United States v. Pedro Calderon-Pena

383 F.3d 254, 2004 U.S. App. LEXIS 18036, 2004 WL 1888407

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 24, 2004
• Docket: 02-20331
• Status: Published

Opinions

PER CURIAM:

This case involves the application of the sixteen-level “crime of violence” sentence enhancement under § 2L1.2 of the Sentencing Guidelines. Defendant Pedro Calderon-Pena’s seventy-month sentence for illegally reentering the United States in violation of 8 U.S.C. § 1326 included a sixteen-level enhancement based on a prior conviction of the Texas crime of child endangerment. In accordance with our recent decision in United States v. Vargas-Duran, 356 F.3d 598 (5th Cir.2004) (en banc), we hold that Defendant’s child-endangerment conviction does not “ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another” for purposes of the sixteen-level “crime of violence” enhancement under § 2L1.2. We accordingly vacate Defendant’s sentence, and remand for re-sentencing.

I. BACKGROUND

In February 1999, Calderon-Pena, at that time a lawful permanent resident, pleaded guilty to two counts of the Texas offense of child endangerment for a January 1999 incident involving his two children. He was sentenced to fifteen months’ imprisonment. In April 2000, the INS issued Calderon-Pena a notice to appear for a removal hearing. At the hearing, the immigration judge determined that the child-endangerment convictions were “aggravated felonies” under 8 U.S.C. § 1101(a)(43)(F), which rendered Calderon-Pena removable under 8 U.S.C. § 1227. After being removed in June 2000, Calderon-Pena was found unlawfully present in the United States in January 2001 and was later indicted for same under 8 U.S.C. § 1326. Calderon-Pena filed a motion to dismiss the indictment, which the district court denied.¹ The court then found him guilty on stipulated facts and sentenced him to seventy months’ imprisonment. The sentence included a sixteen-level enhancement predicated on the finding that child endangerment was a “crime of violence” within the meaning of § 2L1.2 cmt. n.1(B)(ii) of the 2001 Sentencing Guidelines, the version that was in force at the time of sentencing.

A panel of this court affirmed Calderon-Pena’s conviction and sentence, United States v. Calderon-Pena, 339 F.3d 320 (5th Cir.2003) (“Calderon-Pena I”), and later denied panel rehearing, 357 F.3d 518 (5th Cir.2004) (“Calderon-Pena II ”). We granted Calderon-Pena’s petition for rehearing en banc, 362 F.3d 293 (5th Cir.2004), and now vacate his sentence.

II. ANALYSIS

Calderon-Pena was sentenced under § 2L1.2 of the 2001 version of the Sentencing Guidelines. That section calls for a sixteen-level enhancement if the defendant has previously been convicted of a “crime of violence.” The relevant commentary defines the term “crime of violence” as follows:

“Crime of violence”—

(I) means 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; and

(II) includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including sexual abuse of a minor), robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.

U.S.S.G. § 2L1.2 cmt. n.1(B)(ii) (2001).² The government does not contend that the child-endangerment conviction is an enumerated offense under paragraph (II). Thus, the question before us is whether, under paragraph (I), the district court properly held that the prior offense “has as an element the use, attempted use, or threatened use of physical force against the person of another.” We review the district court’s interpretation of the Sentencing Guidelines de novo. United States v. Medina-Anicacio, 325 F.3d 638, 643 (5th Cir.2003).

Identifying the elements of the defendant’s prior offense

The child-endangerment statute under which Calderon-Pena was convicted provides, in relevant part:

A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment.

Tex. Pen.Code Ann. § 22.041(c) (Vernon 2003).³ The record in this case contains the state indictments that led to the prior guilty-plea convictions. Apart from the name of the child involved, the two indictments are identical and charge that Calderon-Pena:

[0]n or about JANUARY 3, 1999, did then and there [ie., in Harris County, Texas] unlawfully, intentionally and knowingly engage in conduct that placed [his son], a child younger than fifteen years of age and hereafter called the Complainant, in imminent danger of bodily injury, namely, by striking a motor vehicle occupied by the Complainant with the Defendant’s motor vehicle.

