source: Caselaw Access Project

author: JERRY E. SMITH, Circuit Judge:

license: Public Domain

text:
    Anthony GIBSON, Plaintiff-Appellant, v. Jeffrey KILPATRICK, in His Individual Capacity; City of Drew, Mississippi, Defendants-Appellees.
    No. 15-60583
    United States Court of Appeals, Fifth Circuit.
    Filed September 20, 2016

      Jim D. Waide, III, Esq., Waide & Associates, P.A., Tupelo, MS, for Plaintiff-Appellant.
    Gary Erwin Friedman, ■ Esq., Gregory Todd Butler, Esq., Jason Thomas Marsh, Esq., Phelps Dunbar, L.L.P., Jackson, MS, for Defendants-Appéllees.
    Before SMITH, BARKSDALE, and COSTA, Circuit Judges.
   JERRY E. SMITH, Circuit Judge:

In this First Amendment retaliation case against the City of Drew, Mississippi, its former chief of police, Anthony Gibson, alleges that he was fired for suing the mayor, Jeffrey Kilpatrick, for retaliation. We affirm a summary judgment, concluding that although Gibson spoke as a citizen, his suit against Kilpatrick in his personal capacity was not on a matter of public concern and thus was not protected speech. Gibson’s state-law claim of malicious interference with employment (“MIE”) against Kilpatrick is barred because Gibson failed to bring notice of the claim before suing as required by state law.

I.

This is the third iteration, in this court, of a small-town feud between the former police chief and mayor. In 2006, over Kil-patrick’s objection, the Board of Alderman (the “Board”) appointed Gibson chief. Shortly thereafter, Gibson learned that Kilpatrick was misappropriating city funds by using the city’s gasoline card for personal trips. Gibson told various state and federal authorities, and the State Auditor launched an official investigation, in which Gibson assisted, that concluded in September 2008. Kilpatrick was ordered to pay back about $3000 of misappropriated funds.

Nine months later, Kilpatrick started placing written reprimands in Gibson’s personnel file. The reprimands involved such allegedly serious conduct as showing up late to a meeting with the mayor because he was in the emergency room being treated for a knee injury. Similarly, Gibson was suspended for allowing city employees to play basketball in an uncompleted gym at the city civic center, even though the mayor had played basketball there a few weeks earlier. Kilpatrick also recommended to the Board several times that Gibson be terminated “for insubordination, lack of visibility in the community, and failure to work an adequate number of hours.” Gibson v. Kilpatrick (Gibson II ”), 773 F.3d 661, 665 (5th Cir. 2014).

In December 2010, Gibson sued Kilpa-trick in his individual capacity, claiming retaliation for protected First Amendment speech under 42 U.S.C. § 1983 and MIE and intentional infliction of emotional distress under Mississippi law. In October 2011, the Board fired Gibson, who then amended his suit to claim that the city had retaliated against him for suing Kilpatrick, in violation of the First Amendment.

The district court granted summary judgment for the defendants on the state-law claims and held that Kilpatrick was not entitled to qualified immunity on the First Amendment retaliation claim; the parties cross-appealed. In Gibson v, Kilpatrick, 734 F.3d 395, 406 (5th Cir. 2013), we reversed the denial of qualified immunity, holding that Gibson’s speech to state and local authorities about Kilpatrick’s misuse of the gasoline card was not protected because he spoke in his capacity as chief of police. We declined to exercise supplemental jurisdiction over the MIE claim (the only tort claim Gibson had appealed) because it was tied to the interlocutory appeal of the denial of qualified immunity. Id. The Supreme Court vacated and remanded for reconsideration in light of Lane v. Franks, — U.S. ——, 134 S.Ct. 2369, 189 L.Ed.2d 312 (2014). Gibson v. Kilpatrick, — U.S. -, 134 S.Ct. 2874, 189 L.Ed.2d 829 (2014) (mem.).

In Gibson II, 773 F.3d at 667, we determined that Lane did not significantly change the analysis and primarily was “an application of prior Supreme Court precedent.” We again reversed the denial of qualified immunity, finding no violation of clearly established rights, and we declined to exercise jurisdiction over the MIE claim. Id. at 673. The Supreme Court denied certiorari. Gibson v. Kilpatrick, — U.S. -, 135 S.Ct. 2318, 191 L.Ed.2d 980 (2015).

On remand, the only remaining issue was Gibson’s First Amendment retaliation claim against the city, alleging that he was fired for suing the mayor. The city filed a supplemental motion for summary judgment, which the court granted in July 2015, holding that Gibson’s speech in the initial complaint was “not a matter of public concern.”

II.

A.

The First Amendment protects freedom of speech and “the right of the people ... to petition the government for a redress of grievances.” U.S. Const, amend. I. Gibson brings claims under both the Speech Clause and the Petition Clause. Retaliation claims under both are analyzed in the same way. Borough of Duryea v. Guarnieri, 564 U.S. 379, 389, 131 S.Ct. 2488, 180 L.Ed.2d 408 (2011). A plaintiff must show that “(1) he suffered an adverse employment action; (2) his speech involved a matter of public concern; (3) his interest in speaking outweighs the employer’s interest in promoting efficiency in the workplace; and (4) his speech motivated the employer’s adverse employment action.” Charles v. Grief, 522 F.3d 508, 510 n.2 (5th Cir. 2008). To be speaking on a matter of public concern, the employee must speak in .his capacity as citizen, not employee. Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The parties disagree on only the second and third prongs, both of which are legal questions “for the court to resolve.” Branton v. City of Dall, 272 F.3d 730, 739 (5th Cir. 2001) (citing Connick v. Myers, 461 U.S. 138, 147-48 n.7, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)).

1.

To see whether Gibson spoke as a citizen on a matter óf public concern, we first must decide whether, in suing the mayor, he spoke as a citizen or an employee. Most of his briefing addresses that issue, while the city devotes almost nothing to the question. Because in Gibson II, 773 F.3d at 672, we said that Gibson’s speech about the mayor’s misappropriation of city funds was in his official 'capacity as an employee, it might seem to follow that any suit based on that speech likewise was made in his capacity as an employee. Nevertheless, we based our conclusion in Gibson II primarily on the fact that by reporting the mayor’s misconduct to state and federal authorities, Gibson was fulfilling his duties as a law enforcement officer. Id. at 671-72.

In Lane, 134 S.Ct. at 2378-79, the Court focused on “the scope of [ ] ordinary job responsibilities” as the critical factor for whether speech was made as an employee or a citizen, holding that a public employee who was subpoenaed to testify at the criminal trial of an employee he had fired spoke as a citizen rather than an employee. It did not matter that the testimony “relate[d] to his public employment or concerned] information learned during that employment,” because it was “undisputed” that his “ordinary job responsibilities did not include testifying in court proceedings.” Id. at 2378 & n.4.

Though reporting misconduct to state authorities may be routine for a chief of police, suing one’s supervisor, in his personal capacity, for discrimination surely is not part of one’s job description. Unlike the police officer in Paske v. Fitzgerald, 785 F.3d 977, 984 (5th Cir.), cert. denied, — U.S. -, 136 S.Ct. 536, 193 L.Ed.2d 428 (2015), who, “as part of his job,” was invited to speak at a supervisory meeting, Gibson had no obligation to sue Kilpatrick and did so for personal reasons. Under Lane, 134 S.Ct. at 2378, it does not matter that Gibson’s suit concerned his employment. “[identifying oneself as a public employee does not forfeit one’s ability to claim First Amendment protections.” Id. “[A] citizen who works for the government is nonetheless a citizen.” Garcetti, 547 U.S. at 419, 126 S.Ct. 1951.

If “a public employee takes his job concerns to persons outside the work place in addition to raising them up the chain of command at his workplace, then those external communications are ordinarily not made as an employee, but as a citizen.” Davis v. McKinney, 518 F.3d 304, 313 (5th Cir. 2008). By filing suit, this is exactly what Gibson did. Thus, in suing the mayor he spoke as a citizen.

2.

Even though Gibson spoke as a citizen, he still must show that his suit raised a matter of public concern. “Speech involves matters of public concern ‘when it can “be fairly considered as relating to any matter of political, social, or other concern to the community” or when it “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” ’ ” Lane, 134 S.Ct. at 2380 (quoting Snyder v. Phelps, 562 U.S. 443, 453, 131 S.Ct. 1207, 179 L.Ed.2d 172 (2011)). “[P]ublic concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Connick, 461 U.S. at 147-48, 103 S.Ct. 1684. On balance, the content, form, and context of Gibson’s speech weigh against finding that he spoke on a matter of public concern.

a.

