United States Court of Appeals
Fifth Circuit
F I L E D
REVISED SEPTEMBER 13, 2004
August 24, 2004
UNITED STATES COURT OF APPEALS
For the Fifth Circuit Charles R. Fulbruge III
Clerk
No. 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
Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES,
SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES,
STEWART, DENNIS, CLEMENT, PRADO, and PICKERING, Circuit Judges.
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
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
2
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,
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.
3
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-
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
plea convictions. Apart from the name of the child involved, the
two indictments are identical and charge that Calderon-Pena:
[O]n or about JANUARY 3, 1999, did then and there [i.e.,
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.1(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,
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
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 (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.
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
6
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 infinitum--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
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)).
7
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
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. § 4B1.2(a)(2) (using the phrase “involves conduct”). The
distinction is also recognized in the commentary to § 4B1.2. See
id. § 4B1.2, cmt. n.1 (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”).
8
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--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
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
9
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 prior 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
10
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 . . . engag[ing] 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
respecting the “as an element” language of the Guideline.
11
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
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.
12
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.3d at 602-05, 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
13
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 “[t]here 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
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,
14
and defense attorneys who felt that § 2L1.2 "sometimes result[ed]
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,
15
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.
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.
16
EDITH H. JONES, Circuit Judge, with Judge Rhesa H. Barksdale,
dissenting:
I share Judge Smith’s concern regarding the inutility of
this court’s continuing to hear sentencing guidelines cases en
banc. I write separately, however, to dissent from what I believe
is the majority’s pursuit of a “hyper-categorical” approach to
sentencing enhancements for crimes of violence. Calderon-Peña
plowed his car into another vehicle containing his children. The
enhancement issue is whether this prior crime had “as an element
the use, attempted use, or threatened use of physical force against
the person of another.” U.S.S.G. § 2L1.2 cmt. n. 1(B)(ii). The
majority, interpreting our recent en banc decision in United States
v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004), would hold that a
criminal act may never be a “crime of violence” under this and
similar enhancement provisions unless every imaginable way that an
offense could be committed under a given statute of conviction
requires the use, attempted use, or threatened use of physical
force.
This approach is incorrect. It misreads the Supreme
Court’s opinion in United States v. Taylor, 495 U.S. 575, 110
S. Ct. 2143, 109 L.Ed.2d 607 (1990), misapplies this circuit’s
precedents, does not comport with the more reasoned approach
applied by our sister circuits, and reaches a patently absurd
result. The proper application of Taylor would allow consideration
17
of the facts contained in Calderon-Peña’s indictment not only to
“narrow” the statute of conviction, as the majority concedes, but
also to demonstrate that the intentional use of force was a key
fact in Calderon-Peña’s underlying conviction for child
endangerment. Under this view, his prior crime was a crime of
violence that should require enhanced punishment under § 2L1.2 for
this recidivist.
A. Understanding Taylor
Taylor held that in applying sentencing enhancements
based on prior convictions, trial courts should generally “look
only to the fact of the conviction and the statutory definition of
the prior offense.” See Taylor, 495 U.S. at 600-02, 110 S. Ct. at
2159-60. The Court found such a “categorical approach” necessary
because the legislative history of the enhancement statute there
construed, whose language has been a model for later enactments,
revealed that Congress did not want trial courts to “engage in an
elaborate fact-finding process.” Id. at 601, 110 S. Ct. at 2159.
Nonetheless, the Supreme Court also carefully noted that this
approach permits a sentencing court to “go beyond the mere fact of
conviction in a narrow range of cases” where the jury was required
by the indictment or jury instructions to find all the elements of
an offense that would fit within the enhancement. Id. at 602, 110
S. Ct. at 2160. Taylor, in my view, thus refines the pure
categorical approach when a prior conviction is based on a statute
18
that includes various types of conduct, some of which would trigger
an enhancement and some of which would not. See id. at 600-02, 110
S. Ct. at 2159-60.
The enhancement of Taylor’s crime by the Supreme Court
explains the technique. The career criminal statute there enhanced
offenders’ penalties based on specific predicate offenses including
“burglary.” Id. at 578, 110 S. Ct. at 2147. The Court held that
burglary must have a uniform national meaning under a federal
statute. It adopted the common definition of burglary as the entry
into a building or other structure with the intent to commit a
crime. See id. at 598, 110 S. Ct. at 2158. In some states,
however, burglary statutes more broadly encompass places like
automobiles and vending machines. Id. at 599, 110 S. Ct. at 2158.
