Case: 10-51129 Document: 00511754483 Page: 1 Date Filed: 02/10/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 10, 2012
No. 10-51129 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JOSE LUIS MIRANDA-ORTEGON,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
Before REAVLEY, DAVIS, and PRADO, Circuit Judges.
REAVLEY, Circuit Judge:
Jose Miranda Ortegon challenges the sentence imposed on him after
pleading guilty to illegally reentering the United States after deportation. He
contends the district court erred when calculating his offense level under the
United States Sentencing Guidelines, in particular by applying a sixteen-level
adjustment on the basis of an Oklahoma conviction for domestic assault and
battery, which the district court concluded was a “crime of violence” under
U.S.S.G. §•2L1.2(b)(1)(A)(ii). We agree with Ortegon, and we VACATE his
sentence and REMAND the case for re-sentencing.
Case: 10-51129 Document: 00511754483 Page: 2 Date Filed: 02/10/2012
No. 10-51129
I. BACKGROUND
Ortegon pleaded guilty, without a plea agreement, to one count of illegal
reentry, in violation of 8 U.S.C. § 1326. Guidelines § 2L1.2(b)(1)(A)(ii) increases
the offense level for a § 1326 violation by sixteen if the defendant was previously
deported after being convicted of a crime of violence.1 Prior to his deportation,
Ortegon was convicted in Oklahoma after pleading guilty to two counts of
“assault and battery–domestic abuse,” in violation of OKLA STAT. tit. 21, § 644C.
Section 644C states that “[a]ny person who commits an assault and battery
against a current or former spouse . . . [or] a child . . . shall be guilty of domestic
abuse.”2
After Ortegon pleaded in the instant case, the probation officer calculated
his offense level under the Guidelines at twenty-one, including a sixteen-level
crime-of-violence increase based on the 644C conviction. Ortegon objected to
categorizing a 644C offense as a crime of violence, arguing instead for the four-
level increase for a felony conviction provided by §•2L1.2(b)(1)(D). The
probation officer declined to change the calculation in the pre-sentence report.
The probation officer supplemented the report with documents from the
Oklahoma conviction, including the charging instrument and findings of fact
memorializing Ortegon’s admission to the charging instrument’s allegations.
Those allegations relate that Ortegon pulled his spouse into a bedroom by her
hair and wrists, pushed her onto a bed, and struck her with an open hand, and
that Ortegon strangled and punched the other victim, his son. Ortegon renewed
his objection at sentencing. He argued that an offense under section 644C does
1
U.S.S.G. § 2L1.2(b)(1)(A)(ii).
2
OKLA. STAT. tit. 21, § 644C (West, 2004). We use the version of section 644 current
when Ortegon was charged on June 25, 2005.
2
Case: 10-51129 Document: 00511754483 Page: 3 Date Filed: 02/10/2012
No. 10-51129
not require the use of physical force because it can be committed with the
slightest unconsensual touching, and that this court’s precedents preclude
relying on the specific conduct underlying a conviction to determine whether his
offense was a crime of violence under §•2L1.2(b)(1)(A)(ii). The district court
agreed that a 644C “offense can be committed a number of different ways,” but
nevertheless applied the crime-of-violence adjustment because Ortegon had
admitted to the physically injurious violence alleged in the charging instrument.
An offense level of twenty-one yielded a guideline range of between forty-
one and fifty-one months. The district court imposed a forty-one month
sentence, and Ortegon timely appealed. His only contention on appeal is that
an offense under 644C should not be categorized as a “crime of violence” within
the meaning of § 2L1.2(b)(1)(A)(ii). He urges us to vacate his sentence and
remand the case for re-sentencing. We do so because precedent requires us to
distinguish between the actual conduct of the defendant and the crime for which
he was convicted. He did use violence against his wife and son, but the crime for
which he was convicted does not embrace that violence.
