United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 13, 2005
Charles R. Fulbruge III
Clerk
No. 04-41172
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE LUIS VASQUEZ-TORRES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:03-CR-934-ALL
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Jose Luis Vasquez-Torres appeals his sentence imposed
following his guilty plea conviction for illegal reentry into the
United States following deportation. Vasquez was sentenced to a
term of imprisonment of forty-six months to be followed by a two-
year term of supervised release.
Vasquez-Torres argues that the district court erred in
enhancing his base offense level by 16 levels based on his prior
conviction for injury to a child because it was not a crime of
violence. He argues that the offense did not require proof of the
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-41172
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element of the use, attempted use, or threatened use of physical
force against a person and that the district court erred in relying
on the indictment in determining that the offense involved the use
of force.
Section § 2L1.2 of the United States Sentencing Guidelines
provides that the offense level for unlawfully entering or
remaining in the United States shall be increased by 16 levels if
the defendant has a prior conviction for a “crime of violence.”
U.S.S.G. § 2L1.2(b)(1)(A)(ii). The commentary to U.S.S.G. § 2L1.2
defines “crime of violence” as any of certain listed offenses or
“any 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.” U.S.S.G. § 2L1.2, comment.
(n.1(B)(iii)). Because injury to a child is not a listed offense,
the offense must involve the use or threatened use of force to be
a “crime of violence” in this context.
In determining whether the offense is a crime of violence, the
court “looks to the elements of the crime, not to the defendant’s
actual conduct in committing it.” United States v. Calderon-Pena,
383 F.3d 254, 257 (5th Cir. 2004)(en banc), cert. denied, 125 S.
Ct. 932 (2005). As the elements of an offense come from the
statute of conviction, the elements, and not the defendant’s
underlying conduct, are the proper focus. Id.
TEX. PENAL CODE ANN. § 22.04(a), the statute under which
Vasquez-Torres was indicted and convicted, criminalizes acts or
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omissions that intentionally, knowingly, recklessly, or negligently
result in injury to a child. The commission of the offense does
not require the use of physical force against a person. See United
States v. Gracia-Cantu, 302 F.3d 308, 312 (5th Cir. 2002).
Although Vasquez-Torres’ indictment charged that he hit a
child, the statute underlying his offense does not require the use
of physical force to be proved as an element of the offense. Thus,
it was not a crime of violence warranting a 16-level enhancement
pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). See United States v.
Acuna-Cuadros, 385 F.3d 875, 877-78 (5th Cir.), cert. denied, 125
S. Ct. 675, (2004). The sentence is vacated and the case is
remanded to the district court for resentencing.
Vasquez-Torres also argues that in light of Apprendi v. New
Jersey, 530 U.S. 466 (2000), the holding in Almendarez-Torres v.
United States, 523 U.S. 224 (1998), that the enhanced penalties in
8 U.S.C. § 1326 (b) are sentencing factors, is no longer
controlling law. He also argues that if Almendarez-Torres is
overruled, his sentence could be affected by the holding in Blakely
v. Washington, 124 S. Ct. 2531 (2004). He concedes that his
arguments are foreclosed by Supreme Court and circuit precedent.
Apprendi did not overrule Almendarez-Torres. See Apprendi,
530 U.S. at 489-90; United States v. Sarmiento-Funes, 374 F.3d
336, 346 (5th Cir. 2004). This court must follow Almendarez-Torres
“‘unless and until the Supreme Court itself determines to overrule
it.’” United States v. Mancia-Perez, 331 F.3d 464, 470 (5th Cir.)
No. 04-41172
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(citation omitted), cert. denied, 540 U.S. 935 (2003). Blakely
dealt with state sentencing guidelines and held that the relevant
statutory maximum for purposes of Apprendi is the maximum sentence
a judge may impose “solely on the basis of the facts reflected in
the jury verdict or admitted by the defendant.” Blakely, 124 S.
Ct. at 2537. Although United States v. Booker, 125 S. Ct. 738,
755-56 (2005) held that Blakely applies to the federal sentencing
guidelines, the Court has not held that it is applicable to cases
arising under Almendarez-Torres. Because Booker did not overrule
Almendarez-Torres, the Blakely argument fails and Vasquez-Torres
cannot successfully argue that a Sixth Amendment violation occurred
because he did not admit that he had prior convictions.
Booker excised from the Sentencing Reform Act the mandatory
duty of district courts to apply the federal sentencing guidelines
and effectively rendered the guidelines advisory only. 125 S. Ct
at 764. Because the case is being remanded to the district court
for resentencing, it is unnecessary to determine whether a
different sentence would have been imposed under the advisory
sentencing system.
SENTENCE VACATED; CASE REMANDED TO THE DISTRICT COURT FOR
RESENTENCING.