The Court accordingly reasoned that where a defendant is convicted
under a broad burglary statute that “include[s] entry of an
automobile as well as a building, if the indictment or information
and jury instructions show that the defendant was charged only with
a burglary of a building, and that the jury necessarily had to find
an entry of a building to convict, then the government should be
allowed to use the conviction for enhancement.” Id. at 602, 110
S. Ct. at 2160 (emphasis added). I infer that, under Taylor, if a
state statute encompasses a range of conduct broader than that
which invokes a federal enhancement, the sentencing court may
properly consider the indictment and the jury instructions to
determine whether the enhancement should be applied.
19
Properly read, Taylor requires courts first to decide
whether a statute of conviction embodies a per se crime of violence
under the relevant enhancement provision. Taylor, 495 U.S. at 602,
110 S. Ct. at 2160. If it does not, the inquiry ends and the prior
offense may not be used to enhance a defendant’s sentence.1 As
discussed in greater detail below, this court’s decision in Vargas-
Duran – the opinion’s broad language notwithstanding – was made at
this step of the Taylor inquiry. If, however, a predicate criminal
statute contains subsections, or if the offense is described so
broadly as to include some acts that fall within the “crime of
violence” definition and some that do not, Taylor permits reference
to the indictment and jury charge. See United States v. Landeros-
Gonzales, 262 F.3d 424, 426 (5th Cir. 2001); United States v.
Allen, 282 F.3d 339 (5th Cir. 2002). This order of analysis effec-
tuates Congress’s clear intention, in adopting its “crime of
violence” provision, to broaden the class of offenses eligible for
certain sentence enhancements, while not bogging courts down in
complex mini-trials over criminal history. I believe the
1
Our circuit’s decisions in United States v. Chapa-Garza, 243
F.3d 921, 927 (5th Cir. 2001) (felony DWI not a crime of violence
under 18 U.S.C. § 16(b)), United States v. Charles, 301 F.3d 309,
314 (5th Cir. 2002) (en banc) (theft of motor vehicle not a crime
of violence under U.S.S.G. § 4B1.2(a)(2)), and United States v.
Rodriguez-Rodriguez, 323 F.3d 317, 319 (5th Cir. 2003) (burglary of
a building and unauthorized use of a motor vehicle are not crimes
of violence under the 16-level “has as an element” enhancement
contained in U.S.S.G. § 2L1.2, but are per se crimes of violence
under 18 U.S.C. § 16(b)), which involve various enhancement
provisions, are all justifiable at this categorical level.
20
majority’s adoption of Vargas-Duran’s hyper-categorical language
unfairly exaggerates the latter concern while minimizing the
former.
B. Vargas-Duran and Calderon-Peña
The majority holds that Taylor’s “categorical approach”
requires this court to imagine whether there are any circumstances,
no matter how far removed from the plain facts of a recidivist’s
prior crime, under which his statute of conviction may be violated
without the use, attempted use, or threatened use of force. This
conclusion assertedly derives from the guideline’s inquiry whether
a prior crime “has as an element” the use, attempted use, or
threatened use of physical force. The majority relies on Vargas-
Duran’s language, which suggests that in order for a “component” of
a conviction to be an “element” of the offense, the component must
be present under “any set of facts” that constitute a violation of
the statute. 356 F.3d at 605. The majority believes not only that
it may ignore the facts contained in Calderon-Peña’s indictment and
guilty plea, but that it is unable to enhance his sentence because,
under the open-ended language in Texas’s statutory offense of child
endangerment, the statute might be violated in a non-violent
manner. Under the majority’s reasoning, no offense charged under
this provision may ever be classified as a crime of violence under
§ 4B1.2, no matter how brutal the conduct. The majority errs in
two ways.
