United States Court of Appeals
Fifth Circuit
F I L E D
REVISED OCTOBER 17, 2006
September 26, 2006
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 05-10451
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
ANSELMO VELASCO, also known as Antonio Rodriguez, also known as
Charro Velasco
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before KING, GARWOOD, and JOLLY, Circuit Judges.
KING, Circuit Judge:
Defendant-appellant Anselmo Velasco pleaded guilty to
illegally reentering the country after having been deported. On
appeal, he challenges the imposition of a sixteen-level sentence
enhancement under U.S. SENTENCING GUIDELINES MANUAL § 2L1.2. For the
following reasons, we AFFIRM.
I. FACTUAL AND PROCEDURAL BACKGROUND
On October 18, 2004, defendant-appellant Anselmo Velasco, a
citizen of Mexico, was arrested by the United States Border
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Patrol in Anson, Texas. Velasco was charged with the offense of
illegal reentry after deportation in violation of 8 U.S.C.
§ 1326.1 On January 6, 2005, Velasco pleaded guilty to the
illegal reentry charge.
Velasco was sentenced under the 2004 version of the United
States Sentencing Guidelines (“the Sentencing Guidelines”) on
March 25, 2005. The sentencing guideline applicable to a
violation of § 1326 calls for a base offense level of eight.
U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(a) (2004). This base
1
Velasco was deported from the United States on July 10,
1998. He did not have permission from the Attorney General or the
Secretary of the Department of Homeland Security to reenter the
United States. Section 1326 reads in relevant part:
(a) Subject to subsection (b) of this section,
any alien who –
(1) has been denied admission, excluded,
deported, or removed or has departed the
United States while an order of
exclusion, deportation, or removal is
outstanding, and thereafter
(2) enters, attempts to enter, or is at
any time found in, the United States,
unless . . . the Attorney General has
expressly consented to such alien’s
reapplying for admission . . .
shall be fined under Title 18, or imprisoned
not more than 2 years, or both.
(b) Notwithstanding subsection (a) of this
section, in the case of any alien described in
such subsection –
. . .
(2) whose removal was subsequent to a
conviction for commission of an
aggravated felony, such alien shall be
fined under such Title, imprisoned not
more than 20 years, or both.
. . .
8 U.S.C. § 1326.
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offense level is increased by sixteen levels if the defendant was
previously deported after a conviction for a “crime of violence.”
Id. § 2L1.2(b)(1)(A). The presentence report (“the PSR”)
prepared by the United States Probation Office recommended a base
offense level of eight, an increase of sixteen levels because of
Velasco’s 1996 Illinois conviction for aggravated battery,2 which
the Probation Office classified as a “crime of violence,” and a
decrease in three levels for Velasco’s acceptance of
responsibility, for a total offense level of twenty-one.
Velasco objected to the characterization of his 1996
Illinois conviction for aggravated battery as a “crime of
violence” for sentence-enhancement purposes. The district court
overruled the objection and adopted the PSR’s characterization of
Velasco’s Illinois aggravated battery conviction as a “crime of
violence,” resulting in an offense level of twenty-one. On March
25, 2005, the district court sentenced Velasco to fifty-seven
months of imprisonment, three years of supervised release, and a
2
The PSR initially characterized a separate prior offense
committed by Velasco as a “drug trafficking offense for which the
sentence imposed exceeded thirteen months,” which under the
Sentencing Guidelines qualifies in the alternative for the same
sixteen-level enhancement as a “crime of violence.” Velasco
objected to the characterization of his prior drug conviction.
The government amended the PSR to reflect that the prior offense
was for possession of a controlled substance rather than for the
manufacture and delivery of cocaine, which removed the drug-
related offense from consideration as an offense qualifying for a
sixteen-level enhancement. The district court recognized the
amendment as proper during sentencing and considered only the
aggravated battery conviction as a basis for sixteen-level
enhancement.
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special assessment of $100.
II. DISCUSSION
Velasco appeals his sentence on the ground that the district
court improperly characterized his conviction for aggravated
battery as a “crime of violence” and thus improperly enhanced his
sentence. He also appeals the constitutionality of treating
prior convictions as sentencing factors rather than offense
elements under 8 U.S.C. § 1326(b). We review a district court’s
application and interpretation of the Sentencing Guidelines de
novo. United States v. Villegas, 404 F.3d 355, 359 (5th Cir.
