United States Court of Appeals Fifth Circuit F I L E D REVISED February 22, 2007 August 24, 2006 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk ______________________ No. 03-60721 ______________________
JUAN LARIN-ULLOA,
Petitioner, versus
ALBERTO GONZALES, UNITED STATES ATTORNEY GENERAL
Respondent. ____________________________________________________
On Petition for Review of an Order of the Board of Immigration Appeals _____________________________________________________
Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge.
Juan Larin-Ulloa (“Larin”), a native and citizen of
El Salvador, petitions for review of (i) the decision
of the Board of Immigration Appeals (“BIA”) that he is
removable for having been convicted of an aggravated
felony, see 8 U.S.C. § 1227(a)(2)(A)(iii); and (ii) the
BIA’s denial of his motion to reopen his appeal.
1 Because we find that the record does not establish that
Larin was convicted of an aggravated felony, as that
term is defined at 8 U.S.C. § 1101(a)(43), we grant
Larin’s petition, vacate the order of removal, and
remand the case to the BIA for any further proceedings
consistent with this opinion.
I. Facts and Procedural History
Larin was admitted to the United States in 1981,
and he became a lawful permanent resident in 1989. In
2000, Larin pleaded guilty to one count of aggravated
battery under Kansas law. Kansas’ aggravated battery
statute contains multiple sections and subsections,
each of which defines one or more types of conduct that
violates the statute. The statute, Kan. Stat. Ann. §
21-3414, provides, in pertinent part:
(a) Aggravated battery is:
(1)(A) Intentionally causing great bodily harm to another person or disfigurement of another person; or
(B) intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great
2 bodily harm, disfigurement or death can be inflicted; or
(C) intentionally causing physical contact with another person when done in a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted;
. . . .
(b) Aggravated battery as described in subsection (a)(1)(A) is a severity level 4, person felony. Aggravated battery as described in subsections (a)(1)(B) and (a)(1)(C) is a severity level 7, person felony. . . .
Kan. Stat. Ann. § 21-3414. Precisely which branch of
this statute provided the basis for Larin’s conviction
is an issue of particular importance to his petition
for review.
The bill of information under which Larin
originally was charged tracked the language of
subsection (a)(1)(A). It charged that Larin
“unlawfully, intentionally cause[d] great bodily harm
or disfigurement to another person, to wit: Isarael
Rosas; Contrary to Kansas Statutes Annotated 21-
3414(a)(1)(A), Aggravated Battery, Severity Level 4,
3 Person Felony.” Prior to Larin’s guilty plea, however,
the state amended the bill of information, by
handwritten interlineation, to charge that Larin
“unlawfully, intentionally in a manner whereby
[illegible] could have [illegible] cause great bodily
harm or disfigurement to another person, to wit:
Isarael Rosas; Contrary to Kansas Statutes Annotated
21-3414(a)(1)(A), Aggravated Battery, Severity Level 7,
Person Felony.” Although the amended bill of
information still referred to subsection (a)(1)(A) of
the statute (and notwithstanding its grammatical
shortcomings), the language of the amended information,
as well as the corresponding amendment to the charged
severity level,2 suggests that the state intended to
charge Larin with a violation of either subsection
(a)(1)(B) or (a)(1)(C). Indeed, Larin’s written guilty
plea recited that he was pleading guilty to one count
2 Under Kansas law, the severity level of a crime is used to calculate the applicable sentencing guidelines. Crimes are assigned a severity level between one and ten, with level one representing the most severe crimes and level ten representing the least severe. See Kan. Stat. Ann. § 21-4707. 4 of aggravated battery in violation of subsection
(a)(1)(B).
Despite the changes to the amended bill of
information, the journal entry that recorded the
judgment against Larin stated that he was convicted
under subsection (a)(1)(A). The state court then
sentenced Larin to 24 months probation, with an
underlying suspended prison term of 12 months.
In 2002, the Immigration and Naturalization Service
(“INS”)3 initiated removal proceedings against Larin.
The INS alleged that Larin was removable because his
Kansas aggravated battery conviction was a “crime of
violence” and, therefore, an “aggravated felony”4 that
rendered Larin removable under 8 U.S.C. §
1227(a)(2)(A)(iii). At a hearing before the
3 As of March 1, 2003, the INS’s administrative, service and enforcement functions were transferred to the newly created Department of Homeland Security. See Bah v. Ashcroft, 341 F.3d 348, 350 n.1 (5th Cir. 2003). 4 “Aggravated felony” is defined at 8 U.S.C. § 1101(a)(43). Among the crimes defined as aggravated felonies under that section is any “crime of violence,” as that term is defined at 18 U.S.C. § 16, for which the term of imprisonment is at least one year. See 8 U.S.C. § 1101(a)(43)(F). 5 immigration judge, Larin’s counsel conceded that Larin
had been convicted under subsection (a)(1)(A) of the
Kansas aggravated battery statute, but asserted that a
conviction under that section was not a crime of
violence for purposes of removal. The immigration
judge held that Larin’s conviction was for a crime of
violence and found that he was removable on that basis.
