United States Court of Appeals For the First Circuit

No. 22-1687

UNITED STATES OF AMERICA,

Appellee,

v.

ÁNGEL MENÉNDEZ-MONTALVO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Aida M. Delgado-Colón, U.S. District Judge]

Before

Kayatta, Lipez, and Thompson, Circuit Judges.

Samuel P. Carrión, with whom Héctor L. Ramos-Vega and Franco L. Pérez-Redondo were on brief, for appellant. Thomas F. Klumper, Assistant United States Attorney, with whom W. Stephen Muldrow, United States Attorney, and Mariana E. Bauzá-Almonte, Assistant United States Attorney, Chief, Appellate Division, were on brief, for appellee.

December 12, 2023 KAYATTA, Circuit Judge. While serving a term of

supervised release arising from his conviction for a federal

firearm offense, Ángel Menéndez-Montalvo ("Menéndez") breached the

conditions of that release by violating Article 3.1 of Puerto

Rico's Domestic Violence Law. The calculation of the guidelines

sentencing range for Menéndez's supervised release violation

turned in relevant part on whether a violation of Article 3.1 is

a "crime of violence" as that term is used in section 7B1.1(a)(1)

of the United States Sentencing Guidelines. For the following

reasons, we find that it is not. We therefore vacate Menéndez's

sentence because the district court held to the contrary in

calculating a guidelines sentencing range that was higher than it

should have been.

I.

On February 8, 2019, Menéndez pled guilty to illegal

possession of a firearm by a person with a prior felony conviction,

in violation of

(g)(1). He received a sentence of

12 months and one day, of which he served only four months before

beginning his three-year supervised release term on June 14, 2019.

The conditions of his supervised release prohibited Menéndez from

"committing another federal, state, or local crime." Menéndez

breached those conditions by, among other things, violating

- 2 - Article 3.1 of Puerto Rico Domestic Violence Law 54. Article 3.1

reads as follows:

Any person who employs physical force or psychological abuse, intimidation, or persecution against his/her spouse, former spouse, or the person with whom he/she cohabits or has cohabited, or the person with whom he/she shares a child in common . . . in order to cause physical harm to the person, the property held in esteem by him/her . . . or to another person, or to cause serious emotional harm, shall be guilty of a fourth- degree felony . . . .

.

The issue thus posed and contested by the parties was

whether Menéndez's violation of Article 3.1 was a Grade A or

Grade B violation under Guidelines section 7B1.1(a)(i). The

answer matters because while Menéndez's Grade A violation resulted

in a Guidelines sentencing range of 15 to 22 months, he contends

a Grade B violation would have carried a lower recommended range

of 6 to 12 months.

Section 7B1.1(a)(1) provides in relevant part that

"conduct constituting" an "offense . . . that . . . is a crime of

violence" is a Grade A violation. As the commentary to

section 7B1.1 explains, a "crime of violence" is defined in

section 4B1.2, which states:

The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . has as an element the use,

- 3 - attempted use, or threatened use of physical force against the person of another.

Menéndez offered two arguments for why a judge or jury

could properly convict a person of violating Article 3.1 without

having to find all the elements that define a crime of violence.

First, he argued that Article 3.1 indivisibly includes both

physical and psychological modalities, hence the offense could not

be said to require physical force in all circumstances. Second,

he argued that even if Article 3.1 is divisible into its physical

and psychological versions as different offenses, the physical

alternative does not require the type of violent physical force

that is required to be a crime of violence.

In rejecting these arguments, the district court found

first that Article 3.1 sets forth several divisible offenses, one

of which required the use of "physical force." The court then

detoured. Rather than asking whether the physical force element

of that version of the Article 3.1 offense required the use of

violent force sufficient to qualify as a crime of violence under

U.S.S.G. § 4B1.2, the court found that Menéndez's actual conduct

in fact involved the use of violent force. In the court's words,

"I'm looking at the actual conduct that has been described here by

the victim, which includes . . . punchings and beatings." Based

on its finding of divisibility and its review of the defendant's

conduct giving rise to the conviction, the district court concluded

- 4 - that Menéndez had committed a Grade A violation and sentenced him

to a term of 18 months imprisonment.

On appeal, Menéndez challenges both steps in the

district court's reasoning. He first contends that the district

court erred in finding that Article 3.1 is a divisible statute,

with both physical and non-physical versions. He then argues that

even if Article 3.1 is divisible, its physical version

criminalizes the use of even de minimis force, which under

controlling precedent is not "violent" force.

II.

"The question of whether an offense qualifies as a crime

of violence is a quintessentially legal one, and our review is de

novo." United States v. Martinez,

(1st Cir.

2014). We first give a brief overview of the legal framework at

issue, and then examine the specifics of Menéndez's arguments on

appeal.

