author: PER CURIAM:

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    UNITED STATES of America, Plaintiff-Appellee v. Vandale THOMAS, Defendant-Appellant
    No. 15-30758
    United States Court of Appeals, Fifth Circuit.
    Filed January 30, 2017

      Jeffrey Ryan McLaren, Kevin G. Boit-mann, Assistant U.S. Attorney, Diane Hol-lenshead Copes, Esq., Assistant U.S. Attorney, Brian Marshall Klebba, Assistant U.S. Attorney, U.S. Attorney’s Office, Eastern District of Louisiana, New Orleans, LA, for Plaintiff-Appellee.
    Michael Boland Admirand, Claude John Kelly, III, Federal Public Defender, Federal Public Defender’s Office, Eastern District of Louisiana, New Orleans, LA, for Defendant-Appellant.
    Before DAVIS, ELROD, and HIGGINSON, Circuit Judges.
   PER CURIAM:

Defendant-Appellant Vandale Thomas was convicted of theft from a program receiving federal funds, money laundering, and payment structuring arising out of work he performed for the New Orleans Traffic Court. Thomas appeals his convictions and sentence. For the reasons stated below, we AFFIRM his convictions and sentence.

I.

Defendant-Appellant Thomas was a contractor for the New Orleans Traffic Court (“Traffic Court”) who provided various accounting services for the court. At trial, the government presented evidence that Thomas overbilled the Traffic Court for his services, sometimes billing for over twenty-four hours of work in a single day. Thomas would bill for services he did not provide, bill at a rate in excess of his contracted hourly rate, and backdate transactions in an attempt to conceal his activities. Thomas processed his own invoices and issued checks to himself after obtaining the signature of either the Traffic Court’s judicial administrator or one of the Traffic Court judges. Between 2008 and 2011, Thomas received between $600,000 and $800,000 for billed services that he did not provide. After a five-day jury trial, Thomas was convicted of three counts of theft from a program receiving federal funds under 18 U.S.C. § 666; three counts of money laundering under 18 U.S.C. § 1957; and five counts of illegal payment structuring under 31 U.S.C. § 5324(a). The district court sentenced Thomas to three ye'ars of imprisonment. Thomas timely filed a notice of appeal.

II.

Thomas first argues that 18 U.S.C. § 666 should not have been applied to his conduct and that the evidence is insufficient to demonstrate that the elements of section 666 were met. Reviewing the sufficiency of the evidence, we ask whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Cooper, 714 F.3d 873, 880 (5th Cir. 2013) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). We review de novo an interpretation of a federal statute. United States v. Reyes, 239 F.3d 722, 733 (5th Cir. 2001).

Section 666 makes it a crime for an agent of a state or local government or agency to embezzle, steal, obtain by fraud, or otherwise without authority knowingly convert to his own use property that is worth $5,000 or more that is owned or under the care, custody, or control of that government or agency if that government or agency “receives, in any one year period, benefits in excess of $10,000 under [a] Federal program.” 18 U.S.C. § 666(a)-(b); see also United States v. Smith, 804 F.3d 724, 728 (5th Cir. 2015). As properly instructed to the jury using this Circuit’s pattern jury instructions, the elements of section 666 are: (1) Thomas was an agent of the City of New Orleans; (2) the City of New Orleans was a local government that received in any one-year period, benefits in excess of $10,000 under a Federal program; (3) Thomas knowingly embezzled, stole, obtained by fraud, or converted to the use of any person other than the rightful owner without authority, property that was owned by or under the care or control of the City of New Orleans or an agency thereof; and (4) the property had a value of $5,000 or more. See United States v. Phillips, 219 F.3d 404, 409 (5th Cir. 2000) (applying the same elements).

As this court has previously observed, the definition of “agent” under the first element of section 666 is broad. Id. at 411; see also United States v. Harris, 296 Fed.Appx. 402, 404 (5th Cir. 2008) (unpublished) (noting that section 666 “defines agent very broadly”). Further, “the funds in question need not be purely federal, nor must the conduct in question have a direct effect on the federal funds. The statute possibly can reach misuse of virtually all funds of an agency that administers the federal program in question.” Phillips, 219 F.3d. at 411. However, our understanding of the statute’s reach must account for “how organizationally removed the employee is from the particular agency that administers the federal program.” Id. In United States v. Phillips, we cautioned that the term agent “should not be given the broadest possible meaning ... but instead should be construed in the context of § 666 to tie the agency relationship to the authority that a defendant has with respect to control and expenditure of the funds of an entity that receives federal monies.” Id. at 415. In other words, the question of whether a defendant qualifies as an agent “within the meaning of section 666 turns on whether [the defendant] was authorized to act on behalf of [the entity receiving federal monies] with respect to its funds.” Id. at 411. After our decision in Phillips, the Supreme Court provided further clarification of section 666’s statutory framework and highlighted the type of evidence that juries and courts should consider. In Sabri v. United States, the Court emphasized that the critical inquiry is the nexus between the criminal activity and government entity receiving federal funds, not the nexus between the criminal activity and any particular federal funds. 541 U.S. 600, 604-05, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004).

The jury in this case was instructed using our pattern jury instructions, which incorporate these critical nuances and limiting principles. For example, they, instruct the jury on the statutory definition of “agent” under section 666 and provide the jury with this court’s narrowing “nexus” requirement that the alleged criminal conduct be sufficiently connected to the government entity receiving the federal funds: “It is not necessary to prove that the defendant’s conduct directly affected the funds received by the agency under the Federal program. However, there must be some connection between the criminal conduct and the local government receiving the federal assistance.” Additionally, the district court here made clear to the jury that the government’s theory of prosecution was that:

the Traffic Court of New Orleans is a department of the City of New Orleans, and that Mr. Thomas, being the Chief Financial Officer of the Traffic Court, was an agent of the City of New Orleans because Mr. Thomas was authorized to act on behalf of the City of New Orleans with respect to its funds.

Neither party challenges the sufficiency of the district court’s jury charges. “Because the jury was required to find that all of the elements of § 666(a)(1) were met in order to find [Thomas] guilty, we review the evidence in the light most favorable to the Government as the prevailing party at trial.” Harris, 296 Fed.Appx. at 404.

The parties agree that the City of New Orleans received benefits in excess of $10,000 annually during the time period at issue and that the misappropriated funds had a value of $5,000 or more. However, Thomas argues that his conviction should be vacated because there was insufficient evidence to support the jury’s verdict that he was an “agent” of the City of New Orleans within the meaning of section 666; in other words, Thomas argues that there was an insufficient connection between his criminal conduct and the local government receiving federal assistance.

We stress the importance that the government meet its burden of proving that this critical federal nexus exists. See Phillips, 219 F.3d at 413-14 (“[Although the conduct prohibited by section 666 need not actually affect the federal funds received by the agency, there must be some nexus between the criminal conduct and the agency receiving federal assistance.”) (emphasis in original) (quoting United States v. Moeller, 987 F.2d 1134, 1137 (5th Cir. 1993)); cf. United States v. Izydore, 167 F.3d 213, 220 (5th Cir. 1999) (reversing a wire fraud conviction because the government failed to provide’ sufficient evidence of the interstate nexus element, “an immutable requirement”). Without holding the government to its burden to prove the requisite federal nexus, we risk “turning] almost every act of fraud or bribery into a federal offense, upsetting the proper federal balance.” Fischer v. United States, 529 U.S. 667, 681, 120 S.Ct. 1780, 146 L.Ed.2d 707 (2000).

Regrettably, the government neglected to focus its brief on much of the trial record evidencé supporting the nexus between Thomas’s fraudulent activity and the government entity receiving federal funds—specifically the City of New Orleans. At oral argument, we entreated the government to point us to record evidence that Thomas had authority to act on behalf of the City of New Orleans with respect to the City’s funds, but the government was unable to do so. Nevertheless, our own review of the record reveals sufficient evidence to support the jury’s reasonable determination that Thomas was the City’s “agent” under Phillips and that he had authority to act on behalf of the City with respect to the City’s funds. We therefore conclude that the evidence presented to the jury, when viewed in the light most favorable to the government, was sufficient to support the verdict.

At the most general level, the jury heard not only direct witness testimony explicitly stating that the Traffic Court is a department of the City of New Orleans and that Thomas was an agent of both entities, but also supporting evidence demonstrating the close organizational connection between the City and its Traffic Court, as well as evidence showing that Thomas was authorized to act on behalf of both the City and the Traffic Court with respect to those entities’ funds. Thomas oversaw and managed Traffic Court bank accounts, including accounts containing City funds, and had “full authority to make entries into the [accounting] system, to generate checks from the system, to reconcile the system, [and] to move funds, moneys across [accounts] in the system.”

Despite this evidentiary record, Thomas urges that our decision in Phillips, nonetheless forecloses a finding by the jury that he was an agent of the City of New Orleans under section 666. We disagree, not only because the jury was properly instructed on the law using our court’s pattern jury instructions — which digest and incorporate our holding in Phillips— but also because the facts of Phillips are distinguishable.

In Phillips, we held that a former tax assessor of St. Helena Parish, Louisiana, was not an “agent” of St. Helena Parish within the meaning of section 666. Phillips, 219 F.3d at 418. We based this determination in large part on the legal separation created by Louisiana law between the Tax Assessor’s Office and the Parish, noting that “[t]he Louisiana Constitution, as well as statute, establish assessment districts as independent of parish government” and that “the activities of the assessor are supervised by the Louisiana Tax Commission, a state board controlled by state officials.” Id. at 412; see also Harris, 296 Fed.Appx. at 404 (distinguishing Phillips on the ground that the court in Phillips “ruled that the defendant ... was not an agent of St. Helena Parish under § 666(d)(1), because Louisiana law completely separated the tax assessor’s office from the parish government” (emphasis added)). We further observed that the Tax Assessor’s Office had “a separate retirement system and health and life insurance benefits” and that, despite some statutorily-required support provided by the Parish, the Assessor’s Office “is almost wholly self-funded by tax millage.” Id. at 412. Importantly, there was “nothing in the record to indicate that [the tax assessor] had any ability to control or administer employees or programs or funds of the parish.” Id. at 413. Despite this separation, the district court in Phillips provided the jury with the eonelusory instruction that, “[u]nder Louisiana law, tax assessors are parish officers.” Phillips, 219 F.3d at 410, 413. To the contrary, based on the facts of that case, we concluded that the tax assessor, “as a matter of law, was not an employee or officer of the parish” nor was he “authorized to act on behalf of the parish with respect to its funds.” Id.