First, it is crucial to define the content. Gibson contends that the content of his suit was his exposé of the mayor’s misconduct, which is a matter of concern to all citizens. Gibson points to Graziosi, 775 F.3d at 738, in which we said that “[i]t is well established that speech exposing or otherwise addressing malfeasance, corruption or breach of the public trust, especially within a police department, touches upon matters of public concern.”

Gibson misapprehends what is at issue. He had already spoken to state authorities about the mayor’s misappropriation of funds, unmasking Kilpatrick. Thus, in filing suit Gibson was not functioning as a whistleblower. Instead, the content of the suit was the alleged employment grievances—claims of retaliatory discrimination for protected speech and malicious interference with employment—what Kilpatrick did after Gibson reported him to state authorities.

Gibson cannot prevail by demonstrating that his report to the State Auditor was a matter of public concern. In Gibson II, 773 F.3d at 672-73, we already have determined that the speech was unprotected. By focusing on the underlying speech to state authorities, Gibson is trying to relitigate Gibson II. Instead, he must demonstrate that the employment lawsuit he filed against Kilpatrick in his individual capacity, which sought damages from Kilpatrick personally, was a matter of public concern.

Merély including a First Amendment claim in a lawsuit does not transform it into a matter of public concern. Other circuits have made that plain. For example, in Singer v. Ferro, 711 F.3d 334, 336, 338 (2d Cir. 2013), the plaintiffs, who were corrections officers, sued for retaliation in violation of the First Amendment because of a parody they had created. In an amended complaint, they alleged further retaliation for filing the lawsuit. Citing Guamieri, the Second Circuit rejected that claim, holding that it did not “touch on a matter of public concern solely because the initial suit asserted a First Amendment violation.” Id. at 342-43. The suit involved only “a personal dispute with the[] [officers’] supervisors.” Id. at 342.

Similarly, in Ruotolo v. City of N.Y., 514 F.3d 184, 186-87 (2d Cir. 2008), a police officer filed a First Amendment suit claiming retaliation for an official report he had written. He subsequently amended to claim that the suit itself had served as a basis for further retaliation. The Second Circuit analyzed the original complaint and determined that the First Amendment claim was not “a matter of public concern,” because it “sought to redress personal grievances.” Id. at 189.

More recently, in Morgan v, Covington Township, 563 Fed.Appx. 896, 898 (3d Cir. 2014), the plaintiff, a police officer, sued alleging First Amendment retaliation when he suffered adverse employment actions after requesting a public hearing on his suspension. He was then fired and sued again, claiming that the termination was in retaliation for the initial suit. The Third Circuit rejected Morgan’s claim, explaining “[t]he fact that Morgan I asserted a First Amendment violation does not mean that the lawsuit addresses a matter of public concern.” Id. at 901. Instead, the court applied the content, form, and context test and concluded that the complaint “addressed matters of personal and private concern.” Id. at 900-02. In short, other circuits appear to be uniform in concluding that merely including a First Amendment claim does not automatically convert a suit into a matter of public concern.

Although Gibson cites Oscar Renda Contracting, Inc. v. City of Lubbock, 463 F.3d 378, 383 (5th Cir. 2006), for the contrary proposition, that case is not disposi-tive; it involved only whether the plaintiff had sufficiently pleaded a First Amendment retaliation claim under Federal Rule of Civil Procedure 12(b)(6). The plaintiffs filed a complaint asserting that they had experienced First Amendment retaliation, leading to the loss of a contracting bid, for filing a First Amendment retaliation suit. We determined that by stating, in the complaint for the second suit, that the first suit “involved ... a First Amendment retaliation claim,” they “put the City on notice that [the prior suit] ... implicated matters of public concerns.” Id. Because proving a First Amendment claim necessarily involves a demonstration that the speech was on a matter of public concern, Charles, 522 F.3d at 510 n.2, that statement is unremarkable; it merely concludes that by referencing a particular legal claim, the plaintiff also referenced one of the elements of that claim for purposes of pleading. Oscar Renda in no way outlined what is sufficient as a matter of proof.

In sum, we agree with the Second and Third Circuits. The fact that Gibson’s suit included a 'First Amendment retaliation claim is insufficient to make it a matter of public concern, and we must further evaluate its content.

Speech that is “related only to [a] superior’s employment decisions” and that affects a plaintiff “in a purely personal manner” is not a matter “of political, social, or community concern.” “While as a matter of good judgment, public officials should be receptive to constructive criticism offered by their employees, the First Amendment does not require a public office to be run as a roundtable for employee complaints over internal office affairs.” Connick, 461 U.S. at 149, 103 S.Ct. 1684. Indeed, “[t]he right of a public employee under the Petition Clause ... is not a right to transform everyday employment disputes into matters for constitutional litigation in the federal courts.” Guamieri, 564 U.S. at 399, 131 S.Ct. 2488. Thus, an employment dispute brought against a public employer is not, inherently, protected speech.

Nevertheless, one could contend that how the mayor treats the police chief is a matter of public concern, given the public’s interest in effective city governance. “[I]n one sense the public may always be interested in how government officers are performing their duties.” Id. The citizens of Drew might care especially about how their police chief was treated by the mayor after Kilpatrick’s misappropriations were exposed by Gibson. Or, more generally, it might interest the public' to know that the police chief has been reprimanded by the mayor, regardless of any previous history. “Speech concerning police misconduct' is public in content.” Thus, the nature of Gibson’s suit could, in at least some sense, be called a matter of public concern.

Yet, because “at some level of generality almost all speech of state employees is of public concern,” we must be careful not to conclude that speech is a matter of public concern merely because it involves public employees. Indeed, “management policies that [are] only interesting to the public by virtue of the manager’s status as an arm of the government” are not a matter of public concern as that legal term of art is properly understood.

Indubitably, the content of Gibson’s suit was a matter of private concern. He sought rectification for himself. At its core, as an employment dispute, the suit is “an internal grievance.” Graziosi, 775 F.3d at 738. “Internal personnel disputes and man-agemerit decisions are rarely a matter of public concern.” Stotter, 508 F.3d at 827.

The suit asks only for personal relief. Gibson did not request “any type of damages implicating the public.” He chose not to seek an injunction to prevent the mayor from engaging in such future behavior, In Singer and Ruotolo, the Second Circuit concluded that-requests for personal relief alone counseled against finding that a suit was a matter of public concern.

Nonetheless, “even a mere scintilla- of speech regarding a matter of public concern is sufficient to treat the entire communication as mixed speech.” Stotter, 508 F.3d at 826. The content of Gibson’s suit may be described as a mix of both personal and private concerns. Yet, considering that the suit sought personal relief and that the facts related internal employment grievances, personal concerns predominate.

b.

Even if we were to reach the opposite conclusion—that the content of Gibson’s speech was primarily public—the form of his speech counsels against holding that he spoke on a matter of public concern. The speech was not the act of reporting Kilpatrick to state authorities, nor was it made at a public meeting. Instead, it took the form of a priyate suit. Though the speech sought relief from a third party—the district court—it was not a whis-tleblower suit alerting the public of misconduct; instead, it sought assistance in redressing personal grievances.

Importantly, Gibson’s suit was against the mayor only in his personal (or individual) . capacity. “Personal-capacity suits seek to impose personal liability”; they cannot establish governmental liability. Graham, 473 U.S. at 165, 105 S.Ct. 3099. “[A]n award of damages against an official in his personal capacity can be executed only against the official’s personal assets.” Id. at 166, 105 S.Ct. 3099. For purposes, of liability, a suit against a governmental official in his individual capacity is the equivalent of suing one’s neighbor. Thus, because they do not concern the public fisc, personal-capacity suits are much less likely to be matters of public concern. Therefore, the form of Gibson’s suit—personal capacity—provides significant support for the conclusion that it was not a matter of public concern.

A colorable contrary position is that if First Amendment retaliation suits like Gibson’s are not entitled to special constitutional protection, whistleblowers might be deterred from alerting the public of misconduct and might choose to suffer retaliation in silence for fear of further adverse action. That fear of retaliation might further persuade them not to blow the whistle in the first place. In addition to the many other federal and state law protections for whistleblowers, the obvious response is that whistleblowers can bring First Amendment retaliation suits against governmental supervisors in their official capacities, thus implicating the public purse because official-capacity suits look only to the governmental entity for redress. See Graham, 473 U.S. at 166, 105 S.Ct. 3099. They offer another way to plead an action against a governmental body. Turner, 229 F.3d at 483. Although it is not alone sufficient—form must be evaluated alongside the other factors of content and context—a suit brought against a public official in his official capacity, or directly against a public entity, is more easily read as a matter of public concern.

c.