2005) (per curiam). Guideline commentary “is given controlling
weight if it is not plainly erroneous or inconsistent with the
guidelines.” United States v. Urias-Escobar, 281 F.3d 165, 167
(5th Cir. 2002) (citing Stinson v. United States, 508 U.S. 36,
42-45 (1993)). We review the constitutionality of federal
statutes de novo. United States v. Bredimus, 352 F.3d 200, 203
(5th Cir. 2003).
A. Sentence Enhancement
Velasco was sentenced under § 2L1.2 of the 2004 version of
the Sentencing Guidelines.3 Section 2L1.2(b)(1)(A) calls for a
3
The PSR relied on the November 1, 2004 version of the
Sentencing Guidelines. Application of the 2004 Sentencing
Guidelines is proper under U.S. SENTENCING GUIDELINES MANUAL § 1B1.11
and does not implicate the Ex Post Facto Clause of the U.S.
Constitution because the 2004 sentencing provision at issue is
identical to the 2003 sentencing provision in effect when Velasco
committed the offense of illegal reentry on October 18, 2004.
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sixteen-level enhancement if the defendant previously has been
convicted of a “crime of violence.” The commentary to § 2L1.2
defines the term “crime of violence” as follows:
“Crime of violence” means any of the
following: murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses,
statutory rape, sexual abuse of a minor,
robbery, arson, extortion, extortionate
extension of credit, burglary of a dwelling,
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. SENTENCING GUIDELINES MANUAL § 2L1.2 cmt. n.1(B)(iii)(2004).
An offense can be a “crime of violence” either because it
fits within the enumerated list of qualifying offenses or because
it has as an element the use of force. United States v. Rayo-
Valdez, 302 F.3d 314, 316-19 (5th Cir. 2002). The district court
enhanced Velasco’s sentence upon finding that Velasco was
convicted under a specific disjunctive portion of the Illinois
aggravated battery statute and that this disjunctive portion had
as an element the use of physical force. Thus, the question
before us is whether the district court properly held that
Velasco’s Illinois aggravated battery conviction “has as an
element the use, attempted use, or threatened use of physical
force against the person of another.”4
4
The government does not argue that Velasco’s aggravated
battery conviction constitutes an enumerated crime of violence
for sentence-enhancement purposes. Although we resolve this case
under the “use of physical force” definition of a crime of
violence, we note that Velasco’s conviction for aggravated
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In United States v. Vargas-Duran, this court, sitting en
banc, held that for a non-enumerated offense to “have as an
element” the use, attempted use, or threatened use of physical
force necessary for a sentence enhancement under § 2L1.2, the use
battery is sufficiently similar to the Model Penal Code’s
definition of aggravated assault to qualify as the enumerated
offense of aggravated assault.
The Sentencing Guidelines do not define what constitutes an
“aggravated assault.” Where an offense is not defined by the
Sentencing Guidelines, this court applies a “common sense
approach,” defining the enumerated crime by its “generic,
contemporary meaning.” United States v. Izaguirre-Flores, 405
F.3d 270, 275 & n.16 (5th Cir. 2005) (citing United States v.
Dominguez-Ochoa, 386 F.3d 639, 642-43 (5th Cir. 2004)). Under
the categorical approach set forth by the Supreme Court in Taylor
v. United States, 495 U.S. 575, 577-78 (1990), we look to sources
such as the Model Penal Code and legal treatises and dictionaries
to “evaluat[e] the correspondence between [the] generic
contemporary meaning and the statutory definition of the prior
offense.” United States v. Torres-Diaz, 438 F.3d 529, 536 (5th
Cir. 2006).
Under the Model Penal Code, a person is guilty of aggravated
assault if he:
(a) attempts to cause serious bodily injury
to another, or causes such injury purposely,
knowingly, or recklessly under circumstances
manifesting extreme indifference to the value
of human life; or
(b) attempts to cause or purposely or
knowingly causes bodily injury to another
with a deadly weapon.
MODEL PENAL CODE § 211.1(2).