By contrast, the evidence presented in this case, taken in the light most favorable to the government, does not reveal an equivalent level of organizational divide between the City and the Traffic Court. In fact, the jury heard direct testimony that the “Traffic Court is part of New Orleans. It’s a department within the City of New Orleans.” Witnesses further testified that the Traffic Court receives an appropriation from the City’s General Fund each year, which ranged from $500,000 to over $900,000 annually during Thomas’s tenure. To receive this appropriation, the Traffic Court is required to prepare a proposed budget, which it presents to the City Council each year for approval. In fact, as CFO, Thomas served as the Court’s liaison to the City’s budget office and prepared the Traffic Court’s annual budget for presentation to and approval by the City Council. One witness also testified that the Traffic Court is unable to bring legal action on its own behalf in order to, for example, seek restitution for overbilled accounting fees. Instead, any legal action brought on behalf of the Traffic Court “would have to be instituted by the City of New Orleans.” Further, the City has access to the Court’s books and audits the Court’s finances through the City of New Orleans Inspector General’s Office, which, in fact, participated in the uncovering of Thomas’s fraud during its 2011 audit of the Court.

Additionally, while the City shares responsibility under Louisiana law with the state for funding the Traffic Court judges’ salaries, a state auditor testified that “the payroll for [the] Traffic Court is actually paid through the City of New Orleans.” The government also elicited testimony that the City, unlike the parish in Phillips, coordinates Traffic Court employees’ human resources and employment benefits, such as health insurance. The City also provides the Court’s information-technology infrastructure, security, and phone systems. As one witness put it, “without the City of New Orleans, the Court could not function ... on [its] own.”

The jury also heard explicit testimony that as CFO, Thomas was both an agent of the Traffic Court and of the City, and the government put forward evidence showing that Thomas was authorized to act on behalf of both the City and the Traffic Court with respect to those entities’ funds. The Court’s current judicial administrator testified that Thomas had the “full spectrum of control in terms of [the Court’s] financial accounting system.” For example, as the CFO, Thomas had “full authority to make entries into the [accounting] system, to generate checks from the system, to reconcile the system, [and] to move funds, moneys across [accounts] in the system.” His written contract further authorized him to “[p]rovide any/all supervision to [the] Court’s financial personnel in [the Court’s] Accounting^] Administrative[, and] Technology Departments.” These supervised employees, who received health insurance benefits and human resource support from the City, understandably understood themselves to be City employees. Thomas himself was supervised by Traffic Court judges whose salaries were paid by the City and through the City’s payroll.

Thomas makes much of the fact that “all of the money at issue in this case, whether earned or allegedly misappropriated, came out of the Judicial Expense Fund” (JEF), the Traffic Court’s internal bank account, which it used to pay many of its own operational costs directly. The funds held in the Traffic Court’s JEF account consist of revenues generated from fines, fees, and bond forfeitures that Thomas would transfer to the JEF from the Court’s other four accounts. Prior to the formation of the JEF account, the Traffic Court deposited its revenues directly into the City’s General Fund, and the Court’s bills were paid directly from that central account. However, by the time Thomas was appointed CFO, state law had been amended to per.mit the Court to withhold a portion of collected fines, fees, and forfeited bonds and deposit those funds directly into an internal bank account to be used to defray a portion of the court’s operational costs. Like many other Traffic Court employees, evidence at trial suggested that Thomas was paid for his accounting services through checks from the JEF account, rather than directly from the City’s General Fund or from one of the Court’s other four bank accounts. Based on this evidence, Thomas insists that he could not “exert control over any of the City’s funds” and that “his activities were confined to the local funds that the Traffic Court generated and disbursed....”

As an initial matter, we read the Supreme Court’s opinion in Sabri as cautioning against this type of fixation on the question of which precise funds have been mishandled or stolen, as opposed to the nexus between the criminal conduct and the government entity that receives the federal funds. Section 666 does not require “proof of connection with federal money as an element of the offense.” Sabri, 541 U.S. at 606, 124 S.Ct. 1941. And for good reason: “Money is fungible.... Liquidity is not a financial term for nothing; money can be drained off here because a federal grant is pouring in there.” Id. at 606, 124 S.Ct. 1941.

However, even accepting the accuracy and relevance of Thomas’s urged distinction between “City” funds and the so-called “Traffic Court” funds contained in the Court’s JEF account, the jury’s finding against Thomas’s claim that he did not exert control over “any of the City’s funds” is nonetheless supported by evidence presented by the government at trial. As multiple witnesses testified, Thomas had access to, controlled, and moved funds among all five of the Traffic Court’s bank accounts: the Bond Forfeiture account, the Phone (or “IVR”) account, the Internet (or “INET”) account, the Fines and Fees (or “Escrow”) account, and the Court’s internal Judicial Expense Fund (JEF) account. Although Thomas was compensated from the JEF account, witnesses also testified that three of the other four accounts controlled by Thomas — the Fines and Fees account, the Internet account, and the Phone account — held City funds. Crucially — and an apt illustration of Sabri’s “liquidity” concept — Thomas had “full authority ... to move funds ... across” these accounts and, in fact, did move funds from these accounts to the JEF account from which he improperly siphoned money. For example, the Fines and Fees — or “Escrow” — account holds funds generated by traffic ticket revenue paid by defendants who appear before the Court. This includes what one witness characterized as the “City’s fine money,” meaning the City’s share of that traffic ticket revenue. As the person authorized to oversee the Fines and Fees account, Thomas was charged with determining how much money was to be transferred to the City from the Fines and Fees account each month. Thomas also transferred funds from the Fines and Fees account to the JEF account to cover various operational costs of the Court, including his own accounting fees. The jury additionally heard testimony that Thomas was authorized by the City’s Chief Administrative Officer in the May- or’s Office to pay himself $150,000 out of City funds held in the Fines and Fees account as compensation for a portion of his accounting work. Checks introduced by the government suggest that Thomas paid himself using funds from the JEF account and then transferred City funds from the Fines and Fees account to the JEF account as reimbursement.

Thomas also managed City funds held in the Phone and Internet accounts (referred to at trial as the “IVR account” and the “INET account”), which the City set up to collect traffic fines and fees paid by defendants electronically through the City’s website and by phone. One witness went so far as to describe the Internet account as “the City of New Orleans’s bank account,” rather than the Traffic Court’s account. During his tenure at the Traffic Court, Thomas provided “accounting services to process, reconcile, review, and disburse funds” that had accumulated in these accounts, disbursing the funds to both the City and to the Traffic Court’s internal JEF account. Thomas himself reported to Traffic Court judges that his reconciliation, review, and disbursement of funds from these accounts had resulted in a cumulative contribution of $3 million for the City’s General Fund, evidence that Thomas was authorized to act on behalf of the City with respect to at least $3 million of its funds held in those two accounts alone. Based on this evidence, we find no merit to Thomas’s contention that the jury could not find that he was “authorized to act on behalf of [the City] with respect to its funds.” Phillips, 219 F.3d at 411.

Above all, we reiterate that the jury in this case came to its verdict after having been properly instructed on the elements and nuances of section 666. This allowed the jury to assess and weigh the evidence before it using the precise legal framework provided by our pattern jury instructions, which benefit from and incorporate the limiting concepts we articulated in Phillips, as well as the more recent insight provided by the Supreme Court in Sabri. We thus conclude — as the district court did when faced with the same question post-verdict — that the evidence presented at trial, taken in the light most favorable to the government, was sufficient for a rational trier of fact to find that the elements of section 666 were met. Therefore, we cannot disturb the jury’s verdict.

III.

Alternatively, Thomas argues that if we were to construe section 666 so broadly as to encompass his conduct, the statute would be unconstitutional. We disagree. Thomas’s argument rests on the assumption that there is no agency relationship between himself and the entity receiving federal funds, the City of New Orleans. However, as Thomas himself notes, this court has necessarily interpreted the term “agent” — an interpretation we apply here — in such a way as to avoid constitutional concerns of the type he raises. United States v. Lipscomb, 299 F.3d 303, 313 (5th Cir. 2002); Phillips, 219 F.3d at 414. Under this court’s precedent, if there is a nexus between the criminal conduct and the agency receiving federal assistance (as distinct from the nexus between the misconduct and the federal funds themselves), the application of section 666 is constitutional. Phillips, 219 F.3d at 413-14 (“[Although the conduct prohibited by section 666 need not actually affect the federal funds received by the agency, there must be some nexus between the criminal conduct and the agency receiving federal assistance.”) (quoting Moeller, 987 F.2d at 1137); see also Sabri, 541 U.S. at 604, 124 S.Ct. 1941 (rejecting the argument that for application of section 666 to be constitutional there must be “proof of [a] connection between a bribe or kickback and some federal money”). The jury, having been properly instructed on this crucial requirement, found the existence of that nexus and concluded that Thomas was an agent of the City. Our own review of the evidentiary record confirms that finding. In sum, because we conclude that the evidence was sufficient to establish an agency relationship between Thomas and the entity receiving federal funds according to the statutory definition and the limiting principles described in Phillips, the application of section 666 to the unlawful conduct here is constitutional.

IV.