Although the actual conduct described in the indictments could be construed to involve the use of physical force against the person of another, that is irrelevant for purposes of this case. The inquiry under paragraph (I) looks to the elements of the crime, not to the defendant’s actual conduct in committing it. This rule springs directly from the language of the “crime of violence” definition itself, which states that a “crime of violence” is an offense that “has as an element ” the use of force. U.S.S.G. § 2L1.2 cmt. n.l(B)(ii)(I) (emphasis added). The elements of an offense of course come from the statute of conviction, see United States v. White, 258 F.3d 374, 382 (5th Cir.2001), not from the particular manner and means that attend a given violation of the statute.⁴ Prior decisions of this court have accordingly held that the statute of conviction, not the defendant’s underlying conduct, is the proper focus. See, e.g., Vargas-Duran, 356 F.3d at 606 (concluding that the inquiry is limited to “[l]ooking only at the fact of [the defendant’s] conviction and the statutory definition”); United States v. Rodriguez-Rodriguez, 323 F.3d 317, 318-19 (5th Cir.2003) (same).

The understanding of “elements” just described comports as well with the Supreme Court’s decision in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), which, in the context of a different sentence enhancement, distinguished the question of whether a crime has the use of force “as an element” from the question of whether the crime “involves” the use of force “in a particular case.” Id. at 600. Taylor instructed, moreover, that a sentencing court’s inquiry should, as a general rule, look only to the statutory definition of an offense and the fact of conviction and “not to the facts underlying the prior conviction[ ].” Id. at 600-02, 110 S.Ct. 2143.

At oral argument in this case, the government contended at certain points that defendants can qualify for the sixteen-level enhancement when they have previously been charged with and convicted of conduct that involved force, notwithstanding that no portion of the statute of conviction itself requires force. According to the government, the elements expand “beyond the statute” to include factual material about the method of committing the offense that, when alleged in charging papers, must then be proven at trial. That is, the government contends, if the statutory language itself fails to require force, we would turn to the manner of commission in the particular case (as charged) to see if that involved force. Thus, on this view, the ultimate question in this case would be whether Calderon-Pena’s act of “striking a motor vehicle occupied by the Complainant with the Defendant’s motor vehicle” involved the use of force. Under that approach, of course, the analysis of the statute would be superfluous: the determinative factor would be the forcefulness of the defendant’s underlying charged conduct, regardless of the statute of conviction. Each conviction under the child-endangerment statute would then require its own individualized “use of force” inquiry, asking whether a particular method of endangering — leaving a child in a hot car, leaving a child near a deep pool, denying medical treatment, and so on, ad infi-nitum — involves force. This cumbersome approach would essentially excise the “element” language from the Guideline.⁵

Moreover, under Texas law, the manner and means, even when required to be charged in the indictment, does not constitute an element of the offense, but rather satisfies the due process concerns relating to providing defendants with sufficient notice of the crime for which they have been charged.⁶ See Boney v. State, 572 S.W.2d 529, 532 (Tex.Crim.App.1978) (“An indictment for aggravated assault need not allege the manner and means used to commit the assault as such is not an element of the offense but relates only to the certainty and definiteness required to enable the defendant to reasonably understand the nature and cause of the accusation against him.”).

The panel that originally decided this case agreed that it would not be proper to “look[] to the indictment to see whether the facts there shown required force.” Calderon-Pena I, 339 F.3d at 329. The panel then contrasted that concededly impermissible activity with the distinct activity of “looking to the indictment to determine which elements in a statute of conviction were satisfied.” Id. It concluded that the sentencing court could look to the indictment or jury instructions “for the limited purpose of determining which of a series of disjunctive elements a defendant’s conviction satisfies.” Id. Under that approach, whenever a statute provides a list of alternative methods of commission — just as the statute in Taylor referred to burglaries of several different types of structures, 495 U.S. at 578 n. 1, 110 S.Ct. 2143 — we may look to charging papers to see which of the various statutory alternatives are involved in the particular case. We agree that such a use of the indictment — a matter not at issue in Vargas-Duran—is permissible. Cf. United States v. Landeros-Gonzales, 262 F.3d 424, 426 (5th Cir.2001) (using allegations from an indictment to determine which of several statutory subsections the defendant had violated).⁷