The United States Sentencing Guidelines provide for

three grades of supervised release violations, each of which carry

different sentencing range recommendations. See U.S.S.G. § 7B1.1;

United States v. Colón-Maldonado,

(1st Cir. 2020).

A "Grade B" violation is defined as "conduct constituting any other

federal, state, or local offense punishable by a term of

imprisonment exceeding one year." U.S.S.G. § 7B1.1(a)(2). The

higher "Grade A" violation, on the other hand, is triggered by

- 5 - "conduct constituting . . . a federal, state, or local offense

punishable by a term of imprisonment exceeding one year that (i) is

a crime of violence, [or] (ii) is a controlled substance offense."

U.S.S.G. § 7B1.1(a)(1). As it pertains to this case, the key

distinction between a Grade A violation and a Grade B violation is

whether the underlying conviction constitutes a "crime of

violence," which the Sentencing Guidelines define as "any offense

under federal or state law, punishable by imprisonment for a term

exceeding one year, that -- has as an element the use, attempted

use, or threatened use of physical force against the person of

another." U.S.S.G. § 4B1.2(a)(1).

To determine what constitutes such a "crime of

violence," courts apply what has come to be known as the

categorical approach. See United States v. García-Cartagena,

(1st Cir. 2020). Under this approach, "the question

turns not on whether the defendant in fact 'used, attempted to

use, or threatened to use violent force in committing the crime as

a matter of historical fact, but on whether the use, attempted

use, or threatened use of violent force is required to satisfy one

of the crime's elements.'" United States v. Williams,

(1st Cir. 2023) (quoting United States v. Starks,

(1st Cir. 2017)). And so a court must determine

"whether the least serious conduct for which there is a 'realistic

probability' of a charge and conviction necessarily involves the

- 6 - use of violent force." Id. at 90. If it does not, then the

statute is overbroad, which means that a court cannot automatically

treat a violation of the statute as a "crime of violence" as

necessary to support a finding of a Grade A violation. Starks,

.

An overbroad statute, however, may still sustain a

predicate offense if it is divisible. A statute is divisible where

it "list[s] elements in the alternative, and thereby define[s]

multiple crimes." Mathis v. United States,

(2016). For example a state law that prohibits "'the lawful entry

or the unlawful entry' of a premises with intent to steal . . .

creates two different offenses" -- one involving the element of

lawful entry and one involving the element of unlawful entry.

If a statute is divisible, and "some of the alternative elements

require the use, attempted use, or threatened use of physical force

while others do not," courts thereby apply a "modified" categorical

approach. King v. United States,

(1st Cir. 2020).

Pursuant to this approach, a court looks to a "specific subset of

materials, including the indictment and jury instructions, to

determine which of the enumerated alternatives within the statue

constituted the actual crime of conviction."

And if the

actual crime of conviction "involves the use, attempted use, or

- 7 - threatened use of physical force against the person or property of

another, then the offense qualifies as a crime of violence."

A.

Having established the legal background against which

our analysis proceeds, we now turn to the merits of Menéndez's

argument on appeal. Recall that in the proceedings below the

district court read Article 3.1 as presenting at least two

alternative offenses, one of which is limited to the use of

physical force. We find this reading cogent and persuasive,

particularly given the statute's use of the disjunctive "or."

Further support for this conclusion is found in Puerto Rico's model

jury instructions, which treat the physical and non-physical

modalities of Article 3.1 as alternative offenses between which a

prosecutor may pick and choose. See Proposed Jury Instructions

Book, 390-93 § 14.2 (2008) (certified translation).

That being said, we need not and do not decide whether

Article 3.1 divisibly includes as one of several offenses an

offense limited to the use of physical force. Instead, as we will

explain, even if Article 3.1 offers such an alternative, divisible

offense, that offense is itself overbroad because the degree of

force sufficient to support a conviction is less than the amount

- 8 - of "physical force" necessary to satisfy the Guidelines'

definition of a "crime of violence."

B.

Assuming that Article 3.1 contains several divisible

offenses, one of which has as an element the use of "physical

force," we consider next whether the minimum physical force

required to constitute an Article 3.1 offense satisfies the

Guidelines' definition of a crime of violence. United States v.

Faust,

(1st Cir. 2017). Before doing so, though,

we reiterate the operational order the categorical approach

requires in a case like this, as we previously explained in García-

Cartagena,

. The district court properly

understood that where the Grade A classification turns not on a

conviction for a crime of violence, but rather on whether a

defendant engaged in conduct constituting such an offense, a court

may need to examine the defendant's actual conduct to determine

whether he did in fact commit the offense said to be a crime of

violence.1 However, a court engages in this fact-intensive

analysis only if it first finds that the offense said to have been

committed is categorically a crime of violence. See

.