Thomas argues that the district court erred when it allowed portions of expert Paul Duplessis’s testimony at trial. Duplessis was accepted by both parties as “an expert in money laundering and methods of concealing sources of income, including but not limited to transferring currency, structuring, and the use of cash to conceal transactions.” Thomas failed to object to Duplessis’s testimony at trial; therefore, we review the admission of Du-plessis’s testimony for plain error. United States v. Cordova-Soto, 804 F.3d 714, 722 (5th Cir. 2015). In reviewing for plain error, we use a four-prong approach: (1) there must be an error; (2) the error must be clear or obvious; (8) the error must affect the appellant’s substantial rights; and (4) if the above prongs are satisfied, we have discretion to remedy the error “which ought to be exercised only if the error substantially affects the fairness, integrity or public reputation of the judicial proceedings.” United States v. Benitez, 809 F.3d 243, 248-49 (5th Cir. 2015) (internal quotation marks and brackets omitted).

As we have recognized, “[t]he Federal Rules of Evidence circumscribe when an expert witness may testify with respect to a disputed matter at trial.” United States v. Ramos-Rodriguez, 809 F.3d 817, 825 (5th Cir. 2016). Federal Rule of Evidence 702(a) “provides that an expert may testify if his scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.” Id: (internal quotation marks omitted). “However, in a criminal case, an expert must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.” Id. (quoting Fed. R. Evid. 704(b)) (internal quotation marks and brackets omitted). An expert may state an opinion even if it “embraces an ultimate issue.” Fed. R. Evid. 704(b).

In his brief, Thomas argues that Duples-sis opined improperly about Thomas’s mental state. Thomas also complains generally about Duplessis’s use of summary charts as well as Duplessis’s testimony about the accuracy of the charts. Finally, Thomas argues that Duplessis improperly commented on the applicable law. We address each of these in turn.

First, Thomas contends that Du-plessis’s testimony improperly bore on Thomas’s state of mind with respect to the structuring counts. At trial, Duplessis testified about Thomas’s unusual transaction history, specifically regarding Thomas’s multiple cash transactions that were just under $10,000. Duplessis testified that he considered whether Thomas’s gambling habits were the reason for the numerous cash transactions, but determined that “there was no pattern here of [Thomas] withdrawing cash, going to the casinos, losing cash and going back,” thereby eliminating that as the reason for the transactions. Thomas argues that this was impermissible testimony regarding his state of mind. We disagree.

The only state-of-mind issues before the jury with respect to Thomas’s structuring counts were: (1) whether Thomas knew of the financial institutions’ legal obligation to report transactions over $10,000; and (2) whether Thomas knowingly structured or attempted to structure his transactions. The testimony Thomas complains of does not directly address either of these elements, but rather it addresses whether Thomas’s gambling could be an alternative explanation for the transactions in question. Because Duplessis’s testimony did not directly speak to Thomas’s mental state, Thomas has not demonstrated that the district court plainly erred in allowing the testimony. See United States v. Dvorin, 817 F.3d 438, 448 (5th Cir. 2016) (holding that the district court did not abuse its discretion in admitting testimony where the expert used the phrases “fraudulent checks,” “fraud,” and “conspiracy” but never directly commented on the defendant’s state of mind).

Next, Thomas complains generally about Duplessis’s use of, and reliance on, summary charts prepared by a legislative auditor following a two-year investigative audit of the Traffic Court. Thomas also complains that Duplessis improperly commented on the accuracy of the summary charts. While referencing the charts throughout his testimony, Duplessis testified that they contained “an accurate reflection” of the amount Thomas “was authorized to receive” through his contract with the Traffic Court. Thomas has not pointed us to any authority demonstrating that Duplessis’s reference to or testimony regarding the charts was improper. Rule 702(b) requires that an expert’s testimony be “based on sufficient facts or data,” therefore, it was incumbent on Duplessis to review the extensive audit materials for accuracy before relying on them to conclude that Thomas received excess payments. Before testifying as to the charts’ accuracy, Duplessis testified that he had reviewed all of the contracts relevant to Thomas as well as the documents prepared by the legislative auditor. Therefore, Du-plessis’s testimony as to the charts’ accuracy was “based on sufficient facts or data.” Fed. R. Evid. 702(b). Thomas has not demonstrated that the district court plainly erred in allowing Duplessis’s testimony about the summary charts and their accuracy. See Fed. R. Evid. 702(b), 704(b).

Finally, Thomas argues that the district court plainly erred when it allowed Duplessis to testify about the law. With regard to the payment structuring count, Thomas specifically points to Duplessis’s testimony that “[i]t doesn’t matter whether or not the money is from illegal sources or legal sources. For a structuring violation to occur, it doesn’t matter if it’s legal or illegal money.” Thomas argues that such testimony improperly allowed Duplessis to give his opinion on the legal conclusions to be drawn from the evidence. The government contends that this testimony served only to help the jury understand why Du-plessis was not giving an opinion on the legality of the funds in contrast to his testimony regarding the money laundering counts.

We have held that Rule 704 “does not allow an expert to render conclusions of law.” Snap-Drape, Inc. v. C.I.R., 98 F.3d 194, 198 (5th Cir. 1996); see also Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983). This rule and the other Federal Rules of Evidence “afford ample assurances against the admission of opinions which would merely tell the jury what result to reach.... ” Salas v. Carpenter, 980 F.2d 299, 305 n.4 (5th Cir. 1992); Fed. R. Evid. 704 advisory committee’s notes (1972). While we do not believe this portion of Duplessis’s testimony amounts to legal conclusions that tell the jury what result to reach with respect to a particular element of the structuring offense, the testimony does speak to what the law is. Even assuming arguendo that admitting this portion of Duplessis’s testimony amounted to a clear or obvious error, Thomas has not shown that such an error affected his substantial rights. In general, “an error affects a defendant’s substantial rights only if the error was prejudicial.” United States v. Morin, 627 F.3d 985, 994 (5th Cir. 2010). And an error is prejudicial only if “there is a reasonable probability that' the result of the proceedings would have been different but for the error.” Id. Here, we do not believe Thomas was prejudiced by this portion of Duplessis’s testimony because his testimony on this issue accurately stated the law, and it was consistent with the jury instructions pertaining to the structuring counts. Moreover, the district court mitigated any potential prejudice by instructing the jury to judge Duplessis’s testimony “like any other testimony,” and by reminding the jury in the middle of Du-plessis’s testimony that it was the court’s responsibility, not the responsibility of any witness, to instruct them on the law.

In sum, none of the alleged errors pertaining to Duplessis’s testimony of which Thomas complains “substantially affects the fairness, integrity or public reputation of the judicial proceedings” so as to justify the exercise of our discretion on plain error review. Benitez, 809 F.3d at 248-49. This is especially the case where, as here, the evidence against Thomas as to his payment structuring counts was overwhelming. See United States v. Gutierrez-Farias, 294 F.3d 657, 663-64 (5th Cir. 2002).

V.

Thomas next argues that the district court improperly admitted evidence under Federal Rule of Evidence 404(b). At trial, the government introduced evidence that from January 2006 through October 2008 — the years immediately preceding the conduct at issue in his trial — Thomas submitted “inflated and duplicate invoices” to the Traffic Court. Thomas objected to the evidence on the basis that he was never charged for this conduct, but the district court ruled it was admissible under Rule 404(b) as it bore on Thomas’s “intent, as well as any claim of mistake or accident.”

We review the district court’s admission of Rule 404(b) evidence over the defendant’s objection for abuse of discretion. United States v. Smith, 804 F.3d 724, 735 (5th Cir. 2015). Evidence of an uncharged crime or other act “must be sufficient to support a finding that the crime or act actually occurred.” Id. “If evidence of the crime or act is sufficient, its admissibility under Rule 404(b) hinges on whether (1) it is relevant to an issue other than the defendant’s character, and (2) it possesses probative value that is not substantially outweighed by its undue prejudice under Federal Rule of Evidence 403.” Id.

Here, Thomas does not dispute that the government presented evidence “sufficient to support a finding that the crime or act actually occurred.” See Smith, 804 F.3d at 735. Further, the evidence was relevant to an issue other than Thomas’s character as it “lessenfed] the likelihood that [Thomas] committed the charged offense with innocent intent.” Id. at 736. Finally, the disputed evidence’s probative value was not substantially outweighed by any undue prejudice under Rule 403. Id. The evidence of the uncharged offense “generate[d] sufficient probity” to meet Rule 403 as it occurred close in time to the charged offense and both instances showed Thomas overbilling his employer for large sums of money while acting in an auditing or accounting role. See id. In addition, the district court was careful to give the jury instructions pertaining to the proper use of the evidence. Id. Accordingly, the district court did not abuse its discretion by admitting the evidence under Rule 404(b). Id.; see also United States v. Kinchen, 729 F.3d 466, 474 (5th Cir. 2013).

VI.

Finally, Thomas claims that the district court violated his rights when it granted the government’s reverse-Bat-son challenge and empaneled a juror upon whom Thomas had exercised a preemptory strike. A “district court’s determination that a party has used peremptory strikes in a discriminatory manner is a finding of fact and thus cannot be overturned by this Court absent clear error.” United States v. Bentley-Smith, 2 F.3d 1368, 1372 (5th Cir. 1993). A finding is clearly erroneous when “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” Anderson v. City of Bessemer, 470 U.S. 564, 573, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). The district court’s decision is clear error “only if it is implausible in light of the record considered as a whole.” Brumfield v. Cain, 808 F.3d 1041, 1057 (5th Cir. 2015).

To make out a discrimination challenge, the party challenging the peremptory strike “must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” Johnson v. California, 545 U.S. 162, 168, 125 S.Ct. 2410, 162 L.Ed.2d 129 (2005). Once the prima facie case is established, the burden shifts to the party who made the peremptory challenge to “explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes.” Id. Finally, if a race-neutral explanation is tendered, the trial court must decide “whether the opponent of the strike has' proved purposeful racial discrimination.” Id.

