United States v. Garcia

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 22, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 05-41030

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

RONALD GARCIA

Defendant - Appellant

Appeal from the United States District Court
for the Southern District of Texas, Laredo

Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.

PRADO, Circuit Judge:

Defendant-appellant Ronald Garcia appeals his judgment of

conviction and sentence, arguing that: (1) the statute under

which he was convicted, 21 U.S.C. § 841, is facially

unconstitutional under Apprendi v. New Jersey, 530 U.S. 466

(2000); and (2) the district court erred in concluding that his

prior conviction for third-degree assault in Colorado qualifies

as a crime of violence under the career offender provisions of

the United States Sentencing Guidelines Manual (“U.S.S.G.”)

§ 4B1.1 (2004). For the following reasons, we AFFIRM Garcia’s

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conviction, VACATE his sentence, and REMAND for development of

the record and resentencing.

I. BACKGROUND

On February 8, 2005, pursuant to an oral plea agreement,

Garcia pleaded guilty to possession with the intent to distribute

500 grams or more of cocaine, in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(B). In the presentence report (“PSR”),

the probation officer recommended a base offense level of thirty

pursuant to U.S.S.G. § 2D1.1. The PSR also included a

recommendation to increase the base offense level to thirty-four

because it concluded that two of Garcia’s prior convictions in

Colorado constituted crimes of violence and thus qualified Garcia

as a career offender under U.S.S.G. § 4B1.1. After receiving a

three-level reduction for acceptance of responsibility, Garcia’s

total offense level was thirty-one. This offense level, combined

with a Category VI criminal history score, resulted in a

sentencing range of 188 to 235 months.

The district court adopted the recommendations contained in

the PSR and sentenced Garcia to 188 months in prison and five

years of supervised release. Garcia timely appealed.1

II. DISCUSSION

A. Constitutionality of 21 U.S.C. § 841

1
Pursuant to his oral plea, Garcia did not waive his right
to appeal.

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 Garcia argues for the first time on appeal that the statute

under which he was convicted, 21 U.S.C. § 841(a) and (b), is

facially unconstitutional under Apprendi v. New Jersey, 530 U.S.

466 (2000). As he correctly concedes, this claim is foreclosed

by circuit precedent. See United States v. Slaughter, 238 F.3d

580, 582 (5th Cir. 2002) (rejecting the argument that Apprendi

rendered the provisions of § 841 facially unconstitutional). He

raises the issue only to preserve it for possible review by the

Supreme Court. Accordingly, we affirm his conviction.

B. Career Offender Enhancement Under U.S.S.G. § 4B1.1

Garcia also objects to the classification of one of his

prior convictions as a crime of violence and thus to his career

offender enhancement under U.S.S.G. § 4B1.1.2 Specifically, he

contends that his prior conviction for third-degree misdemeanor

assault in Colorado is not a crime of violence because the

Colorado assault statute does not require as an element the use,

attempted use, or threatened use of physical force and because

the offense does not involve conduct that presents a serious

potential risk of physical injury. Put another way, he argues

that third-degree assault in Colorado can be committed without

physical injury or physical contact of any type.

Because Garcia failed to raise this issue in the district

2
Garcia does not challenge the fact that his prior
conviction for burglary of a dwelling qualifies as a crime of
violence for purposes of § 4B1.1.

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court, we review for plain error. See United States v. Gonzalez-

Chavez, 432 F.3d 334, 336 (5th Cir. 2005). To establish plain

error, the defendant must show that (1) there is an error, (2)

the error is clear or obvious, and (3) the error affected his

substantial rights, i.e., the error affected the outcome of the

district court proceedings. Id. If these factors are

established, this court may exercise its discretion to correct

the error only if it “‘seriously affect[s] the fairness,

integrity, or public reputation of judicial proceedings.’”

Id. at 336-37 (quoting United States v. Gracia-Cantu, 302 F.3d

308, 310 (5th Cir. 2002)).