That leaves us with context. “[S]peech is not on a matter of public concern if it is made solely in ‘furtherance of a personal employer-employee dispute.”’ Salge v, Edna Indep, Sch. Dist, 411 F.3d 178, 187 (5th Cir. 2005) (quoting Kennedy, 224 F.3d at 372). There is nothing to indicate that Gibson’s speech occurred “against a backdrop of widespread debate in the community.” Instead, the lawsuit was filed in the context of a continuing feud between the mayor and Gibson.

First, Kilpatrick opposed Gibson’s application to be Chief of Police. Then, four months after starting his new job, Gibson spearheaded an investigation into the may- or’s use of the gasoline card by reporting it to state authorities. Nine months after that investigation had concluded, Kilpatrick began “entering written reprimands into Gibson’s personnel file” and complaining to city alderman about Gibson’s “insubordination, lack of visibility in the community, and failure to work an adequate number of hours.” Gibson II, 773 F.3d at 665. Multiple alderman indicated that the two men were unable to work together; one testified that he thought there was “something between the chief and mayor personally” and claimed that “90 percent” of board meetings were spent “between chief and the Mayor fussing and carrying on.”

Further, there was a four-year gap between Gibson’s report to state authorities, exposing Kilpatrick’s misconduct, and his suit against the mayor. It is possible that Gibson’s employment troubles during this time were because of his report, as he contends, but the gap also lends credence to the city’s claim that the men were feuding because of numerous matters.

In sum, though it is not dispositive, the underlying context of the suit indicates an ongoing personal feud between Kilpatrick and Gibson, which might help to explain why Gibson sued Kilpatrick in his personal capacity. Because personal employment disputes are not, by themselves, matters of public concern, the context of Gibson’s speech further strengthens the conclusion that his suit does not qualify.

d.

Taken as a whole, all three of the factors—content, form, and context—support the conclusion that the suit was a matter of private concern. In mixed-speech cases, we conduct a balancing of all three factors. See Teague, 179 F.3d at 382. Within this balancing, we weigh context and form “more heavily.” Teague, 179 F.3d at 383. Though the content of Gibson’s suit was a mix of private and public concerns, private concerns predominate. Both the form and context of the suit show that it was a matter of private concern. Thus, we need not go on to weigh Gibson’s interests in speaking against the city’s interests in promoting efficiency. In short, the district court was correct: Gibson’s First Amendment retaliation claim fails.

B.

Gibson assigns error to the district court’s dismissal of his MIE claim because it concluded that under the MTCA he needed to file notice. The MTCA requires a person to “file a notice of claim with the chief executive officer of the governmental entity” at least ninety days “before instituting suit.” Miss. Code Ann. § 11-46-11 (2016). “[A]n action against a government employee in his individual capacity may be subject to-'notice of claim requirements if the act complained of occurred within the scope and course- of his employment.” It is. undisputed that Gibson never gave any such notice.

Gibson points out, however, that his MTCA claim was for malicious interference with employment; he contends that claims alleging malice are exempt from the notice requirement. He is correct that notice is not required if the public employee’s “conduct constituted fraud, malice, libel, slander, defamation or any criminal offense,” because the governmental entity is not liable for such actions. Id. § 11-46-5.

Gibson’s position is foreclosed by Johnson, in which we addressed the identical issue of whether, under Mississippi law, the tort of MIE is a crime of malice or merely a ,tortious-breach-of-contract claim. Noting inconsistent easelaw from the Mississippi Supreme Court, we relied on the fact that cases holding that MIE is a breaeh-of-contract claim were more recent, so we concluded that notice is required. Johnson easily disposes of Gibson’s claim.

Alternatively, Gibson maintains that we should certify the question to the Mississippi Supreme Court. We certify “only in ‘exceptional case[s].’ ” Gibson points to no intervening authority since Johnson that would make certification advisable. Thus, his claim of MIE also fails.

AFFIRMED.

      . In Gibson II, 773 F.3d at 667, following Lane, 134 S.Ct. at 2378-81, we separated the question whether someone spoke as a citizen ■from whether he. spoke on a matter of public concern. We employ that approach now, though not all the relevant decisions reflect that methodology, instead collapsing the two questions into one. See, e.g., Garcetti v. Ceballos, 547 U.S. 410, 423-24, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006); Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812, 825-26 (5th Cir. 2007).

      . See also Graziosi v. City of Greenville, 775 F.3d 731, 737 (5th Cir. 2015) (holding that police officer's Facebook posts critiquing police-department decisions was speech as a citizen).

      . We reach this conclusion by applying the ordinary job-duties test, not because Gibson’s speech was in the form of a lawsuit. Nonetheless, the fact that his speech appeared in a legal complaint does make this case somewhat more analogous to Lane, 134 S.Ct. at 2379, where the Court held that judicial testimony "is a quintessential example of speech as a citizen_”

      ."[T]he distinctions between [the citizen-employee test and the content, form, context text] [are] somewhat artificial.” Stotter, 508 F.3d at 826 n.4. In Stotter we explained that we were "unable to find a single case in which the application of these varying tests brought the panel to different conclusions.” Id. Our divergent conclusions here regarding the application of these two tests is because of our focus (following Lane) on ordinary job duties as the key to citizen-employee analysis. In cases before Lane, we emphasized that one does not speak as a citizen if his speech occurs as part of a “personal employment dispute.” See, e.g., Gillum v. City of Kerrville, 3 F.3d 117, 121 (5th Cir. 1993). Under such an approach, it would be unlikely that by filing suit, Gibson spoke as a citizen.

      . See also Lane, 134 S.Ct. at 2380 (discussing the importance of public-employee speech in relation to corruption). But see Gibson II, 173 F.3d at 669 ("We doubt that this discussion [in Lane] means that speech is 'as a citizen' whenever public corruption is involved, as that could conflict with the opinion in Garcet-ti.”).

      . Gibson contends that Buotolo has been effectively overruled by later Second Circuit decisions such as Sousa v. Roque, 578 F.3d 164, 175 (2d Cir. 2009). Even if he is correct that Ruotolo improperly considered motive when analyzing whether the speech was a matter of public concern, that error does not affect the overall import of the case—that including a First Amendment claim does not automatically make a suit a matter of public concern.

      . Additionally, Oscar Renda was a suit against a public body, not a public employee in his personal capacity. See infra.

      . Rathjen v. Litchfield, 878 F.2d 836, 842 (5th Cir. 1989) (quoting Day v. S. Park Indep. Sch. Dist., 768 F.2d 696, 697 (5th Cir. 1985)).

      . Teague v. City of Flower Mound, 179 F.3d 377, 383 (5th Cir. 1999) (citing Forsyth v. City of Dall, 91 F.3d 769, 773-74 (5th Cir. 1996)). Although Gibson's speech is, strictly speaking, about mayoral misconduct (if anything, he is trying to clear his own name), presumably the public would be similarly interested.

      . Gillum, 3 F.3d at 121. See also Guamieri, 564 U.S. at 399, 131 S.Ct. 2488 (explaining that the public’s interest in the performance of their governmental officials "will not always suffice to show a matter of public concern”).

      . Kennedy v. Tangipahoa Par. Library Bd. of Control, 224 F.3d 359, 372 (5th Cir. 2000), abrogated on other grounds as stated in Cuvillier v. Taylor, 503 F.3d 397, 401 n.4 (5th Cir. 2007).

        .See Singer, 711 F.3d at 342 (observing that “thrust" of lawsuit was "towards the ‘entirely personal’ relief of monetary damages for what are, at bottom, allegations of wrongful treatment as employees and wrongful termination”); Ruotolo, 514 F.3d at 190 (holding that because the plaintiff’s “lawsuit concern[ed] essentially personal grievances and the relief he s[ought] [wa]s for himself alone, the lawsuit [wa]s not speech on a matter of public concern”). Again, this analysis was not called into doubt by the Second Circuit’s later decision in Sousa, 578 F.3d at 173, which questioned Ruotolo’s reliance bn motive in determining whether speech was on a matter of public concern.