During jury selection, Thomas’s counsel used a peremptory challenge to strike Juror No. 27. The government objected to the peremptory challenge of Juror No. 27, arguing that the defense had sought to get rid of the juror merely because he was white. The government argued that there was a prima facie case that the defense had used all of its strikes on white prospective jurors. Defense counsel provided race-neutral reasons for why it struck each contested juror including the following two reasons for striking Juror No. 27: (1) the juror had been a claims adjuster and thus could possess relevant expertise that might render him predisposed against Thomas; and (2) the juror had previously served on a jury that found a defendant not guilty in a rape case. When the district court asked for further explanation with regard to the second reason, defense counsel explained: “it’s very difficult for a juror to sit and find a defendant not guilty, they end up sometimes being ridiculed and so forth when they sit on a case and find a defendant not guilty, I would think the next time they sit on a jury they would have a tendency to be favoring the state, just been my experience over the years.” The district court sustained the government’s objection, explaining that the defense’s asserted race-neutral reasons for striking Juror No. 27 were pretextual. Thomas contends it was clear error for the district court to conclude that defenses' counsel’s reasons for striking Juror No. 27 were pretextual.

The Supreme Court has held that the trial court’s decision about discriminatory intent “represents a finding of fact of the sort accorded great deference on appeal” because “[t]here will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge.” Hernandez v. New York, 500 U.S. 352, 364-65, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991). Here, although the reasons proffered by defense counsel for striking Juror No. 27 were otherwise legitimate, the district court made an adverse credibility determination on those reasons. See Woodward v. Epps, 580 F.3d 318, 336 (5th Cir. 2009) (stating that a district court can base its determination about discriminatory intent “on the persuasiveness and credibility of the [party’s] justification for his exercise of the peremptory strike”). While there may be differing opinions regarding whether or not the cold record suggests pretext, the district court heard the defense counsel and was in the best position to make credibility determinations. Therefore, we will not reverse those determinations. See Brumfield, 808 F.3d at 1057 (citing Anderson, 470 U.S. at 573-74, 105 S.Ct. 1504).

VII.

For -the foregoing reasons, we AFFIRM Thomas’s convictions and sentence.

      . We present the facts in the light most favorable to the conviction, as we must. See United States v. Thomas, 690 F.3d 358, 366 (5th Cir. 2012).

      . Rather than distinguishing the facts of Phillips, the government instead urges us to view Phillips as "in tension" with our later decisions and decisions of other courts. But we have continued to rely on Phillips in the context of determining whether a defendant is an "agent” for the purposes of section 666 and note that Phillips is still good law. See, e.g., United States v. Whitfield, 590 F.3d 325, 344 (5th Cir. 2009); United States v. Shoemaker, 746 F.3d 614, 621-22 & n.7 (5th Cir. 2014) (applying the funds-based approach and then subsequently discussing the concerns presented in United States v. Lipscomb, 299 F.3d 303 (5th Cir. 2002), but noting that “Phillips’s narrower approach remains good law”); United States v. Brown, 727 F.3d 329, 338 (5th Cir. 2013) (noting that section 666 applies as long as “the government received the requisite federal funding and the agent involved 'was authorized to act on behalf of the [government] with respect to its funds' ") (quoting Phillips, 219 F.3d at 411). As noted above, the jury instruction proposed by the government and given by the district court explicitly relied ■ on Phillips’s definition of "agent.” We have neither .the authority nor the intention to disturb Phillips. Nor must we do so to uphold the jury’s verdict here.

      . Indeed, as one witness confirmed, the Traffic Court is listed as a department on the City’s website, and the Court’s letterhead lists it under the City of New Orleans.

      . Similarly, when the Louisiana state agency charged with investigating the distribution of federal funds conducts audits to track the use of those funds by public entities throughout the state, "the financials of [the] Traffic Court are contained in the City of New Orleans's annual financial audit.”

      . As the Court’s current chief judge put it, Thomas was charged with the “overall management of our financial affairs, from soup to nuts.”

      . Thomas additionally argues that the existence of the JEF account itself demonstrates legal separation between the City and the Court of the kind we observed in Phillips. True, like other judicial subdivisions in Louisiana, the Traffic Court was permitted under state law to maintain the account and to withhold a portion of its generated fines, fees, and bonds revenue to defray operational costs, thus rendering the Court, at least to some degree, less dependent on appropriations from the City’s General Fund and other forms of City support than it otherwise would be. However, as a Louisiana state auditor explained to the jury, the Traffic Court nonetheless is “still part of the City of New Orleans, but essentially, just [has] its own set of accounting records.” Further, as discussed above, other evidence presented to the jury belies Thomas's urged understanding of the relationship between the two entities and readily distinguishes Thomas’s case from Phillips.

      . Further, based on the extensive evidence that the "Traffic Court is part of New Orleans,” it would seem that "Traffic Court” funds are “City” funds.

      . Finally, Thomas argues that because various Traffic Court judges signed the checks he issued to himself, his conduct falls outside the scope of section 666. According to Thomas, section 666 requires that the alleged misconduct be carried out "without authority” and that the judges’ signing of the checks demonstrates that all of his misconduct was done with the requisite authority. Thomas cites no caselaw for this proposition, and we find no basis for such an understanding in the text of the statute. Thomas further argues that if we vacate his section 666 theft convictions, his money laundering and payment structuring convictions must also be vacated. Because we do not vacate his section 666 theft convictions, we need not address this question.

      . The district court's jury instructions pertaining to the payment structuring counts contained the following elements:
      (1)That the defendant knew of the domestic financial institution’s legal obligation to report transactions in excess of $10,000;
      (2) That the defendant knowingly structured or attempted to structure a currency transaction; and
      (3) That the purpose of the structured transaction was to evade that reporting obligation.

      . The payment structuring statute, 31 U.S.C. § 5324(a)(3), criminalizes "structuring] ... any transaction with one or more domestic financial institutions” for the purpose of evading reporting requirements. Unlike money laundering, a conviction for structuring under section 5324 does not require a showing that the monetary transaction involved "criminally derived property” or "specified unlawful activity,” but can be based on structuring transactions involving legal funds. Compare 18 U.S.C. §§ 1956(a)(1) and 1957(a) (money laundering), with 31 U.S.C. § 5324(a)(3) (payment structuring); United States v. Maduka, 629 Fed.Appx. 610, 612 (5th Cir. 2015) (“There is simply no requirement that the person’s motivation for evading the federal reporting requirements be related to further criminal activity....”).

      . Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992) held that Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986) entitles prosecutors to make challenges to defense counsel’s use of peremptory strikes. McCollum, 505 U.S. at 48, 112 S.Ct. 2348; see also Batson, 476 U.S. at 89, 106 S.Ct. 1712 (holding that "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race....”).


source: Caselaw Access Project

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Rolando MENDOZA-VELASQUEZ, Defendant-Appellant.
    No. 16-40194
    United States Court of Appeals, Fifth Circuit.
    Filed January 30, 2017

      Andrew R. Gould, Renata Ann Gowie, Assistant U.S. Attorneys, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
    Marjorie A. Meyers, Federal Public Defender, H. Michael Sokolow, Assistant Federal Public Defender, Federal Public Defender’s Office, Houston, TX, for Defendant-Appellant.
    Before JOLLY, HIGGINBOTHAM, and PRADO, Circuit Judges.
   PER CURIAM:

This appeal arises from a district court’s judgment requiring Rolando Mendoza-Velasquez to “participate in a mental health program” and “incur costs associated with such program, based on ability to pay” as a special condition of supervised release. The sole issue on appeal is whether the district court committed reversible plain error by imposing this requirement. Because Mendoza-Velasquez has not carried his burden of showing that he satisfies the stringent requirements of the fourth prong of the plain error test, we AFFIRM.

I.

Mendoza-Velasquez pleaded guilty, pursuant to a written plea agreement, to conspiracy to transport an illegal alien, in violation of 8 U.S.C. §§ 1324(a)(l)(A)(ii), (a)(l)(A)(v)(I), and (a)(l)(B)(i). Mendoza-Velasquez’s presentence report (“PSR”) noted that he has: (1) a lengthy criminal history involving offenses such as assault, robbery, theft, and drug violations; and (2) a long history of substance abuse that includes daily use of alcohol, marijuana laced with crack cocaine, ecstasy, LSD, cocaine, and Xanax bars. Additionally, the PSR highlighted that Mendoza-Velasquez had engaged in “continued criminal conduct” while awaiting sentencing in jail. Specifically, Mendoza-Velasquez had gotten into an altercation and punched a detainee, leaving him with a bloody eye and in need of emergency medical care. Notably, however, the PSR stated that Mendoza-Velasquez “reported no history of mental or emotional health related problems and [Probation’s] investigation ha[d] revealed no information to indicate otherwise.”

The district court sentenced Mendoza-Velasquez to fifty-one months of imprisonment and three years of supervised release. The court also imposed several conditions of supervised release. Relevant to this appeal, the court required Mendoza-Velasquez “to participate in a mental health program” and “to incur [its] costs ... based on [his] ability to pay.” Mendoza-Velasquez did not object to this condition before the district court.

Mendoza-Velasquez has timely appealed. He contends that the district court committed reversible error by imposing the mental health condition.

II.

Because Mendoza-Velasquez did not object below to the district court’s imposition of the mental health condition, this Court reviews that decision for plain error. United States v. Weatherton, 567 F.3d 149, 152 (5th Cir. 2009).

A.

Mendoza-Velasquez asserts that the district court clearly erred by imposing a condition that cannot be reasonably related to any of 18 U.S.C. § 3583(d)(l)’s sentencing factors, which § 3583(d) requires, because nothing in the record suggests that Mendoza-Velasquez needs mental health treatment. Moreover, there is no difference, Mendoza-Velasquez avers, between his case and United States v. Garcia, 638 Fed.Appx. 343 (5th Cir. 2016), a case in which a district court imposed a similar condition on similar facts. In each case, the imposition of the condition affected the appellant’s substantial rights because each appellant was required to pay for mental health treatment if he could afford to do so and had to deal with a public record indicating that he had a mental condition requiring treatment. Further, each case merited the Court exercising its discretion to remedy the district court’s error because “there are significant autonomy and privacy concerns inherent in mental health treatment” and there is “a potential stigma in being required by a court to submit to mental health treatment.” Therefore, as in Garcia, the Court should vacate the mental health condition the district court imposed and remand for reconsideration of that condition.