On appeal to the BIA, Larin’s new counsel argued
primarily that the confused and ambiguous bill of
information failed to validly charge Larin with any
crime. The BIA rejected this challenge and found that
Larin’s aggravated battery conviction was a crime of
violence regardless of whether he was convicted under
subsection (a)(1)(A) (as reflected in the journal entry
recording the judgment and as Larin conceded before the
immigration judge) or subsection (a)(1)(B) (as
reflected by Larin’s written guilty plea) of the Kansas
statute. The BIA noted that subsections (a)(1)(A) and
(a)(1)(B) both contain as an element that the defendant
intentionally cause the victim bodily harm, and,
relying on the panel decision in United States v.
6 Calderon-Pena, 339 F.3d 320 (5th Cir. 2003), vacated on
reh’g en banc, 362 F.3d 293 (5th Cir. 2004), held that
this element of intentionally causing bodily harm was
sufficient to render a conviction under either
subsection a crime of violence.
After the BIA’s decision, Larin moved to vacate his
conviction in Kansas state court on the ground that the
amended bill of information did not charge all of the
elements of any subsection of the Kansas aggravated
battery statute. The Kansas court did not vacate
Larin’s conviction, but instead issued a judgment nunc
pro tunc5 stating that Larin’s conviction actually was
based on subsection (a)(1)(C) of the Kansas aggravated
battery statute.
Larin then filed a motion with the BIA to reopen
his appeal and terminate the proceedings against him on
the ground that his conviction under subsection
5 A nunc pro tunc judgment is “[a] procedural device by which the record of a judgment is amended to accord with what the judge actually said and did, so that the record will be accurate.” Black’s Law Dictionary 848 (7th ed. 1999).
7 (a)(1)(C) was not for a crime of violence and he was
therefore not removable for having committed an
aggravated felony. As noted above, aggravated battery
under section 21-3414(a)(1)(C) is “intentionally
causing physical contact with another person when done
in a rude, insulting or angry manner with a deadly
weapon, or in any manner whereby great bodily harm,
disfigurement or death can be inflicted.” Kan. Stat.
Ann. § 21-3414(a)(1)(C). Thus, subsection (a)(1)(C)
defines two separate crimes: (1) intentionally causing
physical contact with another person when done in a
rude, insulting or angry manner with a deadly weapon;
and (2) intentionally causing physical contact with
another person in any manner whereby great bodily harm,
disfigurement or death can be inflicted. Larin argued
that he was convicted of violating the second part of
subsection (a)(1)(C) and that a conviction under that
portion of the statute was not a crime of violence
under 18 U.S.C. § 16.
The BIA denied Larin’s motion to reopen. In its
decision, the BIA apparently considered the judgment
8 nunc pro tunc as valid, but concluded that, like the
original judgment, the judgment nunc pro tunc
established that Larin was convicted of a crime of
violence. The BIA noted that the state court’s journal
entry form, on which the rendition of the judgment nunc
pro tunc was recorded, also contained a notation
regarding Larin’s sentence that suggested that the
sentencing judge had been informed that the offense was
committed with a firearm. The BIA inferred from that
notation that Larin had been convicted of violating the
first part of subsection (a)(1)(C) of the Kansas
statute.6 The BIA explained its decision as follows:
[T]he judgment nunc pro tunc clearly reflects that the respondent committed the aggravated battery with a firearm. See Matter of Sweetser, 22 I&N Dec. 709 (BIA 1999) (court may look to conviction records when statute is
6 The Kansas court’s journal entry included panels containing various notations regarding Larin’s sentence: e.g., Presumptive Sentencing Range: [Mid 12 High 13 Low 11]; Presumptive Prison [blank]; Sentence Imposed: [Probation for 24 months; Underlying Prison Term 12 months]; Guideline Range Imposed [Mid]; Special Rule Applicable to Sentence: [Person felony committed with a firearm]; Postrelease Supervision Term: [12 months]; Probation to: [Community Corrections Field Services]. 9 divisible). Thus, the respondent’s conviction falls under the part of the statute stating that “intentionally causing physical contact with another when done in a rude, insulting or angry manner with a deadly weapon.” Use of a deadly weapon while intentionally causing physical contact clearly involves a substantial risk that physical force against another person may be used. Consequently, the respondent’s conviction constitutes an aggravated felony as defined under section 101(a)(43)(F) of the Act and he is removable pursuant to section 237(a)(2)(A)(iii) of the Act.
Larin timely petitioned this court for judicial
review of the question of law raised by the BIA’s final
order of removal and its denial of his motion to reopen
— whether the BIA correctly determined that Larin’s
aggravated battery conviction was a crime of violence
under 18 U.S.C. § 16, thus rendering Larin removable
under 8 U.S.C. § 1227(a)(2)(A)(iii).
II. Jurisdiction and Standard of Review
Our jurisdiction in this case is governed by 8
U.S.C. § 1252. Although section 1252(a)(2)(C)
generally prohibits judicial review of “any final order
10 of removal against an alien who is removable by reason
of having committed” certain designated criminal
offenses, including an aggravated felony under 8 U.S.C.