21
First, Vargas-Duran did not depend on this “any set of
facts” language. Vargas-Duran, 356 F.3d at 605. In Vargas-Duran,
the question before our court was whether the defendant’s prior
intoxication assault conviction in Texas could be considered a
crime of violence under the same “has as an element” language of
the Guidelines. Id. at 599-600. The en banc majority, which I
joined, held that force must be used intentionally for a given
offense to qualify for the enhancement. Id. at 602-03. The
majority concluded that because the Texas intoxication assault
statute, by definition, does not require the proof of any mens rea,
the intentional use of force could not be an “element” of the
crime. Id. at 606. Vargas-Duran’s analysis stopped at what I have
just described as Taylor’s first step. Its reference to the “any
set of facts” approach was irrelevant to the case. As the majority
acknowledges, the child endangerment statute is not amenable to
first-step treatment at least on intentionality, as it can be
violated in multiple ways and with various mental states:
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. PENAL CODE ANN. § 22.041(c)) (VERNON 2003). The majority and I
part company, however, on whether the statute includes conduct that
has as an element the use, attempted use, or threatened use of
force. This disagreement reflects my second major bone of
contention with the majority — on the definition of “elements” of
22
an offense under the enhancement. As the Vargas-Duran opinion
notes, Black’s Law Dictionary defines an element as “[a]
constituent part of a claim that must be proved for the claim to
succeed,” BLACK’S LAW DICTIONARY 538 (7th ed. 1999). Our court has
held that “traditionally, an ‘offense’ was defined by its
‘elements,’ i.e., facts necessary to support a conviction for the
offense,” United States v. Williams, 343 F.3d 324, 432 (5th Cir.
2003). See Vargas-Duran, 356 F.3d at 605. The “elements” of an
offense may be viewed generically under a statute’s language, as
the majority does, or they may be considered particularly in light
of what the defendant actually did to comprise the offense of
conviction. Where, as here, a defendant pleads guilty to the
particular offense based on explicit factual allegations in the
indictment, the distinction made by the majority between the
“elements” of the offense and the “manner and means” of the offense
becomes purely theoretical. Further, that distinction does not
serve the enhancement’s purpose of identifying and penalizing more
strictly recidivists who engaged in violent crimes.
The majority does concede, helpfully, that if a statute
has disjunctive elements or multiple subsections, rather than apply
“any set of facts” to prevent all enhancements, the indictment’s
allegations and jury charge may be used to “pare down” the statute
to the precise subsection that was violated. But taking the next
logical step, the court should have acknowledged that when a
statute may, by the breadth of its language, irrespective of
23
subparts, be violated in both violent and non-violent ways, the
indictment and jury instructions may then be used to ascertain
whether the underlying offense constituted a crime of violence
under the guidelines. In failing to do so, the majority’s opinion
forecloses a sensible and obvious path chosen by other circuits.
C. The Application of Taylor in Other Circuits
The majority’s reiteration of the “any set of facts”
interpretation of Taylor runs counter to the approach adopted by a
number of our sister circuits, including the First, Fourth, Eighth
and D.C. Circuits. Each of these courts holds that where a statute
may be violated in multiple ways — some of which qualify an offense
as a crime of violence and some of which do not — a court may
properly refer to the indictment and jury instructions.2
2
See United States v. Gomez-Hernandez, 300 F.3d 974, 980 (8th
Cir. 2003) (where “the statutory definition [of the predicate
offense] encompasses conduct which may or may not be included in
the applicable guideline, we may look to the underlying charging
papers to determine the elements of the crime to which the
defendant pleaded guilty”); United States v. Coleman, 158 F.3d 199,
202 (4th Cir. 1998) (en banc) (where a predicate offense “may be
committed in one of two ways, one of which requires a finding that
physical force was used and the other of which does 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”); United States v. Kennedy, 133 F.3d 53, 57
(D.C. Cir. 1998) (a conviction under the Hobbs Act requires a
district court to examine the indictment to determine whether the
conviction qualifies for an enhancement); United States v. Damon,
127 F.3d 139, 142 (1st Cir. 1997) (under Taylor, “a sentencing
court may go beyond the fact of conviction in those cases where the
statute encompasses both violent felonies . . . and non-violent
felonies . . . .”). See also United States v. Shepard, 348 F.3d
308, 312-14 (1st Cir. 2003); United States v. Londono-Quintero, 289
F.3d 147, 151 (1st Cir. 2002) (“Where the statutory definition
encompasses both predicate and non-predicate offenses, however, it
24
In Coleman, for instance, the Fourth Circuit considered
whether a conviction for common-law assault under Maryland law
constituted a “violent felony” requiring enhancement under the
Armed Career Criminal Act of 1984.3 The court held that where a
predicate offense “may be committed in one of two ways, one of
which requires a finding that physical force was used and the other
of which does not, a district court must look past the fact of
conviction and the elements of the offense to determine which type
may be necessary to go beyond the statute and the fact of
conviction”); United States v. Harris, 964 F.2d 1234, 1235 (1st
Cir. 1992) (Breyer, C.J.) (noting that in cases where “a single
statute . . . covers more than one crime . . . it would be
appropriate for the sentencing court to look to the conduct . . .