The Government counters that the district court did not commit any error in imposing the mental health condition because the court’s reasoning can be inferred from the record and the condition was reasonably related to the statutory factors based on record evidence of Mendoza-Velasquez’s violent character and history of using Xanax, an anti-anxiety medication. Moreover, Garcia is distinguishable. And regardless of the merits of his arguments, the Government maintains, Mendoza-Velasquez cannot prevail because he does not satisfy the fourth prong of the plain error review analysis.

B.

To show reversible plain error, Mendoza-Velasquez bears the burden of establishing each prong of a four-prong test. He must show “(1) an error (2) that is clear or obvious, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Nava, 762 F.3d 451, 452 (5th Cir. 2014) (citations omitted). The Supreme Court has explained that “appellate-court authority to remedy [an] error” under this test “is strictly circumscribed.” Puckett v. United States, 556 U.S. 129, 134, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). The standard mandates “considerable deference to the district court” and focuses on “whether the severity of the error’s harm demands reversal, ... not whether the district court’s action ... deserves rebuke.” United States v. Escalante-Reyes, 689 F.3d 415, 423 (5th Cir. 2012) (en banc) (citation and internal quotation marks omitted); United States v. Peltier, 505 F.3d 389, 391 (5th Cir. 2007). After all, “plain-error review is not a grading system for trial judges.” Henderson v. United States, — U.S. -, 133 S.Ct. 1121, 1129, 185 L.Ed.2d 85 (2013). The appellant’s burden, then, “is difficult, as it should be.” Puckett, 556 U.S. at 135, 129 S.Ct. 1423 (citation and internal quotation marks omitted).

An appellant bears a particularly heavy burden to satisfy the “stringent requirements” of the fourth prong of the plain error test. Escalante-Reyes, 689 F.3d at 423. “The Supreme Court recently highlighted” that this prong is “an independent criterion that helps guard against any potential ‘floodgates’ of plain error corrections.” United States v. Andaverde-Tinoco, 741 F.3d 509, 523 (5th Cir. 2013) (quoting Henderson, 133 S.Ct. at 1130). And this Court has emphasized “that errors warranting fourth-prong correction are rare and egregious” such that they “would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.” United States v. Scott, 821 F.3d 562, 571 (5th Cir. 2016); United States v. Segura, 747 F.3d 323, 331 (5th Cir. 2014) (citation omitted).

Ultimately, courts must look to “the degree of the error and the particular facts of the case” to determine whether the appellant satisfied his burden on the fourth prong of the plain error test because “a per se approach to plain-error review is flawed.” Scott, 821 F.3d at 571-72 (citation omitted); United States v. Prieto, 801 F.3d 547, 554 (5th Cir. 2015) (quoting Puckett, 556 U.S. at 142, 129 S.Ct. 1423). But this Court has recognized that “[t]he protracted nature of [a defendant’s] criminality” counsels against “concluding] that the district court’s decision” violated the fourth prong. Segura, 747 F.3d at 331; see Prieto, 801 F.3d at 554; Weatherton, 567 F.3d at 153-54. The Court has also acknowledged that “a defendant faces an uphill battle when he seeks to convince us that a modifiable condition” of supervised release satisfies the fourth prong’s requirements because “the modifiable nature of [the] condition[ ] ... ‘works a less significant deprivation of liberty than [a condition] which cannot be altered.’ ” Prieto, 801 F.3d at 554 (citations omitted); see also United States v. Silvious, 512 F.3d 364, 371 (7th Cir. 2008); United States v. Padilla, 415 F.3d 211, 222-23 (1st Cir. 2005) (en banc).

C.

Mendoza-Velasquez has not shown that the district court committed reversible plain error because he has not satisfied the stringent requirements of the fourth prong of the plain error test, even assuming arguendo that he has satisfied the first three prongs. The district court’s imposition of the mental health condition here cannot be classified as a “rare and egregious” error that “shock[s] the conscience of the common man, serve[s] as a powerful indictment against our system of justice, or seriously call[s] into question the competence or integrity of the district judge.” Scott, 821 F.3d at 571; Segura, 747 F.3d at 331 (citation omitted). Unlike the Garcia defendant, Mendoza-Velasquez was not ordered to “participate in anger management counseling” as a special condition of supervised release. Garcia, 638 Fed. Appx. at 344. Additionally, the record indicates that Mendoza-Velasquez has an extensive criminal history stretching back to when he was fourteen years of age. This lengthy criminal history counsels against the Court rectifying any error in this case. E.g., Prieto, 801 F.3d at 554; Segura, 747 F.3d at 331.

Moreover, the mental health condition is modifiable, which “weighs heavily” against finding that prong four has been satisfied. Prieto, 801 F.3d at 554. Mendoza-Velasquez is not, after all, without redress. Under 18 U.S.C. § 3583(e)(2), he may seek modification of the condition “at any time” during his supervised release, and Fed. R. Crim. P. 32.1 allows a district court to hold a hearing on modification. “Encouraging this simple expedient to remedy erroneously imposed conditions, rather than perpetuating expensive and time-consuming appeals and resentencings, promotes the integrity and public reputation of criminal proceedings.” Silvious, 512 F.3d at 371.

In short, Mendoza-Velasquez “has not met his burden to persuade [the Court] that [any] error resulted in a serious injustice.” Prieto, 801 F.3d at 554. And “[o]n these facts, [the Court likely] cannot say that the district court’s imposition of the [mental health condition] so seriously threatens the fairness, integrity, or public reputation of the court system that [this Court] must correct it.” Id. Therefore, plain-error correction is unwarranted.

III.

For the foregoing reasons, the judgment of the district court is AFFIRMED.

      . At the sentencing hearing, the district court heard testimony that established that the detainee Mendoza-Velasquez punched was a bystander trying to break up a fight between Mendoza-Velasquez and another detainee over a television show.


author: RHESA HAWKINS BARKSDALE, Circuit Judge: GREGG COSTA, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee v. Eder Vladimir MENDEZ-HENRIQUEZ, also known as Eder Vladimir Henriquez, Defendant-Appellant
    No. 15-41551
    United States Court of Appeals, Fifth Circuit.
    Filed January 30, 2017

      Amanda Brooke Harris, U.S. Department of Justice, Washington, DC, Anna Elizabeth Kalluri, Renata Ann Gowie, Assistant U.S. Attorneys, U.S. Attorney’s Office, Houston, TX, for Plaintiff-Appellee.
    Marjorie A. Meyers, Federal Public Defender, Timothy William Crooks, H. Michael Sokolow, Assistant Federal Public Defenders, Evan Gray Howze, John Moreno Parras, Federal Public Defender’s Office, Houston, TX, for Defendant-Appellant.

      Before JONES, BARKSDALE, and COSTA, Circuit Judges.
   RHESA HAWKINS BARKSDALE, Circuit Judge:

The one issue on appeal is whether a prior offense constitutes a crime of violence (COV) for imposing an enhancement under the Sentencing Guidelines. In challenging his sentence for illegal reentry after removal, in violation of 8 U.S.C. § 1326, Eder Vladimir Mendez-Henriquez asserts his sentence was erroneously enhanced under Guideline § 2L1.2, based on the district court’s concluding he committed a COV; he maintains his 2008 conviction, of California Penal Code § 246 — for maliciously and willfully discharging a firearm at an occupied motor vehicle — does not qualify as a COV. AFFIRMED.

I.

Mendez was arrested in Texas on 10 May 2015. He admitted he entered the country illegally after deportation in 2011 and 2014, and pleaded guilty to illegal reentry after removal.

Mendez’ presentence investigation report (PSR) recounted his criminal background, including the 2008 conviction under California Penal Code § 246 for maliciously and willfully discharging a firearm at an occupied motor vehicle, for which he received a five-year sentence. Section 246 provides:

Any person who shall maliciously and willfully discharge a firearm at an inhabited dwelling house, occupied building, occupied motor vehicle, occupied aircraft, inhabited housecar, as defined in Section 362 of the Vehicle Code, or inhabited camper, as defined in Section 243 of the Vehicle Code, is guilty of a felony, and upon conviction shall be punished by imprisonment in the state prison for three, five, or seven years, or by imprisonment in the county jail for a term of not less than six months and not exceeding one year.
As used in this section, “inhabited” means currently being used for dwelling purposes, whether occupied or not.

Cal. Penal Code § 246 (2008) (emphasis added). In that regard, a felony complaint charged Mendez, pursuant to § 246, with “willfully, unlawfully, and maliciously discharging] a firearm at an occupied motor vehicle”. The PSR recommended the offense qualified as a COV under Guideline § 2L1.2, which imposes a 16-level sentence enhancement. See U.S.S.G. § 2L1.2(b)(l)(A)(ii).

Guideline § 2L1.2 defines a crime of violence as either one included in a list of enumerated offenses, or “any other 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”. U.S.S.G. § 2L1.2, cmt. n.l(B)(iii). As the parties agree, § 246 is not one of the enumerated offenses. Therefore, for the COV-enhancement to apply, “the use, attempted use, or threatened use of physical force against the person of another” must be “an element” of § 246. U.S.S.G. § 2L1.2, cmt. n.l(B)(iii).

Mendez objected to the PSR, asserting § 246 is not a COV under § 2L1.2. In addition to contending § 246 is not one of the enumerated crimes listed in the Guideline, he asserted it did not require intent to shoot at an individual. He also maintained § 246 is not divisible; and, in the alternative, divisibility should not affect enhancement. Mendez reasserted these contentions at sentencing.

The court overruled Mendez’ objection and applied the 16-level COV enhancement to its calculation of the Guidelines sentencing range. After other adjustments, the court sentenced Mendez within the advisory sentencing range to 44-months’ imprisonment.

II.

