United States Court of Appeals
Fifth Circuit
F I L E D
REVISED OCTOBER 13, 2004
IN THE UNITED STATES COURT OF APPEALS September 21, 2004
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
_____________________
No. 03-20345
_____________________
UNITED STATES OF AMERICA
Plaintiff - Appellant-Cross-Appellee
v.
RODRIGO ACUNA-CUADROS, also known as Rodrigo Cuadros-
Acuna
Defendant - Appellee-Cross-Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
Before KING, Chief Judge, and JONES and SMITH, Circuit Judges.
PER CURIAM:
This case involves the proper application of the sixteen-level
“crime of violence” sentence enhancement under § 2L1.2(b)(1)(A)(ii)
of the Sentencing Guidelines. The defendant was convicted after a
bench trial of illegal reentry after deportation following a
conviction for an aggravated felony, in violation of 8 U.S.C.
§ 1326(a) and (b)(2). The district court did not apply the
enhancement because it found that the aggravated felony, the Texas
crime of retaliation, did not qualify as a “crime of violence.” In
accordance with our recent decision in United States v. Calderon-
Pena, No. 02-20331, 2004 WL 1888407 (5th Cir. Aug. 24, 2004) (per
curiam), we hold that the defendant’s retaliation 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 and we therefore
AFFIRM the defendant’s sentence.1
I. Background
Rodrigo Acuna-Cuadros, a Mexican citizen, was indicted for the
offense of retaliation under Texas law. In November 1995, Acuna-
Cuadros pled guilty and was placed on six-years probation, but in
November 1996, his probation was revoked and he was imprisoned. In
1999, Acuna-Cuadros was released from prison and deported to
Mexico. Sometime in 2001, Acuna-Cuadros reentered the United
States and was consequently convicted under 8 U.S.C. § 1326 for
illegally entering the United States after having been deported
following a conviction of an aggravated felony.
At the sentencing hearing, the district court sentenced Acuna-
Cuadros to twenty-four months imprisonment, followed by three years
supervised release, and ordered him to pay a one-hundred dollar
special assessment. The district court did not apply the sixteen-
level enhancement to Acuna-Cuadros under § 2L1.2(b)(1)(A)(ii) of
1
Acuna-Cuadros also argues that the district court erred in
denying his motion to dismiss his indictment because his 1999
deportation was constitutionally invalid. However, Acuna-Cuadros
acknowledges that this argument is foreclosed by this court’s
decision in United States v. Lopez-Ortiz, 313 F.3d 225 (5th Cir.
2002).
2
the Sentencing Guidelines, which is applicable if a defendant has
been previously deported following a conviction of a “crime of
violence.” The court found that an offense under the Texas
retaliation statute did not qualify as a “crime of violence” within
the meaning of § 2L1.2(b)(1)(A)(ii) since the offense did not have
as an element the use, attempted use, or threatened use of force.
In making its determination, the district court looked to the Texas
retaliation statute, but not to the underlying facts of Acuna-
Cuadros’s offense.
The United States appealed and contends that retaliation is a
“crime of violence” under § 2L1.2(b)(1)(A)(ii) of the Sentencing
Guidelines, and thus, that the district court improperly rejected
the enhancement.
II. Standard of Review
We review the district court’s application of the Sentencing
Guidelines de novo and its findings of fact for clear error.
United States v. Mitchell, 366 F.3d 376, 378 (5th Cir. 2004).
III. Discussion
Our recent decision in Calderon-Pena disposes of this case.
The question before us here, as in Calderon-Pena, is whether the
Texas offense, retaliation, has as an element the use, attempted
use, or threatened use of physical force.
Our inquiry “looks to the elements of the crime, not to the
defendant’s actual conduct in committing it.” Calderon-Pena, 2004
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WL 1888407, at *2. The retaliation statute under which Acuna-
Cuadros was convicted provides in relevant part:
(a) A person commits an offense if he intentionally or
knowingly harms or threatens to harm another by an
unlawful act:
(1) in retaliation for or on account of the service
or status of another as a:
(A) public servant, witness, prospective
witness, or informant; or
(B) person who has reported or who the actor
knows intends to report the occurrence of a
crime . . . .
