United States Court of Appeals

Fifth Circuit

FILED

August 17, 2007

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 06-40342

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ROLANDO GARCIA-ORTIZ,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Eastern District of Texas

m 4:05-CR-153-ALL

______________________________

Before JONES, Chief Judge, REAVLEY

and SMITH, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Rolando Garcia-Ortiz appeals the sixteenlevelsentence enhancement he received based

onaTexas conviction of attempted aggravated

sexual assault. We vacate and remand for development of the record.

I.

Garcia-Ortiz pleaded guiltyof being unlawfully present in the United States after being

deported, in violation of 8 U.S.C. § 1326. The

presentence report (“PSR”) recommended a

* Pursuant to 5THCIR.R. 47.5, the court has determined that this opinion should not be published

and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
2

base offense level of 8 pursuant to U.S.S.G.

§ 2L1.2 and a 16-level increase under § 2L1.2-

(b)(1)(A)(ii) because Garcia-Ortiz had a Texas conviction of attempted aggravated sexual

assault, a “crime of violence.” Garcia-Ortiz

objected to the PSR, contesting its description

of his earlier conviction and claiming that his

confession to that crime wasinduced by police

coercion. The court adopted the PSR (with

certain exceptions not relevant to this appeal)

and sentenced Garcia-Ortiz to 71 months’ incarceration.

II.

Because Garcia-Ortiz did not object in the

district court, our review is for plain error.

United States v. Gracia-Cantu, 302 F.3d 308,

310 (5th Cir. 2002). The sentencing guidelines provide for a sixteen-level enhancement

if “the defendant previously was deported, or

unlawfully remained in the United States after

a conviction for a felony that is . . . a crime of

violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). A

conviction can qualify as a “crime of violence”

in either of two ways: (1) if the conviction is

for one ofthe enumerated offenseslisted in the

commentary to § 2L1.2, United States v.

Garcia-Mendez, 420 F.3d 454, 456 (5th Cir.

2005); or (2) if the crime of conviction “has as

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

of another,” id. (quoting U.S.S.G. § 2L1.2,

comment n.1(B)(iii)). 

We apply the categorical approach of Taylor v. United States, 495 U.S. 575, 602

(1990),1under which courts determine the elements of the crime by looking to the statute of

conviction, not the defendant’s underlying

conduct. United States v. Velasco, 465 F.3d

633, 638 (5th Cir. 2006). “If a statute contains multiple, disjunctive subsections, courts

maylook beyond the statute to certain ‘conclusive records made or used in adjudicating

guilt’ in order to determine which particular

statutory alternative appliesto the defendant’s

conviction.” United States v. Bonilla-Mungia,

422 F.3d 316, 320 (5th Cir.) (quoting United

States v. Garza-Lopez, 410 F.3d 268, 274 (5th

Cir. 2005)), cert. denied, 546 U.S. 1070

(2005). These records are generally limited to

the “charging document, written plea agreement, transcript of the plea colloquy, and any

explicit factual finding by the trial judge to

which the defendant assented.” Id. (quoting

Shepard v. United States, 544 U.S. 13, 16

(2005)).

Our first task is to determine of what particular offense Garcia-Ortiz was convicted.

The PSR indicates that he was convicted, by

guilty plea, of attempted aggravated sexual assault in 1997. Although the PSR notes that

the conviction was verified by a copy of the

judgment, the appellate record does not include the judgment, and the PSR does not specify the statute of conviction. The parties

agree, however, that Garcia-Ortiz was convicted of attempted aggravated sexual assault.

Section 15.01 of the Texas Penal Code defines the preparatory offense of criminal attempt, and section 22.021 defines aggravated

sexual assault. Section 22.021 essentially recites the statutory definition of sexual assault,

TEX. PENAL CODE § 22.011,2and adds three

1

See, e.g. United States v. Hernandez-Rodriguez, 467 F.3d 492, 494 (5th Cir. 2006) (citations

omitted).

2 A violation of Texas Penal Code § 22.011-

(a)(1) is not a crime of violence for purposes of

§ 2L1.2. United States v. Luciano-Rodriguez, 442

F.3d 320, 323 (5th Cir.), cert. denied, 127 S. Ct.

747 (2006). A violation of § 22.011(a)(2) does

(continued...)
3

discrete methods of elevating the sexual assault to aggravated sexual assault (1) using

one of six enumerated methods of coercion,3

(2) if the victim is under fourteen years of age

or (3) if the victim is sixty-five years of age or

older, id. § 22.021(a)(2).4 The record does

not tell us which subsections ofsection 22.021

Garcia-Ortiz’s convictionfor attempted aggravated sexual assault was based upon.

Although the PSR contains an alleged description of the events giving rise to GarciaOrtiz’s earlier conviction, we cannot look to

that description to determine whether the conviction was of a crime of violence.

5 The record does not contain any of the documents,

listed earlier, that we are permitted to consult.

Thus, on the record before us we are unable to

identify with legal certainty which subsections

of the aggravated sexual assault statute Garcia-Ortiz was convicted of, and thus whether

the conviction required proof of the use, attempted use, or threatened use of physical

force.

Where we cannot ascertain, under plain error review and for purposes of the § 2L1.2 enhancement, which subsection of a statute a defendant violated, we vacate and remand for

supplementation of the record.6 Accordingly,

(...continued)

qualify, however. United States v. Alvarado-Hernandez, 465 F.3d 188, 190 (5th Cir. 2006).

3 This prong is satisfied if the defendant

(i) causes serious bodily injury or attempts to

cause the death of the victim or another person

in the course of the same criminal episode;

(ii) by acts or words places the victim in fear

that death, serious bodily injury, or kidnapping

will be imminently inflicted on any person;

(iii) by acts or words occurring in the presence

of the victim threatens to cause the death, serious bodily injury, or kidnapping of any person;

(iv) uses or exhibits a deadly weapon in the

course of the same criminal episode;

(v) acts in concert with another who engages in

conduct described by Subdivision (1) directed

toward the same victim and occurring during

the course of the same criminal episode; or

(vi) administers or provides flunitrazepam, otherwise known as rohypnol, gamma hydroxybutyrate, or ketamine to the victim of the offense

with the intent of facilitating the commission of

the offense.

TEX. PENAL CODE § 22.021(a)(2)(A).

4

“Attempt to commit an aggravated offense” is

defined as when “an element that aggravates the

offense accompanies the attempt.” TEX. PENAL

CODE § 15.01(b). “Attempt” is defined as when a

(continued...)

4

(...continued)

person “with specific intent to commit an offense

. . . does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.” Id. § 15.01(a).

5 Garza-Lopez, 410 F.3d at 274 (“[U]nder

Shepard, a district court is not permitted to rely on

a PSR’s characterization of a defendant’s prior offense for enhancement purposes.”);see also United

States v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir.

2006).

6

See United States v. Gonzalez-Chavez, 432

F.3d 334, 338 (5th Cir. 2005) (“Where we cannot

identify with legal certainty under which portion of

a statute a defendant was convicted, we cannot determine whether a crime of violence enhancement

was proper. In such a case, we remand to the dis-

(continued...)
4

the judgment of sentence is VACATED and

REMANDED for development of the record

and resentencing.

6

(...continued)

trict court for supplementation of the record and

re-sentencing.”) (citing Bonilla-Mungia, 422 F.3d

at 321).