      . The act of filing a lawsuit is not entitled to any heightened protection but is governed by the ordinary safeguards for speech. See Guarnieri, 564 U.S. at 389, 131 S.Ct. 2488'("The substantial government interests that justify a cautious and restrained approach to the protection of speech by public employees are just as relevant when public employees proceed under the Petition Clause.”).

      . We use the two words interchangeably. See Kentucky v. Graham, 473 U.S. 159, 165 n.10, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985).

      . See, e.g., Whistleblower Protection Act, 5 U.S.C. § 1221 (2012) (creating a cause of action for federal employees who suffer adverse employment actions from exposing illegality, abuse of authority, and the like); Miss. Code Ann. § 25-9-173 (West 2016) (creating a cause of action for state and local employees who experience workplace reprisal for reporting improper governmental actions to state investigative authorities).

      . See also Turner v. Houma Mun. Fire & Police Civil Serv. Bd., 229 F.3d 478, 483-85 (5th Cir. 2000).

      . This is another way to distinguish Oscar Renda. The previous suit in that case, which related to a "matter of public concern,” was brought against the El Paso Water District. Oscar Renda, 463 F.3d at 383.

      . Markos v. City of Atlanta, 364 F.3d 567, 572 (5th Cir. 2004) (holding that a police officer’s speech to a journalist made in the context of a continuing public commentary was a matter of public concern).

      . There were only two years, however, between the conclusion of the state’s investigation and Gibson’s suit. It is not clear at what point Kilpatrick learned of Gibson’s report. Yet, even two years attenuates the connection between Gibson’s speech and Kilpatrick’s actions, because it is entirely possible that there were other things about which they disagreed during this time.

      . Johnson v. City of Shelby, 743 F.3d 59, 63 (5th Cir, 2013) (quoting McGehee v. DePoyster, 708 So.2d 77, 79-80 (Miss. 1998)), rev'd on other grounds, — U.S. -, 135 S.Ct. 346, 190 L.Ed.2d 309 (2014) (per curiam), Gibson does not claim that he was exempted from notice requirements because he sued Kilpa-trick in his individual capacity.

      . Id. at 63-64.

      . Id. at 64 (explaining that "we apply 'the latest and most authoritative expression of state law applicable to the facts of a case’ ”) (quoting Santibanez v. Wier McMahon & Co., 105 F.3d 234, 239 (5th Cir. 1997)),

      . Gibson tries to avoid Johnson by pointing to a footnote that states that "[p]ursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent..,. 47.5.4.” Id. at 60 n.*, That standard footnote, included in all unpublished opinions as required by Fifth Circuit Rule 47.5.4, appeared because when Johnson was first issued, it was unpublished. Later, we granted a motion to publish but never reissued the opinion, so the footnote mistakenly remained. Johnson nonetheless is binding precedent under 5th Cir. R, 47.5 because it was published and appears in the West Federal Reporter, Third Series. "An opinion is considered as 'published’ for purposes of this rule when the panel deciding the case determines, in' accordance with 5th Cir. R. 47,5.2, that the opinion will be published,,..” 5th Cir. R. 47.5.5. "If ... any party so requests the panel will reconsider its decision not to publish.,.. The opinion will be published if ... the panel issues an order to publish-” 5th Cir. R. 47.5.2. "[A]n opinion is published if it ... (f) is rendered in a case that has been reviewed previously and its merits addressed by an opinion of the United States Supreme Court.” 5th Cir, R. 47.5.1.

        .In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668 F,3d 281, 290-91 (5th Cir. 2012) (quoting Lavespere v. Niagara Mach. & Tool Works, Inc., 920 F.2d 259, 262 (5th Cir. 1990)).


author: PRISCILLA RICHMAN OWEN, Circuit Judge: DANIEL P. JORDAN, III, District Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Curtis Marrow HOWELL, Defendant-Appellant.
    No. 15-10336
    United States Court of Appeals, Fifth Circuit.
    Filed September 22, 2016

      Brian W. McKay, Esq., James Wesley Hendrix, Assistant U.S. Attorneys, U.S. Attorney’s Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee.
    James Matthew Wright, Assistant Federal Public Defender, Federal Public Defender’s Office, Northern District of Texas, Amarillo, TX, Charles M. Bleil, Federal Public Defender’s Office, Northern District of Texas, Dallas, TX, for Defendant-Appellant.
    Before CLEMENT and OWEN, Circuit Judges, and JORDAN, District Judge.

       District Judge of the Southern District of Mississippi, sitting by designation.

   PRISCILLA RICHMAN OWEN, Circuit Judge:

Curtis Marrow Howell pleaded guilty to the federal crime of possession of a firearm by a convicted felon, a violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court concluded that Howell’s prior conviction under Texas Penal Code § 22.01(a)(1), (b)(2)(B) for assault constituted a “crime of violence” within the meaning of United States Sentencing Guidelines § 4B1.2(a). This resulted in an enhancement to the base offense level under § 2K2.1(a)(3) of the Guidelines. The district court sentenced Howell to 100 months of imprisonment, and Howell has appealed contending that his Texas conviction is not a crime of violence. We affirm.

I

Howell pleaded guilty, without a plea agreement, to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). The Presentence Report (PSR) indicated that the handgun Howell possessed was a semiautomatic firearm capable of accepting a large-capacity magazine, which increased the base offense level under certain provisions of § 2K2.1(a) of the Guidelines. The PSR also reflected that Howell had previously been convicted of a third-degree felony under a Texas statute, which provided that a person commits an offense if he or she

intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse ... [and] the offense is committed against ... a person [who is a family member or has another defined relationship with the defendant] ... [and] the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth.

The PSR concluded that Howell’s conviction under this statute qualified as a “crime of violence” within the meaning of U.S.S.G. § 4B1.2(a), without specifying whether one or both of the two subsections of that provision supported this conclusion. Pursuant to U.S.S.G. § 2K2.1(a)(3), the PSR recommended a base offense level of 22. After applying other adjustments, the PSR calculated a total offense level of 27 and a criminal history category of IV, yielding an advisory sentencing range of 100 to 120 months of imprisonment.

Howell filed written objections to the base offense level, arguing that the prior Texas conviction at issue in this appeal did not qualify as a “ ‘crime of violence’ under U.S.S.G. § 4B1.2.” Howell advanced two arguments. First, he contended that the Texas offense could not be a crime of violence because the mens rea required in the Texas statute included “recklessly” committing the assault. The Texas indictment alleged that he intentionally, knowingly, and recklessly caused injury to another person, and he asserted in his objections to the PSR that his guilty plea to that indictment must be construed as a plea to the least culpable conduct, which was recklessness. He did not specifically argue that “use” as used in subsection (1) of § 4B1.2(a) could not encompass reckless conduct, nor did he allude to the “use” language in that subsection. He did expressly address the residual clause embodied in § 4B1.2(a)(2), but he acknowledged that his argument regarding recklessness in this context was foreclosed by then-existing-circuit precedent, United States v. Espinoza. In Espinoza,. this court held that a violation of Texas Penal Code § 22.01(a) and (b)(2)(A), -with a mens rea of recklessness qualified as a “violent felony” under the residual clause of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii). Second, Howell objected to the PSR on the basis that the residual clause in § 4B1.2(a)(2) is unconstitutionally vague.

A PSR addendum recommended that the court reject Howell’s objection regarding recklessness as foreclosed by precedent but did not address Howell’s vagueness challenge. The addendum also attached the indictment, judgment, and judicial confession pertaining to Howell’s prior Texas conviction.

At the sentencing hearing, Howell reaffirmed his objections to the offense-level enhancement for his prior Texas conviction of assault. The district court overruled those objections and imposed a sentence of 100 months of imprisonment, to be followed by two years of supervised release. Without the enhancement, Howell contends that his offense level would be 25, yielding an advisory sentencing range of 84 to 105 months of imprisonment.

Howell has appealed.

II

Because we conclude that Howell’s prior Texas assault offense “has as an element the use, attempted use, or threatened use of physical force against the person of another,” within the meaning of § 4B1.2(a)(l) of the Guidelines, we do not reach the constitutional vagueness challenge .to the “residual” clause of this Guidelines provision set forth in § 4B1.2(a)(2). The “residual” clause in § 4B1.2(a)(2) is identical in its wording to the “residual” clause in the ACCA, with the exception of the inclusion of the words “of a dwelling” after “burglary” in the Guidelines section. While Howell’s appeal was pending, the Supreme Court held in Johnson v. United States that the residual clause in the ACCA is unconstitutionally vague.

