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

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### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### P EDRO 

### C ALDERON 

### -P ENA



### ,

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 S MITH and B ARKSDALE , Circuit

Judges, and D UPLANTIER

, * District Judge. P ER C URIAM :

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

co urt ’s en banc rehearing in U nited States v.

Vargas-Duran

, 319 F.3d 194 (5th Cir.), 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, n a mely, 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. S ee Unite d

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 w it h respect to the “use” or attempted

“use” of force in an underlying offense, 1

Calderon-Pena’s offenses, as charged, remain

“crimes of viol ence” under U.S.S.G.

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

(ii)(I) (2001).

As described in our opinion, 33 9 F.3d at

329, the indictment states, in part, tha t Cal

deron-Pena “intentionally

. . . engaged in

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

a m otor vehicle occupied by [the child ren]

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

concluded, id. at 330, t h at “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 if Vargas-Duran is now read to preclude

the conclusion that Calderon-Pe n a was convicted of the “use” of physical force, it is certain that his conviction is base d on its “attempted use.” In considering Calderon-Pena’s prior conviction, we addressed the Texas child endangerment statute as “pared down” by information in his indictment. I

d. 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 jury instructions” (emphasis added). Accordingly, under A llen and Taylor , we look to the indictment for the limited

purpose of determining which of a series o f

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

cr iminal negligence, by act or omission, engages in conduct t hat places a child younger

t han 15 years in imminent danger of deat h,

bodily injury, or mental imp airment.” T E X

. P ENAL C ODE § 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 B LACK ’ S L AW D ICTIONARY 123, 1489

(7th ed. 1999)).

2 Vargas-Dur

an

, i d. at *19, confirms that

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

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

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

1(B)(ii)(I)). 3 See Calderon-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

s u bsections of a comprehensive statute should be

treated as separate offenses, and the indictment

should be examined to d etermine the applicable

subsection); United States v. Valladares

, 304 F.3d

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

definition of a predicate offense encom passes

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

the underlying chargin g papers and jury instructions to determine the elements of the crime of

which the defendant was convicted.”); United

States v. Smith

, 17 1 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-D uran 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 cre at ion of an imminent da nger 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,

shows that 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

‘int ent io nally . . . by act . . . engag[ing] in

conduct that place[d] a child younger than 15

years in imm

i nent danger of

. . . bodily

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

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

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

bodily injury, there is some sort of accompanying use of force 

### SS

whether 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

fo rce that would cause the inj ury

. 4 Consequently, he was convicted of a “crime of

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

In und ert aking a detailed analysis of the

intricate legal issues involved in this and similar sentencing 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. 3 d at 329,

Calderon-Pena intentionally used his m otor

vehicle to st rike a vehicle occupied by his

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

wo uld 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, 5 the petition

for panel rehearing is DENIED.

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

i njury, it is arguable that the narrowed statute

applied to Calderon-Pena should not be said to satisfy the “use” prong of th e “ 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 circumst ances in which no

actual force caused injury to the body of the victim.

Accordingly, it could be argued that no force was

(continued...) 4 (...continued)

“use[d].” S ee supra ; see also Calderon-Pena

, 339

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

bec ause we conclude that Calderon-Pena was

convicted of the attempted use of force.

5 See Internal Operating Procedure accompanying 5 T H C IR

. R. 35 (“A petition for rehearin g en

banc is treated as a petition for rehearing by the

panel if no petition is filed.”)