Whether the child-endangerment offense has the use of force as an element

Although the above-described method of using the indictment to pare down a statute is often useful, it is of no help to the government in this particular case. The child-endangerment statute provides that “[a] person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment.” Tex. Pen.Code Ann. § 22.041(c) (emphases added). The statute thus sets forth a disjunctive list of elements; it proscribes a range of conduct, from intentional acts that create a mortal danger to negligent omissions that risk mental impairment. The indictment, quoted earlier, allows us to narrow down the statutory options, leaving us with the offense of “knowingly ... by act ... engaging] in conduct that places a child younger than 15 years in imminent danger of ... bodily injury.” But even after we have used the indictment to identify which elements were involved in Calderon-Pena’s case, the pared-down statute does not have the use, attempted use, or threatened use of physical force against the victim’s person as a required element.

In the instant case it is notable that the offense of child endangerment does not require any bodily contact (let alone violent or forceful contact) or any injury in order for a conviction to lie.⁸ To commit the offense, one need only knowingly create a danger of bodily injury.⁹ The child need not even be aware of the danger. As a matter of simple logic, the endangerment offense can — but need not — involve the application of physical force to the child’s person. Under the plain meaning of the phrase “use of physical force against the person of another,” this offense does not qualify for the sixteen-level enhancement.

We also reject the panel’s suggestion that Calderon-Pena’s prior conviction had as an element the attempted use of physical force against the person of another. In Vargas-Duran, this court considered the meaning of the “crime of violence” definition in the precise guideline at issue here. While the court there held that the plain meaning of the term “use” requires intentionality, Vargas-Duran, 356 F.Bd at 602-OS, a second, alternative holding established the meaning of the phrase “as an element,” id. at 605-06. Specifically, this court determined:

[I]n order for § 2L1.2 to apply, the intentional use of force must be a constituent part of a claim that must be proved for the claim to succeed. If any set of facts would support a conviction without proof of that component, then the component most decidedly is not an element — implicit or explicit — of the crime.

Id. at 605 (quotations and citation omitted).

Clearly, the pared-down statute can be successfully prosecuted without proof of attempted use of force. One can knowingly endanger without trying to make any bodily contact with the victim’s person and without trying to inflict bodily injury on the person. Our precedents have properly recognized that the “attempted use of physical force” requires at least that the perpetrator harbor an intent to use physical force against the victim’s person. See Vargas-Duran, 356 F.3d at 603; White, 258 F.3d at 384. The child-endangerment offense does not require any such intent to use physical force against the victim, for, again, one can knowingly endanger (or even intentionally endanger) without intending to make any physical contact with the victim or intending to cause the victim any bodily injury. Under the plain meaning of the phrase “attempted use of force against the person of another,” the child-endangerment offense does not qualify.

Our decision is further reinforced by the observation that, rather than involving the use of physical force against the victim, the essence of endangerment is the wrongful creation of a risk of harm. But unlike certain other provisions of the Sentencing Guidelines, the § 2L1.2 “crime of violence” definition notably does not contain language referring to the risk of harm.¹⁰ Compare U.S.S.G. § 4B1.2(a)(2) (2003) (encompassing conduct that “presents a serious potential risk of physical injury”). Creating a risk of injury, even when done knowingly or intentionally, is clearly not the same as using or attempting to use physical force against the person of another. Cf. Dalton v. Ashcroft, 257 F.3d 200, 207 (2d Cir.2001) (observing that “[tjhere are many crimes that involve a substantial risk of injury but do not involve the use of force”); United States v. Chapa-Garza, 243 F.3d 921, 925 (5th Cir.2001) (contrasting conduct that involves “a serious risk of physical injury” with conduct that presents “a substantial risk that the defendant will use physical force against another’s person”).¹¹

III. CONCLUSION

For the foregoing reasons, we conclude that Calderon-Pena’s seventy-month sentence should not have included the sixteen-level “crime of violence” enhancement under U.S.S.G. § 2L1.2 cmt. n.1(B)(ii). We leave it to the district court to determine on remand whether Calderon-Pena’s prior offense can be considered an “aggravated felony” that would call for application of § 2L1.2’s eight-level sentence enhancement.