§ 1101(a)(43), the REAL ID Act of 2005, Pub. L. No.
109-13, 119 Stat. 231, amended section 1252(a)(2) to
provide that section 1252 does not bar judicial review
of “constitutional claims or questions of law raised
upon a petition for review filed with an appropriate
court of appeals in accordance with this section.” 8
U.S.C. § 1252(a)(2)(D). This amendment applies
retroactively to cases that were already pending on the
date of its enactment. See Rodriguez-Castro v.
Gonzales, 427 F.3d 316, 319 (5th Cir. 2005). Because
the question of whether Larin’s aggravated battery
conviction is a crime of violence is a purely legal
one, we have jurisdiction to review Larin’s petition.
See id. (holding that whether an alien’s conviction
involves a crime of moral turpitude is a question of
law).7
7 Many of our sister circuits have similarly concluded that whether a conviction is an aggravated 11 Moreover, even if the REAL ID Act did not provide
us with jurisdiction, we have long held that we have
jurisdiction to determine our own jurisdiction, i.e.,
to determine whether a conviction qualifies as an
aggravated felony. See, e.g., Omari v. Gonzales, 419
F.3d 303, 306 (5th Cir. 2005) (citing Lopez-Elias v.
Reno, 209 F.3d 788, 791 n.3 (5th Cir. 2000)). Finally,
that Larin seeks review of the BIA’s denial of a motion
to reopen does not alter our jurisdictional analysis.
See Zhao v. Gonzales, 404 F.3d 295, 302-03 (5th Cir.
2005).
Although we review the BIA’s denial of a motion to
reopen for abuse of discretion, a denial based on an
error of law constitutes an abuse of discretion, and we
review the BIA’s resolution of questions of law de
felony is a reviewable question of law. See Vargas v. Dep’t of Homeland Sec., 451 F.3d 1105, 1107 (10th Cir. 2006); Morales-Alegria v. Gonzales, 449 F.3d 1051, 1053 (9th Cir. 2006); Canada v. Gonzales, 448 F.3d 560, 563 (2d Cir. 2006); Aguiar v. Gonzales, 438 F.3d 86, 88 (1st Cir. 2006); Tostado v. Carlson, 437 F.3d 706, 708 (8th Cir. 2006); Iysheh v. Gonzales, 437 F.3d 613, 614 (7th Cir. 2006); Ng v. Attorney Gen. of U.S., 436 F.3d 392, 394-95 (3d Cir. 2006). 12 novo.8 Alarcon-Chavez v. Gonzales, 403 F.3d 343, 345
(5th Cir. 2005); see also Kaweesa v. Gonzales, 450 F.3d
62, 67-68 (1st Cir. 2006); Sotelo v. Gonzales, 430 F.3d
968, 970 (9th Cir. 2005).
III. The Effect Of The Judgment Nunc Pro Tunc
The first question we must answer is which of the
two Kansas judgments — the original judgment of
conviction or the judgment nunc pro tunc — is the
operative judgment of conviction for determining
whether Larin is subject to removal. In denying
Larin’s motion to reopen, the BIA appears to have
considered the judgment nunc pro tunc as the operative
judgment of conviction for immigration purposes, as it
addressed the merits of Larin’s argument that his
conviction under subsection (a)(1)(C) of the Kansas
8 We owe deference to the BIA’s interpretation of the Immigration and Nationality Act (“INA”), in accordance with the principles of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984), but we review de novo whether a state criminal statute constitutes an aggravated felony under the INA. See Omari, 419 F.3d at 306-07; Smalley v. Ashcroft, 354 F.3d 332, 335-36 (5th Cir. 2003). 13 aggravated battery statute was not for a crime of
violence. We find no reason to depart from the BIA’s
apparent conclusion that the judgment nunc pro tunc is
the operative judgment for determining whether Larin
was convicted of a crime of violence.
This is not a case in which the petitioner has
persuaded a state court to vacate a conviction or
otherwise mitigate its severity in order to avoid the
immigration consequences of the conviction. Here, it
is clear that the Kansas court’s judgment nunc pro tunc
simply corrected an error in what was otherwise an
inconsistent and self-contradictory judgment. As
described above, the Kansas state court documents in
this case are wholly lacking in clarity. Larin
originally was charged with violating Kan. Stat. Ann. §
21-3414(a)(1)(A), a severity level four, person felony.
The bill of information was later amended by hand, and
the amended information contained charging language
that seems to have been intended to charge petitioner
with violating either subsection (a)(1)(B) or
(a)(1)(C), but which does not completely match either
14 of those subsections. The amendment also changed the
severity level of the charged offense to level seven,
which is consistent with a charge under subsection
(a)(1)(B) or (a)(1)(C), but inconsistent with a charge
under subsection (a)(1)(A). See id. § 21-3414(b)
(stating that a violation of subsection (a)(1)(A) is a
severity level four offense, but that a violation of
subsection (a)(1)(B) or (a)(1)(C) is a severity level
seven offense). Nevertheless, the amended bill of
information still referred to subsection (a)(1)(A) as
the basis for the charge. To compound the confusion,
Larin’s written plea acknowledgment recited that he had
agreed to plead guilty to a violation of subsection
(a)(1)(B). Finally, the journal entry that recorded
the original judgment was internally inconsistent, as
it, like the amended bill of information, stated that
petitioner was convicted of violating subsection
(a)(1)(A), but also stated that the crime was a
severity level seven offense. The only change effected
by the Kansas court’s judgment nunc pro tunc was to
correct the original judgment to clarify that Larin’s
15 conviction actually fell under subsection (a)(1)(C),
rather than subsection (a)(1)(A). Under such
circumstances, we find that it is appropriate to give
effect to the judgment nunc pro tunc.