Because Mendez appeals only the enhancement, at issue is whether his conviction under California Penal Code § 246 qualifies as a COV under Guideline § 2L1.2. Although the Guidelines are advisory only post -Booker, the district court must avoid significant procedural error, such as improperly calculating the Guidelines sentencing range. Gall v. United States, 552 U.S. 38, 48-51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Where a defendant preserves error by objecting at sentencing, as Mendez did here, the court’s findings of fact are reviewed for clear error; its application of the Guidelines, de novo. E.g., United States v. Gomez-Alvarez, 781 F.3d 787, 791 (5th Cir. 2015). Along that line, this court reviews “de novo whether a prior conviction qualifies as a [COV] within the meaning of the Guidelines”. United States v. Rodriguez, 711 F.3d 541, 548 (5th Cir. 2013) (en banc).

During the pendency of this appeal, the Supreme Court rendered two decisive opinions on statutory interpretation for sentencing enhancement: Voisine v. United States, — U.S. -, 136 S.Ct. 2272, 195 L.Ed.2d 736 (2016); and Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). While both concerned the Armed Career Criminal Act, rather than the Guidelines, each has already been imported by our court for Guidelines analysis. See United States v. Uribe, 838 F.3d 667, 670 (5th Cir. 2016); United States v. Howell, 838 F.3d 489, 501 (5th Cir. 2016); United States v. Hinkle, 832 F.3d 569, 574 (5th Cir. 2016); United States v. Conley, No. 15-10550, 2016 WL 7187376, at *1 (5th Cir. 2016) (concerning a controlled-substance offense rather than a COV); United States v. Bryant, No. 14-11012, 2016 WL 5795772, at *1 (5th Cir. 2016). Mathis provides guidance on divisibility vel non and the modified categorical approach because “the primary focus of the Court’s decision in Mathis was how to determine whether a statute is ‘divisible’ ”. Hinkle, 832 F.3d at 574. In conducting that analysis, Voisine is instructive; it is “illuminating as to the backdrop against which the Sentencing Commission defined a ‘crime of violence’ as including ‘use’ of force against another person”. Howell, 838 F.3d at 501. These two recent — and very welcome — Supreme Court decisions clarify long-debated interpretation of sentencing enhancement, and we are, of course, bound by them — even where our court ruled to the contrary previously. Hinkle, 832 F.3d at 574-75.

Again, for the COV enhancement to apply in this instance, “the use, attempted use, or threatened use of physical force against the person of another” must be an element of § 246. U.S.S.G. § 2L1.2, cmt. n.l(B)(iii). The analytical method for determining whether a predicate offense merits COV sentencing-enhaneement varies by whether the statute for the offense is divisible or indivisible. Mathis, 136 S.Ct. at 2249. A statute is divisible if it “list[s] elements in the alternative, and thereby define[s] multiple crimes”. Id.

If the statute is indivisible, (containing “a single ... set of elements to define a single crime”), the sentencing court utilizes a categorical analysis. Id. at 2248. “The court then lines up that crime’s elements alongside those of the generic offense and sees if they match.” Id. If they . match, or if the generic offense is broader, the enhancement is applicable. Id. at 2248-49.

If the statute is divisible, the Court has “approved the ‘modified categorical approach’ for use with statutes having multi-pie alternative elements”. Id. at 2249 (citing Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)); see also United States v. Herrara-Mvarez, 753 F.3d 132, 138 (5th Cir. 2014) (specific to COV analysis). The modified categorical approach permits analysis to extend beyond statutory language:

[A] sentencing court looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of. The court can then compare that crime, as the categorical approach commands, with the relevant generic offense.

Mathis, 136 S.Ct. at 2249 (internal citations omitted); see also United States v. Carbajal-Diaz, 508 F.3d 804, 810 (5th Cir. 2007) (specific to COV analysis).

A.

Our first inquiry is the divisibility vel non of § 246, which covers “any person who shall maliciously and willfully discharge a firearm at[, inter alia,] an inhabited dwelling house, occupied building, [or] occupied motor vehicle”. Cal. Penal Code § 246. Again, a statute is divisible if it “list[s] elements in the alternative, and thereby define[s] multiple crimes”. Mathis, 136 S.Ct. at 2249. “The first task for a sentencing court faced with an alternatively phrased statute is ... to determine whether its listed items are elements or means.” Id. at 2256. Therefore, we inquire whether the list of targets in § 246, including “inhabited dwelling house, occupied building, [or] occupied motor vehicle”, provides multiple crimes, or merely lists alternative means for committing a single crime. Cal. Penal Code § 246.

“[I]f state law fails to provide clear answers, federal judges” may look to the record of the prior conviction; and if the indictment references “one alternative term to the exclusion of all others”, divisibility is strongly suggested. Mathis, 136 S.Ct. at 2256-57. We are not aware of definitive California case law providing whether § 246’s alternative items — inter alia, “an inhabited dwelling house, occupied building, [or] occupied motor vehicle” — constitute alternative means of committing a single offense. Persuasively, the California Supreme Court identified “shooting at an inhabited house” as an element of the § 246 offense, to the exclusion of the other targets. See People v. Ramirez, 45 Cal.4th 980, 89 Cal.Rptr.3d 586, 201 P.3d 466, 469 (2009) (identified two offense elements in discharging a firearm at an inhabited dwelling house, in violation of § 246: “(1) acting willfully and maliciously, and (2) shooting at an inhabited house”). While the court offered no blanket statement for each of the § 246 targets, the decision implies the statute lists alternative elements, rather than means. See id.

We turn, then, to the charging documents for Mendez’ predicate offense. As noted, Mendez was charged with “willfully, unlawfully, and maliciously discharging] a firearm at an occupied motor vehicle”, to the exclusion of, inter alia, at “an inhabited dwelling house” or “occupied building”. Cal. Penal Code § 246. Pursuant to Mathis, we hold § 246 is divisible: the statute enumerates alternative elements for committing a felony, rather than alternative means of satisfying a particular element of a crime. See Mathis, 136 S.Ct. at 2249.

B.

Because § 246 is divisible, the modified categorical analysis is employed to assess whether “maliciously and willfully discharging] a firearm at an ... occupied motor vehicle” contains as an element the Guidelines’ required “use, attempted use, or threatened use of physical force against the person of another” to qualify as a COV. U.S.S.G. § 2L1.2, cmt. n.l(B)(iii); e.g., Mathis, 136 S.Ct. at 2245-46.

It is well established that the modified categorical approach does not permit our considering the facts of Mendez’ predicate offense, e.g., Hinkle, 832 F.3d at 575-76; but, as discussed, we may look to, inter alia, his charging documents to better understand what elements of § 246 he violated and whether they constitute a COV under Guideline § 2L1.2, Mathis, 136 S.Ct. at 2249. Again, Mendez was charged with “willfully, unlawfully, and maliciously discharging] a firearm at an occupied motor vehicle”.

1.

Mendez contends: the COV qualification under Guideline § 2L1.2 requires specific intent in the predicate offense; and “discharging] a firearm at an occupied motor vehicle” lacks such intent. We disagree in the light of Voisine.

This court has yet to publish post-Voi-sine precedent analyzing Guideline § 2L1.2. Here, we weigh pre-Voisme analysis of Guideline § 2L1.2, and post-Voisine-analysis of an identically-worded Guideline.

Before Mathis and Voisine, our court analyzed Guideline § 2L1.2 in United States v. Vargas-Duran, 356 F.3d 598, 600 (5th Cir. 2004) (en banc). There, our en-banc court held the “use of physical force” requirement in § 2L1.2 requires more than “accidental” conduct; defendant must “intentionally avail himself of that force”. Id. at 602, 604. Vargas’ prior crime was “intoxication assault”, a violation of Texas law committed by a person who, “by accident or mistake, while operating an aircraft, watercraft or motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another”. Tex. Penal Code Ann. § 49.07 (1994). Vargas, 356 F.3d at 600. Far from the “malicious[] and willful[]” shooting criminalized by the California statute at issue, the predicate offense in Vargas was, by definition, committed “by accident or mistake”. Tex. Penal Code Ann. § 49.07 (1994). Even without considering the facts of Vargas, the predicate offenses are markedly distinguishable.

But, only ten months after Vargas was decided, requiring “intention” for “use”, the Supreme Court rendered Leocal v. Ashcroft, addressing a statutory definition nearly identical to Guideline § 2L1.2’s commentary: inter alia, “the use ... of physical force against the person or property of another”. 543 U.S. 1, 5, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (quoting 18 U.S.C. § 16). Voisine reminds us that Leo-cal held use of physical force against another’s person or property “excludes ‘merely accidental’ conduct”. Voisine, 136 S.Ct. at 2279 (quoting Leocal, 543 U.S. at 9, 125 S.Ct. 377). “[I]ndeed, Leocal itself recognized the distinction between accidents and recklessness, specifically reserving the issue whether the definition in § 16 [“the use ... of physical force against the person or property of another”] embraces reckless conduct....” Voisine, 136 S.Ct. at 2279-80 (citing Leocal, 543 U.S. at 13, 125 S.Ct. 377). Our court’s “intentional”/“aeci-dental” dichotomy for “use of force” was no longer certain.

Twelve years later, the Court undercut our dichotomy expressly: Voisine held “use of force” “embraces reckless conduct”. Voisine, 136 S.Ct. at 2279-80; see also Howell, 838 F.3d at 501 (“[T]he Supreme Court’s subsequent decision in Voisine substantially undercuts the statements in Vargas-Duran that ‘use’ of force encompasses only intentional conduct”.). Under Voisine, “usé” “is indifferent as to whether the actor has the mental state of intention, knowledge, or recklessness with respect to the harmful consequences of his volitional conduct”. Voisine, 136 S.Ct. at 2279.

In other words, “the word ‘use’ does not demand that the person applying force have the purpose or practical certainty that it will cause harm, as compared with the understanding that it is substantially likely to do so”. Id. (emphasis added). Thus, post-Voisine, while “accidental” is still outside the realm of “use of force”, our court’s Vargas mandate of “intentionally availing]”, 356 F.3d at 602, is too narrow in scope. The Vargas dissent said as much.