A defendant is a career offender and subject to an enhanced

sentence under the Guidelines if:

(1) the defendant was at least eighteen years old at the
time the defendant committed the instant offense of
conviction; (2) the instant offense of conviction is a
felony that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least two
prior felony convictions of either a crime of violence or
a controlled substance offense.

U.S.S.G. § 4B1.1(a).3 For purposes of the career offender

guideline, a crime of violence is any offense under federal or

state law, punishable by imprisonment for a term exceeding one

year, that either: “(1) has as an element the use, attempted use,

or threatened use of physical force against the person of

3
There is no dispute that Garcia was over eighteen years
old at the time of the instant offense or that the instant
offense is a felony that is a controlled substance offense for
purposes of U.S.S.G. § 4B1.1.

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another, or (2) is burglary of a dwelling, arson, or extortion,

. . . or otherwise involves conduct that presents a serious

potential risk of physical injury to another.” U.S.S.G.

§ 4B1.2(a)(1)-(2).4

The inquiry under § 4B1.2(a)(1) focuses on the elements of

the crime, not the defendant’s actual conduct in committing the

offense. See United States v. Calderon-Pena, 383 F.3d 254, 257

(5th Cir. 2004) (en banc). The elements of the crime come from

the statute of conviction, not from the particular manner or

means in which the statute was violated. See id. Thus, “the

statute of conviction, not the defendant’s underlying conduct, is

the proper focus.” Id.

The Colorado statute under which Garcia was convicted

provides:

A person commits the crime of assault in the third degree
if he knowingly or recklessly causes bodily injury to
another person or with criminal negligence he causes
bodily injury to another person by means of a deadly
weapon.

4
The commentary to § 4B1.2 further explains that:
“Crime of violence” includes murder, manslaughter,
kidnapping, aggravated assault, forcible sex offenses,
robbery, arson, extortion, extortionate extension of
credit, and burglary of a dwelling. Other offenses are
included as “crimes of violence” if (A) that offense has
as an element the use, attempted use, or threatened use
of physical force against the person of another, or (B)
the conduct set forth (i.e., expressly charged) in the
count of which the defendant was convicted involved use
of explosives (including any explosive material or
destructive device) or, by its nature, presented a
serious potential risk of physical injury to another.
U.S.S.G. § 4B1.2, cmt. n.1.

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COLO. REV. STAT. § 18-3-204 (1999). “Bodily injury” is defined as

“physical pain, illness, or any impairment of physical or mental

condition.” Id. § 18-1-901(3)(c). On its face, the Colorado

assault statute, and in turn the elements of the crime, does not

require any use, or threatened or attempted use, of physical

force. See id. § 18-3-204; see also United States v. Perez-

Vargas, 414 F.3d 1282, 1286 (10th Cir. 2005) (recognizing that

there are several examples of third-degree assault in Colorado

that would not use or threaten the use of physical force, such as

intentionally placing a barrier in front of a car to cause an

accident or intentionally exposing someone to hazardous

chemicals). Where some (though not all) methods of violating a

statute do not require the use, attempted use, or threatened use

of physical force against the victim, “the statute therefore does

not have, as an element, the use of physical force against the

person of another.” United States v. Sarmiento-Funes, 374 F.3d

336, 341 (5th Cir. 2004).

Although we have not previously considered whether a

conviction under the Colorado third-degree assault statute

qualifies as a crime of violence pursuant to U.S.S.G.

§ 4B1.2(a)(1), our conclusion that it does not comports with a

recent decision from the Tenth Circuit, in which the court held

that Colorado’s third-degree assault statute “does not

necessarily include the use or threatened use of ‘physical force’

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as required by the Guidelines.” Perez-Vargas, 414 F.3d at 1287.5

Because some methods of violating the Colorado third-degree

assault statute do not require the use, attempted use, or

threatened use of physical force against the person of another,

Garcia’s prior conviction in Colorado for third-degree assault

does not qualify as a crime of violence under § 4B1.2(a)(1).