That the judgment nunc pro tunc was issued solely
to correct an error in the original judgment, and not
to amend the substance of the original judgment, is
further shown by the limited circumstances under which
Kansas courts are permitted to issue nunc pro tunc
orders. Kansas courts have long held that the proper
function of a nunc pro tunc order is to correct a
clerical error or omission, so that the journal entry
recording a judgment accurately reflects the judgment
that was actually issued. See State v. Lyon, 485 P.2d
332, 334 (Kan. 1971) (“[A] court possesses inherent
power to enter judgments, orders and decrees nunc pro
tunc for the purpose of correcting its records, and . .
. where a journal entry fails to reflect accurately the
judgment which was actually rendered, it becomes the
duty of the court to make it speak the truth.”); see
also State v. Thomas, 720 P.2d 1059, 1062 (Kan. 1986)
16 (noting availability of nunc pro tunc orders to correct
clerical mistakes, including “typographical errors,
incorrect statute numbers, [or] failure to include the
statute number”). It is equally clear that Kansas
courts may not use a nunc pro tunc order to alter the
substance of the judgment that was actually issued.
See State v. Mebane, 91 P.3d 1175, 1179-80 (Kan. 2004)
(“[A]ny complaint regarding the Parole Board’s
computation of parole eligibility is not properly
brought via a motion for nunc pro tunc order, the
purpose of which is to correct actual clerical errors
or errors arising from oversight or omission.”); State
v. Vawney, 941 P.2d 365, 368 (Kan. 1997) (finding that
trial court had no jurisdiction to grant nunc pro tunc
order when order “did not correct any omission or
clerical error,” but instead altered a properly entered
sentence). Insofar as it is clear from the record and
from Kansas law that the judgment nunc pro tunc in this
case simply corrected a clerical error concerning the
statutory basis for Larin’s conviction in the original
journal entry, the BIA correctly considered the
17 judgment nunc pro tunc in connection with Larin’s
motion to reopen. Cf. Garcia-Lopez v. Ashcroft, 334
F.3d 840, 845 (9th Cir. 2003) (holding that BIA was
bound by post-conviction state court order classifying
conviction as a misdemeanor rather than a felony).
This court’s decisions in Renteria-Gonzalez v. INS,
322 F.3d 804 (5th Cir. 2002), and Moosa v. INS, 171
F.3d 994 (5th Cir. 1999), are not to the contrary. In
Renteria-Gonzalez and Moosa, we held that a conviction
that is later vacated by the sentencing court remains a
“conviction” for immigration purposes under 8 U.S.C. §
1101(a)(48)(A). See Renteria-Gonzalez, 322 F.3d at
812-14 (vacated federal conviction); Moosa, 171 F.3d at
1005-06 (state deferred adjudication procedure). Here,
by contrast, the judgment of conviction has not been
vacated, deferred or altered. Instead, the judgment
nunc pro tunc was entered to make the record conform to
the true judgment of the Kansas court. Accordingly, we
conclude that the BIA correctly considered the judgment
nunc pro tunc as the operative judgment of conviction
for determining whether Larin was convicted of a crime
18 of violence.
IV. Is Larin’s Conviction Under Kan. Stat. Ann. § 21- 3414(a)(1)(C) Necessarily An Aggravated Felony?
We next consider whether Larin’s conviction under
subsection (a)(1)(C) qualifies as an aggravated felony.
To determine whether an alien’s guilty plea conviction
constitutes an aggravated felony for removal purposes,
we apply a “categorical approach,” under which we refer
only to the statutory definition of the crime for which
the alien was convicted (rather than attempt to
reconstruct the concrete facts of the actual criminal
offense) and ask whether that legislatively-defined
offense necessarily fits within the INA definition of
an aggravated felony. See Omari, 419 F.3d at 307
(citing Lopez-Elias, 209 F.3d at 791); Nguyen v.
Ashcroft, 366 F.3d 386, 388 (5th Cir. 2004).
This methodology has its roots in the categorical
approach adopted by the Supreme Court in Taylor v.
United States, 495 U.S. 575 (1990), to determine
whether a prior conviction constitutes a predicate
19 offense under the sentence enhancement provisions of
the Armed Career Criminal Act, 18 U.S.C. § 924(e).
