United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 11-2379

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United States of America, * 

*

Appellee, *

* Appeal from the United

v. * States District Court for the

* District of Nebraska.

Jose Salido-Rosas, *

*

Appellant. *

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Submitted: November 18, 2011

 Filed: December 8, 2011

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Before RILEY, Chief Judge, BEAM and BYE, Circuit Judges.

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RILEY, Chief Judge.

Jose Salido-Rosas, an alien, pled guilty to violating 8 U.S.C. § 1326(a) and

(b)(1) by knowingly and unlawfully reentering the United States after being deported.

Over Salido-Rosas’s objection, the district court enhanced Salido-Rosas’s sentence 1

under United States Sentencing Guideline (U.S.S.G.) § 2L1.2(b)(1)(E) because the

court determined Salido-Rosas had been convicted of three or more misdemeanor

“crimes of violence.” The district court then sentenced Salido-Rosas to 24 months

The Honorable Laurie Smith Camp, who became Chief Judge of the United

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States District Court for the District of Nebraska on December 1, 2011.
imprisonment. Salido-Rosas appeals, arguing the district court improperly enhanced

his sentence. We affirm.

I. BACKGROUND

A grand jury indicted Salido-Rosas for violating 8 U.S.C. § 1326(a) and (b)(1)

by knowingly and unlawfully reentering the United States following his convictions

for “three or more misdemeanors involving drugs, crimes against the person or both.” 

Without a plea agreement, Salido-Rosas pled guilty, but reserved his right to argue

the enhancement under U.S.S.G. § 2L1.2(b)(1)(E) did not apply. 

The revised modified presentence investigation report (PSR) assigned SalidoRosas a base offense level of 8. The PSR applied the § 2L1.2(b)(1)(E) enhancement

because it counted Salido-Rosas’s four assault and battery convictions under Omaha

Municipal Code (OMC) § 20-61 as misdemeanor “crimes of violence.” After a twolevel reduction for acceptance of responsibility, Salido-Rosas’s total offense level

was 10, and his criminal history category was V, resulting in an advisory Guideline

range of 21-27 months imprisonment.

The district court accepted the PSR and adopted the facts in the PSR as its

factual findings. Over Salido-Rosas’s objection, the district court determined SalidoRosas’s convictions under OMC § 20-61 were for crimes of violence under either a

categorical ormodified categorical approach. With regard to the modified categorical

approach, the district court stated, “in looking at the facts of the defendant’s offenses,

whether we look at the police reports or whether we look at the charging documents,

it’s clear that he actually committed crimes of violence. He hit people.” The district

court then sentenced Salido-Rosas to 24 months imprisonment and three years

supervised release. 

Salido-Rosas appeals, asserting the district court procedurally erred by

concluding his convictions under OMC § 20-61 were for crimes of violence. 

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II. DISCUSSION

“We review de novo a district court’s decision that a prior conviction is a

qualifying offense for a sentencing enhancement pursuant to U.S.S.G. § 2L1.2.”

 United States v. Garcia-Medina, 497 F.3d 875, 876 (8th Cir. 2007). 

U.S.S.G. § 2L1.2 sets forth the means of calculating the offense level for

defendants convicted under 28 U.S.C. § 1326. Section 2L1.2(b)(1)(E) provides for

a four-level enhancement for defendants who have been convicted of three or more

prior “misdemeanors that are crimes of violence or drug trafficking offenses.” 

Application Note 1(B)(iii) of § 2L1.2 defines “crime of violence” to include certain

enumerated offenses and “any other 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.”

In determining whether a prior conviction is for a crime of violence, courts

generally apply a categorical approach, looking at “the fact of conviction and the

statutory definition of the prior offense and determin[ing] whether the full range of

conduct encompassed by the . . . statute qualifies to enhance the sentence.” United

States v. Sonnenberg, 556 F.3d 667, 669-70 (8th Cir. 2009) (citing Taylor v. United

States, 495 U.S. 575, 600 (1990)); see also Shepard v. United States, 544 U.S. 13, 17

(2005).

