(A). Like § 844(d), which
requires knowledge that an explosive will be used to kill, injure, or
intimidate, section 2903.13(A) criminalizes knowingly engaging in
conduct that, if successful, would cause physical harm to another or to
another’s unborn. Ohio Rev. Code. §§ 2903.13(A), 2923.02(A). Thus,
we conclude that section 2903.13(A) has as an element the “attempted
use” of physical force even under this alternative “mistaken view.” See
Linehan, 56 F.4th at 705–06.
16 UNITED STATES V. ALVAREZ
conviction under th[e] statute to count” as a crime of
violence. Walton, 881 F.3d at 771 (quoting Lopez-Solis, 447
F.3d at 1206).
As we have discussed, a crime of violence requires
“physical force against the person or property of another.” §
16(a). The Supreme Court has held that “‘physical force’
means violent force—that is, force capable of causing
physical pain or injury to another person.” Johnson v.
United States, 559 U.S. 133, 140 (2010). De minimis
contact is not enough. Id. at 139–40. Johnson, however,
“does not require any particular degree of likelihood or
probability that the force used will cause physical pain or
injury; only potentiality.” Stokeling v. United States, 139 S.
Ct. 544, 554 (2019). The standard is “force capable of
causing physical pain or injury.” Id. (quoting Johnson, 559
U.S. at 140). To determine “the categorical reach of a state
crime, we consider not only the language of the state statute,
but also the interpretation of that language in judicial
opinions.” Ortega-Mendez v. Gonzalez, 450 F.3d 1010,
1016 (9th Cir. 2006).
Section 2903.13(A) states that “[n]o person shall
knowingly cause or attempt to cause physical harm to
another or to another’s unborn.” Ohio defines “physical
harm to persons” as “any injury, illness, or other
physiological impairment, regardless of its gravity or
duration.” Ohio Rev. Code § 2901.01(A)(3). The question,
then, is whether Ohio’s definition of “physical harm”
requires “force capable of causing physical pain or injury.”
See Stokeling, 139 S. Ct. at 554 (quoting Johnson, 559 U.S.
at 140).
The Sixth Circuit has addressed this question and held
that section 2903.13(A) “qualifies as a crime of violence.”
UNITED STATES V. ALVAREZ 17
United States v. Evans, 699 F.3d 858, 865–66 (6th Cir.
2012), abrogated on other grounds by United States v.
Havis, 927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam).
The court in Evans reasoned that because a person can only
cause or attempt to cause physical harm by “knowingly
using or attempting to use physical force—i.e., force capable
of causing physical injury,” section 2903.13(A) “necessarily
requires proof that a defendant knowingly used, or attempted
to use, physical force capable of causing physical pain or
injury.” Id. at 863. Since Evans, the Sixth Circuit has
reconfirmed that section 2903.13(A) is a crime of violence.
Raymore, 965 F.3d at 490.
Alvarez urges us to diverge from the Sixth Circuit and
hold that section 2903.13(A) is not a crime of violence
because it reaches de minimis contact. To determine
whether section 2903.13(A) reaches de minimis contact, we
look not just to the language of the statute, but also to Ohio
cases applying that statute. Ortega-Mendez, 450 F.3d at
1016. Alvarez argues that the Sixth Circuit in Evans
overlooked several Ohio cases that he characterizes as
applying section 2903.13(A) to de minimis contact. 7
7
See State v. Birinyi, Nos. 95680, 95681, 2011 WL 6151478, at *6 (Ohio
Ct. App. Dec. 8, 2011) (spinning away from officer led to the officer
falling and landing on the suspect’s elbow and sustaining injury to the
officer’s rib cage); State v. Weiss, No. 09CA30, 2010 WL 3722275, at
*5 (Ohio Ct. App. Sept. 20, 2010) (throwing water balloons at
automobiles, cyclists, and pedestrians from several floors high); In re
R.A.M., No. 2010-L-011, 2010 WL 3492504, at *1–2 (Ohio Ct. App.