Among the considerations that led the Taylor court to
conclude that a categorical approach to prior
convictions was necessary were concerns about the
practical difficulties and fairness problems that would
arise if courts were permitted to consider the facts
behind prior convictions.9 The Court noted that a fact-
based approach to prior convictions would potentially
require federal courts to relitigate a defendant’s
prior conviction in any case where the government
alleged that the defendant’s actual conduct fit the
definition of a predicate offense. Taylor, 495 U.S. at
601; see also Tokatly v. Ashcroft, 371 F.3d 613, 621
(9th Cir. 2004) (noting “fundamental principle” that
9 The Taylor court also emphasized that the language of 18 U.S.C. § 924(e) supported a categorical approach because its sentence enhancement provisions are triggered by prior convictions, and not by the fact that the person has previously committed an offense. See Taylor, 495 U.S. at 601. This rationale applies equally to the INA’s provision concerning aggravated felonies. See 8 U.S.C. § 1227(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any time after admission is deportable.”). 20 “in determining whether a prior conviction constitutes
a predicate offense, we must avoid ‘the enormous
problems of re-litigating past convictions, especially
in cases where the defendant pleads guilty and there is
no record of the underlying facts’”) (quoting United
States v. Castillo-Rivera, 244 F.3d 1020, 1022 (9th
Cir. 2001)). The Taylor court also recognized the
unfairness that could result if a factual approach was
applied to prior guilty plea convictions:
[I]n cases where the defendant pleaded guilty, there is often no record of the underlying facts. Even if the Government were able to prove those facts, if a guilty plea to a lesser, nonburglary offense was the result of a plea bargain, it would seem unfair to impose a sentence enhancement as if the defendant had pleaded guilty to burglary.
Taylor, 495 U.S. at 601-02.
The categorical approach is not absolute, however.
If the statute of conviction defines multiple offenses,
at least one of which does not describe an aggravated
felony, we apply a modified categorical approach, under
which we may also examine certain additional documents
21 (if contained in the record framing the guilty plea
conviction) to determine whether the conviction was
“necessarily” for a particular crime defined by the
statute that meets the aggravated felony criterion.
See Shepard v. United States, 544 U.S. 13, 20-21, 26
(2005); Omari, 419 F.3d at 308; see also Dickson v.
Ashcroft, 346 F.3d 44, 48-49 (2d Cir. 2003) (“In
reviewing a conviction under a divisible statute, the
categorical approach permits reference to the record of
conviction for the limited purpose of determining
whether the alien’s conviction was under the branch of
the statute that permits removal.”). In the case of
guilty plea convictions under such a divisible statute,
we may consider, in addition to the language of the
statute, the “‘charging document, written plea
agreement, transcript of plea colloquy, and any
explicit factual finding by the trial judge to which
the defendant assented.’” Omari, 419 F.3d at 308
(quoting Shepard, 544 U.S. at 16). The use of these
documents is permitted because they are considered
sufficiently conclusive and reliable to establish the
22 facts to which the alien actually pleaded guilty. See
Shepard, 544 U.S. at 23 (stating that evidence of facts
should be “confined to records of the convicting court
approaching the certainty of the record of
conviction”). “Documents not of that kind, including
police reports and complaint applications, may not be
considered.” Omari, 419 F.3d at 308.
If the documents that we may consider under the
modified categorical approach are insufficient to
establish that the petitioner was necessarily convicted
of an aggravated felony, we must find that “the
government has not met its burden of proving that the
conduct for which the petitioner was convicted
constitutes a predicate offense, and the conviction may
not be used as a basis for removal.” Tokatly, 371 F.3d
at 620; see Omari, 419 F.3d at 309 (same).
That a categorical approach is appropriate to
determine whether an alien’s prior conviction is for a
crime of violence is confirmed by the statutory
definition of a crime of violence. 18 U.S.C. § 16
provides:
23 The term “crime of violence” means ---
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
18 U.S.C. § 16 (emphasis added). As the Supreme Court
noted in Leocal v. Ashcroft, 543 U.S. 1 (2004), “[t]his
language requires us to look to the elements and the
nature of the offense of conviction, rather than to the
particular facts relating to petitioner’s crime.” Id.
at 7 (emphasis added); see also United States v. Chapa-
Garza, 243 F.3d 921, 924 (5th Cir. 2001) (“[T]he words
‘by its nature’ require us to employ a categorical
approach when determining whether an offense is a crime
of violence.”).
As we noted earlier, Kan. Stat. Ann. § 21-
3414(a)(1)(C) prohibits two, distinct types of conduct:
(i) intentionally causing physical contact with another
person in a rude, insulting or angry manner with a
24 deadly weapon; and (ii) intentionally causing physical
contact with another person in any manner whereby great
bodily harm, disfigurement or death can be inflicted.
We consider each part in turn to determine whether it
describes a crime of violence.
