United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT June 14, 2007
Charles R. Fulbruge III
No. 06-41020 Clerk
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HUGO VICTOR CANO-ESPARZA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(7:06-CR-53-1)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Following a guilty-plea conviction for illegal reentry
following deportation, Hugo Victor Cano-Esparza was sentenced,
inter alia, to 46 months imprisonment after the district court, in
computing the advisory Guidelines sentencing range, imposed a
sentencing enhancement for Cano-Esparza’s having been previously
deported following a “crime of violence”. Cano-Esparza claims:
the district court erred in finding his prior state felony-assault
conviction constituted a crime of violence under Guidelines
*
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this opinion should not be published and is not precedent except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.
§ 2L1.2(b)(1)(A)(ii); and the sentencing-enhancement statute, 8
U.S.C. § 1326(b), is unconstitutional.
Although Cano-Esparza objected to the enhancement in district
court, he did not do so on the basis presented here. Therefore,
our review is only for plain error. See United States v. Musa, 45
F.3d 922, 924 n.5 (5th Cir. 1995) (“To preserve an issue for review
on appeal, the defendant’s objection must fully apprise the
[district court] of the grounds for the objection so that evidence
can be taken and argument received on the issue.”); United States
v. Ochoa-Cruz, 442 F.3d 865, 866 (5th Cir. 2006) (plain error
exists when clear or obvious error affects defendant’s substantial
rights).
Section 2L1.2(b)(1)(A)(ii) authorizes a sentencing enhancement
when a defendant was previously deported after committing a “crime
of violence”. That section’s application note defines a crime of
violence as, inter alia, any state or federal offense “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) (emphasis added).
Cano-Esparza’s prior assault offense violated Texas Penal Code
§ 22.01(a)(1) and (b)(2) (Vernon 1999), which proscribes
“intentionally, knowingly, or recklessly caus[ing or threatening]
bodily injury to another”. Because use of force is not an element
of Texas’ assault provision, the district court committed a clear
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or obvious error in looking to the conduct underlying the offense
to determine it constituted a crime of violence. United States v.
Villegas-Hernandez, 468 F.3d 874, 882 (5th Cir. 2006) (use of force
is not an element of TEX. PENAL CODE § 22.01(a)(1)), cert denied, 127
S. Ct. 1351 (2007); see also United States v. Calderon-Pena, 383
F.3d 254, 257 (5th Cir. 2004) (“Although the actual conduct
described in the indictment[] could be construed to involve the use
of physical force .... [t]he [proper] inquiry ... looks to the
elements of the crime, not to the defendant’s actual conduct in
committing it”); United States v. Gonzalez-Chavez, 432 F.3d 334,
337 (5th Cir. 2005) (only if the statute of conviction contains
multiple, disjunctive elements, one or more of which involves the
use or threatened use of force as an element, may a court look to
underlying conduct to determine which statutory alternative applies
to the defendant’s conviction). Obviously, this error affected
Cano-Esparza’s substantial rights. Therefore, his sentence is
vacated and this case is remanded for resentencing. See Villegas-
Hernandez, 468 F.3d at 885; United States v. Villegas, 404 F.3d
355, 364 (5th Cir. 2005); see also United States v. Garza-Lopez,
410 F.3d 268, 275 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005).
In challenging the constitutionality of his sentencing
enhancement, Cano-Esparza contends prior felony convictions must be
treated as elements of the offense found by a jury, rather than as
sentencing factors. Cano-Esparza concedes this challenge is
3
foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 235
(1998). He raises it here only to preserve it for further review.
CONVICTION AFFIRMED; SENTENCE VACATED; REMANDED.
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