U.S. v. Calderon-Pena

• Decision Date: 24 August 2004
• Docket Number: No. 02-20331.,02-20331.
• Citation: 383 F.3d 254
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pedro CALDERON-PENA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 254

383 F.3d 254

UNITED STATES of America, Plaintiff-Appellee, v. Pedro CALDERON-PENA, Defendant-Appellant.

No. 02-20331.

United States Court of Appeals, Fifth Circuit.

August 24, 2004.

Tony Ray Roberts (argued), McAllen, TX, James Lee Turner and Renata Ann Gowie, Asst. U.S. Attys., Houston, TX, for Plaintiff-Appellee.

Roland E. Dahlin, II, Federal Public Defender, Timothy William Crooks, Asst. Federal Public Defender (argued), Houston, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO and PICKERING, Circuit Judges.

PER CURIAM:

This case involves the application of the sixteen-level "crime of violence" sentence enhancement under § 2L1.2 of the Sentencing Guidelines. Defendant Pedro Calderon-Pena's seventy-month sentence for illegally reentering the United States in violation of 8 U.S.C. § 1326 included a sixteen-level enhancement based on a prior conviction of the Texas crime of child endangerment. In accordance with our recent decision in United States v. Vargas-Duran, 356 F.3d 598 (5th Cir.2004) (en banc), we hold that Defendant's child-endangerment conviction does not "ha[ve] as an element the use, attempted use, or threatened use of physical force against the person of another" for purposes of the sixteen-level "crime of violence" enhancement under § 2L1.2. We accordingly vacate Defendant's sentence, and remand for re-sentencing.

I. BACKGROUND

In February 1999, Calderon-Pena, at that time a lawful permanent resident, pleaded guilty to two counts of the Texas offense of child endangerment for a January 1999 incident involving his two children. He was sentenced to fifteen months' imprisonment. In April 2000, the INS issued Calderon-Pena a notice to appear for a removal hearing. At the hearing, the immigration judge determined that the child-endangerment convictions were "aggravated felonies" under 8 U.S.C. § 1101(a)(43)(F), which rendered Calderon-Pena removable under 8 U.S.C. § 1227. After being removed in June 2000, Calderon-Pena was found unlawfully present in the United States in January 2001 and was later indicted for same under 8 U.S.C. § 1326. Calderon-Pena filed a motion to dismiss the indictment, which the district court denied.¹ The court then found him guilty on stipulated facts and sentenced him to seventy months' imprisonment. The sentence included a sixteen-level enhancement predicated on the finding that child endangerment was a "crime of violence" within the meaning of § 2L1.2 cmt. n.1(B)(ii) of the 2001 Sentencing Guidelines, the version that was in force at the time of sentencing.

A panel of this court affirmed Calderon-Pena's conviction and sentence, United States v. Calderon-Pena, 339 F.3d 320 (5th Cir.2003) ("Calderon-Pena I"), and later denied panel rehearing, 357 F.3d 518 (5th Cir.2004) ("Calderon-Pena II"). We granted Calderon-Pena's petition for rehearing en banc, 362 F.3d 293 (5th Cir.2004), and now vacate his sentence.

II. ANALYSIS

Calderon-Pena was sentenced under § 2L1.2 of the 2001 version of the Sentencing Guidelines. That section calls for a sixteen-level enhancement if the defendant has previously been convicted of a "crime of violence." The relevant commentary defines the term "crime of violence" as follows:

"Crime of violence" —

(I) means an 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; and

(II) includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including sexual abuse of a minor), robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.

U.S.S.G. § 2L1.2 cmt. n.1(B)(ii) (2001).² The government does not contend that the child-endangerment conviction is an enumerated offense under paragraph (II). Thus, the question before us is whether, under paragraph (I), the district court properly held that the prior offense "has as an element the use, attempted use, or threatened use of physical force against the person of another." We review the district court's interpretation of the Sentencing Guidelines de novo. United States v. Medina-Anicacio, 325 F.3d 638, 643 (5th Cir.2003).

Identifying the elements of the defendant's prior offense

The child-endangerment statute under which Calderon-Pena was convicted provides, in relevant part:

A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment.