As applied here, that mode of analysis required the

district court to determine whether the force required to sustain

1 This typically happens when the defendant has not already pled guilty to or been convicted of the underlying offense.

- 9 - a conviction under Article 3.1 is at least equal to the "physical

force" necessary to satisfy the Guidelines' definition of a "crime

of violence." If not, then whether and how Menéndez actually

committed the Article 3.1 offense is irrelevant to the question of

whether he committed an offense that is a crime of violence. To

reiterate, at this stage of the inquiry, the court must train its

attention on the requisite elements of the offense, not the manner

in which the offense was in fact committed.

To that end, Menéndez contends that the physical-force

version of Article 3.1 allows for a conviction based on de minimis

force, which cannot constitute violent force as defined by the

Guidelines. The Supreme Court considered a similar question in

Johnson v. United States,

(2010) -- whether a Florida

law that criminalized simple battery, defined as "actually and

intentionally touching" another person, was a "violent felony"

under the Armed Career Criminal Act (ACCA). In relevant part, the

ACCA provides for enhanced penalties for a person who violates

(g) and has "three previous convictions" for "a violent

felony."

. The definition of a "violent felony" parrots

the definition of a "crime of violence." See

(e)(2)(B)(i) (defining violent felony as "any crime

punishable by imprisonment for a term exceeding one year" that

- 10 - "has as an element the use, attempted use, or threatened use of

physical force against the person of another").

In its opinion, the Johnson Court clarified that "in the

context of a statutory definition of 'violent felony,' the phrase

'physical force' means violent force -- that is, force capable of

causing physical pain or injury to another person."

.

It emphasized that "[w]hen the adjective 'violent' is attached to

the noun 'felony,' its connotation of strong physical force is

even clearer."

Thus because the Florida Supreme Court had

held that "the element of 'actually and intentionally touching'

under Florida's battery law is satisfied by any intentional

physical contact, 'no matter how slight,'" the state law was

necessarily overbroad and could not serve as a predicate violent

offense.

.

Johnson dictates the result in this case. In the context

of a definition of "crime of violence," the phrase "physical force"

means violent force. By contrast, the Puerto Rico Supreme Court

has been clear that Article 3.1 "does not . . . offer any gradation

of physical force necessary for [a] crime to take place . . . .

Any kind of physical force or violence, moderate or severe, is

sufficient for this crime." Pueblo v. Roldán López,

(2002) (emphasizing that "[t]he gravity or severity of the

physical force used . . . is not an element in determining whether

the [offense] as such was committed or not"); see also Pueblo v.

- 11 - Ayala García,

, 213 (2012) ("Article 3.1 does not

demand that the physical force used is severe; any degree of force

is sufficient to configure the offense if employed with the

intention of causing damage." (emphasis added)). And as this

circuit's precedent holds, where a state statute recognizes that

"any physical force" is sufficient, then it cannot meet the

definition of "violent felony" under federal law. United States

v. Mulkern,

(1st Cir. 2017);

("The

word 'any' is a powerful beacon to us here, making clear that the

crime does not require a showing of force 'capable of causing

physical pain or injury' -- something short of that will do.").

The government responds that this court's decision in

United States v. Serrano-Mercado dictates that "the text of

Article 3.1 suggests that something more than a mere non-

consensual touching is required to satisfy" the element of physical

force.

(1st Cir. 2015). In that case, the panel

considered the law's requirement that the physical force be

intended to cause "physical harm" together with the Puerto Rico

Supreme Court's holding that "any degree of force is sufficient to

configure the offense if . . . employed with the intention of

causing some damage."

The panel found that distinction enough

to "strongly suggest the statute's physical-force element involves

the kind of violent force 'capable of causing physical pain or

injury to another person.'"

But as this circuit has

- 12 - subsequently emphasized, the Serrano-Mercado court "reviewed the

issue [of divisibility] for plain error," and thus that portion of

the opinion "wasn't a 'ruling on the merits.'" Colón-Maldonado,

953 F.3d at 7. It therefore does not demand a similar holding in

this case.

The government argues that we should nevertheless find

persuasive the Serrano-Mercado court's reasoning that intent to

cause physical harm -- coupled with the use of any amount of force

-- qualifies as violent force. But there is a distinction between

a person's intent to do harm and the steps taken to carry out that

intent. A person could, after all, intend to do someone harm even

while ineffectually taking no actions that can reasonably be said

to constitute "violent force -- that is, force capable of causing

physical pain or injury to another person." United States v.

Edwards,

(1st Cir. 2017). And it is a core tenet

of our justice system that a defendant must have committed the

prohibited act itself to merit criminal sanction. See United

States v. Aguilar,

(1995) ("The actus reus

element must be independently satisfied."). Adopting the

government's proposed intent standard comes dangerously close to

imposing liability based on a person's mindset alone.