In examining Velasco’s indictment and the Illinois
aggravated battery statute, we can discern that Velasco was
convicted under § 12-4(b)(1) of the Illinois aggravated battery
statute in that he committed a battery — specifically, by
intentionally causing bodily harm to another — using a deadly
weapon. 720 IL. COMP. STAT. 5/12-4(b)(1) (1995). Comparing the
Illinois aggravated battery statutory elements to those of the
Model Penal Code, they correspond to § 211.1(2)(b). In
particular, the comparison reveals that the two definitions are
identical in regard to the required elements of mens rea,
causation of bodily harm, and use of a deadly weapon.
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of physical force must be a fact that is necessary for the
prosecution to secure a conviction. 356 F.3d 598, 605 (5th Cir.
2004) (en banc) (noting that “an element is a ‘constituent part
of a claim that must be proved for the claim to succeed’”
(quoting BLACK’S LAW DICTIONARY 538 (7th ed. 1999)). If any set of
facts would secure a conviction under the statute without proof
of the intentional use of force against the person of another,
then the offense cannot be characterized as a crime of violence
for sentence-enhancement purposes. Id.
When determining whether a prior conviction qualifies as a
“crime of violence” under the Sentencing Guidelines, this court
is bound by the categorical approach of Taylor v. United States,
495 U.S. 575, 577-78 (1990). See also Shepard v. United States,
544 U.S. 13, 19-20 (2005) (holding that Taylor’s categorical
approach applies equally to convictions following guilty pleas
and jury verdicts). Taylor requires us to consider only the
statutory definition of the offense charged, rather than the
defendant’s actual conduct underlying the offense, to determine
whether the offense contains an element involving the use of
force. See, e.g., United States v. Calderon-Pena, 383 F.3d 254,
257 (5th Cir. 2004) (en banc) (per curiam), cert denied 543 U.S.
1076 (2005); United States v. Gracia-Cantu, 302 F.3d 308, 312-13
(5th Cir. 2002). If there are several methods of committing a
crime under a statute, each method of violating the statute must
qualify as a “crime of violence,” without inquiry into the
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defendant’s actual use of force. Taylor, 495 U.S. at 577-78.
However, if an offense statute contains disjunctive statutory
alternatives under which a defendant may be convicted, a
sentencing court may look to the offense conduct described in the
indictment or jury instructions for the limited purpose of
determining which of the disjunctive alternatives a defendant’s
conviction satisfies. Calderon-Pena, 383 F.3d at 258. If the
precise disjunctive statutory alternative can be determined from
the indictment, then the court may look to that particular
provision to determine whether the use of force is a required
element of the offense. Id. at 258-59.
Velasco was convicted under the Illinois aggravated battery
statute. 720 ILL. COMP. STAT. 5/12-4 (1995).5 This court twice
5
Section 12-4 details a number of specific ways in which
aggravated battery can be committed. Relevant portions of the
statute are listed here to illustrate its disjunctive nature and
the range of ways in which aggravated battery can be committed:
(a) A person who, in committing a battery,
intentionally or knowingly causes great bodily
harm, or permanent disability or disfigurement
commits aggravated battery.
(b) In committing a battery, a person commits
aggravated battery if he or she:
(1) Uses a deadly weapon other than
by the discharge of a firearm;
(2) Is hooded, robed or masked, in
such manner to conceal his identity;
. . .
(c) A person who administers to an individual
or causes him to take, without his consent or
by threat or deception, and for other than
medical purposes, any intoxicating, poisonous,
stupefying, narcotic or anesthetic substance
commits aggravated battery;
(d) A person who knowingly gives to another
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previously has examined this statute to determine whether it
contains an element requiring the prosecution to prove that the
defendant engaged in the use of physical force. United States v.
Aguilar-Delgado, 120 F. App’x 522 (5th Cir. 2004) (unpublished);
United States v. Gomez-Vargas, 111 F. App’x 741 (5th Cir. 2004)
(per curiam) (unpublished). In each prior case we determined
that the Illinois aggravated battery statute provides for the
commission of the offense of aggravated battery in a number of
different ways, some of which do not require the use of physical
force against a person.6 Aguilar-Delgado, 120 F. App’x at 523;
Gomez-Vargas, 111 F. App’x at 743. In both cases the records on
appeal did not contain the indictments for the Illinois
convictions and the court was unable to discern under which of
the disjunctive statutory elements the defendants were charged
and convicted. See, e.g., Aguilar-Delgado, 120 F. App’x at 523
(“The record in this case does not include the indictment for the
Illinois conviction and we are unable to ‘pare down’ the statute
person any food that contains any substance or
object that is intended to cause physical
injury if eaten, commits aggravated battery.