We are still left to decide whether Garcia’s third-degree

assault in Colorado involved conduct that presented a serious

potential risk of physical injury to another, thus qualifying as

a crime of violence under U.S.S.G. § 4B1.2(a)(2). Under

§ 4B1.2(a)(2), “a categorical approach is taken to determine

whether the charged count of conviction, by its nature, presented

a serious potential risk of physical injury.” United States v.

Insaulgarat, 378 F.3d 456, 467 (5th Cir. 2004). “[A] crime is a

crime of violence under § 4B1.2(a)(2) only if, from the face of

the indictment, the crime charged or the conduct charged presents

a serious potential risk of injury to a person.” United States

v. Charles, 301 F.3d 309, 314 (5th Cir. 2002) (en banc) (emphasis

added). “Physical injury need not in fact result, but the

indictment must make it clear that the crime charged in fact

posed the risk.” Insaulgarat, 378 F.3d at 467.

5
In Perez-Vargas, the Tenth Circuit was considering a
sentence enhancement to illegal reentry under U.S.S.G. § 2L1.2,
but that guideline’s commentary contains identical language to
the force-as-an-element prong found in § 4B1.2(a)(1). Cf.
Sarmiento-Funes, 374 F.3d at 340 n.5.

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 We do not have the Colorado state indictment in the record

before us; consequently, we cannot identify with legal certainty

under which portion of the Colorado assault statute Garcia was

convicted.6 We therefore are unable to determine whether his

career offender enhancement is sustainable under U.S.S.G.

§ 4B1.2(a)(2). The government requests that this court remand to

the district court for supplementation of the record to include

the charging instrument, and Garcia does not oppose this request.

Accordingly, we vacate Garcia’s sentence and remand to the

district court for supplementation of the record and

resentencing. See United States v. Bonilla-Mungia, 422 F.3d 316,

321-22 (5th Cir. 2005) (vacating sentence and remanding for

supplementation of the record and resentencing where the court

could not determine whether a crime of violence enhancement was

proper). In doing so, we follow this circuit’s well-established

precedent, which “require[s] that for this part of the

[§ 4B1.2(a)(2)] analysis, we consider only the conduct charged in

6
Although the plea colloquy and sentencing transcript are
in the record, they do not help us identify which elements of
third-degree assault were involved in Garcia’s case. Cf. Shepard
v. United States, 544 U.S. 13, 16 (2005) (holding that in
determining the character of an offense in the context of
applying the Armed Career Criminal Act, the court is “limited to
examining the statutory definition, charging document, written
plea agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant
assented”); Calderon-Pena, 383 F.3d at 258-60 (holding that
whenever a statute has alternative methods of commission, the
court “may look to charging papers to see which of the various
statutory alternatives are involved in the particular case”).

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the count of which the defendant was convicted.” United States

v. Turner, 305 F.3d 349, 351 (5th Cir. 2002) (stating that the

court “must remand for resentencing” where “[t]he charging

instrument pertaining to defendant’s prior conviction is not in

the record”).7

On remand, the district court should order the government to

supplement the record with the charging documents that might

establish to which elements of third-degree assault in Colorado

Garcia pleaded guilty and whether the crime charged or the

conduct charged presented a serious potential risk of injury to a

person. Once the government has supplemented the record, the

district court should reconsider whether the career offender

enhancement is warranted under U.S.S.G. § 4B1.1. In making this

determination, the district court is not bound by the Guidelines.

The district court must nonetheless consider the applicable

offense category and sentence range under the Guidelines and our

post-Booker precedent, and it should clearly state its reasons

for the sentence it ultimately imposes.

7
Unlike the Tenth Circuit’s decision in United States v.
Paxton, 422 F.3d 1203 (10th Cir. 2005), we do not decide in this
case whether third-degree assault in Colorado constitutes a crime
of violence under U.S.S.G. § 4B1.2(a)(2). Instead, pursuant to
Fifth Circuit law, we remand this case to the district court for
supplementation of the record, recognizing that we need the
indictment to answer that question. See Turner, 305 F.3d at 351.
Because we leave for another day the question of whether third-
degree assault in Colorado is a crime of violence under
§ 4B1.2(a)(2), this decision does not conflict with the Tenth
Circuit.