not because the court may properly be interested (in this context)
in the violent or non-violent nature of that particular conduct,
but because that conduct may indicate that the defendant and the
government both believed that the generically violent crime . . .
rather than the generically non-violent crime . . . was at issue”).
The majority criticizes this dissent’s reliance on the above
cited cases. See Majority Op. at 10 n.7. Anyone reading this
authority with care will find that it in fact supports the
dissent’s position. More telling is what the majority’s lengthy
footnote does not say: Nowhere does the majority claim that the
1st, 4th, 8th or D.C. circuits follow the majority position.
Footnote 7's sole purpose is to assert that the majority view is
not “perverse and anomalous.” Unfortunately, to achieve their end,
the majority shamelessly stretches precedent. Compare Majority Op.
at 10 n.7 (mischaracterizing the statute at issue in Coleman as
“explicitly” requiring a violation of the law “in such a way that
requires the use, attempted use, or threatened use of physical
force,” and therefore falling within the Taylor exception) with
Coleman, 158 F.3d at 202 (“Nevertheless, because one of the ways in
which a Maryland common-law assault can be committed involves [not
‘requires’] the use, attempted use, or threatened use of physical
force against another . . . .”) (emphasis added).
3
This federal provision is the same one interpreted as to
burglary in Taylor and contains the same language concerning the
use of force as the “crime of violence” guideline before us in this
case.
25
of offense supported the defendant’s conviction.” 158 F.3d at 202
(emphasis added). As a result, the en banc court held that the
district court properly relied on the charging papers4 to determine
that Coleman’s act of pointing a handgun at a police officer
constituted a violent felony for the purposes of the federal
sentencing enhancement. Id. at 202-03.
Relying on Coleman and its antecedents, the Fourth
Circuit has also held that “the record of conviction, the charging
document and the jury instructions” may be examined, consistent
with Taylor, to determine whether a conspiracy conviction is a
crime of violence. United States v. Ward, 171 F.3d 188, 192-93
(4th Cir. 1999).
Similarly, in Kennedy, the D.C. Circuit held that the
Hobbs Act is one example of a “generic” criminal statute whose
violation requires a district court to examine the underlying
indictment to determine whether the conviction qualifies as a
“crime of violence” or a “serious violent felony” under federal
sentencing law. Kennedy, 133 F.3d at 57. The Kennedy court held
this approach acceptable under Taylor where “a statute provides for
both violent and nonviolent means of violation,” id. at 58
(emphasis added), and “the mere fact of conviction under the Hobbs
Act does not establish whether a defendant was convicted of a
4
Under Maryland law, the “charging papers” included the
state-required affidavit of the complainant or arresting officer.
Coleman, 158 F.3d at 202-03.
26
violent or nonviolent crime.”5
Under the majority’s “any set of facts” approach to the
Taylor categorical inquiry, the result in conspiracy and Hobbs Act
cases, and those of similar ilk, such as retaliation, would
necessarily differ from Coleman and Kennedy. The majority,
unfortunately, demonstrates neither its awareness of the
overwhelmingly contrary precedents nor any explanation why it alone
understands Taylor and the other circuits are wrong.