A. Categorical Approach
1. Intentional Physical Contact With A Deadly Weapon In A Rude, Insulting Or Angry Manner
In its denial of Larin’s motion to reopen, the BIA
found that the first part of section 21-3414(a)(1)(C)
was a crime of violence under 18 U.S.C. § 16(b) because
intentionally causing physical contact with another
person with a deadly weapon in a rude, insulting or
angry manner “clearly involves a substantial risk that
physical force against another person may be used.” We
agree.10
The relevant question for determining whether a
crime is categorically a crime of violence under
Because we find that this part of section 10
21-3414(a)(1)(C) is a crime of violence under section 16(b), we do not address whether it also satisfies section 16(a). 25 section 16(b) is whether the crime inherently involves
a substantial risk that intentional physical force may
be used in the commission of the crime. See Leocal,
543 U.S. at 10. While the inquiry under section 16(a)
is limited to looking at the elements of the offense,
section 16(b) “sweeps more broadly” to encompass those
crimes that can perhaps be committed without the use of
physical force, but that nevertheless always entail a
substantial risk that physical force may be used. Id.
As it is used in section 16, the term physical force
“is synonymous with destructive or violent force.”
United States v. Rodriguez-Guzman, 56 F.3d 18, 20 n.8
(5th Cir. 1995); see also Leocal, 543 U.S. at 11
(“[Section] 16's emphasis on the use of physical force
against another person . . . suggests a category of
violent, active crimes . . . .”). To illustrate the
intended reach of section 16(b), the Leocal court
explained how that section applies to the crime of
burglary: “A burglary would be covered under § 16(b)
not because the offense can be committed in a generally
reckless way or because someone may be injured, but
26 because burglary, by its nature, involves a substantial
risk that the burglar will use force against a victim
in completing the crime.” Leocal, 543 U.S. at 10.
We have little difficulty concluding, as did the
BIA, that intentional physical contact made with a
deadly weapon in a rude, insulting or angry manner is a
crime of violence under section 16(b). Although the
mere act of intentionally causing physical contact with
a deadly weapon under these circumstances might not
always involve a use of physical force (an issue we do
not decide), the prohibited conduct is by its very
nature provocative, and it invites a response from the
victim of the offense. One who violates this part of
section 21-3414(a)(1)(C) therefore necessarily creates
a substantial risk that the confrontation may escalate
to physical violence, thus requiring the perpetrator to
use physical force against the victim. See id.
Accordingly, we find that the first part of section 21-
3414(a)(1)(C) is categorically a crime of violence.
2. Intentional Physical Contact In Any Manner
27 Whereby Great Bodily Harm, Disfigurement Or Death Can Be Inflicted
Our next inquiry is whether the second part of
section 21-3414(a)(1)(C) also qualifies as a crime of
violence under 18 U.S.C. § 16(a) or (b). Because the
BIA concluded that Larin was convicted under the first
part of subsection (a)(1)(C), it did not address this
issue.
The second part, or crime definition, in section
21-3414(a)(1)(C) does not require that the defendant
use physical force in order to support a conviction.
Rather, it requires only that the defendant
“intentionally caus[e] physical contact with another
person” under circumstances where “great bodily harm,
disfigurement or death” can result. Kan. Stat. Ann. §
21-3414(a)(1)(C). As numerous cases have recognized,
physical contact is not the equivalent of physical
force. See United States v. Sarmiento-Funes, 374 F.3d
336, 339-40 (5th Cir. 2004) (finding that state statute
prohibiting non-consensual sexual intercourse did not
have force as an element; applying United States
28 Sentencing Guidelines § 2L1.2); United States v.
Velazquez-Overa, 100 F.3d 408, 420 (5th Cir. 1996)
(stating that crime of indecent sexual contact with a
child did not have use of force as an element; applying
U.S.S.G. § 2L1.2); Singh v. Ashcroft, 386 F.3d 1228,
1232-33 (9th Cir. 2004) (stating that use of force was
not an element of state harassment statute prohibiting
offensive physical contact); Flores v. Ashcroft, 350
F.3d 666, 672 (7th Cir. 2003) (discussing distinction
between physical contact and physical force).
The second part of section 21-3414(a)(1)(C) also,
however, contains the element that the physical contact
be made in a manner “whereby great bodily harm,
Ann. § 21-3414(a)(1)(C). This element of risk of harm
to the victim certainly opens up the possibility that
the intentional physical contact used to commit the
offense might in some instances amount to physical
force. Notably, though, section 21-3414(a)(1)(C) does
not require that the defendant intend to injure or use
29 force on the victim11 or that the physical contact
itself be violent, harmful, offensive, or even non-
consensual.12 These deliberate omissions convince us
that the second part of section 21-3414(a)(1)(C) can be
violated by physical contact that does not constitute a
use of physical force.
Larin posits several hypothetical scenarios that
would arguably involve violations of the second part of
section 21-3414(a)(1)(C), but that do not involve the
use of physical force, such as a physician negligently
injecting a medication to which the patient is
extremely allergic. Similarly, the statute potentially
could be violated by a dentist who negligently used
non-sterile equipment to clean a patient’s teeth. Each
of these situations involves intentional physical
See State v. Esher, 922 P.2d 1123, 1127 (Kan. Ct. 11
App. 1996) (holding that section 21-3414(a)(1)(C) does not require intent to injure); see also State v. Campbell, 39 P.3d 97, 100 (Kan. Ct. App. 2002) (holding that battery under Kansas law is a general intent crime requiring only that the defendant intend to cause physical contact with another person). Consent is often not a defense to the crime of 12
battery. See 1 Wayne R. LaFave, Substantive Criminal Law § 6.5(a) (2d ed. 2003). 30 contact that creates a risk of great bodily harm, but
that is also not the type of violent or destructive
contact that constitutes a use of physical force. As
each of the foregoing examples plausibly violates the
statute, we find that the use, attempted use, or
threatened use of physical force is not an element of
the second part of section 21-3414(a)(1)(C).