TEX. PENAL CODE ANN. § 36.06 (Vernon 1995). No portion of the statute
itself requires physical force. Although, as a matter of simple
logic, the offense can involve the application of physical force,
it need not involve physical force to maintain a conviction.
Calderon-Pena, 2004 WL 1888407, at *4. Therefore, the Texas
statute plainly does not have as an element the use, attempted use,
or threatened use of physical force.
The government relies on the narrow exception that the court
may look to the indictment whenever a statute has a series of
disjunctive elements to determine which elements a defendant’s
conviction satisfies. Calderon-Pena, 2004 WL 1888407, at *3. The
government contends this exception applies here because the term
“harm” is defined as “anything reasonably regarded as loss,
disadvantage, or injury, including harm to another person in whose
welfare the person affected is interested.” TEX. PENAL CODE ANN.
§ 1.07(a)(25) (Vernon 1994) (emphasis added). The government
further contends that a subset of injury is bodily injury, which is
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defined as “physical pain, illness, or impairment of physical
condition.” TEX. PENAL CODE ANN. § 1.07(a)(8) (Vernon 1994). The
government therefore argues that the statute contains a series of
disjunctive elements that enables the court to look to the
indictment to see which specific elements were violated. The
indictment specifically averred that Acuna-Cuadros intentionally
and knowingly harmed another--striking and choking his sister--
because she was a prospective witness against him in another
proceeding. Thus, the government concludes that Acuna-Cuadros must
have been convicted of the crime of inflicting physical pain or
impairment of a physical condition, and since physical injury was
an element of the offense, Acuna-Cuadros was convicted of a crime
of violence.
First, even if we were to read the definition of the word
“harm” in such a way as to import elements into the retaliation
offense, a questionable procedure, none of the words that define
“harm”--loss, disadvantage, or injury--requires the use of physical
force. Thus, force is still not an element of the crime, even when
the statute is supplemented by the definition. The government’s
argument that “bodily injury” in § 1.07(a) is a source of
disjunctive elements that involve physical force fails because
neither § 36.06 nor the definition of “harm” employs the term
“bodily injury;” the definition of “harm” includes only “injury.”
Second, under the exception, we could only look to the
indictment to determine which of the disjunctive elements a
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defendant’s conviction satisfies. Calderon-Pena, 2004 WL 1888407,
at *3. This court has specifically held that “[a]lthough 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” in determining whether physical force is in
fact an element of the offense. Calderon-Pena, 2004 WL 1888407, at
*2. Applying this rule and accepting arguendo the government’s
argument that the definition of “harm” imports disjunctive elements
into the offense of conviction, we could consider that Acuna-
Cuadros struck and choked his sister only to determine under which
alleged element (loss, disadvantage, or injury) Acuna-Cuadros was
convicted. We could not, however, consider those same facts to
determine, much less conclude, whether the use, attempted use, or
the threatened use of physical force is an element of the
retaliation statute. The rationale for this rule, as articulated
in Calderon-Pena, merits repeating here:
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 . . . statute would then
require its own individualized “use of force” inquiry,
asking whether a particular method of [violating the
statute] involves force. This cumbersome approach would
essentially excise the “element” language from the
Guideline.
Calderon-Pena, 2004 WL 1888407, at *3. So even accepting the
government’s proposition that the court may look at the
indictment pursuant to the exception, we cannot use the fact that
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the offense involved the use of force to conclude that force is
an element of the statute. Thus, given the plain meaning of the
statute and the purported disjunctive elements, the use,
attempted use, or threatened use of physical force is simply not
an element of the Texas retaliation statute. As such, an offense
under the retaliation statute is not a “crime of violence” and
the district court properly rejected the sixteen-level
enhancement to Acuna-Cuadros’s sentence.
IV. Conclusion
For the foregoing reasons, Acuna-Cuadros’s sentence is
AFFIRMED.2
2
Judge Jones concurs in the judgment only, subject to her
dissent in Calderon-Pena, 2004 WL 1888407, at *6.
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