In light of Johnson, some of the reasoning in our decision in United States v. Espinoza remains persuasive, but its holding is no longer binding precedent, since the Espinoza opinion concluded that the Texas offense of assault, for which Howell was convicted, was a “violent felony” under the residual clause of the ACCA, and that clause is no longer an enforceable part of the ACCA.

However, the issue of whether the residual clause in § 4B1.2(a)(2) (as distinguished from the residual clause of the ACCA) is void for vagueness presents a constitutional issue that our court did not address in Espinoza. The Courts of Appeals that have considered the issue have divided: the Eleventh Circuit has held that none of the Sentencing Guidelines’ provisions can be attacked as unconstitutional; the Third, Sixth, Seventh, and Tenth Circuits have held that § 4B1.2(a)(2) is unconstitutionally vague. The Supreme Court may soon resolve the question; it has granted a petition for writ of certiora-ri in Beekles v. United States, and the issue is presented in that case. However, we are obliged to consider non-constitutional issues that would be dispositive of the appeal before we reach a constitutional question. We therefore first consider the Government’s contention that Howell’s Texas conviction is a “crime of violence” within the meaning of § 4B1.2(a)(l). The Government contends that the Texas assault offense “has as an element the use, attempted use, or threatened use of physical force against the person of another.”

III

“For properly preserved claims, this court reviews the district court’s interpretation and application of the Sentencing Guidelines de novo.” It is at least subject to debate, however, whether Howell preserved a claim that his prior offense did not have “as an element the use, attempted use, or threatened use of physical force against the person of another.”

Conspicuously absent from the Government’s brief is a statement or argument as to the standard of review that we should apply. Nor does the Government contend that Howell’s objections in the district court were inadequate to preserve each of his contentions on appeal. We will assume, without deciding, that Howell’s objections were sufficient to preserve the contention that his offense is not one involving a use of force, since we conclude that under either a de novo standard or the plain error standard of review, the district court did not err in determining that the prior Texas offense was a crime of violence.

It is not entirely clear if the district court considered whether Howell’s Texas assault conviction has as an element the “use” of physical force under subsection (a)(1) of § 4B1.2. We may nevertheless affirm the district court’s application of the Guidelines on any ground supported by the record.

ÍY

The Government maintains that we need not consider whether committing the Texas offense at issue with the mental state of recklessness constitutes a crime of violence under § 4B1.2 because, the Government asserts, Howell judicially admitted in the state court of conviction that he acted intentionally in committing the assault. The •state court records reflect that Howell pled guilty to the allegations in the indictment that he acted “intentionally, knowingly and recklessly.” • ■ ■

This court’s decisions as to the effect of such,a plea are in tension. Before we consider those decisions, however, an explanation of the so-called “categorical” and' “modified Categorical” approaches is necessary. In determining if a prior conviction is for an offense enumerated or defined in a Guidelines provision, we generally apply the categorical approach and look to the elements of the offense enumerated or defined by the Guideline section and compare those elements to the elements of the prior offense for which the defendant was convicted. We do not consider the actual conduct of the defendant in committing the offense. If the offense is an enumerated offense, such as burglary, we first determine the elements contained in the generic, contemporary meaning of that offense.

In one of several decisions on the subject, the Supreme Court explained the application of the categorical approach in Descamps v. United States. The Supreme Court also explained in Descamps, as it had in prior opinions, that when a statute defines more than one crime, and not all of them constitute an enumerated generic offense, courts employ the “modified categorical approach” to “determine which crime formed the basis of the defendant’s conviction.” Courts may consult certain records pertaining to the prior offense to ascertain if the conviction rested on the generic or defined crime or instead was an over-inclusive offense that could not support a sentence enhancement. But, if the statute of conviction is not divisible, “[t]he modified [categorical] approach ... has no role to play.”

The Government contends that Howell’s statute of conviction is divisible and therefore that his guilty plea and accompanying admissions establish that he was convicted of intentionally impeding the breath or circulation of the victim. Howell disagrees, observing that in United States v. Espinoza, this court said that the defendant’s “judicial confession is simply a blanket statement admitting that he committed the assault with every listed category of mental culpability,” but that “[t]his does not support a finding that Espinoza committed the act intentionally and knowingly and not recklessly.” We concluded in Espinoza that “we apply the ‘least culpable means’ analysis to this case and assume that Espinoza’s offense was committed recklessly.”

The Government contends that Espinoza failed to adhere to prior, binding precedent of this court, and that our court has disapproved of Espinoza’s conclusion regarding the import of a guilty plea. The Government cites our decision in United States v. Conde-Castaneda, which said:

Espinoza cannot overturn the earlier decided case of Garciar-Arellano. To the extent that the holding of Espinoza is inconsistent with Garcia-Arellano, Garcia-Arellano controls. Espinoza cited no authority when it stated that the judicial confession failed to support the enhancement. Espinoza’s, scant reasoning indicates either that the case is a true outlier in our caselaw, that its pronouncement was dicta, or both.

In Conde-Castaneda, we considered a Texas burglary statute that set forth three subsections describing what constituted burglary of a habitation, and concluded that it contained divisible crimes. We therefore held “that the modified categorical approach applies here,” and we relied on the defendant’s written confession in concluding that he had been convicted of the generic crime of burglary, which constituted a “crime of violence” within the meaning of § 2L1.2(b)(l)(A)(ii) of the Guidelines.

The Conde-Castaneda decision discussed United States v. Garciar-Arellano, in which this court was reviewing a Guidelines sentencing enhancement for plain error. The prior' offense was a conviction Under Texas Health ánd Safety Code section 481.112(a), which the district court held was a “drug trafficking offense” under § 2L1.2(b)(l)(B) of the Guidelines. We recognized that the Texas statute at issue, section 481.112(a), “encompasses 'both conduct that does constitute a drug trafficking offense ... and conduct that does not (offering to sell cocaine).’ ” But we concluded that based on the record in that case, there was a means of determining whether the conviction was for conduct that did constitute a drug trafficking offense. The Garcia-Arellano decision held that “a written judicial confession also constitutes a ‘comparable judicial record’ under Shepard, and that it may be considered in determining whether a defendant’s prior conviction constitutes a drug trafficking offense under the guidelines.” Because Garcia-Arellano had judicially admitted the Texas indictment’s charges against him and admitted that he knowingly and intentionally delivered a controlled substance as well as admitting to an offer to sell, our court concluded that the Texas conviction qualified as a drug trafficking offense under the Guidelines.

Six years after our decision in United States v. Garciar-Arellano, the Supreme Court emphasized, in United States v. Cas-tleman, that if a statute is “divisible,” meaning that it sets forth separate offenses, then it is permissible to consult the defendant’s guilty plea to determine which offense was the basis for the prior conviction. The Court held that because Castle-man had pleaded guilty to knowingly and intentionally causing bodily injury, he had committed a predicate offense within the meaning of 18 U.S.C. § 922(g)(9).

The Government recognizes in its briefing in the present case that a court may only apply the so-called modified categorical approach discussed in Shepard and other cases if the statute of conviction is “divisible,” citing the Supreme Court’s‘decision in Descamps v. United States. The issue that has- divided courts, and with great respect to the Supreme Court, confused courts attempting to apply Des-camps and the decisions preceding it, is how to determine if a statute is “divisible.”

"While this appeal was pending, the Supreme Court issued its decision in Mathis v. United States, which provided needed guidance on when a statute of conviction is divisible. Though Mathis dealt with the ACCA, rather than the Guidelines, the methodology of determining whether a statute is divisible and therefore whether the modified categorical approach may be employed, is the same, unless the Guidelines were to specify otherwise. The Supreme Court explained that if a statute sets forth only various means of committing the offense, it is not divisible, but if the statute sets forth more than one offense by including alternative elements of each offense, then the statute is divisible. The test to distinguish- means from elements is whether a jury must agree. -

In Mathis, an Iowa burglary statute criminalized entry into, or onto locations that included a building, a structure, land, water, or an air vehicle. Because generic burglary does not proscribe burglary of vehicles, the Iowa offense was overly inclusive; it included conduct that was not generic burglary. The sentencing court considered documents pertaining to Mathis’s prior convictions, which reflected that Mathis had burgled structures not vehicles, and the district court concluded that the sentencing enhancement under the ACCA applied. The Eighth Circuit affirmed, holding that whether the itemized list of places “amounted] to alternative elements or merely alternative means to fulfilling an element, the statute is divisible, and we must apply the modified categorical approach.” The' Supreme Court reversed the Eighth Circuit because the Iowa Supreme Court has held that the Iowa statute sets forth “alternative method[s] of committing [the] single crime,” and an Iowa “jury need not agree on which of the locations was actually involved.”