Tex. Pen.Code Ann. § 22.041(c) (Vernon 2003).³ The record in this case contains the state indictments that led to the prior guilty-plea convictions. Apart from the name of the child involved, the two indictments are identical and charge that Calderon-Pena:

[O]n or about JANUARY 3, 1999, did then and there [i.e., in Harris County, Texas] unlawfully, intentionally and knowingly engage in conduct that placed [his son], a child younger than fifteen years of age and hereafter called the Complainant, in imminent danger of bodily injury, namely, by striking a motor vehicle occupied by the Complainant with the Defendant's motor vehicle.

Although the actual conduct described in the indictments could be construed to involve the use of physical force against the person of another, that is irrelevant for purposes of this case. The inquiry under paragraph (I) looks to the elements of the crime, not to the defendant's actual conduct in committing it. This rule springs directly from the language of the "crime of violence" definition itself, which states that a "crime of violence" is an offense that "has as an element" the use of force. U.S.S.G. § 2L1.2 cmt. n.1(B)(ii)(I) (emphasis added). The elements of an offense of course come from the statute of conviction, see United States v. White, 258 F.3d 374, 382 (5th Cir.2001), not from the particular manner and means that attend a given violation of the statute.⁴ Prior decisions of this court have accordingly held that the statute of conviction, not the defendant's underlying conduct, is the proper focus. See, e.g., Vargas-Duran, 356 F.3d at 606 (concluding that the inquiry is limited to "[l]ooking only at the fact of [the defendant's] conviction and the statutory definition"); United States v. Rodriguez-Rodriguez, 323 F.3d 317, 318-19 (5th Cir.2003) (same).

The understanding of "elements" just described comports as well with the Supreme Court's decision in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), which, in the context of a different sentence enhancement, distinguished the question of whether a crime has the use of force "as an element" from the question of whether the crime "involves" the use of force "in a particular case." Id. at 600. Taylor instructed, moreover, that a sentencing court's inquiry should, as a general rule, look only to the statutory definition of an offense and the fact of conviction and "not to the facts underlying the prior conviction[ ]." Id. at 600-02, 110 S.Ct. 2143.

At oral argument in this case, the government contended at certain points that defendants can qualify for the sixteen-level enhancement when they have previously been charged with and convicted of conduct that involved force, notwithstanding that no portion of the statute of conviction itself requires force. According to the government, the elements expand "beyond the statute" to include factual material about the method of committing the offense that, when alleged in charging papers, must then be proven at trial. That is, the government contends, if the statutory language itself fails to require force, we would turn to the manner of commission in the particular case (as charged) to see if that involved force. Thus, on this view, the ultimate question in this case would be whether Calderon-Pena's act of "striking a motor vehicle occupied by the Complainant with the Defendant's motor vehicle" involved the use of force. Under that approach, of course, the analysis of the statute would be superfluous: the determinative factor would be the forcefulness of the defendant's underlying charged conduct, regardless of the statute of conviction. Each conviction under the child-endangerment statute would then require its own individualized "use of force" inquiry, asking whether a particular method of endangering — leaving a child in a hot car, leaving a child near a deep pool, denying medical treatment, and so on, ad infinitum—involves force. This cumbersome approach would essentially excise the "element" language from the Guideline.⁵

Moreover, under Texas law, the manner and means, even when required to be charged in the indictment, does not constitute an element of the offense, but rather satisfies the due process concerns relating to providing defendants with sufficient notice of the crime for which they have been charged.⁶ See Boney v. State, 572 S.W.2d 529, 532 (Tex.Crim.App.1978) ("An indictment for aggravated assault need not allege the manner and means used to commit the assault as such is not an element of the offense but relates only to the certainty and definiteness required to enable the defendant to reasonably understand the nature and cause of the accusation against him.").

The panel that originally decided this case agreed that it would not be proper to "look[ ] to the indictment to see whether the facts there shown required force." Calderon-Pena I, 339 F.3d at 329. The panel then contrasted that concededly impermissible activity with the distinct activity of "looking to the indictment to determine which elements in a statute of conviction were satisfied." Id. It concluded that the sentencing court could look to the...