Despite the plain language of the § 2L1.2 [COV] definition, the court’s opinion inserts the word ‘intentional’ before the word ‘use.’ There is no mens rea language with respect to the ‘use of force’ element in the § 2L1.2 definition .... Thus, the court’s opinion makes the mens rea language purposely included by the Sentencing Commission [elsewhere] in this guideline superfluous, and departs from clear precedent governing statutory construction.

Id. at 611, 612 (Garza, J., dissenting) (internal citations omitted).

That is not to say Voisine merely moved a marker on a sliding scale of “use” to “non-use”. To the contrary, Voisine articulated a separate dichotomy of volitional and non-volitional conduct, discussed infra. See Voisine, 136 S.Ct. at 2279-80. Vargas remains good law to the extent it echoes Leocal that accidental conduct is not volitional, and, therefore, does not constitute “use of force”. See Voisine, 136 S.Ct. at 2279-80; see also Vargas, 356 F.3d at 602, 604. But, because Mendez was charged with “malicious[] and willful[]” conduct, that still-binding portion of Vargas is inapplicable to the case at hand. Cal. Penal Code § 246.

In Howell, our court conducted a post-Mathis and Voisine analysis of the Guidelines, though not specific to § 2L1.2. 838 F.3d at 499-503. Howell analyzed the “crime of violence” standard of Guideline § 4B1.2, identical to the COV definition in the commentary of § 2L1.2: “has as an element the use, attempted use, or threatened use of physical force against the person of another”. See id. at 490-92 (quoting U.S.S.G. § 4B1.2); § 2L1.2, cmt. n.l(B)(iii).

Guideline § 4B concerns career offenders and criminal livelihood; Guideline § 2L, offenses involving immigration, naturalization, and passports. Under the in pari materia rule of statutory interpretation, effectively imported to Guidelines’ interpretation, our court’s interpretation of § 4B1.2 informs our interpretation of § 2L1.2, given the two Guidelines’ identical language and closely aligned purposes. E.g., United States v. Arnold, 213 F.3d 894, 896 (5th Cir. 2000) (ultimate conclusion reached by “reading the sentencing guidelines in pari materia”).

Howell considered whether a prior conviction for reckless conduct under Texas law contained, inter alia, “the use of force” as an element within the meaning of Guideline § 4B1.2(a)(l). Howell, 838 F.3d at 501. Our court held recklessness was sufficient in the light of Voisine’s holding: “the word ‘use’ ... is indifferent as to whether the actor has the mental state of intention, knowledge, or recklessness with respect to the harmful consequences of his volitional conduct”. Id.; see Voisine, 136 S.Ct. at 2279.

Because the pertinent language of §§ 4B1.2 and 2L1.2 is identical, and because we are bound by the new standards of Mathis and Voisine, we look to Howell over Vargas where the two diverge in pertinent analysis. Thus, post-Voisine, as applied within our circuit, Guidelines provisions using the language “has as an element the use, attempted use, or threatened use of physical force against the person of another” are indifferent to mens rea: we concern ourselves only with whether Mendez’ predicate conduct was volitional. 136 S.Ct. at 2279; Howell, 838 F.3d at 501; U.S.S.G. § 4B1.2; § 2L1.2, cmt. n.l(B)(iii). As noted supra, the offense charged against Mendez . under § 246 confirms the volitional nature of his crime.

Voisine holds “use” separates volitional acts from involuntary motion; not recklessness from intention. 136 S.Ct. at 2278-79. Thus, “use of force” requires that the act be more than involuntary, but does not imply a requisite mental state. See id. Because the fuller § 246 language, “maliciously and willfully discharging] a firearm at an ... occupied motor vehicle”, is clearly more than involuntary, Mendez’ predicate offense was based on a volitional act. Cal. Penal Code § 246 (emphasis added). Therefore, Mendez’ predicate offense satisfies the “use of force” portion of Guideline § 2L1.2.

2.

Again, the pertinent § 2L1.2 commentary is: “has 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.l(B)(iii) (emphasis added). Having established that California Penal Code § 246 and Mendez’ conviction under it constitute “use of force”, next at issue is whether “maliciously and willfully discharging] a firearm at an ... occupied motor vehicle” satisfies the commentary’s sub-element “against the person of another”. Cal. Penal Code § 246; U.S.S.G. § 2L1.2, cmt. n.l(B)(iii).

Prior decisions’ Guidelines analyses turned on whether a firearm was discharged against a building or a vehicle— and sometimes held back when a state statute named both targets, discussed infra. Again, although California Penal Code § 246 also includes, inter alia, inhabited dwelling houses and occupied buildings as targets, our analysis is specific to “discharging] a firearm at an ... occupied motor vehicle” because, as discussed supra, that is the specific offense charged against Mendez. See Cal. Penal Code § 246; see also United States v. Estrella, 758 F.3d 1239, 1249 (11th Cir. 2014) (when the state law’s “type-of-structure” element is divisible, the modified categorical approach may be invoked specifically toward the targeting element at issue in a given case, i.e., “targeting ‘a vehicle ... occupied by a person’ ”). Holding to the volition-versus-intent distinction drawn in Voisine, our decision does not turn on whether a person in the occupied vehicle was the target.

Mendez highlights fifth circuit.decisions in which similar statutes concerning discharging firearms at occupied buildings— rather than occupied vehicles — were deemed not COVs. See United States v. Hernandez-Perez, 589 Fed.Appx. 282, 283-84 (5th Cir. 2015) (concerning a North Carolina statute); United States v. Alfaro, 408 F.3d 204, 209 (5th Cir. 2005) (concerning a Virginia statute).

Hernandez was unpublished, thus not binding, see 5th Cir. R. 47.5; but, it is in any event not inconsistent with our holding today. It concerned a predicate offense of shooting into a building, rather than a vehicle; leans on a prior fifth circuit decision also concerning shooting at a building; and was resolved without reaching modified categorical analysis. See generally Hernandez, 589 Fed.Appx. 282. There, this court merely applied Alfaro, discussed below — as was appropriate at that time. Id. at 283. The critical element for our purposes in Hernandez, especially when considered in the light of Voisine and Mathis, is highlighted in its fourth footnote: “We emphasize that our holding is limited to Hernandez-Perez’s conviction. We are not deciding, for example, whether violating [the North Carolina statute] by shooting into a vehicle would be a crime of violence.” Id. at 284 n.4 (emphasis added).

Alfaro interpreted a Virginia statute similar to the California statute at issue here, though, as noted, that case concerned shooting at a building rather than a vehicle. 408 F.3d at 208. Our court held shooting at a building was not a COV because “a defendant could violate this statute merely by shooting a gun at a building that happens to be occupied without actually shooting, attempting to shoot, or threatening to shoot another person”. Id. at 209. Likewise, the tenth circuit rejected the imputation of shooting at an occupied building as a use of force against a person inside. See United States v. Ford, 613 F.3d 1263, 1271-72 (10th Cir. 2010).

On the other hand, specific to firing a gun at an occupied vehicle, the seventh circuit found a COV under Guideline § 4B1.2 in United States v. Curtis, 645 F.3d 937, 941 (7th Cir. 2011). While the eleventh circuit would later assert the seventh circuit’s decision in Curtis “repeatedly emphasized that the statute it considered ... permitted conviction only if the shooter knew or reasonably should have known that the vehicle was occupied”, Estrella, 758 F.3d at 1251, we view Curtis differently. More than prescribing a narrow set of circumstances in which shooting at an occupied vehicle constitutes a COV, Curtis prescribed a narrow set of attenuated circumstances in which shooting at an occupied vehicle would not constitute a COV. See Curtis, 645 F.3d at 942. Moreover, the seventh circuit dismissed the hypothetical in Curtis in which an accused “fired in the direction of a car he should not have reasonably known to be occupied” and was threatened with a COV enhancement. Id. (emphasis in original). There, the accused “could not be convicted of this aggravated discharge of a firearm offense because that action would be akin to criminal damage to property — not aggravated discharge of a firearm”, thus a COV enhancement under the Guidelines would never be at issue. Id.

By contrast, if the shooter ignored telltale signs of the vehicle’s occupancy, such as its presence at a toll booth where the shooter “reasonably should know” the vehicle is occupied, the shooter’s intentional or knowing discharge of a firearm in the direction of the vehicle would violate [the state statute at issue] and in turn, such conduct would constitute a § 4B1.2(a)(l) “[COV].” Although the shooter may not have known of the vehicle’s occupancy, the shooter still used, attempted to use, or threatened to use physical force against another person.

Id.

In Estrella, the earlier-referenced eleventh-circuit decision, a Florida statute that criminalized, inter alia, “targeting ⅛ vehicle being used or occupied by any person’ ” was deemed not a COV under Guideline § 2L1.2. 758 F.3d at 1249 (citing Fla. Stat. § 790.19). The eleventh circuit reasoned Guideline § 2L1.2 “should not be interpreted in a way that risks application of the enhancement to true property offenses”. Id. at 1252. The court explained: ‘Where .an element would permit conviction whenever the defendant targets property that happens to be occupied, that element is ‘akin to criminal damage to property,’ and covers conduct broader than the crimes against persons to which” the Guideline should apply. Id. (quoting Curtis, 645 F.3d at 942) (internal citation omitted).

As noted in, and one year prior to, Es-trella, the Florida Supreme Court ruled the samé statute “necessarily involves the use or threat of physical force or violence against an individual”. Estrella, 758 F.3d at 1249 n.4 (quoting Paul v. State, 129 So.3d 1058, 1059 (Fla. 2013)). The state court’s reasoning persuasively tracked that of Curtis: shooting at an occupied vehicle “necessarily involves the use or threat of physical force or violence to an individual”. Paul, 129 So.3d at 1065.

While we acknowledge the eleventh circuit’s ruling that the holdings in Alfaro, Ford, and Curtis “all support the conclusion that directing physical force against an occupied vehicle, without more, does not permit application of the U.S.S.G. § 2L1.2 [COV] enhancement”, we disagree because that ruling has been overtaken and undermined by Mathis and Voisine. Estrella, 758 F.3d at 1251 (emphasis added).