The majority does express concern that going beyond the
statutory “elements” of a crime, even when the conviction’s under-
lying facts are plain and admitted, threatens to swallow the
categorical approach in favor of real-act sentencing. I disagree.
The First Circuit aptly explained that “[u]nder Taylor’s cate-
gorical approach, burglary is a crime of violence even if no
violence was used in the particular case; and conversely, being a
felon-in-possession is not a crime of violence even if the felon
happened to shoot someone but was convicted only under the felon-
in-possession statute.” See United States v. Sacko, 178 F.3d 1, 7
(1st Cir. 1999) (noting that under Taylor’s categorical approach,
the facts of the underlying offense are only relevant to “identify
the statutory or common law offense” of conviction and that
5
The D.C. Circuit noted that its approach in Kennedy was
consistent with Taylor because it “avoids the factual inquiry that
concerned the Supreme Court in Taylor, but permits courts to treat
violent crimes as Congress intended they be treated.” Id. at 57-
58.
27
“collateral facts as to the defendant’s conduct on the earlier
occasion are not relevant for any other purpose”). The majority’s
concern is groundless.
D. Conclusion
In this case, applying a refined categorical approach
would require us to hold, as common-sense dictates, that an
individual who intentionally rams his car into another vehicle
containing his children has committed a crime of violence. He pled
guilty to the child endangerment offense on facts that proved his
intention to threaten or use actual force against his children.
While I agree with the result in our en banc decision in Vargas-
Duran, unlike the majority, I would jettison that opinion’s overly
broad “any set of facts” formulation — which the Vargas-Duran
majority did not actually apply to decide that case. Rather,
consistent with Taylor and the law of other circuits, we should
look to the facts contained in the underlying indictment and jury
instructions to apply crime of violence enhancements like that
before us. I respectfully dissent.
JERRY E. SMITH, Circuit Judge dissenting, joined by Judge Rhesa H.
Barksdale:
I.
I respectfully dissent from the well-intentioned position tak-
en by a majority of the judges. My disagreement is in regard not
only to the result the majority reaches, but also to the manner in
which this court is handling its sentencing guideline jurispru-
dence.
The majority’s result is intuitively absurd. It holds that a
defendant who intentionally rammed his car into a vehicle that he
knew contained his young children was not guilty of a “crime of
violence.” We are, of course, bound by the various definitions and
explanations set forth in the applicable statutes and sentencing
guidelines, from which we must discern the will of the drafters.
Congress could, if it wanted to, define an ax murder as not a
“crime of violence,” and we would be bound to adhere to that
definition.
Here, however, as I will explain, there is an easy path to
reaching the correct answer in this case, which is that Calderon-
Pena’s crime is indeed a “crime of violence.” There is, admit-
tedly, a colorable argument to the contrary, and Judge DeMoss has
ably articulated that explanation for the majority. But that does
not justify the fact that the court has even taken this case en
banc, when the panel had already carefully reconciled its result
with our recent en banc decision in United States v. Vargas-Duran,
356 F.3d 598 (5th Cir. 2004) (en banc), and had issued s supplemen-
tal opinion on rehearing setting forth that explanation.
Some may view it as silly that a court of appeals takes sen-
tencing guideline cases en banc at all. I do not go that far, for
indeed there are times when conflicting caselaw needs to be
29
reconciled. This is not one of them.
The en banc court is not, and should not be, primarily a court
of error. The decision to take a case en banc is a prudential one
that should be based on a host of factors, including, among others,
the importance of an issue, the expenditure of judicial resources,
whether the issue creates a problem beyond the confines of the case
at hand, and the degree to which the panel’s result is perceived by
some not only as wrong, but as so wrong that it effects a grave
injustice or disrupts the court’s jurisprudence in a significant
way.
Even if, arguendo, the majority were correct in its result,
the case does not satisfy the other criteria for en banc review.