We recently discussed the import of Mathis in United States v. Hinkle:

The decision in Mathis instructs that there is a difference between alternative elements of an offense and alternative means of satisfying a single element. Elements must be agreed upon by a jury. When a jury is not required to agree on the way that a particular requirement of an offense is met, the way of satisfying that requirement is a means of committing an offense not an element of the offense.

In light of Mathis, we know that we must determine whether “listed items” in a state statute “are elements or means,” and if “a state court decision definitively answers the question” our inquiry is at an end. The Texas Court of Criminal Appeals has held that the three mental states listed in section 22.01(a) do not describe three distinct offenses. The Texas court has said:

This actus reus [which the court held is “causing bodily injury”] must be accompanied by a culpable mental state. In its “bodily injury” assault subsection [22.01(a) ], the legislature stated that any of three culpable mental states suffices: intentionally, knowingly, or recklessly causing bodily injury. The legislature was apparently neutral about which of these three mental states accompanied the forbidden conduct because all three culpable mental states are listed together in a single phrase within a single subsection of the statute. There is no indication that the legislature intended for an “intentional” bodily injury assault to be a separate crime from a “knowing” bodily injury assault or that both of those differ from a “reckless” bodily injury assault. All three culpable mental states are strung together in a single phrase within a single subsection of the statute. All result in the same punishment. They are conceptually equivalent.

Though this decision of the Texas court is not definitive in the sense that it did not explicitly consider the “intentionally, knowingly, or recklessly” mental states set forth in subsection 22.01(b)(2)(B), it is clear from the court’s reasoning that it would not construe the import of listing these mental states any differently than it construed the same listing in the preceding subsection of the statute. Nor can we discern any basis for the conclusion that the Texas Legislature intended to create three separate offenses depending on the mental state under subsection (b)(2)(B) but did not intend to do so when it used the same language in subsection (a).

This means that the offense for which Howell was convicted is not divisible on the basis of a defendant’s mental state. A jury could permissibly find a defendant guilty even though some jurors might conclude the accused acted “intentionally,” others might conclude that the accused acted “knowingly,” and others might find only that the accused acted “recklessly,” as long as the jury found that the accused “intentionally, knowingly, or recklessly imped[ed] the normal breathing or circulation of the blood of the person” assaulted.

Accordingly, the modified categorical approach cannot be employed to “narrow” the statute of conviction, and Howell’s admission of guilt does not establish that he was convicted of a distinct offense of intentionally causing the specified bodily injury as distinguished from recklessly causing the injury. We therefore must consider whether recklessly causing bodily injury by recklessly impeding breathing or circulation “has as an element the use, attempted use, or threatened use of physical force against the person of another.”

Y

The Government contends, as an alternative ground for affirming the district court’s judgment, that every means of committing the offense for which Howell was convicted has as an element the use of force. Howell responds that our court’s decision in United States v. Vargas-Duran has construed “use” of physical force to require that a defendant intentionally use force. Howell also relies on a footnote in the Supreme Court’s decision in United States v. Castleman, which said, “[although Leocal reserved the' question whether a reckless application of force could constitute a ‘use’ of force, the Courts of Appeals have almost uniformly held that recklessness is not sufficient.”

The Supreme Court did not resolve in Castleman whether “reckless causation of bodily injury” could constitute the use of force. In Castleman, 18 U.S.C. § 922(g)(9) “forbade the possession of firearms by anyone convicted of ‘a misdemeanor crime of domestic violence,’ ” and the Court concluded that Castleman’s conviction under a Tennessee statute for knowingly or intentionally causing bodily injury to the mother of his child was a “misdemeanor crime of domestic violence.”

However, while the present appeal was pending, the Supreme Court held in Voisine v. United States, that “misdemeanor assault convictions for reckless (as contrasted to knowing or intentional) conduct trigger the'statutory'firearms ban” in 18 U.S.C. § 922(g)(9). The phrase “misdemeanor crime of domestic violence,” used in § 922(g)(9), was defined in another section of the statute:

[T]he term “misdemeanor crime of domestic violence” means an offense that—
(i) is a misdemeanor under Federal, State, or Tribal law; and
(ii) has, as an element, ■ the me or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.

Accordingly, as the Supreme Court recognized, “Congress defined that phrase to include crimes that necessarily involve the 'use ... of physical force.’ ” The Supreme Court held, “[r]eckless assaults, no less than the knowing or intentional ones we addressed in Castleman, satisfy that definition.” The Court reasoned that “[dictionaries consistently define the noun ‘use’ to mean the ‘act of employing’ something,” and that “[o]n that common understanding, the force involved in a qualifying assault .must be volitional; an involuntary motion, even a powerful one, is not naturally described as an active employment of force.” The Court also reasoned that “[t]he harm [reckless be-hawor] causes is the result of a deliberate decision to , endanger another—no more an ‘accident’ than if the ‘substantial, risk’ were- ‘practically certain.’” The Court observed that “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.”

This court’s reasoning in an earlier, en banc, decision on which Howell relies, United States v. Vargas-Duran, is similar in many respects to the reasoning in Voisine. In Vargas-Duran, the defendant had previously been convicted under a Texas statute that provided a person is guilty of intoxication assault if he or she “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.” We held that this prior offense was not a crime of violence within the meaning of § 2L1.2 of the Guidelines. The commentary to this section of the Guidelines defined “crime of violence” to include “an offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.” Like the Supreme Court in Voisine, we consulted dictionary definitions of “use” and concluded that “ ‘use of force’ means ‘the act of employing force for any ... purpose,’ or ‘to avail oneself of force.’ ” We also indicated that “the dictionary definitions of ‘use’ indicate that the word ‘refers to volitional, purposeful, not accidental, employment of whatever is being ‘used.’” We were not presented in Vargas-Dumn with, an offense in which recklessness was an element or means; the Texas statute specified “accident” or “mistake” as the levels of culpability. We concluded that the “use ,. of physical force” phrase in § 2L1.2 of the Guidelines “requires that a defendant intentionally avail himself of that force.” We had no cause to consider, and wé did not consider, whether “use” of physical force could encompass recklessness.

We conclude that Vargas-Dumn is not controlling in the present case, for at least three reasons. First, as just noted, we did not have occasion to decide, and did not consider, whether an offense involving “recklessness” under at least some statutes could have as an element “use” of force. Second, though a somewhat technical matter, the decision in Vargas-Dumn concerned § 2L1.2, not § 4B1.2, of the Guidelines. Third, the Supreme Court’s subsequent decision in Voisine substantially undercuts the statements in Vargas-Dumn that “use” of force encompasses only intentional conduct.

The Supreme Court’s discussion in Voi-sine of the history of modern assault statutes is also illuminating as to the backdrop against which the Sentencing Commission defined a “crime of violence” as including “use”’of force against another person. The Supreme Court noted in Voisine that “[s]everal decades” before Congress enacted the ACCA, “the Model Penal Code had taken the position that a mens rea of recklessness should generally suffice to establish criminal liability, including for assault.” The Court observed that thereafter, “States quickly incorporated that view into their misdemeanor assault and battery statutes. So in linking § 922(g)(9) to those laws, Congress must have known it was sweeping in some persons who had engaged in reckless conduct.” The Sentencing Commission similarly must have known that the Model Penal Code had taken the position that a mens rea of recklessness should establish criminal liability, and that various states incorporated that view into assault statutes. In any event, the Commission has largely modeled the “crime of violence” definition that includes of “use” of force after the ACCA’s similar “use” of force provision.

We therefore conclude that the mental state of recklessness may qualify as an offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another” within the meaning of § 4B1.2(a)(l) of the Guidelines. We further conclude from the terms of the Texas statute under which Howell was convicted that the use of physical force against the person of another is an element of the crime described. The Texas statute at issue provided in pertinent part:

(a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;
(b). An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against:
(2) a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if:
' (B) the offense is committed by intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth.,

The Texas Court of Criminal Appeals has held that “impeding normal breathing” within the context of § 22.01(b)(2)(B) “is per se a bodily injury,” which is defined by the Texas Penal Code as “physical pain, illness, or any impairment of physical condition.”

