IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
No. 03-41081 May 24, 2005
Summary Calendar
Charles R. Fulbruge III
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee,
versus
JUAN NARANJO-HERNANDEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
(M-03-CR-345-1)
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Before WIENER, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Defendant-Appellant Juan Naranjo-Hernandez (Naranjo) appeals
his guilty-plea conviction and sentence for illegal reentry
following a prior deportation, in violation of 8 U.S.C. § 1326. For
the first time on appeal, Naranjo argues that the sentencing
provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional in
light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Naranjo
acknowledges that his argument is foreclosed by Almendarez-Torres
v. United States, 523 U.S. 224 (1998), but he seeks to preserve the
issue for Supreme Court review. Apprendi did not overrule
*
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this opinion should not be published and is not precedent except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.
Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United States
v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). The judgment of the
district court is therefore affirmed as to this ground.
Naranjo also contends that the district court erred in
enhancing his base offense level by 16 on a finding that his prior
Minnesota conviction for terroristic threats constituted a “crime
of violence” pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). The
government’s motion to supplement the record with copies of the
charging instruments for this predicate offense is granted.
See United States v. Charles, 301 F.3d 309, 313 n.7 (5th Cir.
2002)(en banc).
We review de novo the validity of the district court’s
application of such an enhancement. United States v. Calderon-Pena,
383 F.3d 254, 256 (5th Cir. 2004)(en banc), cert. denied, 125 S. Ct.
932 (2005); see also United States v. Villegas, ___ F.3d ___ (5th
Cir. Mar. 17, 2005) (No. 03-21220), 2005 WL 627963 at *4-*5.
Section 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines
provides for a 16-level increase when a defendant was previously
deported after a conviction for a crime of violence. A crime of
violence is identified in part as “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.”
U.S.S.G. § 2L1.2, comment. (n.1(B)(ii)(I)) (2002). In determining
whether an offense meets the definition of a crime of violence, we
do not look to the facts underlying the offense. Rather, we examine
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only the elements of the offense. See Calderon-Pena, 383 F.3d at
257-58. If the statute contains disjunctive elements, we may look
to the charging instrument. See id. at 258.
Under Minnesota law, there are various means by which an
individual can commit the offense of terroristic threats, some of
which do not require the “threatened use of physical force against
the person of another.” U.S.S.G. § 2L1.2, comment. (n.1)(B)(ii)(I);
see MINN. STAT. ANN. § 609.713 (2000). We may therefore examine the
charging instruments.
Naranjo was charged in the Minnesota criminal complaint with
“wrongfully and unlawfully directly or indirectly threaten[ing] to
commit a crime of violence, with the purpose to cause, or in
reckless disregard of the risk of causing terror in another.” The
elements of this offense are that (1) the accused made threats, (2)
to commit a crime of violence, (3) with the purpose of terrorizing
another or in reckless disregard of the risk of terrorizing another.
MINN. STAT. ANN. § 609.713(1); State v. Schweppe, 237 N.W.2d 609, 613-
14 (Minn. 1975). As “crime of violence” is defined under Minnesota
law, an individual may commit the offense with which Naranjo was
charged without threatening to use physical force against another
person. See MINN. STAT. ANN. §§ 609.1095(1)(d), 609.561, 609.855(5).
Although the underlying facts of the instant case may reveal that
Naranjo actually threatened to use physical force against another
individual, we do not consider such facts in the categorical
approach. See Calderon-Pena, 383 F.3d at 257-58. As it is possible
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under Minnesota law for the State to obtain a conviction under this
subsection of the terroristic threats statute without proof of the
threatened use of physical force against another person, this is not
an element of the offense. See United States v. Vargas-Duran, 356
F.3d 598, 605 (5th Cir. 2004) (en banc).
Based on the foregoing, the district court erred in applying
the 16-level enhancement for a prior conviction of a crime of
violence. See U.S.S.G. § 2L1.2(b)(1)(A). Accordingly, we vacate
Naranjo’s sentence and remand to the district court for resentencing
in accordance with this opinion. Although the district court’s
misapplication of the Guidelines requires remand, pretermitting our
need to consider Naranjo’s argument that his sentence was improperly
imposed in light of United States v. Booker, 125 S. Ct. 738 (2005),
we are confident that the district court will resentence in
conformity with Booker on remand.
MOTION TO SUPPLEMENT RECORD GRANTED; CONVICTION AFFIRMED; SENTENCE
VACATED; REMANDED FOR RESENTENCING.
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