United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 7, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-50140
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL LIMON-RIVERA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:04-CR-1967-ALL-DB
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Manuel Limon-Rivera (Limon) appeals his conviction and
sentence for illegal reentry. See 8 U.S.C. § 1326. He argues
that the district court plainly erred in characterizing his prior
battery conviction as a “crime of violence” under U.S.S.G.
§ 2L1.2(b)(1)(A) and using it to increase his guideline offense
level by 16.
In determining whether an offense is a crime of violence,
this court “looks to the elements of the crime, not to 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this opinion should not be published and is not precedent except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. 05-50140
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defendant’s actual conduct in committing it.” United States v.
Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2004) (en banc). “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. However, if the statute contains disjunctive
elements, the charging instrument may be consulted. See
Calderon-Pena, 383 F.3d at 258. Because proof of the intentional
use of force is not required for a conviction under the Arkansas
second degree battery statute, ARK. CODE ANN. § 5-13-202, and
because the charging instrument is not part of the record from
which the disjunctive elements of § 5-13-202 can be determined,
we cannot conclude that Limon’s prior battery conviction is a
“crime of violence” under § 2L1.2(b)(1)(A). See United States v.
Vargas-Duran, 356 F.3d 598, 605 (5th Cir.)(en banc), cert.
denied, 541 U.S. 965 (2004). The district court plainly erred in
characterizing it as such. United States v. Alarcon, 261 F.3d
416, 423-24 (5th Cir. 2001). Accordingly, Limon’s conviction is
AFFIRMED, his sentence is VACATED, and this case is REMANDED for
resentencing.
As Limon concedes, Almendarez-Torres v. United States, 523
U.S. 224 (1998) forecloses his argument that the “aggravated
felony” portion of 8 U.S.C. § 1326(b)(2) defines a separate
offense which must be charged in the indictment. Apprendi v. New
Jersey, 530 U.S. 466 (2000), did not overrule Almendarez-Torres.
See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
No. 05-50140
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CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED FOR
RESENTENCING.