Sept. 3, 2010) (striking a teacher twice “with force” on the buttocks with
a book); State v. Jackson, No. L-04-1358, 2006 WL 513954, at *1 (Ohio
Ct. App. Mar. 3, 2006) (driving away while officer was partially inside
the vehicle, dragging the officer until he fell out); In re Pollitt, No. 00
CA 687, 2000 WL 1528663, at *1–3 (Ohio Ct. App. Oct. 10, 2000)
(hitting teacher with lowered shoulder); State v. Smith, No. 97APA07-
18 UNITED STATES V. ALVAREZ
Alvarez argues that our precedent finds that the actions in
these cases are de minimis and do “not rise to the level of a
‘crime of violence’ within the meaning of 18 U.S.C. §
16(a).” Ortega-Mendez, 450 F.3d at 1017.
We decline to split with the Sixth Circuit. Alvarez must
show a “realistic probability, not a theoretical possibility,”
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007), that
Ohio would apply section 2903.13(A) to de minimis contact
rather than “force capable of causing physical pain or
injury,” Stokeling, 139 S. Ct. at 554 (quoting Johnson, 559
U.S. at 140). He has not done so.
1
First, the text of section 2903.13(A) only criminalizes
force capable of causing physical pain or injury. The statute
states that “[n]o person shall knowingly cause or attempt to
cause physical harm to another or to another’s unborn.”
“Physical harm” is defined as “injury, illness, or other
physiological impairment, regardless of its gravity or
duration.” Ohio Rev. Code § 2901.01(A)(3). We agree with
the Sixth Circuit’s textual analysis that a person can only
cause or attempt to cause physical harm, that is, “injury,
illness, or other physiological impairment,” by “knowingly
874, 1998 WL 180563, at *3 (Ohio Ct. App. Apr. 14, 1998) (throwing
urine in prison officer’s eyes and mouth); State v. Robinson, No. CA-
6649, 1985 WL 6513, at *2–3 (Ohio Ct. App. Sept. 30, 1985) (throwing
urine on a person).
Alvarez also cites State v. Conliff, 401 N.E.2d 469, 476–77 (Ohio
Ct. App. 1978) (Whiteside, J., concurring in part and dissenting in part),
and State v. Kienzle, No. 2009 AP 03 0015, 2010 WL 1839443, at *1
(Ohio Ct. App. May 5, 2010). We need not consider either case. The
portion of Conliff that Alvarez cites comes from a concurrence, and
Kienzle does not involve a conviction under section 2903.13(A).
UNITED STATES V. ALVAREZ 19
using or attempting to use physical force—i.e., force capable
of causing physical injury.” Evans, 699 F.3d at 863–65; see
also United States v. Gatson, 776 F.3d 405, 410–11 (6th Cir.
2015) (Force that causes injury, illness, or other
physiological impairment, regardless of its gravity or
duration “is (to some extent, by definition) force ‘capable of
causing physical injury or pain to another person.’” (quoting
Johnson, 559 U.S. at 140)).
This reasoning aligns with our decision in United States
v. Juvenile Female, 566 F.3d 943, 946–47 (9th Cir. 2009).
In that case, we considered whether an assault resulting in
bodily injury under 18 U.S.C. § 111 is categorically a crime
of violence. Id. We held that a defendant charged with
assault resulting in bodily injury “necessarily must have
committed an act of force in causing the injury” and so it was
a crime of violence under § 16(a). Id. at 948. So too here.
A defendant convicted under section 2903.13(A) for causing
or attempting to cause physical harm, defined as “injury,
illness, or other physiological impairment,” Ohio Rev. Code
§ 2901.01(A)(3), also necessarily must have committed an
act of force capable of causing physical injury. See Juvenile
Female, 566 F.3d at 948.
