United States Court of Appeals
Fifth Circuit
F I L E D
In the January 14, 2004
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
_______________
m 02-20331
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
PEDRO CALDERON-PENA,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
ON PETITION FOR REHEARING PER CURIAM:
(Opinion July 17, 2003, 339 F.3d 320)
In his petition for rehearing en banc, defen-
Before SMITH and BARKSDALE, Circuit dant Pedro Calderon-Pena suggests that this
Judges, and DUPLANTIER,* District Judge. court’s en banc rehearing in United States v.
Vargas-Duran, 319 F.3d 194 (5th Cir.), vacat-
ed for rehearing en banc, 336 F.3d 418 (5th
Cir. 2003), might compel a different result in
this case. Specifically, Calderon-Pena posited,
before Vargas-Duran was heard en banc, that
that case “may resolve the central question at
*
District Judge of the Eastern District of Loui- issue here, namely, whether an element of
siana, sitting by designation. causing (or, in this case, risking) bodily injury
is tantamount to an element of using or at- In considering Calderon-Pena’s prior con-
tempting to use force.” viction, we addressed the Texas child endan-
germent statute as “pared down” by informa-
The en banc court has now decided Vargas- tion in his indictment. Id. at 328-29; see Unit-
Duran, and it plainly has no affect on the result ed States v. Taylor, 495 U.S. 575, 599-601
we have reached in this case. See United (1990). In United States v. Allen, 282 F.3d
States v. Vargas-Duran, No. 02-20116, 2004 339, 343 (5th Cir. 2002), we read Taylor “. . .
U.S. App. LEXIS 180 (5th Cir. Jan. 8, 2004). as allowing the sentencing court to consider
Though Vargas-Duran requires a showing of only the statutory definition of the offense, the
intent with respect to the “use” or attempted charging paper and jury instructions” (empha-
“use” of force in an underlying offense,1 sis added). Accordingly, under Allen and Tay-
Calderon-Pena’s offenses, as charged, remain lor, we look to the indictment for the limited
“crimes of violence” under U.S.S.G. purpose of determining which of a series of
§ 2L1.2(b)(1)(A)(ii), application note 1(B)- disjunctive elements a conviction satisfies.3
(ii)(I) (2001).
At the time of Calderon-Pena’s prior con-
As described in our opinion, 339 F.3d at viction, the Texas child endangerment statute
329, the indictment states, in part, that Cal- provided that a “person commits an offense if
deron-Pena “intentionally . . . engaged in he intentionally, knowingly, recklessly, or with
conduct that placed [his two children] in im- criminal negligence, by act or omission, en-
minent danger of bodily injury . . . by striking gages in conduct that places a child younger
a motor vehicle occupied by [the children] than 15 years in imminent danger of death,
with [Calderon-Pena’s] motor vehicle.” We bodily injury, or mental impairment.” TEX.
concluded, id. at 330, that “Calderon-Pena’s PENAL CODE § 22.04 (1999). Because the
child endangerment convictions . . . have as an
element at least the attempted use of physical
force, if not the use of physical force itself.”2 3
See Calderon-Pena, 339 F.3d at 329; see also
Even if Vargas-Duran is now read to preclude United States v. Landeros-Gonzales, 262 F.3d
the conclusion that Calderon-Pena was con- 424, 426 (5th Cir. 2001) (holding that the various
victed of the “use” of physical force, it is cer- subsections of a comprehensive statute should be
tain that his conviction is based on its “at- treated as separate offenses, and the indictment
tempted use.” should be examined to determine the applicable
subsection); United States v. Valladares, 304 F.3d
1300, 1303 (8th Cir. 2002) (“[W]hen the statutory
definition of a predicate offense encompasses
1 conduct that may or may not be included in the ap-
“Both an attempt and a threat require intent.”
Vargas-Duran, 2004 U.S. App. LEXIS 180, at plicable guideline, the sentencing court may look to
*13 (citing BLACK’S LAW DICTIONARY 123, 1489 the underlying charging papers and jury in-
(7th ed. 1999)). structions to determine the elements of the crime of
which the defendant was convicted.”); United
2
Vargas-Duran, id. at *19, confirms that States v. Smith, 171 F.3d 617, 619-21 (8th Cir.
Ҥ 2L1.2 allows enhancement when the statute has 1999); United States v. Damon, 127 F.3d 139,
‘as an element the use, attempted use, or threatened 142-43 (1st Cir. 1997). The en banc opinion in
use of force’” (citing § 2L1.2, application note Vargas-Duran does nothing to undermine this
1(B)(ii)(I)). approach.
2
disjunctive elements describing the mental Consequently, he was convicted of a “crime of
state of the crime do not all require intention- violence” for purposes of the sentencing en-
ality with respect to the creation of an immi- hancement under § 2L1.2.
nent danger of bodily injury, and therefore
with respect to the “use” or “attempted use” of In undertaking a detailed analysis of the
force, the statute ordinarily would not qualify intricate legal issues involved in this and simi-
as a “crime of violence” under Vargas-Duran. lar sentencing guidelines appeals, we should be
mindful not to lose sight of the forest for the
Calderon-Pena’s indictment, however, trees. Calderon-Pena’s prior offense was, by
shows that he was convicted of “intentionally” anyone’s common-sense definition, a “crime of
engaging in the prescribed behavior. Accord- violence.” As described in the indictment, and
ing, we have noted that “[w]e see that Cal- in the panel opinion, 339 F.3d at 329,
deron-Pena was convicted of two counts of Calderon-Pena intentionally used his motor
‘intentionally . . . by act . . . engag[ing] in vehicle to strike a vehicle occupied by his
conduct that place[d] a child younger than 15 young children, thereby placing them in im-
years in imminent danger of . . . bodily minent danger. We are confident that Con-
injury[.]” Calderon-Pena, 339 F.3d at 329. gress, if presented with these specific facts,
would agree that this crime fits the intended
In other words, Calderon-Pena was con- definition of “crime of violence.” Fortunately,
victed of a crime with an intentional mental that conclusion is consistent with the decision
state with respect to the creation of an immin- we have made after parsing the applicable stat-
ent danger of bodily injury. Where there is a utes, guidelines, and caselaw.
bodily injury, there is some sort of accompany-
ing use of forceSSwhether obviously, through Treating the petition for rehearing en banc
use of an automobile as a weapon (as in this as a petition for panel rehearing,5 the petition
case), or through more subtle means, such as, for panel rehearing is DENIED.
for example, poison, or even subjecting a vic-
tim to disease. Because Calderon-Pena was
aware of an imminent danger and undertook to
create it, he attempted to make “use” of the
force that would cause the injury.4
4
Because the child endangerment statute re-
quires only the creation of an “imminent danger” of
injury, it is arguable that the narrowed statute 4
(...continued)
applied to Calderon-Pena should not be said to sat- “use[d].” See supra; see also Calderon-Pena, 339
isfy the “use” prong of the “crime of violence” F.3d at 330. We need not decide that question,
definition. Because no actual force must act upon because we conclude that Calderon-Pena was
the victim, and a person may be put in “imminent convicted of the attempted use of force.
danger” without suffering harm, a defendant might
5
be convicted under circumstances in which no See Internal Operating Procedure accompany-
actual force caused injury to the body of the victim. ing 5TH CIR. R. 35 (“A petition for rehearing en
Accordingly, it could be argued that no force was banc is treated as a petition for rehearing by the
(continued...) panel if no petition is filed.”)
3