By taking this case en banc, the majority has created more ques-
tions than it has solved and has muddled our guidelines jurispru-
dence unnecessarily. Given, however, that the case is now present-
ed for decision by the en banc court, and that the majority has
reached a demonstrably erroneous result, I will explain the flaws
in its reasoning.
II.
As I approach the merits of the case, I first note my agree-
ment with the majority’s handling of the “elements” of an offense.
The government urges that when recitations of particular violent
actions are added to an indictment, the proof of those actions be-
30
comes “elements” of the offense for purposes of enhancement under
the sentencing guidelines. Such an approach would undermine Taylor
v. United States, 495 U.S. 575 (1990); as the majority notes, “the
analysis of the statute would be superflous” under the government’s
theory. The “elements” of an offense are those enumerated in the
statute of conviction, and no others.
I also agree with the majority’s acceptance of the notion that
a court may refer to charging papers to determine of which elements
of an offense a defendant was convicted. See Taylor, id. at 578;
United States v. Landeros-Gonzales, 262 F.3d 424, 426 (5th Cir.
2001). The “paring down” of statutes by reference to the charging
papers has been applied by other circuits, including the First,6
Seventh,7 Eighth,8 Tenth,9 and especially the Ninth.10
6
See, e.g., U.S. v. Shephard, 348 F.3d 308, 312-13 (1st Cir.
2003) (recognizing that Taylor allows that courts may look at the
charging papers and jury instructions to identify the crime of
conviction; noting that the First Circuit has approved “resort to
pre-sentence reports but only to determine the character of the
criminal offense for which the criminal was convicted (not whether
violence was or was not used on the particular occasion) . . . where
that determination cannot be made from the statutory language itself
or from the charging documents” and those documents are reliable).
7
See, e.g., Flores v. Ashcroft, 350 F.3d 666, 670 (7th Cir.
2003) (opining that “when one state-law offense may be committed
in multiple ways, and federal law draws a distinction, it is nec-
essary to look behind the statutory definition,” and allowing
examination of charging papers to determine the elements of a
crime of which a defendant was convicted); United States v.
Howze, 343 F.3d 919 (7th Cir. 1997) (same).
8
See, e.g., United States v. Menteer, 350 F.3d 767, 770-71 (8th
Cir. 2003) (allowing district court to look to presentence report’s
characterization of defendant’s conduct, where defendant failed to
(continued...)
31
I depart from the majority’s reasoning only at a later point.
The pared-down statute of conviction provides: “A person commits
an offense if he intentionally . . . by act . . . engages in con-
duct that places a child younger than 15 years in imminent danger
of . . . bodily injury.” This sufficiently describes the “at-
tempted use of physical force” in satisfaction of the relevant
crime of violence statute. U.S.S.G. § 2L1.2, application note
1(B)(ii)(I). In a nutshell, because the pared-down child endanger-
ment statute requires that a defendant have intentionally created
(...continued)
object to PSR’s factual characterization of his conduct); United
States v. Valladares, 304 F.3d 1300, 1303 (8th Cir. 2002) (stating
that “when the statutory definition of a predicate offense encom-
passes conduct that may or may not be included in the applicable
guideline, the sentencing court may look to the underlying charging
papers and jury instructions to determine the elements of the crime
which the defendant was convicted” (citation omitted)).
9
See, e.g., U.S. v. Venegas-Ornelas, 348 F.3d 1273, 1275 (10th
Cir. 2003) (“Although we may not consider the particular facts
surrounding the conviction, if the statute reaches different types of
conduct, we may look to the charging paper and judgment of conviction
in order to ‘determine if the actual offense the defendant was
convicted of qualifies as a crime of violence’” (citing Sareang Ye v.
INS, 214 F.3d 1128, 1133 (9th Cir. 2000)).