Turning to 18 U.S.C. § 16(b), we also conclude that
the second part of section 21-3414(a)(1)(C) does not
“by its nature, involve[] a substantial risk that
physical force against the person or the property of
another may be used in the course of committing the
offense.” 18 U.S.C. § 16(b). As we explained above,
section 16(b) reaches those crimes, such as burglary of
a dwelling, that inherently present a substantial risk
that intentional physical force may be used during the
commission of the offense. Although a crime can
qualify as a crime of violence under section 16(b) even
though one may imagine situations in which it is
possible to commit the offense without actually using
force, it can do so only if the nature of the offense
31 is such that there is a substantial risk that physical
force may be used in any case of conduct that violates
the statute. See Velazquez-Overa, 100 F.3d at 420-21
(noting that offense “cannot be a crime of violence ‘by
its nature’ in some cases, but not others, depending on
the circumstances”); Jobson v. Ashcroft, 326 F.3d 367,
373 (2d Cir. 2003) (holding that offense was not crime
of violence under section 16(b) where statutory
definition of offense inherently covered “situations
that do not involve any risk that the defendant will
apply force to the victim”).
In this case, we conclude that the second part of
section 21-3414(a)(1)(C) can be violated by conduct
that does not present a substantial risk that the
offender may use physical force. In fact, the examples
that we discussed above, which show that a person could
violate the second part of subsection (a)(1)(C) of the
Kansas statute without actually using physical force
against another person, also establish that a person
could violate the statute without a substantial risk
that physical force may be used in the commission of
32 the offense. In both of the examples, the defendant is
engaged in ostensibly consensual intentional physical
contact that falls short of force, and the defendant
does not intend to cause the victim bodily harm.
Because a defendant may thus violate the statute
without the intent to injure the victim or to overcome
any non-consent, the offense does not inherently
involve a substantial risk that the defendant may use
intentional physical force during the commission of the
offense. Accordingly, we conclude that Kan. Stat. Ann.
§ 21-3414(a)(1)(C) is not categorically a crime of
violence under 18 U.S.C. § 16(b).
B. Modified Categorical Approach
Because section 21-3414(a)(1)(C) is divisible, we
now apply the modified categorical approach to
determine whether Larin was necessarily convicted of
violating the first part of subsection (a)(1)(C)
(intentional physical contact in a rude, insulting or
angry manner with a deadly weapon), which is a crime of
violence. See Shepard, 544 U.S. at 20-21, 26 (noting
33 that the inquiry must establish that the defendant’s
guilty plea “necessarily admitted” all of the elements
of the predicate offense); Omari, 419 F.3d at 309
(same).
As we have mentioned, when applying the modified
categorical approach to determine whether a conviction
under a divisible statute was necessarily for a
predicate offense, we may examine certain documents
from the record of conviction, including “the charging
document, the terms of a plea agreement or transcript
of colloquy between judge and defendant in which the
factual basis for the plea was confirmed by the
defendant, or . . . some comparable judicial record of
this information,” Shepard, 544 U.S. at 26, but we may
not look to less-conclusive documents like a complaint
application or a police report. Id. at 21-23; Omari,
419 F.3d at 308.
In this case, we refer first to the amended bill of
information, the charging document that formed the
basis of Larin’s guilty plea conviction. The amended
bill of information closely tracks the second part of
34 subsection (a)(1)(C), as it charges that Larin
harm or disfigurement to another person.” Thus, the
amended bill of information does not charge Larin with
the elements necessary to convict him of the crime
defined by the first part of subsection (a)(1)(C),
i.e., intentionally causing physical contact with
another with a deadly weapon in a rude, insulting or
angry manner. The BIA, however, disregarded the fact
that the amended bill of information did not accuse
Larin of committing a battery with a deadly weapon in a
rude, insulting or angry manner. Instead, the BIA
looked at the journal entry form that had been filed in
the state court records and concluded that Larin had
been convicted of an aggravated felony. The BIA stated
that the “judgment nunc pro tunc clearly reflects that
[Larin] committed the aggravated battery with a
firearm. . . . Thus, [Larin’s] conviction falls under
the part of the statute stating that ‘intentionally
causing physical contact with another when done in a
35 rude, insulting or angry manner with a deadly weapon.’”
For the reasons discussed below, we conclude that the
BIA erred as a matter of law in at least two respects:
in considering the firearm notation on the journal
entry form and in finding that fact sufficient to
establish that Larin was necessarily convicted of an
aggravated felony.
The only evidence of the judgment nunc pro tunc in
the record is the information pertaining to that
judgment recorded on the journal entry form. The
journal entry form contains fill-in-the-box notations
as to, inter alia, the statutory basis for Larin’s
conviction, “21-3414(a)(1)(C),” and special factors
affecting the sentence, “Special Rule Applicable to
Sentence: Person felony committed with a firearm.”