The government responds that we have already considered

whether intent to cause physical harm qualifies as violent force.

It gestures to United States v. García-Ortiz, in which we held

- 13 - that "[a] threat to poison another imposes a 'fear of injury' . . .

to one's person," and that "placing someone in fear of bodily

injury" constitutes violent force under Johnson.

(1st Cir. 2018). But a threat to cause injury is quite

clearly different from an intent to cause injury. While the former

typically requires some outward act, the latter can exist with no

physical manifestation at all. García-Ortiz is therefore an inapt

comparison.2

The government also posits that Johnson "does not

require any particular degree of likelihood or probability that

the force used will cause physical pain or injury; only

potentiality." See Stokeling v. United States,

(2019). But this argument confuses how likely an attempt is

to succeed with the force used to effectuate that attempt. Taking

the government's argument to its logical conclusion, even a light

touch might have the potential to cause physical pain or injury,

however remote. But that would therefore imply that a mere touch

2 And to the extent the government is arguing that García- Ortiz stands for the proposition that a threat alone, regardless of the degree of force threatened, constitutes a crime of violence, we also remain unconvinced. The court in García-Ortiz was careful to note that "a threat to poison someone involves the threatened use of force capable of causing physical injury, and thus does involve violent force."

(emphasis added). Central to its reasoning, therefore, was the fact that the content of the threat was of a violent nature, rather than the mere fact of the threat's existence.

- 14 - constitutes violent force -- exactly what the Supreme Court

rejected in Johnson.

Finally, the government faults Menéndez for failing to

point to any cases in which a Puerto Rico court has applied

Article 3.1 to convict the use of de minimis physical force.

Certainly the categorical approach requires "a realistic

probability, not a theoretical possibility, that the [s]tate would

apply its statute to conduct that falls outside" the ambit of what

is defined in the Sentencing Guidelines. Moncrieffe v. Holder,

(2013). And, at least when the state statute

may not be obviously overbroad, that typically requires the

assurance provided by "cases in which the state courts in fact did

apply the statute in the special (nongeneric) manner for which he

argues." Gonzales v. Duenas-Alvarez,

(2007);

see also Da Graca v. Garland,

(1st Cir. 2022)

("[W]here a state statute is 'plainly' overbroad, a petitioner

need not produce an actual case to satisfy the realistic

probability test." (quoting Swaby v. Yates,

(1st

Cir. 2017)).

Here, though, it appears that Puerto Rico courts have

applied the law to encompass the kind of less-than-violent force

for which Menéndez argues. See Pueblo v. Figueroa Santana,

(2001) (Article 3.1 "ensure[s] aggressions between

couples, however insignificant they may seem, . . . are not

- 15 - considered as small or minor crimes" and extends to altercation in

which "the physical damage caused to the victim . . . was

minimal"); Roldán López,

(lower court erred in

overturning a conviction based on prosecution's failure to

"present evidence to establish that . . . a violent blow was

actually inflicted . . capable of attempting or causing harm");

(lower court's holding that "it is necessary to present

evidence about how intense the blow or assault was to determine if

it is capable of causing harm" was "totally wrong and contrary

to . . . public policy"). That is enough to demonstrate a

"realistic probability" that Puerto Rico applies Article 3.1 in a

way that precludes the law's use as a predicate offense for a

Grade A violation.

III.

We recognize that, as the foregoing illustrates, the law

governing this issue of sentencing may seem counterintuitive.

Given that the obvious aim of the Grade A classification is to

propose longer sentences for felonies committed with violent

force, and given the need to assess conduct in determining whether

a defendant has committed the alleged violation, one might well

think that a finding that the conduct includes clearly violent

force would suffice to warrant a Grade A classification. But

- 16 - neither Congress nor the Sentencing Commission opted for such an

approach.

None of this is to say that the district court on remand

may not consider Menéndez's conduct while on supervised release as

it bears on the factors specified in

(e), which

include "the nature and circumstances of the offense and

characteristics of the defendant,"

(a)(1).

Accordingly, when making its final sentencing calculus, the

district court has "wide discretion" to weigh the "serious nature

of [Menéndez's] domestic violence offense and the circumstances

surrounding it." United States v. Daoust,

(1st Cir. 2018). The ascertainment of a sentence, though, need

begin with a proper classification of the violation, and that

classification requires an assessment of the elements of the

offense said to have been committed rather than the means by which

it was committed. For that reason, we vacate the sentence and

remand to the district court for further proceedings consistent

with this opinion.

Given the possibility that the district court in its

discretion may (but need not) issue a shorter sentence on remand,

if the government knows that it is not going to seek rehearing it

shall so promptly inform the court of appeals clerk so that the

mandate may then be issued forthwith.

- 17 -