United States Court of Appeals

Fifth Circuit

FILED

January 14, 2004

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 02-20331

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

PEDRO CALDERON-PENA,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________

ON PETITION FOR REHEARING

(Opinion July 17, 2003, 339 F.3d 320)

Before SMITH and BARKSDALE, Circuit

Judges, and DUPLANTIER,

*

 District Judge.

PER CURIAM:

In his petition for rehearing en banc, defendant Pedro Calderon-Pena suggests that this

court’s en banc rehearing in United States v.

Vargas-Duran, 319 F.3d 194 (5thCir.), vacated for rehearing en banc, 336 F.3d 418 (5th

Cir. 2003), might compel a different result in

this case. Specifically, Calderon-Pena posited,

before Vargas-Duran was heard en banc, that

that case “may resolve the central question at

issue here, namely, whether an element of

causing (or, in this case, risking) bodily injury

* District Judge of the Eastern District of Louisiana, sitting by designation. 
2

is tantamount to an element of using or attempting to use force.”

The en banc court has now decided VargasDuran, and it plainly has no affect on the result

we have reached in this case. See United

States v. Vargas-Duran, No. 02-20116, 2004

U.S. App. LEXIS 180 (5th Cir. Jan. 8, 2004).

Though Vargas-Duran requires a showing of

intent with respect to the “use” or attempted

“use” of force in an underlying offense,1

Calderon-Pena’s offenses, as charged, remain

“crimes of violence” under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii), application note 1(B)-

(ii)(I) (2001). 

As described in our opinion, 339 F.3d at

329, the indictment states, in part, that Calderon-Pena “intentionally . . . engaged in

conduct that placed [his two children] in imminent danger of bodily injury . . . by striking

a motor vehicle occupied by [the children]

with [Calderon-Pena’s] motor vehicle.” We

concluded, id. at 330, that “Calderon-Pena’s

child endangerment convictions. . . have as an

element at least the attempted use of physical

force, if not the use of physical force itself.”2

Even ifVargas-Duran is now read to preclude

the conclusion that Calderon-Pena was convicted of the “use” of physical force, it is certain that his conviction is based on its “attempted use.”

In considering Calderon-Pena’s prior conviction, we addressed the Texas child endangerment statute as “pared down” by information in hisindictment. Id. at 328-29; see United States v. Taylor, 495 U.S. 575, 599-601

(1990). In United States v. Allen, 282 F.3d

339, 343 (5th Cir. 2002), we read Taylor “. . .

as allowing the sentencing court to consider

only the statutory definition of the offense, the

charging paper and juryinstructions” (emphasis added). Accordingly, under Allen and Taylor, we look to the indictment for the limited

purpose of determining which of a series of

disjunctive elements a conviction satisfies.3

At the time of Calderon-Pena’s prior conviction, the Texas child endangerment statute

provided that 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 mental impairment.” TEX.

PENAL CODE § 22.04 (1999). Because the

1

“Both an attempt and a threat require intent.”

Vargas-Duran, 2004 U.S. App. LEXIS 180, at

*13 (citing BLACK’S LAW DICTIONARY 123, 1489

(7th ed. 1999)).

2 Vargas-Duran, id. at *19, confirms that

“§ 2L1.2 allows enhancement when the statute has

‘as an element the use, attempted use, or threatened

use of force’” (citing § 2L1.2, application note

1(B)(ii)(I)).

3

SeeCalderon-Pena, 339 F.3d at 329;see also

United States v. Landeros-Gonzales, 262 F.3d

424, 426 (5th Cir. 2001) (holding that the various

subsections of a comprehensive statute should be

treated as separate offenses, and the indictment

should be examined to determine the applicable

subsection); United States v. Valladares, 304 F.3d

1300, 1303 (8th Cir. 2002) (“[W]hen the statutory

definition of a predicate offense encompasses

conduct that may or may not be included in the applicable guideline, the sentencing court may look to

the underlying charging papers and jury instructions to determine the elements of the crime of

which the defendant was convicted.”); United

States v. Smith, 171 F.3d 617, 619-21 (8th Cir.

1999); United States v. Damon, 127 F.3d 139,

142-43 (1st Cir. 1997). The en banc opinion in

Vargas-Duran does nothing to undermine this

approach.
3

disjunctive elements describing the mental

state of the crime do not all require intentionality with respect to the creation of an imminent danger of bodily injury, and therefore

with respect to the “use” or “attempted use” of

force, the statute ordinarily would not qualify

as a “crime of violence” under Vargas-Duran.

Calderon-Pena’s indictment, however,

showsthat he was convicted of “intentionally”

engaging in the prescribed behavior. According, we have noted that “[w]e see that Calderon-Pena was convicted of two counts of

‘intentionally . . . by act . . . engag[ing] in

conduct that place[d] a child younger than 15

years in imminent danger of . . . bodily

injury[.]” Calderon-Pena, 339 F.3d at 329. 

In other words, Calderon-Pena was convicted of a crime with an intentional mental

state with respect to the creation of an imminent danger of bodily injury. Where there is a

bodilyinjury, there issome sort of accompanying use of forceSSwhether obviously, through

use of an automobile as a weapon (as in this

case), or through more subtle means, such as,

for example, poison, or even subjecting a victim to disease. Because Calderon-Pena was

aware of an imminent danger and undertook to

create it, he attempted to make “use” of the

force that would cause the injury.

4

Consequently, he was convicted of a “crime of

violence” for purposes of the sentencing enhancement under § 2L1.2. 

In undertaking a detailed analysis of the

intricate legal issues involved in this and similarsentencing guidelines appeals, we should be

mindful not to lose sight of the forest for the

trees. Calderon-Pena’s prior offense was, by

anyone’s common-sense definition, a “crime of

violence.” As described in the indictment, and

in the panel opinion, 339 F.3d at 329,

Calderon-Pena intentionally used his motor

vehicle to strike a vehicle occupied by his

young children, thereby placing them in imminent danger. We are confident that Congress, if presented with these specific facts,

would agree that this crime fits the intended

definition of “crime of violence.” Fortunately,

that conclusion is consistent with the decision

we have made after parsing the applicable statutes, guidelines, and caselaw.

Treating the petition for rehearing en banc

as a petition for panel rehearing,5the petition

for panel rehearing is DENIED.

4 Because the child endangerment statute requires only the creation of an “imminent danger” of

injury, it is arguable that the narrowed statute

applied to Calderon-Pena should not be said to satisfy the “use” prong of the “crime of violence”

definition. Because no actual force must act upon

the victim, and a person may be put in “imminent

danger” without suffering harm, a defendant might

be convicted under circumstances in which no

actualforce caused injury to the body of the victim.

Accordingly, it could be argued that no force was

(continued...)

4

 (...continued)

“use[d].” See supra;see also Calderon-Pena, 339

F.3d at 330. We need not decide that question,

because we conclude that Calderon-Pena was

convicted of the attempted use of force.

5

See Internal Operating Procedure accompanying 5TH CIR. R. 35 (“A petition for rehearing en

banc is treated as a petition for rehearing by the

panel if no petition is filed.”)