Along that line, and returning to the reasoning of Curtis and the Florida Supreme Court, shooting at an occupied vehicle involves “the use, attempted use, or threatened use of physical force against the person of another”. See U.S.S.G. § 2L1.2, cmt. n.l(B)(ni); Curtis, 645 F.3d at 941-42; Paul, 129 So.3d at 1065. While the modified categorical approach bids us dissect divisible elements from a state statute, we are not so called to dissect the general federal law in play. As Curtis considered the full “use, attempted use, or threatened use” language of Guideline § 4B1.2, so do we embrace the full “use, attempted use, or threatened use” language of Guideline § 2L1.2. See Curtis, 645 F.3d at 941.

The statute under which Mendez was convicted requires not only directing force against an occupied vehicle, but doing so “maliciously and willfully”. Cal. Penal Code § 246. The Florida statute at issue in Es-trella read “wantonly or maliciously”. 758 F.3d at 1243 (citing Fla. Stat. § 790.19). Given those requirements, we are not concerned, as the eleventh circuit seemed to be, that individuals who meant no harm to others will be convicted of these statutes and subject to COV enhancements. See Curtis, 645 F.3d at 942 (neither is the seventh circuit concerned). At the very least, even when no one is targeted, voli-tionally employing physical force through shooting at an occupied vehicle “threaten[s] use of physical force against the person of another”. § 2L1.2, cmt. n.l(B)(iii).

In addition, “more” is involved with the California statute at issue. The language of California Penal Code § 246 is more specific than the Illinois statute at issue in Curtis. The Illinois statute merely prohibited discharging a firearm “ ‘in the direction of another person or in the direction of a vehicle [the offender] knows or reasonably should know to be occupied by a person’ ”. Curtis, 645 F.3d at 940 (quoting 720 Ill. Comp. Stat. 5/24-1.2(a)(2)). Here, § 246 proscribes shooting “at”, not merely “in the direction of’, a vehicle; and the object is definitively “an ... occupied motor vehicle”, not merely “a vehicle [the shooter] knows or reasonably should know to be occupied”. The California statute falls far more in line within the Guidelines’ requisite “force against the person of another”. § 2L1.2, cmt. n.l (B)(iii).

In applying the modified categorical approach — against this backdrop of precedent — for deciding whether a COV is present, we cannot overstate the authority of Mathis and Voisine. “The Mathis decision is controlling regarding the methodology of the modified categorical approach, and we must apply its holdings, even if they are contrary to prior precedent of this court.” Hinkle, 832 F.3d at 574. Accordingly, we hold “maliciously and willfully discharging] a firearm at an ... occupied motor vehicle” constitutes the “threatened use of physical force against the person of another”. Cal. Penal Code § 246; U.S.S.G. § 2L1.2, cmt. n.l(B)(iii).

The dissent at 225 maintains “use, attempted use, or threatened use” is not a requisite element of § 246, because, for the predicate conviction at hand, the State would be required to prove only that defendant willfully and maliciously shot a firearm and did so. at an occupied motor vehicle. In other words, according to the dissent at 225, the State would not also be required to prove “defendant used, attempted to use, or threatened to use force against a person”.

But, obviously, the two elements for § 246 advanced by the dissent subsume “the use, attempted use, or threatened use of physical force against the person of another”; the statute’s pertaining to an “occupied”, as opposed to an unoccupied, motor vehicle says as much. Re-stated, at the very least, willfully and maliciously shooting at an occupied motor vehicle has, as a subsumed element, the threatened use of force against a person. To hold otherwise would be to allow such use, attempted use, or threatened use to serve as the requisite “element” for imposing the § 2L1.2 COY enhancement only if the exact language is in the statute for the predicate offense. And, for obvious reasons, that is not the required standard. See, e.g., Voisine, 136 S.Ct. at 2280 (“A person who assaults another recklessly ‘use[s]’ force”); Howell, 838 F.3d at 501-02 (holding “use of force” within a Texas statute that does not use the word “force”).

In sum, because under the modified categorical approach, California Penal Code § 246 (and Mendez’ conviction) “has as an element the use, attempted use, or threatened use of physical force against the person of another”, Guideline § 2L1.2, cmt. n.l(B)(iii), his predicate offense is a COV. As a result, in applying the 16-level sentencing enhancement, the district court did not err in concluding Mendez’ conviction for “maliciously and willfully discharging] a firearm at an ... occupied motor vehicle” qualified as a COV.

III.

For the foregoing reasons, judgment is AFFIRMED.

GREGG COSTA, Circuit Judge,

dissenting:

I agree that the California statute is divisible, and Mendez’s conviction can thus be narrowed to discharging a firearm at an occupied vehicle. Cal. Penal Code § 246.1 also agree that the offense of discharging a firearm at an occupied vehicle poses a greater risk of injury to the occupant than the offense of discharging a firearm at an occupied building. The Guideline we are applying, however, says nothing about risk. Contrast 18 U.S.C. § 924(c)(3)(B); U.S.S.G. 4B1.2 (2014) (residual clauses both focusing on a “serious potential risk” of. injury). It looks only' at whether the state offense “has 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.l(B)(iii) (emphasis, added). The California statute does not have such an element. An element, of course, .is something the government must provide to convict someone of the crime. The pattern jury instruction for section 246 requires the government to prove only two elements: that 1) the “defendant willfully and maliciously shot a firearm,” and 2) the “defendant shot the firearm at an occupied motor vehicle.” Cal. Crim. Jury Instr. § 965 (2016); see also People v. Ramirez, 45 Cal.4th 980, 985, 89 Cal.Rptr.3d 586, 201 P.3d 466 (2009). A jury does not have to find that the defendant used, attempted to use, or threatened to use force against a person.

That should end this appeal. The pattern charge embraced by the state supreme court means the California shooting-at-an-occupied-vehicle statute has the same defect as the North Carolina and Virginia shooting-at-an-occupied-building statutes that we held were not crimes of violence. United States v. Hernandez-Perez, 589 Fed.Appx. 282, 283-84 (5th Cir. 2015) (per curiam); United States v. Alfaro, 408 F.3d 204, 209 (5th Cir. 2005). I would adopt the view of the Tenth and Eleventh Circuits that the undisputed lack of the element the Guideline requires — use, attempted use, or threatened use of force against a person— is also dispositive in statutes involving shooting at an occupied vehicle. United States v. Estrella, 758 F.3d 1239, 1251-52 (11th Cir. 2014); United States v. Ford, 613 F.3d 1263, 1272 (10th Cir. 2010) (both applying the reasoning of Alfaro to occupied vehicles).

The broad application California courts have given section 246 provides even stronger support for that view. Not Only does the statute not require the government to prove use of force against a person, but it is also not necessary that the defendant have demonstrated a conscious disregard for the life or safety of others. In re Daniel R., 20 Cal.App.4th 239, 246, 24 Cal.Rptr.2d 414 (1993). The California court wrote, “To violate section 246 in this context it is not strictly necessary for a human being to be the target of the assault or that defendant’s acts demonstrate a conscious disregard for the life and safety of others. It is sufficient if the probable consequence of the defendant’s acts is the shots fired will make contact with the occupied vehicle itself.” Id. In keeping with this principle, a California court upheld a conviction under section 246 for shooting at the unoccupied trailer of an occupied tractor-trailer rig. People v. Buttles, 223 Cal.App.3d 1631, 1637-38, 273 Cal.Rptr. 397 (1990).

I recognize that common sense would lead most to conclude that the crime of shooting a firearm at an occupied vehicle is a violent one. And at least in part because of numerous counterintuitive results like this one, this question would not matter if Mendez committed his illegal reentry offense today. Effective November 1 of last year, the Guidelines for illegal reentry have ditched the enhancements that focus on the categorical nature of prior offenses in favor of focusing on the length of the sentences received for those offenses. U.S.S.G. § 2L1.2(b)(2); cf. Almanza-Arenas v. Lynch, 815 F.3d 469, 482 (9th Cir. 2016) (Owens, J., concurring) (recommending the same change to the immigrations laws governing removability because a regime based on the length of a prior sentence while not “foolproof ... cannot be worse than what we have now”). But under the old Guideline that governs this case, the focus is on the elements of the offense whether we like it or not. See generally United States v. Bernel-Aveja, 844 F.3d 206, 214-215 (5th Cir. 2016) (Higginbotham, J., concurring) (discussing the traditional Guidelines approach). And when the old regime did produce a result that a prior conviction was not a match with the Guideline, the effect was not to preclude any consideration of the prior offense. In exercising its discretion under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the district court can consider the relative severity of the defendant’s actual prior criminal conduct as opposed to the theoretical inquiry the categorical approach requires. See 18 U.S.C. § 3553(a)(1).

I would thus vacate the sentence and remand so the district court can make that more holistic assessment of Mendez’s history.

      . Neither United States v. Voisine, - U.S. -, 136 S.Ct. 2272, 195 L.Ed.2d 736 (2016), nor Mathis v. United States,-U.S.-, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), undermine Alfaro, Estrella, or Ford. Mathis addresses when a statute is divisible so that a court may use the modified categorical approach to consider whether a narrower violation of the statute is a categorical match. I agree with the majority opinion’s application of Mathis to narrow Mendez's crime to shooting at an occupied vehicle (as opposed to shooting at an occupied building which is also a crime under § 246).
      As the majority opinion goes on to note, Voisine addresses the means rea required for the "use of force” aspect of the Guideline. I agree that the California statute meets the lower Voisine threshold that only requires the discharge of the firearm to be voluntary (that is, it need not be intentional; reckless discharge is enough).
      The majority opinion then recognizes that a separate question remains whether California's crime of shooting at an occupied vehicle has the element of "the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 2L1.2, cmt. n.l(B)(iii) (emphasis added). It does not, so the enhancement should not apply. This final portion of the analysis is the issue for which Estrella, Ford, and Alfaro are relevant.