10
See, e.g., United States v. de la Fuente, 353 F.3d 766, 770
(9th Cir. 2003) (holding that if a “statute reaches both conduct that
would constitute a crime of violence and conduct that would not, we
turn to a modified categorical approach, which allows us to examine
documentation or judicially noticeable facts that clearly establish
that the defendant’s actual offense qualifies as a crime of violence”
(citing United States v. Sandoval-Venegas, 292 F.3d 1101, 1106 (9th
Cir. 2002) (same)); United States v. Hernandez-Valdovinos, 352 F.3d
1243, 1247-48 (9th Cir. 2003); United States v. Wenner, 351 F.3d 969,
972 (9th Cir. 2003); Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1154;
(9th Cir. 2003); United States v. Melton, 344 F.3d 1021, 1024 (9th
Cir. 2003); United States v. Casarez-Bravo, 181 F.3d 1074, 1077 n.1
(9th Cir. 1999)).
32
an imminent danger of bodily injury to another, he intended to use
physical force on that person, even if that force was of a subtle
and indirect nature.11 The majority is mistaken in concluding
otherwise.
A.
The majority states in conclusional fashion, “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.” The majority em-
phasizes elsewhere that the statute can be violated without an
attempt to cause “physical contact.”
It a matter suitable for debate whether the child endangerment
statute may be satisfied without a perpetrator’s “trying to inflict
bodily injury” on a victim. Before addressing that issue, however,
I must note that the majority goes too far in its mention of
“bodily contact.”
I accept that it is possible “knowingly [to] endanger” a per-
son without trying to make any “bodily contact” or “physical con-
tact” with him. For instance, a person’s body may be imminently
endangered by poison left for him to consume, without the would-be
11
See United States v. Vargas-Duran, 356 F.3d 598, 606 (5th
Cir. 2004) (en banc) (concluding that the crime of violence inquiry
is limited to “[l]ooking only at the fact of [the defendant’s]
conviction and the statutory definition”)
33
poisoner’s intending to achieve “bodily contact” with his victim.
But I cannot credit the suggestion that a perpetrator’s making
“bodily contact” with a victim is a requirement for the “physical
use of force,” or accordingly that a perpetrator’s attempt to make
“bodily contact” with a victim is a requirement for the “attempted
use of physical force.”
Rather, the “use of physical force” and “attempted use of phy-
sical force” under the crime-of-violence guideline should extend to
cover those applications of force that are subtle or indirect,
rather than only those embracing “bodily contact.” This is a mat-
ter of common sense.
If a someone lures a poor swimmer into waters with a strong
undertow in order that he drown, or tricks a victim into walking
toward a high precipice so that he might fall, it is a poor excuse
for the perpetrator to say, “Well, at least I didn’t attempt to use
physical force against my victim. I was only trying to kill or
maim him!” To the contrary, the perpetrator has at least attempted
to make use of physical force against the person of the target,
either through the action of water to cause asphyxiation or by im-
pact of earth on flesh and bone. However remote these forces may
be in time or distance from the defendant, they were still directed
to work according to his will, as surely as was a swung fist or a
fired bullet.
This interpretation also is logical, given the sort of crim-
inal statutes that might be considered “crimes of violence.”
34
Numerous statutes covering crimes that most would naturally think
to involve the “use” or “attempted use” of force may be satisfied
by subtle and indirect force. Most would agree, for example, that
an intentional battery statute requiring the actual injury of the
victim describes the “use of physical force.” As well, it should
be uncontroversial that formulations of assault requiring an intent
to injury of a victim should be considered to involve the attempted
use of force.
But batteries and assaults punishable under such statutes can
involve uses or attempted uses of physical force that are subtle or
indirect. For example, a person may be indicted and convicted for
Texas assault if he “intentionally . . . causes bodily injury to
another, including the person’s spouse.” TEX. PENAL CODE ANN.
§ 22.01(a)(1) (Vernon 2003). The bodily injury need not result
from a violent physical contact between the defendant and the
victims; subtle or indirect means would do, whether by tricking a
person into consuming poison, or luring him to walk off a cliff.
Likewise, the crime of murder in many states may be satisfied
by subtle and indirect uses of force. A person may be indicted and
convicted for Texas murder, for example, if he “intentionally or
knowingly causes the death of an individual.” TEX. PENAL CODE ANN.
§ 19.02(b)(1) (Vernon 2003). Again, the defendant need never lay
a finger on his victim. Though murder is, quite fortunately, enum-
erated as a crime of violence under the second prong of the rel-
35
evant violence definition, it would be absurd to believe that mur-
der would not involve the “use of physical force” See U.S.S.G.