The statute’s inclusion of the phrase “regardless of its
gravity or duration” does not alter our analysis. See Ohio
Rev. Code § 2901.01(A)(3). In Stokeling, 139 S. Ct. at 554,
the Supreme Court emphasized that the word “capable” in
the Johnson standard has meaning—it means that the
standard “does not require any particular degree of
likelihood or probability that the force will cause physical
pain or injury; only potentiality.” The Court distinguished
between mere offensive touching and “minor uses of force
that might not constitute violence in the generic sense,” but
“could nevertheless qualify as predicate offenses.” Id.20 UNITED STATES V. ALVAREZ
(internal quotations and citation omitted). In so doing, the
majority discussed Justice Scalia’s concurrence in United
States v. Castleman, 572 U.S. 157, 173 (2014), which
“concluded that force as small as ‘hitting, slapping, shoving,
grabbing, pinching, biting, and hair pulling’ . . . satisfied
Johnson’s definition” and that “[n]one of those actions bears
any resemblance to mere offensive touching, and all of them
are capable of causing pain or injury.” Stokeling, 139 S. Ct.
at 554 (quoting Castleman, 572 U.S. at 182 (Scalia, J.,
concurring)). “This understanding of ‘physical force,’” the
Court stated, “is consistent with our holding today.” Id.Thus, under Stokeling, section 2903.13(A) requires physical
force because “knowingly caus[ing] or attempt[ing] to cause
physical harm”—even of minimal gravity or duration—is
necessarily capable of causing physical pain or injury.
2
Second, the Ohio cases Alvarez cites do not show that
Ohio courts apply section 2903.13(A) to actions involving
less force than that necessary for a crime of violence. See
Flores-Vega v. Barr, 932 F.3d 878, 883 (9th Cir. 2019).
Using a book to strike a person “with force,” R.A.M., 2010
WL 3492504, at *1–2, resisting arrest, Birinyi, 2011 WL
6151478, at *6, dragging a person from a vehicle, Jackson,
2006 WL 513954, at *1, and lowering one’s shoulder to hit
another person, Pollitt, 2000 WL 1528663, at *1–3, all
involve force capable of causing physical pain or injury. See
Stokeling, 139 S. Ct. at 554.
Alvarez’s remaining cases involve throwing water
balloons, Weiss, 2010 WL 3722275, at *5, and throwing
urine, Robinson, 1985 WL 6513, at *2–3; Smith, 1998 WL
180563, at *3. But the specific facts of those cases also
involve more than mere de minimis contact.
UNITED STATES V. ALVAREZ 21
In Weiss, 2010 WL 3722275, at *1, the defendants threw
water balloons from a balcony several floors high and
targeted people on bicycles, as well as automobiles and
pedestrians. Throwing water balloons at cyclists and others
from several stories high is capable of causing physical pain
or injury. See Stokeling, 139 S. Ct. at 554. Some language
in Weiss suggests that section 2903.13(A) was enacted to
prohibit simple assault and battery, including “offensive
touching.” 2010 WL 3722275, at *4. But a more recent
published opinion by another Ohio appeals court has rejected
this conclusion, explaining that Weiss relied on old treatises
that “say little of [section] 2903.13(A)’s requirement of
physical harm” and conflicted with “other Ohio Appellate
Courts” requiring “physical harm as the statute states, rather
than simply requiring offensive touching.” State v.
Sepulveda, 71 N.E.3d 1240, 1248 (Ohio Ct. App. 2016).
Whether or not Weiss’s interpretation of section 2903.13(A)
remains viable after Sepulveda, the actual conduct at issue in
Weiss—throwing water balloons from several floors high at
cyclists and others—involved more than de minimis contact.
Likewise, Alvarez’s cases about thrown urine involved
more than de minimis contact. In Smith, 1998 WL 180563,
at *3, an officer “needed medical treatment” after he had
urine thrown in his face, which “burned” his eyes. And in
Robinson, 1985 WL 6513, at *3, there was “ample evidence”
that a disgruntled terminated employee, who screamed at a
coworker and threw urine at her, “attempted to cause
physical harm.” Both cases analyzed whether the conduct at
issue could cause physical harm, not just de minimis contact.