Accordingly, Calderon-Pena’s conviction is AFFIRMED, see supra note 1, his sentence is VACATED, and the case is REMANDED for further proceedings not inconsistent with this opinion.

1 . Calderon-Pena's motion charged that his prior removal, an element of the illegal reentry conviction that he now appeals, was invalid because the immigration judge both incorrectly determined that his prior offenses were aggravated felonies and failed to inform him of certain avenues of relief. We voted this case en banc to resolve issues related to the application of the sixteen-level sentence enhancement, which was the ground urged in the petition for rehearing. We now reinstate that portion of the panel opinion, United States v. Calderon-Pena, 339 F.3d 320, 323-25 (5th Cir.2003), that rejected Calderon-Pena's attempt to collaterally attack his prior removal.

2 . The 2002 and 2003 versions of the Guidelines retain this same language, though the 2003 definition of "crime of violence” has been rearranged in ways not relevant to this case. Compare U.S.S.G. § 2L1.2 cmt. n.1(B)(ii) (2001), and U.S.S.G. § 2L1.2 cmt. n.1(B)(ii) (2002), with U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (2003).

3 . The relevant portion of this statutory provision has remained unchanged since the time of Calderon-Pena's 1999 conviction.

4 . For example, suppose that an indictment charged a defendant with the crime of disturbing the peace (or even the crime of littering) and also specified that he committed the crime "by throwing a bottle at the victim’s head.” Under state law, the prosecution might be required to prove that the defendant indeed engaged in that charged conduct, but throwing a bottle at someone is not an element of the disturbing-the-peace statute (or of littering). It is, rather, one manner of violating the statute.

5 . Many sentencing provisions lack the "as an element” language at issue here, and we have permitted broader uses of charging papers in such cases. See, e.g., United States v. Rodriguez-Duberney, 326 F.3d 613, 616-17 (5th Cir.2003) (allowing for use of the indictment and the underlying charged conduct to determine whether a Travel Act violation under 18 U.S.C. § 1952 was a drug trafficking offense that necessitated a sixteen-level enhancement pursuant to § 2L1.2(b)(1)(A)(i)).

6 . We do not imply that the meaning of the term "element” in § 2L1.2 is determined by the law of any particular state, noting simply that Texas is not unusual in its understanding of the elements of an offense. The criminal law has traditionally distinguished between the elements of an offense and the manner and means of committing an offense in a given case. Indeed, the Guidelines themselves recognize such a distinction. Compare U.S.S.G. § 4B1.2(a)(1) (2003) (using "as an element” language), with id. § 4B 1.2(a)(2) (using the phrase "involves conduct”). The distinction is also recognized in the commentary to § 4B1.2. See id. § 4B1.2, cmt. n.l (defining a "crime of violence” as an offense that either "has as an element the use, attempted use, or threatened use of physical force against the person of another”; or where the "conduct set forth ... in the count of which the defendant was convicted ... by its nature, presented a serious potential risk of physical injury to another”).

7 .Judge Jones argues in her dissent that the “as an element” language permits us to look to the particular facts charged in a case when an offense can be committed in both violent and non-violent ways. Our court’s approach, she writes, marks us as an outlier, "alone” among the courts of appeals. We are compelled to disagree with Judge Jones's assessment of the law of our sister circuits as neither our understanding of the "as an element” language, nor our reading of Taylor is novel. See, e.g., United States v. Fulford, 267 F.3d 1241, 1248-51 (11th Cir.2001) (holding, in a case involving the "serious violent felony” sentencing statute, that the statute’s "as an element” language bars a sentencing court from examining the particular facts alleged in the charging papers); United States v. Doe, 960 F.2d 221, 224 (1st Cir.1992) (Breyer, C.J.) (explaining that sentencing courts are limited to looking to the crime as the statute defined it rather than considering whether the defendant, in fact, committed the predicate crime in a violent manner).