“If the statute of conviction encompasses both conduct that qualifies for a

sentencing enhancement, and other conduct that does not, then the statute is

considered ‘overinclusive,’ and the court must apply a ‘modified categorical

approach’ to determine which portion of the statute was the basis for a conviction.” 

United States v. Benitez-De Los Santos, 650 F.3d 1157, 1159 (8th Cir. 2011). In

doing so, the court is “limited to the terms of the charging document, the terms of a

plea agreement or transcript of colloquy between judge and defendant in which the

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factual basis for the plea was confirmed by the defendant, or to some comparable

judicial record of this information.” Shepard, 544 U.S. at 27.

OMC § 20-61 provides,

It shall be unlawful purposely or knowingly to:

(a) Strike or attempt to strike another person with the intent to cause

bodily injury;

(b) Cause or attempt to cause bodily injury to another person;

(c) Place another person in fear of imminent bodily harm; or

(d) Touch the sexual or intimate parts of the body of another person

without his consent for the purpose of arousing or gratifying the

sexual desire of either party.

Salido-Rosas argues OMC § 20-61 is overinclusive. Assuming it is

overinclusive, the charging documents show Salido-Rosas was convicted of at least

three misdemeanor crimes of violence. A conviction under section 20-61 (a), (b), or 2

(c) is a crime of violence. Knowingly or purposely causing or attempting to cause

bodily injury or making another person fear imminent bodily harm necessarily

requires using, attempting to use, or threatening to use physical force. See Johnson

v. United States, ___ U.S. ___, ___,130 S. Ct. 1265, 1271 (defining “physical force,”

as used in 18 U.S.C. § 924(e), as “force capable of causing physical pain or injury to

another person”); U.S.S.G. § 2L1.2, Application Note 1(B)(iii) (defining “crime of

violence” to include “any other offense under federal, state, or local law that has as

an element the use, attempted use, or threatened use of physical force against the

To the extent the district court ran afoul of Shepard by considering the

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information in the police reports, it was harmless error. Salido-Rosas contends the

government waived the harmless error argument by not raising it in the government’s

brief. We exercise our discretion to overlook this waiver because the record is brief

and clear, the district court alternatively references the police reports while also

referencing the charging documents, any error clearly is harmless, and reversal would

“result in protracted, costly, and futile proceedings in [the] district court.” Lufkins

v. Leapley, 965 F.2d 1477, 1481 (8th Cir. 1992).

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person of another”). Salido-Rosas contends “bodily harm” does not necessarily

involve physical force because it may include merely offensive touching. See

Johnson, ___ U.S. at ___, 130 S. Ct. at 1268-71, 1274 (quoting State v. Hearns, 961

So.2d 211, 218 (Fla. 2007) (holding “any intentional physical contact, ‘no matter how

slight’” does not necessarily involve physical force); see also James v. United States,

550 U.S. 192, 208 (2007) (explaining “the proper inquiry is whether the conduct

encompassed by the elements of the offense, in the ordinary case, [involves the use,

attempted use, or threatened use of physical force against the person of another]. One

can always hypothesize unusual cases in which even a prototypically violent crime

might not present a genuine risk of injury . . . .”). We reject Salido-Rosas’s argument

because the references to “bodily injury” and “bodily harm” in OMC § 20-61(a)-(c)

place these subsections squarely within Johnson’s definition of offenses involving

physical force.

The charging documents make clear Salido-Rosas was convicted under OMC

§ 20-61(a), (b), or (c). Salido-Rosas indicates it is unclear whether he was convicted

under subsection (a), (b), or (c), but identifying the exact subsections of conviction

does not affect our analysis: conviction under any of those subsections would be a

conviction for a crime of violence. The district court properly applied the

enhancement under U.S.S.G. § 2L1.2(b)(1)(E).

III. CONCLUSION

We affirm.

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