To obtain a conviction for the least culpable Texas offense for which Howell was convicted, a jury would be required to find the defendant recklessly caused bodily injury committed by recklessly impeding the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth. It is difficult to conceive of how applying pressure to either a person’s throat or neck in a manner that resulted in “impeding the normal breathing or circulation” could not involve the use of physical force. The same is true of blocking a person’s nose or mouth resulting in- “impeding the normal breathing or circulation of the blood of the person.”

Howell hypothesizes that the statute would be violated “[i]f a defendant allows a plastic bag to ‘block’ a victim’s mouth or nose, and is reckless about the effect that might have.” But the statute does not contemplate that a bag might somehow, due to the recklessness of a defendant, block a victim’s nose. The statute’s operative language in this regard is “blocking,” which connotes an affirmative action taken to block the nose or mouth. Howell’s other examples are that a defendant “while carelessly performing yardwork ... causes a substantial amount of dirt to fall on the victim’s face” or that “[i]f a victim’s necktie or scarf gets caught up in a piece of equipment used by the defendant, then that defendant might end up applying pressure to the victim’s neck or throat without intentionally using force.” But again, the operative language in the statute is “by applying pressure to the person’s throat” or “by blocking the person’s nose or mouth,” indicating affirmative action on the part of the defendant that is more direct than the examples given.

More importantly, as the Supreme Court has held,

to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute’s language. It requires a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic probability, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.

Howell has not pointed to any case in which Texas courts have applied the statute in such a manner.

⅜ ⅜ ⅜

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

DANIEL P. JORDAN, III, District Judge,

concurring:

I concur in the ultimate holding but take no stand with respect to the discussion of the modified categorical approach. Assuming arguendo that Howell correctly urges the court to take the categorical approach, Texas Penal Code § 22.01(a)(1), (b)(2)(B) “has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a). Howell’s primary argument is that a reckless breach of the Texas statute cannot constitute “use ... of physical force.” Id. But “[njothing in the word ‘use’ ... indicates that [§ 4B 1.2(a) ] applies exclusively to knowing or intentional” conduct. Voisine v. United States, — U.S. -, 136 S.Ct. 2272, 2278, 196 L.Ed.2d 736 (2016). When one “recklessly imped[es] the normal breathing or circulation of the blood of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose or mouth,” Tex. Penal Code Ann. § 22.01(a)(1), (b)(2)(B) (West 2013), that person “[uses] physical force against the person of another,” U.S.S.G. § 4B1.2(a)(l). See Voisine, 136 S.Ct. at 2278. I therefore agree that the District Court should be affirmed.

      . See, e.g., U.S. Sentencing Guidelines Manual § 2K2.1(a)(3) (U.S. Sentencing Comm’n 2014) (directing a base offense level of 22 when "(A) the offense involved a ... semiautomatic firearm that is capable of accepting a large capacity magazine ... and (B) the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense”).

      . Tex. Penal Code Ann. § 22.01(a)(1), (b)(2)(B) (West 2009).

      . U.S. Sentencing Guidelines Manual § 4Bl,2(a) (U.S. Sentencing Comm’n 2014) ("The term ‘crime of violence’ means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ... (1) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”).

      . 733 F.3d 568 (5th Cir. 2013).

      . Id. at 572-74.

      . Compare U.S. Sentencing Guidelines Manual § 4B 1.2(a)(2) (Sentencing Comm'n. 2014), with 18 U.S.C. § 924(e)(2)(B)(ii),

      . — U.S. -, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015).

      . 733 F.3d 568 (5th Cir. 2013).

      . Id. at 569, 573.

      . See United States v. Matchett, 802 F,3d 1185, 1196 (11th Cir. 2015), reh’g en banc denied, 837 F.3d 1118, No. 14-10396, 2016 WL 4757211 (11th Cir. September 13, 2016); see also United States v. Gonzalez-Longoria, 831 F.3d 670, 679, 681, No. 15-40041, 2016 WL 4169127, at *6, *8 (5th Cir. Aug, 5, 2016) (Jones, J., concurring) (contending that the majority opinion’s holding that 18 U.S.C. § 16(b) is not unconstitutionally vague “could have been obviated with a holding that neither the U.S. Sentencing Guidelines, nor extrinsic statutes cross-referenced in the Guidelines, are subject to challenges based on the Due Process Clause’s prohibition of vague laws" and that "Due process requires only notice and predictability in the statutory range of punishments following conviction. ... [and] vagueness challenges cannot stand against a discretionary scheme of sentencing within that range”).

      . See United States v. Calabretta, 831 F.3d 128, 133-34, No. 14-3969, 2016 WL 3997215, at *4 (3d Cir. July 26, 2016); United States v. Pawlak, 822 F.3d 902, 903 (6th Cir. 2016); United States v. Hurlburt, 835 F.3d 715, 717-18, No. 14-3611, 2016 WL 4506717, at *1 (7th Cir. Aug. 29, 2016); United States v. Madrid, 805 F.3d 1204, 1212 (10th Cir. 2015).

      . -U.S. -, 136 S.Ct. 2510, 195 L.E.2d 838 (2016).

        .See, e.g., Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S, 193, 205, 129 S.Ct. 2504, 174 L.Ed.2d 140 (2009) ("[I]t is a well-established principle governing the prudent exercise of this Court’s jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.”) (quoting Escambia Cty v. McMillan, 466 U.S. 48, 51, 104 S.Ct. 1577, 80 L.Ed.2d 36 (1984) (per cu-riam)); Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 86 L.Ed.2d 664 (1985) (“Prior to reaching any constitutional questions, federal courts must consider nonconstitutional grounds for decision.”) (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, 99, 101 S.Ct. 2193, 68 L.Ed.2d 693 (1981)); Clay v. Sun Ins. Office Ltd., 363 U.S. 207, 209, 80 S.Ct. 1222, 4 L.Ed.2d 1170 (1960) ("By the settled canons of constitutional adjudication the constitutional issue should have been reached only if, after decision of two non-constitutional questions, decision was compelled.”); Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandéis, J„ concurring) ("The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.... Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the ' other' a question of statutory construction or general law, the Court will decide only the latter.”).

      . U.S. Sentencing Guidelines Manual § 4B1.2(a)(l) (Sentencing Comm’n. 2014)

      . United States v. Cedillo-Narvaez, 761 F.3d 397, 401 (5th Cir. 2014).

      . See, e.g., United States v, Garcia-Gonzalez, 714 F.3d 306, 314 (5th Cir. 2013) ("We may affirm an enhancement on any ground supported by the record.”) (citing United States v. Jackson, 453 F.3d 302, 308 n.11 (5th Cir. 2006)).

      . United States v. Hinkle, 832 F.3d 569, 571—72, No. 15-10067, 2016 WL 4254372, at *2 (5th Cir. Aug. 11, 2016).

      . Id. See, e.g., United States v. Carrasco-Tercero, 745 F.3d 192, 195 (5th Cir. 2014) (“This court employs a categorical approach in determining whether an offense qualifies as a crime of violence'under § 2L1.2. ’[W]e examine the elements of the offense, rather than the facts underlying the conviction or the defendant’s actual conduct, to determine whether an offense meets the definition of a [crime of violence].’ ” (quoting United States v. Ortiz-Gomez, 562 F.3d 683, 684 (5th Cir. 2009))).

      . See, e.g., Taylor v. United States, 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (construing the ACCA, 18 U.S.C. § 924(e), and concluding that “[although the exact formulations vary, the generic, contemporary meaning of burglary contains at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime."),

      . — U.S. --, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013) (citations omitted) (construing the ACCA):
      Sentencing courts may "look only to the statutory definitions”—i.e., the elements—of a defendant’s prior offenses, and not “to the particular facts underlying those convictions.” If the relevant statute has the same elements as the "generic” ACCA crime, then the prior conviction can serve as an ACCA predicate; so too if the statute defines the crime more narrowly, because anyone convicted under that law is "necessarily ... guilty of all the [generic crime’s] elements.” But if the statute sweeps more broadly than the generic crime, a conviction under that law cannot count as an ACCA predicate, even if the defendant actually committed the offense in its generic form. The key, we emphasized, is elements, not facts. So, for example, we held that a defendant can receive an ACCA enhancement for burglary only if he was convicted of a crime having "the basic elements” of generic burglary— i.e., "unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” And indeed, we indicated that the very statute at issue here, § 459, does not fit that bill because “California defines 'burglary' so broadly as to include shoplifting.”