720 ILL. COMP. STAT. 5/12-4 (1995).
6
For example, use of a poison, as proscribed by § 12-4(c),
does not require the use of physical force:
(c) A person who administers to an individual
or causes him to take, without his consent or
by threat or deception, and for other than
medical purposes, any intoxicating, poisonous,
stupefying, narcotic or anesthetic substance
commits aggravated battery.
720 ILL. COMP. STAT. 5/12-4(c) (1995).
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to determine which of its disjunctive elements were used to
charge and convict [the defendant].”). Accordingly, in each case
we held that the relevant conviction under the Illinois
aggravated battery offense statute could not be properly
characterized as a “crime of violence” because the use of
physical force could not be shown to be a required element
underlying the conviction.
Velasco relies on our decisions in Aguilar-Delgado and
Gomez-Vargas to argue that an Illinois aggravated battery
conviction categorically does not qualify as a “crime of
violence” for sentence-enhancement purposes. However, our prior
examinations of Illinois’s aggravated battery statute are not
dispositive of the present case. In contrast to the records on
appeal in Gomez-Vargas and Aguilar-Delgado, Velasco’s indictment
for aggravated battery is included in the record and identifies
the disjunctive portion of the aggravated battery statute under
which Velasco was charged and convicted. As such, we again turn
to the Illinois aggravated battery statute, with a more narrow
inquiry into whether the disjunctive portion under which Velasco
was convicted requires as an element the use of physical force.
We conclude that it does.
Under Illinois law, “aggravated battery” occurs when “[a]
person who, in committing a battery, intentionally or knowingly
causes great bodily harm, or permanent disability or
disfigurement.” 720 ILL. COMP. STAT. 5/12-4(a) (1995). The
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statute provides, in subsections (b) through (d), a number of
specific ways in which an aggravated battery can be committed.
Velasco’s indictment for aggravated battery indicates that he was
charged under § 12-4(b)(1) of the Illinois aggravated battery
statute:
ANSELMO VELASCO committed the offense of
AGGRAVATED BATTERY in that HE, INTENTIONALLY
OR KNOWINGLY WITHOUT LEGAL JUSTIFICATION
CAUSED BODILY HARM TO BRAULIO MATA WHILE USING
A DEADLY WEAPON, TO WIT: A KNIFE IN VIOLATION,
OF CHAPTER 720, ACT 5, SECTION 12-4(B)(1).
Section 12-4(b)(1) provides that “[i]n committing a battery,7 a
person commits aggravated battery if he or she: (1) uses a deadly
weapon other than by the discharge of a firearm.” 720 ILL. COMP.
STAT. 5/12-4 (1995). Beyond explicitly naming the portion of the
aggravated battery statute under which Velasco was convicted, the
indictment’s description of Velasco’s conduct — “caused bodily
harm while ... using a deadly weapon ... a knife” — corresponds
to the offense proscribed by § 12-4(b)(1). As a result, we look
only to § 12-4(b)(1) to determine whether the use of force is a
required element of Velasco’s conviction for aggravated battery.
There is only one means of conviction under § 12-4(b)(1),
which is to prove that the defendant actually “used” a deadly
weapon. Under Illinois law, a deadly weapon is “an instrument
7
A person commits battery under Illinois law “if he
intentionally or knowingly without legal justification and by any
means, (1) causes bodily harm to an individual or (2) makes
physical contact of an insulting or provoking nature with an
individual. 720 ILL. COMP. STAT. 5/12-3 (1995).
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that is used or may be used for the purpose of an offense and is
capable of producing death.” Illinois v. Blanks, 845 N.E.2d 1,
12 (Ill. App. Ct. 2005). Accordingly, in order to convict
Velasco of aggravated battery under § 12-4(b)(1), the government
was required to prove that Velasco “used” a deadly weapon for the
purpose of the offense of battery, which in this case was to
cause bodily harm.8
We conclude that § 12-4(b)(1) does indeed require proof of
the element of the use of physical force against the person of
another. In making this determination we note that it is
critical that the statute requires the actual “use” of the weapon
to commit the offense. In United States v. Diaz-Diaz, we held
that a criminal offense involving the mere possession of a deadly
weapon is not a “crime of violence” because the offense required
nothing more than actually carrying a weapon. 327 F.3d 410, 414
(5th Cir. 2003) (holding that the crime of “knowing possession”
of a short-barrel shotgun was complete without the use of any
physical force against the person or the property of another).