The BIA concluded that, because the journal entry form
contained information indicating that a firearm was
involved in the offense, Larin was necessarily
convicted of “intentionally causing physical contact
with another person when done in a rude, insulting or
angry manner with a deadly weapon.” Kan. Stat. Ann. §
36 21-3414(a)(1)(C).
The BIA erroneously referred to the special
sentencing factor notation in the Kansas journal entry
form and erroneously inferred from that notation that
Larin necessarily was convicted of intentionally
causing contact with another in a rude, insulting or
angry manner with a deadly weapon. That sentencing
factor notation is not the type of documentary evidence
to which this court or the BIA may refer, under the
modified categorical approach as prescribed by Shepard,
to determine the nature of an alien’s guilty plea
conviction. Unlike the charging document, the guilty
plea, or the factual basis for the plea confirmed by
the defendant, sentencing reasons and factors do not
simply define the charge and the defendant’s guilty
plea, but, instead, frequently refer to facts neither
alleged nor admitted in court.13 Thus, the cryptic
Cf. United States v. Bonilla-Mungia, 422 F.3d 316, 13
320-21 (5th Cir.), cert. denied, 126 S. Ct. 819 (2005) (holding that Shepard does not permit court to consider factual narrative in probation officer’s presentence investigation report); United States v. Garza-Lopez, 410 F.3d 268, 273-74 (5th Cir.), cert. denied, 126 S. 37 reference to a firearm sentencing factor contained in
the journal entry form in this case cannot be used as a
basis for inferring that Larin pleaded guilty to or was
convicted of causing physical contact with a deadly
weapon in a rude, insulting or angry manner.14
We note in passing that Larin, in his written
guilty plea, acknowledged that “[t]his offense involved
the use of a firearm.” His written guilty plea is, of
course, a type of document that may be considered under
Ct. 298 (2005) (same); Dickson v. Ashcroft, 346 F.3d 44, 53-55 (2d Cir. 2003) (holding that BIA could not look to factual statements in presentence investigation report to determine whether alien’s conviction was for crime of violence). 14 Although the firearm notation appeared on the journal entry form with other information concerning the sentence imposed, that notation does not thereby become a part of the judgment of conviction under Kansas law. See State v. Royse, 845 P.2d 44, 47 (Kan. 1993) (holding that court’s judgment and sentence “do not derive their effectiveness from the journal entry, or from any act of the clerk,” but instead are “effective when announced”); State v. Moses, 607 P.2d 477, 481 (Kan. 1980) (stating that a court’s “judgment is effective upon its pronouncement from the bench; the filing of a formal journal entry is but a record, evidence of what has been done”). The journal entry recording the judgment contains a litany of information about the case, in addition to a notation of the judgment actually entered. See Kan. Stat. Ann. § 22- 3426. 38 the modified categorical approach authorized by
Shepard. The BIA did not refer to this statement in
reaching its conclusion, however, and, more important,
this statement, by itself or in the context of the
record as a whole, does not establish that Larin
necessarily pleaded guilty to or was convicted of
causing contact with another with a deadly weapon in a
rude, insulting or angry manner. In other words,
although the state elicited an admission from Larin
that a firearm was somehow involved in the offense, the
amended bill of information did not charge him with the
elements of using a firearm to cause contact with
another in a rude, insulting or angry manner,15 and
Larin did not admit to these elements in his guilty
plea.
Moreover, that the offense involved a firearm is
not inconsistent with a conviction under the second
15 To charge an offense under Kansas law, the information must contain “a plain and concise written statement of the essential facts constituting the crime charged,” although an information “drawn in the language of the statute[] shall be deemed sufficient.” Kan. Stat. Ann. § 22-3201(b); see State v. Rome, 5 P.3d 515, 519 (Kan. 2000). 39 part of subsection (a)(1)(C). Although the first part
of subsection (a)(1)(C) includes as an element the use
of a deadly weapon and the second part does not,
nothing in the statute prevents a person from being
charged and convicted of violating the second part of
the statute even though he committed the offense with a
deadly weapon. Thus, the fact that Larin admitted that
the offense involved a firearm did not operate to
transform the charge or the judgment against him into a
conviction for intentionally causing physical contact
with a deadly weapon in a rude, insulting or angry
manner. Accordingly, the record is plainly
insufficient to establish that Larin was necessarily
convicted under the first part of subsection (a)(1)(C).
Because the record does not show that Larin was
necessarily convicted of violating the first, rather
than the second, part of Kan. Stat. Ann. § 21-
3414(a)(1)(C), we conclude that the record is
insufficient to establish that Larin was convicted of a
crime of violence for immigration purposes.
40 V. Conclusion
Because we find that the record is insufficient to
establish that Larin’s conviction under Kan. Stat. Ann.
§ 21-3414(a)(1)(C) is an aggravated felony under 8
U.S.C. § 1101(a)(43), we GRANT Larin’s petition for
review, VACATE the order of removal, and REMAND to the
BIA for any further proceedings consistent with this
opinion.