        .Id. at 2283-84; see also id. at 2284-85 (citations omitted):
      We recognized that when a statute so "refer[s] to several different crimes,” not all of which qualify as an ACCA predicate, a court must determine which crime formed the basis of the defendant’s conviction. That is why, we explained, Taylor and Shepard developed the modified categorical approach. By reviewing the extra-statutory materials approved in those cases, courts could discover "which statutory phrase,” contained within a statute listing "several different” crimes, "covered a prior conviction.” And a year later, we repeated that understanding of when and why courts can resort to those documents: "[T]he 'modified categorical approach’ that we have approved permits a court to determine which statutory phrase was the basis for the conviction.”
      Applied in that way—which is the only way we have ever allowed—the modified approach merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute. The modified approach thus acts not as an exception, but instead as a tool, It retains the categorical approach’s central feature: a focus on the elements, rather than the facts, of a crime. And it preserves the categorical approach’s basic method: comparing those elements with the generic offense’s. All the modified approach adds is a mechanism for making that comparison when a statute lists multiple, alternative elements, and so effectively creates “several different ... crimes.” If at least one, but not all of those crimes matches the generic version, a court needs a way to find out which the defendant was convicted of. That is the job, as we have always understood it, of the modified approach: to identify, from among several alternatives, the crime of conviction so that the court can compare it to the generic offense.

      . See, e.g., Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

      . Descamps, 133 S.Ct. at 2285.

      . 733 F.3d 568, 572 (5th Cir. 2013).

      . Id. (quoting United States v. Houston, 364 F.3d 243, 246 (5th Cir. 2004)).

      . 753 F.3d 172, 178 (5th Cir. 2014) (citations omitted) (referencing United States v. Garcia-Arellano, 522 F.3d 477 (5th Cir. 2008)).-

      . Id. at 176 (examining Tex. Penal Code § 30.02(a)).

      . Id. at 177-78.

      . U.S. Sentencing Guidelines Manual § 2L1.2(b)(l)(A)(ii) (Sentencing Comm’n. 2013).

      . 522 F.3d 477, 480 (5th Cir. 2008).

      . Id. at 479.

      . Id. at 480 (quoting United States v. Morales-Martinez, 496 F.3d 356, 358 (5th Cir. 2007), and citing United States v. Gonzales, 484 F.3d 712, 714-15 (5th Cir. 2007)).

      . Id. at 481 (citing Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)).

      . Id.

      . — U.S. -, 134 S.Ct. 1405, 1414, 188 L.Ed.2d 426 (2014) (‘‘[T]he parties do not contest that [the Tennessee statute under which the defendant was previously convicted] is a 'divisible statute'..., We may accordingly apply the modified categorical approach, consulting the indictment to which Castleman pleaded guilty in order to determine whether his conviction did entail the elements necessary to constitute the generic federal offense.”).

      . Id.

      . - U.S. -, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013).

      . See Mathis v. United States, — U.S. ---, 136 S.Ct. 2243, 2251, 195 L.Ed.2d 604 (2016) (recognizing “a Circuit split over whether ACCA’s general rale—that a defendant's crime of conviction can count as a predicate only if its elements match those of a generic . offense—gives way when a statute happens to list various means by which a defendant can satisfy an element”) (citing United States v. Mathis, 786 F.3d 1068 (8th Cir. 2015) (recognizing such an exception); United States v. Ozier, 796 F.3d 597 (6th Cir. 2015) (same); United States v. Trent, 767 F.3d 1046 (10th Cir. 2014)(same); Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014) (rejecting that exception); Omargharib v. Holder, 775 F.3d 192 (4th Cir. 2014) (same)).

      . — U.S. -, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016).

      . See id., at 2256 (explaining that a "sentencing court faced with an alternatively phrased statute” must first decide if the "listed items are elements or means. If they are elements, the court should [apply the categorical approach] .... But if instead they are means, the court has no call to decide which of the statutory alternatives was at issue in the earlier prosecution.”).

      .' See id. at 2249 (explaining that the jurors in the Mathis case did not need to make any specific finding as to where the crime occurred, where the statute merely "itemize[d] the various places that crime could occur as disjunctive factual scenarios rather than separate elements”).

      . Id. at 2250.

      . Id. at 2256.

      . Id. at 2250.

      . United States v. Mathis, 786 F.3d 1068, 1075 (8th Cir. 2015).

      . Mathis, 136 S.Ct. at 2250 (citing State v. Duncan, 312 N.W.2d 519, 523 (Iowa 1981)).

      . 832 F.3d 569, 574-75, No. 15-10067, 2016 WL 4254372, at *4 (5th Cir. Aug. 11, 2016) (citations omitted).

      . Mathis, 136 S.Ct. at 2256.

      . Landrian v. State, 268 S.W.3d 532, 537 (Tex. Crim. App. 2008) (citations omitted).

      . Price v. State, 457 S.W.3d 437, 442 (Tex. Crim. App. 2015) (emphasis added) (holding that "the offense defined by sections 22.01(a)(1) and (b)(2)(B) has three parts, two of which include culpable mental states” and that “intentionally, knowingly, or recklessly” in the third part modifies "impeding the normal breathing or circulation of the blood of the person”).

      . See id.

      . U.S. Sentencing Guidelines Manual § 4B1.2(a)(l) (Sentencing Comm’n. 2014).

      . 356 F.3d 598, 603 (5th Cir. 2004).

      . — U.S. -, 134 S.Ct. 1405, 1414 n.8, 188 L.Ed.2d 426 (2014) (internal citations omitted) (citing Leocal v. Ashcroft, 543 U.S. 1, 13, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004)).

      . Id. at: 1413; see also Voisine v. United States, — U.S. -, 136 S.Ct. 2272, 2277, 195 L.Ed.2d 736 (2016) ("[W]e expressly left open [in Castleman] whether a reckless assault also qualifies as a '‘use’ of force—so that a misdemeanor conviction for such conduct would trigger § 922(g)(9)’s firearms ban.”).

      . 134 S.Ct. at 1414.

      . - U.S. -, 136 S.Ct. 2272, 2276, 195 L.Ed.2d 736 (2016).

      . 18 U.S.C. § 921(a)(33)(A) (emphasis added),

      . Voisine, 136 S.Ct. at 2278.

      . Id. (citing United States v. Castleman, — U.S. ——, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014));.

      . Id. (citing Webster’s New International Dictionary 2806 (2d ed. 1954) ("[a]ct of employing anything”); Random House Dictionary of the English Language 2097 (2d ed. 1987) (“act of employing, using, or putting into service”); Black’s Law Dictionary 1541 (6th ed. 1990) ("[a]ct of employing,” "application”))..

      . Id. at 2278-79.

      . Id. at 2279.

      . Id.

      . 356 F.3d 598 (5th Cir, 2004).

      . Id. at 600 (quoting Tex. Penal Code Ann. § 49.07 (West 1994)) (internal quotation marks omitted).

      . Id. (quoting U.S.S.G. Application Note l(B)(ii)(I)) (internal quotation marks omitted).

      . Id. at 603 (quoting Webster’s Third New International Dictionary of the English Language Unabridged 2523 (1993)).

      . Id. at 604 (quoting United States v. Chapa-Garza, 243 F.3d 921, 926 (5th Cir. 2001)).

      . Id. at 599; see also id, at 600 (“We further hold that the intentional use of force must be an element of the predicate offense if the predicate offense is to enhance a defendant’s sentence.”).

      . Voisine v. United States, — U.S. -, 136 S.Ct. 2272, 2280, 195 L.Ed.2d 736 (2016) (citing Model Penal Code § 2.02(3), cmts 4-5, at 243-44 (explaining that "purpose, knowledge,- and recklessness are properly the basis for” such liability) and § 21,1.1 (defining assault to include "purposely, knowingly, or recklessly causing] bodily injury”)).

      . Id. (citing United States v. Bailey, 34 U.S. (9 Pet.) 238, 256, 9 L.Ed. 113 (1835) (Story, J.) ("Congress must be presumed to have legislated under this known state of the laws”)).

      . Tex. Penal Code § 22.01(a)(1), (b)(2)(B) (West 2009).

      . See Marshall v. State, 479 S.W.3d 840, 843-44 (Tex. Crim. App. 2016) (citing Tex. Penal Code § 1.07(a)(8)).

      . Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007).