We respectfully submit that Judge Jones's charge that we are an outlier results from a misreading of some of the cases that she cites. For instance, while the Fourth Circuit’s decision in United States v. Coleman, 158 F.3d 199 (4th Cir.1998) (en banc), permitted the district court to examine the factual method of committing common law assault, it also noted:

[A]n offense that actually may have been committed by the use of physical force against the person of another nevertheless is not considered to be a violent felony if the elements of the offense do not include the use, attempted use, or threatened use of physical force.... In those narrow circumstances in which an offense could have been committed in two ways, one of which required a finding that physical force was used and the other of which did not, a district court must look past the fact of conviction and the elements of the offense to determine which type of offense supported the defendant’s conviction.... A Maryland conviction for common-law assault presents the unusual situation in which an offense may be committed in one of two ways — one of which requires the use, attempted use, or threatened use of physical force and one of which does not.

Id. at 201-02 (emphasis added). The endangerment statute at issue here in Calderon-Pena does not present the "unusual situation" that existed in Coleman, as the statute here simply does not provide explicitly that it can be violated in such a way that requires the use, attempted use, or threatened use of physical force against the person of another.

In United States v. Kennedy, 133 F.3d 53 (D.C.Cir.1998), the second of the two principal cases relied upon by Judge Jones's dissent, the D.C. Circuit indicated that the sentencing court could "look at the indictment or jury instructions to determine whether the charged crime was ‘by its nature' a crime of violence pursuant to § 924(c)(3)(B).” Id. at 57. Significantly, the statute defining the pri- or offense itself listed two methods of violation — "robbery or extortion”' — and the court looked to the indictment only to see which prong of the statute was violated. Id. at 56-58. Thus, Kennedy comports with our position, not the dissent's.

In United States v. Gomez-Hernandez, 300 F.3d 974 (8th Cir.2002), the Eighth Circuit looked to the underlying charging papers (and apparently facts contained in the PSR as well) to determine the elements of the crime to which the defendant had pleaded guilty because the statutory definition encompassed conduct that may or may not have been considered a “crime of violence” under § 2L1.2. Gomez-Hernandez may go beyond even what Judge Jones would allow. But Gomez-Hernandez appears to conflict with a prior Eighth Circuit case, which (in agreement with our holding) stated that the categorical approach permitted use of charging papers “only to determine under which portion of the assault statute [the defendant] was convicted.” See United States v. Smith, 171 F.3d 617, 620-21 (8th Cir.1999).

In sum, while there may be some disagreement among the circuits regarding the use of the indictment, it is not accurate to claim, as Judge Jones’s dissent does, that we have embraced a perverse and anomalous position rejected by most courts. And, importantly, on the merits, our approach has the virtue of respecting the “as an element” language of the Guideline.

8 . Part II.A of Judge Smith’s dissent contends that we have fallen into serious error in holding that the "use of force" always requires "bodily contact.” This opinion does not so hold. While it is true, as Judge Smith observes, that a perpetrator can injure (or even kill) a person without making bodily contact, that truism is beside the point in this case. The Texas child endangerment statute requires neither contact nor injury; and certainly there is no use of force when both are lacking.