II. DISCUSSION
We review the district court’s interpretation of the sentencing guidelines
de novo. United States v. Calderon-Pena.3 Under the applicable portion of the
definition supplied in § 2L.1.2’s commentary, a crime of violence is “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
3
383 F.3d 254, 256 (5th Cir. 2004) (en banc).
3
Case: 10-51129 Document: 00511754483 Page: 4 Date Filed: 02/10/2012
No. 10-51129
another.”4 The physical force must be “capable of causing physical pain or injury
to another person.” United States v. Flores-Gallo.5 We must therefore determine
whether a violation of section 644C has as an element the attempted,
threatened, or actual use of physical force capable of causing physical pain or
injury. Our precedents mandate a categorical inquiry that “looks to the elements
of the crime, not to the defendant’s actual conduct in committing it.” Calderon-
Pena.6 We may take a modified categorical approach, permitting consultation
of the allegations in the charging instrument, if the statute of conviction has
disjunctive elements.7 But we may look beyond the elements and the fact of
conviction only for the limited purpose of ascertaining which of the disjunctive
elements the charged conduct implicated. United States v. Acuna-Cuadros.8
The elements of a 644C offense include the use of “force or violence.”9 But
the Oklahoma Court of Criminal Appeals has held that “only the slightest
touching is necessary to constitute the ‘force or violence’ element of battery.”
Steele v. State.10 Moreover, the definition of “force” in that court’s uniform jury
instructions for assault and battery offenses states: “Any touching of a person
4
U.S.S.G. § 2L1.2(b)(1)(A)(ii) cmt. n.1(B)(iii). The definition also encompases several
enumerated crimes. Id. The parties agree that the enumerated crimes do not include the
offense at issue here.
5
625 F.3d 819, 823 (5th Cir. 2010) (internal quotation marks and citation omitted).
6
383 F.3d at 257.
7
Id. at 258.
8
385 F.3d 875, 879 (5th Cir. 2004); Calderon-Pena, 383 F.3d at 258.
9
OKLA. STAT. tit. 21, § 642 (West, 2004); Okla. Jury Inst. 4-26A.
10
778 P.2d 929, 931 (Okla. Crim. App. 1989).
4
Case: 10-51129 Document: 00511754483 Page: 5 Date Filed: 02/10/2012
No. 10-51129
regardless of how slight may be sufficient to constitute force.”11 The Tenth
Circuit has held that an Oklahoma assault and battery offense “reaches behavior
that does not have as an element the use, attempted use, or threatened use of
physical force against the person of another . . . .” United States v. Smith.12 It
may be that most 644C prosecutions arise from offensive touching that threatens
or inflicts bodily injury. But under the categorical inquiry our precedents
require, a 644C offense is not a “crime of violence” within the meaning of
U.S.S.G. § 2L1.2(b)(1)(A)(ii). Cf. Johnson v. United States.13
Ortegon’s guideline range would have been considerably lower if the
district court had not applied the sixteen-level crime-of-violence adjustment.
Applying the adjustment for an aggravated felony (eight levels) or for a felony
(four levels) would yield a guideline range with an upper limit that is
considerably lower than forty-one months.14 And there is no indication that the
11
Okla. Jury Inst. 4-28.
12
652 F.3d 1244, 1247 (10th Cir. 2011) (citations and internal punctuation omitted).
The Tenth Circuit found that an Oklahoma assault-and-battery offense did not fall within the
first prong of the Armed Career Criminal Act (“ACCA”)’s “violent felony” definition, which
reads: “has as an element the use, attempted use, or threatened use of physical force against
the person of another.” § 924(e)(2)(B)(i); Smith, 652 F.3d at 1246. The Tenth Circuit
ultimately concluded that Oklahoma’s offense of assault and battery against an employee of
that state’s juvenile affairs office fell within the ACCA definition’s residual clause. 18 U.S.C.
§ 924(e)(2)(B)(ii) (taking in offenses that “otherwise involve[] conduct that presents a serious
potential risk of physical injury to another”); Smith, 652 F.3d at 1247-48. The commentary
to U.S.S.G. § 2L1.2(b)(1)(A)(ii) includes no equivalent residual clause.
13
____ U.S. ____, 130 S. Ct. 1265, 1269-71, (2010) (holding that Florida felony battery
conviction was not a “violent felony” under 18 U.S.C. § 924(e)(1)(2)(B)(i), because the offense’s
elements are “satisfied by any physical contact, no matter how slight” (quotation marks and
internal citation omitted)).
14
See U.S.S.G. §§ 2L1.2(b)(1)(C), 2L1.2(b)(1)(D); U.S.S.G. Ch. 5 pt. A (sentencing
table).
5
Case: 10-51129 Document: 00511754483 Page: 6 Date Filed: 02/10/2012
No. 10-51129
district court would impose the same sentence regardless of the guideline range.
See United States v. Ibarra-Luna.15
III. CONCLUSION
We VACATE Ortegon’s sentence and REMAND the case to the district
court for re-sentencing.
15
628 F.3d 712, 719 (5th Cir. 2010).
6