§ 2L1.2, application note 1(B)(ii)(II).
Additionally, although murder is enumerated as a “crime of
violence,” attempted murder is not. Attempted murder may be under-
taken by other than attempts to cause “bodily” or “physical” con-
tact, yet no court reasonably would hold that attempted murder is
a crime that does not involve the “attempted use of physical force
against the person of another.”
Accordingly, the majority’s insistence on “bodily contact” is
serious error. Physical forces, whether subtle and indirect, are
physical forces nonetheless.
B.
As for the majority’s holding that one can knowingly create an
imminent danger of another’s physical injury without “trying to in-
flict bodily injury on the person,” I disagree. I also take issue
with the majority’s related conclusion: “Creating a risk of in-
jury, even when done knowingly or intentionally, is clearly not the
same as using or attempting to use physical force against the per-
son of another.” This latter statement might contain some truth,
because people may not actually expect those harms that flow from
de minimis risks they choose to create, but the majority ignores
that the statute of conviction required not simply a “risk of in-
36
jury,” but an “imminent danger of bodily injury”12 (emphasis added).
An attempt is “the act or an instance at making an effort to
accomplish something “ BLACK’S LAW DICTIONARY 123 (7th ed. 1999).
Thus, for example, an attempted crime is “an overt act that is done
with the intent to commit a crime.” Id. An attempted use of
physical force, accordingly, is an overt act done with intent to
use physical force. The pared down child endangerment offense re-
quires just such an attempt.
It is axiomatic that people intend the likely results of their
actions; after all, intention is “the willingness to bring about
something planned or foreseen.” Id. at 814. Therefore, when a
person knowingly undertakes actions in order to create a “imminent
danger . . . of bodily injury,” he also demonstrates a willingness
to bring about the foreseeable result of his actionsSSthat is, his
use of physical force against the person of another to cause bodily
injury.
12
Thus, the majority’s reference to holdings in the Second
Circuit to the effect that “[t]here are many crimes that involve a
substantial risk of injury but to not involve the use of force” is
inapt. See Dalton v. Ashcroft, 257 F.3d 200, 207 (2nd Cir. 2001).
Likewise, this court’s effort in United States v. Chapa-Garza, 243
F.3d 921, 925 (5th Cir. 2001), to contrast conduct involving “a
serious risk of physical injury” with conduct that presents “a
substantial risk that the defendant will use physical force against
another’s person” is of little help here. See id. The Chapa-Garza
court analyzed a different crime of violence guideline, and
particularly a prong involving the creation of “substantial risk”
of injury, rather than the attempted use” formulation at stake
here.
37
This makes sense. When a person intends to create an imminent
danger of injury by such obvious means as ramming his car into
someone else’s, or less direct means such as by luring that person
to an ocean undertow or placing deadly poison in his drink, he is
actually attempting to control, and thus intentionally “use,” phy-
sical force against that person, whether in the form of collision
with a fast-moving automobile, water suffocating lungs, or cyanide
disrupting metabolism.
Accordingly, Calderon was convicted of a “crime of violence”
as described in § 2L1.2. Because his statute of conviction re-
quired him intentionally to have exposed a person to a physical
forces either created by him or made subject to his will, it
described the “attempted use of physical force” against the person
of another.
Thus, I respectfully dissent.
38
EMILIO M. GARZA, Circuit Judge, dissenting:
I write separately because I agree with both the “use of
force” analysis in Judge Smith’s dissent and with the interpreta-
tion of United States v. Taylor, 495 U.S. 575 (1990) in Judge
Jones’s dissent. I do not agree with the portions of Judge Jones’s
dissent that indicate that the majority opinion in United States v.
Vargas-Duran, 356 F.3d 598 (5th Cir. 2004) (en banc), is correct.
For the reasons expressed in my dissent in Vargas-Duran, I continue
to believe that Vargas-Duran was wrongly decided. See Vargas-
Duran, 356 F.3d at 610 (Garza, J. dissenting).
39