9 . We note that there is apparently some disagreement among the Texas courts over whether the statute’s mental-state element applies to the defendant's "engag[ing] in conduct” or applies instead to the defendant’s mental state with regard to the creation of danger. Compare Walker v. State, 95 S.W.3d 516, 520-21 (Tex.App.—Fort Worth 2002, pet. ref’d) (holding that a defendant can intentionally or knowingly engage in conduct that endangers a child "[without] proof that the person intend or know that his conduct places the child in such imminent danger”), with Millslagle v. State, 81 S.W.3d 895, 897 n. 1 (Tex.App.—Austin 2002, pet. ref’d) (suggesting a contrary reading). For purposes of argument, we can assume that the panel was correct in asserting that the mental state applies to the creation of a danger — that is, that Calderon-Pena knew that he was endangering the children, not just that he knew he was engaging in conduct. Calderon-Pena’s conduct would be less culpable if, under the rule of Walker, he lacked a mens rea with regard to the danger.

10 . It is important to recognize that in construing the provisions of § 2L1.2, we are focusing only on the definition of “crime of violence” as that term is used in this particular guideline provision. We do not purport to say that this definition applies to other guideline provisions that utilize the "crime of violence” terminology but with different definitional language.

11 . The Sentencing Commission has explained its reasoning for creating in 2001 the four-level graduated sentencing enhancement in § 2L1.2. U.S.S.G. Supp. to App. C, amend. 632. Specifically, the Commission notes that the amendment was a response to concerns expressed by the Department of Justice, judges, probation officers, and defense attorneys who felt that § 2L1.2 "sometimes resulted] in disproportionate penalties because of the 16-level enhancement provided in the guideline for a prior conviction for an aggravated felony.” Id. The Commission explains that:

The disproportionate penalties result because the breadth of the definition of "aggravated felony” provided in 8 U.S.C. § 1101(a)(43), which is incorporated into the guideline by reference, means that a defendant who previously was convicted of murder, for example, receives the same 16-level enhancement as a defendant previously convicted of simple assault.

Id.

The Commission remarks that it specifically focused its attention on creating a distinction between the eight- and sixteen-level enhancements, noting that a sentencing court can make a more proportionate determination as to sentencing depending on the seriousness of the prior felony conviction. It suggests that the sixteen-level enhancement is proper if the defendant previously was deported, or unlawfully remained in the United States, after being convicted of "certain serious offenses,” including specifically:

a drug trafficking offense for which the sentence imposed exceeded 13 months, a felony that is a crime of violence, a felony that is a firearms offense, a felony that is a national security or terrorism offense, a felony that is a human trafficking offense, and a felony that is an alien smuggling offense committed for profit.

Id. The Commission adds that "[a]ll other aggravated felony offenses will receive an 8-level enhancement.” Id.

This Court has previously recognized the policy behind the 2001 amendments. In United States v. Caicedo-Cuero, 312 F.3d 697 (5th Cir.2002), the panel concluded that:

[T]he Commission intended the [2001] guideline amendments to break up aggravated felonies by providing for the sixteen-level increase only in the case of the more serious offenses, e.g., murder or serious drug trafficking offenses for which the sentence imposed was over 13 months, while providing lesser penalties for the less serious, but still aggravated, offenses, e.g., assault and simple drug possession.

Id. at 711. This Court went on to note that the broader definition of crimes of violence and drug trafficking offenses referenced in § 1101(a)(43) "apply to less severe aggravated felonies that warrant the eight-level enhancement.” Id.

We observe here that Calderon-Pena’s conviction for child endangerment is characterized under Texas law as a state jail felony, a categorization that receives the lowest quantum of punishment of all Texas felonies, among which are capital felonies, first-degree felonies, second-degree felonies, and third-degree felonies. The range of punishment for a state jail felony varies from 180 days' to two years' confinement. It follows that an offense such as this which results in a defendant spending as few as 180 days in jail would not be subject to the same sixteen-level enhancement for a defendant who commits aggravated robbery, a first-degree felony under Tex. Pen.Code Ann. § 29.03 (Vernon 2003), which carries a sentence ranging from five years’ imprisonment to life in prison. This scenario seems to highlight precisely the distinction the Commission was contemplating when it created the graduated sentencing enhancements in 2001. As such, we should recognize, in accordance with the Commission’s amendment commentary, that the graduated sentencing scheme does not contemplate a broad reading of § 2L1.2.