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 III. CONCLUSION

For the foregoing reasons, we AFFIRM Garcia’s judgment of

conviction as imposed by the district court, VACATE Garcia’s

sentence, and REMAND for development of the record and

resentencing.

AFFIRMED IN PART; VACATED IN PART; and REMANDED.

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EDITH H. JONES, Chief Judge, dissenting:

The majority holds that Garcia’s previous conviction

under the Colorado third-degree assault statute, COLO. REV. STAT.

§ 18-3-204, does not necessarily qualify as a crime of violence.

See U.S.S.G. §§ 4B1.2(a), 2L1.2, cmt. n.1(B)(iii). While I would

agree with the majority’s analysis if this court were bound to

apply solely the Fifth Circuit’s “categorical approach” line of

cases, I do not think we can blind ourselves to on-point Tenth

Circuit decisions construing precisely the statute here at issue.

For this reason, I respectfully dissent.

I agree with the majority’s conclusion that the Colorado

third-degree assault statute does not require the “use of physical

force” as an element of the offense. The Tenth Circuit recognized

as much in United States v. Perez-Vargas, 414 F.3d 1282, 1286 (10th

Cir. 2005). However, the majority disregards the Tenth Circuit’s

later holding that a conviction under § 18-3-204 qualifies as a

crime of violence because it “involves conduct that presents a

serious potential risk of physical injury to another.” U.S.S.G.

§ 4B1.2(a)(2); see United States v. Krejcarek, 453 F.3d 1290 (10th

Cir. 2006); United States v. Paxton, 422 F.3d 1203 (10th Cir.

2005). In Paxton, the Tenth Circuit held that “a conviction under

[the Colorado third-degree assault statute] is a crime of violence

under U.S.S.G. § 4B1.2(a)(2) because the conduct necessary to

sustain the conviction presents a serious risk of physical injury

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to another.” Id. at 1207; see also Krejcarek, 453 F.3d at 1295

(reaffirming Paxton and stating that “it is clear that a third

degree assault presents risk of physical injury”).

Instead of following these precedents, the majority

remands to supplement the record with state court conviction

documents. The Tenth Circuit rejected this approach in Paxton in

concluding that a conviction under § 18-3-204 qualifies as a crime

of violence under U.S.S.G. § 4B1.2(a)(2). See Paxton, 422 F.3d at

1207 (“Nothing in the record informs us whether the bodily injury

in Mr. Paxton’s prior offense was physical or mental.”); see also

Krejcarek, 453 F.3d at 1295 (rejecting defendant’s argument that

his prior convictions did not involve the use of force because “the

possibility that a crime may be completed without injury is

irrelevant to the determination of whether it constitutes a crime

of violence within the meaning of § 4B1.2”).

The majority elects to be bound by this court’s

categorical approach methodology rather than by direct holdings of

a sister circuit. This is a highly peculiar result. It virtually

assures that criminal defendants with precisely the same conviction

records will be treated differently under the Sentencing Guidelines

depending on the circuit where they are caught. Further,

reasonable judges can disagree whether Colorado’s assault statute

involves conduct that poses a potential serious risk of physical

injury to another. In holding otherwise, the majority undermines

precisely the uniformity and ease of application that the Supreme

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12
Court’s Taylor1 decision envisioned.

Finally, the majority’s decision has created an

intercircuit conflict, notwithstanding the disclaimer added in

footnote seven of their opinion. The Tenth Circuit rejected resort

to extrinsic offense-specific papers as a requirement of proving

that a conviction under Colorado’s assault statute is a crime of

violence. Perhaps, on remand, the government will be able to

satisfy the majority’s evidentiary standard. From the government’s

standpoint, however, and from the disparate results defendants will

encounter, our circuits are split.

I would affirm the sentence based on the Tenth Circuit

decisions. Consequently, I respectfully dissent.

1
Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143
(1990).
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