Smith, 1998 WL 180563, at *3 (concluding that the evidence
was “sufficient to establish the physical harm element”);
Robinson, 1985 WL 6513, at *3 (concluding that the jury
22 UNITED STATES V. ALVAREZ
could find that the appellant “attempted to cause physical
harm as charged”).
Alvarez contends that our decision in Ortega-Mendez
requires that we find the uses of force from these Ohio cases
insufficient to constitute a crime of violence. We disagree.
There, we held that a California battery statute was not a
crime of violence because it criminalized “mere offensive
touching.” Ortega-Mendez, 450 F.3d at 1017–18, 1021. In
reaching that conclusion, we listed “hitting another with a
thrown missile” and “throwing a cup of urine” as examples
of merely offensive touching that was not violent. 8 Id. at
1017 (citing Singh, 386 F.3d at 1232; People v. Pinholster,
842 P.2d 571, 622 (Cal. 1992)). But contrary to Alvarez’s
argument, Ortega-Mendez’s inclusion of these examples—
which were drawn from other cases involving different facts
and statutes from other states—does not transform the
conduct in Alvarez’s cited cases from Ohio into de minimis
contact. Again, no “particular degree of likelihood or
probability that the force used will cause physical pain or
injury” is required; “only potentiality.” Stokeling, 139 S. Ct.
at 554. And as discussed, each of Alvarez’s decisions
applying section 2903.13(A) involved conduct “capable of
causing physical pain or injury.” Id. (quoting Johnson, 559
U.S. at 140).
8
Because Ortega-Mendez was decided without the benefit of the
Supreme Court’s instruction in Johnson and Stokeling, we did not
consider whether there was “force capable of causing physical pain or
injury.” Stokeling, 139 S. Ct. at 554 (quoting Johnson, 559 U.S. at 140).
Instead, we asked only whether the force was “violent in nature.”
Ortega-Mendez, 450 F.3d at 1016 (citing Singh v. Ashcroft, 386 F.3d
1228, 1233 (9th Cir. 2004)).
UNITED STATES V. ALVAREZ 23
This conclusion does not, as Alvarez asserts, eviscerate
case law excluding de minimis contact from the crime of
violence definition. Physical force is still required, and the
Supreme Court continues to distinguish “‘minor uses of
force’ that might not ‘constitute violence in the generic
sense’” from “mere offensive touching.” Id. (quoting
Castleman, 572 U.S. at 165). Minor uses of force, such as
“hitting, slapping, shoving, grabbing, pinching, biting, and
hair pulling,” bear no “real resemblance to mere offensive
touching, and all of them are capable of causing physical
pain or injury.” Id. (quoting Castleman, 572 U.S. at 182(Scalia, J., concurring)). De minimis contact that cannot
cause physical pain or injury remains insufficient under §
16(a).
Thus, along with finding that the text of section
2903.13(A) only reaches contact capable of causing physical
pain or injury, we also hold that the type of conduct to which
section 2903.13(A) has been applied by Ohio courts is force
capable of causing physical pain or injury. See Stokeling,
139 S. Ct. at 554; Johnson, 559 U.S. at 140. 9
IV
For these reasons, we conclude that section 2903.13(A)
is a crime of violence under § 16(a). It thus qualifies as an
aggravated felony, 8 U.S.C. § 1101(a)(43)(F), and Alvarez’s
removal order was not fundamentally unfair, 8 U.S.C. §
1326(d)(3). Because Alvarez’s removal order was not
9
We need not address whether Alvarez suffered prejudice because we
find his due process rights were not violated by defects in the underlying
deportation proceeding. Ubaldo-Figueroa, 364 F.3d at 1048. Because
Alvarez must satisfy all three of § 1326(d)’s requirements to succeed on
his claim, Palomar-Santiago, 141 S. Ct. at 1620–21, we also need not
reach his arguments concerning § 1326(d)(1) and § 1326(d)(2).
24 UNITED STATES V. ALVAREZ
fundamentally unfair, we need not determine whether he
satisfied § 1326(d)’s first two requirements.
AFFIRMED.