We distinguish, however, the “use” of a deadly weapon from mere
possession in regard to the relationship between the “use” of a
weapon and physical force. In order to “use” a weapon to cause
8
Under the Illinois general battery statute, battery
occurs when one either intentionally causes bodily harm to
another or makes physical contact of an insulting or provoking
nature. 720 ILL. COMP. STAT. 5/12-3 (1995). Velasco’s indictment
indicates that he was charged under the first alternative —
intentionally causing bodily harm to another.
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bodily harm, one must, at the very least, threaten the use of
physical force.
This decision is consistent with our case law. In United
States v. Guevara, we held that weapons of mass destruction are
instruments of physical force, and as such, a conviction for
threatening to use a weapon of mass destruction (anthrax)
qualified as a crime of violence for sentence-enhancement
purposes.9 408 F.3d 252, 259 (5th Cir. 2005). Similarly, a
deadly weapon, in that it is capable of producing death, is an
instrument of physical force. Other circuits have also concluded
that the use of a deadly weapon to commit aggravated battery
necessarily involves the use of physical force for the purpose of
sentence enhancement under § 2L1.2(b)(1)(A). In United States v.
Treto-Martinez, the court examined a Kansas aggravated battery
statute and reasoned that the use of a deadly weapon whereby
great bodily harm, disfigurement, or death can be inflicted has
as a required element the threatened use of physical force, and
therefore, sixteen-level enhancement as a “crime of violence” was
proper. 421 F.3d 1156, 1160 (10th Cir. 2005).
We conclude that the “use” of a deadly weapon to cause
9
Guevara construed a “crime of violence” under U.S.
SENTENCING GUIDELINES MANUAL § 4B1.2(a)(1) and we are mindful that the
Sentencing Guidelines vary across subsections regarding the
offenses that qualify as “crimes of violence.” See United States
v. Charles, 301 F.3d 309, 311-12 (5th Cir. 2002). However, we
note the corresponding definition of “crime of violence” in
§ 4B1.2(a)(1) is identical to that contained in § 2L1.2 cmt.
n.1(B)(iii). As such, Guevara is relevant.
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bodily harm — as expressly charged in Velasco’s indictment and
required by § 12-4(b)(1) — involves the element of the use of
destructive physical force against the victim’s person. As a
result, we hold that a conviction under § 12-4(b)(1) of the
Illinois aggravated battery statute is a “crime of violence” for
sentence-enhancement purposes.
B. Constitutionality of 8 U.S.C. § 1326(b)
Title 8 U.S.C. § 1326(a) makes it a crime, punishable by up
to two years’ imprisonment, for an alien to reenter the country
without permission after having previously been removed. Section
1326(b)(1)-(2) provides that aliens whose prior removal followed
a conviction of certain crimes may be imprisoned for
substantially longer terms. In Almendarez-Torres v. United
States, the Supreme Court held that § 1326(b) set forth
sentencing factors rather than separate offenses such that an
indictment in an illegal reentry case need not allege a
defendant’s prior conviction, and that the statute was
constitutional. 523 U.S. 224, 247 (1998).
Velasco contends that 8 U.S.C. § 1326(b) is unconstitutional
in light of Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000),
in which the Supreme Court held that facts that increase a
sentence beyond the statutory maximum must as a general matter be
found by a jury. But Apprendi explicitly refrained from
overruling Almendarez-Torres, and this circuit has consistently
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rejected Velasco’s position, stating that it is for the Supreme
Court to overrule Almendarez-Torres. See, e.g., United States v.
Sarmiento-Funes, 374 F.3d 336, 345-46 (5th Cir. 2004). Velasco
concedes that the issue is foreclosed by circuit precedent, and
he presents the issue solely to preserve it for possible further
review.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Velasco’s judgment of
conviction and sentence.
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