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

_______________



### U NITED 

### S TATES OF 

### AMERICA 

### , Plaintiff-Appellee,
VERSUS


### R OLANDO 

### G ARCIA 

### -O RTIZ 

### ,

Defendant-Appellant.

_________________________ Appeal from the United States District Court fo r the Eastern District of Texas 

### m 4:05-CR-153-ALL

______________________________

Before J ONES , Chief Judge, REAVLEY and S MITH , Circuit Judges.
JERRY E. S MITH , Circuit Judge: * Rolando Garcia-Ortiz appeals the sixteenlevel sentence enhancement he received based on a Texas conviction of attem pted aggravated sexual assault. We vacate and remand for develo pment of the record.

I. Garcia-Ortiz pleaded guilt y of being unlawfully present in the Unit ed States aft er being deported, in vio lat io n of 8 U.S.C. § 1326. The presentence report (“PSR”) recom mended a * Pursuant to 5 TH C IR
. R. 47.5, the court has determined that this opinion should not be published and is not precedent except u nder the limited circumstances set forth in 5 TH C IR
. R
. 47.5.4.2

base of fense 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 attem

pted aggravated sexual assault, a “crime of violence.” Garcia-Ortiz objected to the PSR, contesting it s description of his earlier conviction and claiming that his confession to that crime was induced by pol ice 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 fo r plain er ror. United States v. Gracia-Cantu , 302 F.3d 308, 310 (5th Cir. 2002). The sentencing guidelines provide fo r a sixt een-level enhancement if “the defendant previously was deported, or unlawfully remained in the Unit ed States aft er a conviction for a felony that is .

. . a crime of vio lence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii) . A conviction can qualify as a “crime of vio lence” in either of two ways: (1) if the conviction is fo r one of the enumerated of fenses list ed in the com ment ary 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 p hysical fo rce against the person of ano th er,” i d. (quoting U.S.S.G. § 2L1.2, com ment n.1(B)(iii)).
We apply the categorical approach of Taylo r v. United States , 495 U.S. 575, 602 (1990), 1 under which courts determ ine the element s of the crime by lo oking to the statute of conviction, not the defendant’s underlying conduc t. U nited States v. Velasco , 465 F.3d 633, 638 (5th Cir. 2006). “If a statute contains mult iple, disjunctive subsections, courts may lo ok beyo nd the statute to certain ‘conclusive records made or used in adj udicating guilt ’ in order to determ

ine which particular statutory alt ernative applies to the defendant’s conviction.” U

nited 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, 5 46 U.S. 1070 (2005). These records are generally limited to the “charging docum

ent , written plea agreement , transcript of the plea collo quy, and any explicit factual finding by the trial judge to which the d efendant assented.” I d

. (quoting Shepard v. United States , 544 U.S. 13, 16 (2005)).
Our fir st task i s to determ ine o f what particular of fense Garcia-Ortiz was convicted. The PSR indicates that he was convic ted, by guilt y plea, of attem

pted aggravated sexual assault in 1997. Alt hough t he 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 statut e of conviction. The parties agree, however, th at Garcia-Ortiz was convict ed of attem

pted aggravated sexual assault.
Section 15.01 of the Texas Penal Code defines the preparatory of

fense of criminal attem pt, and section 22.021 defines aggravated sexual assault. Section 22.021 essentially recit es the statutory definit io n of sexual assault, T EX
. P ENAL C ODE § 22.011, 2 and adds three

1 See, e.g. Un ited 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. U

nited 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 assaul t (1) using one of six enum

erated m ethods of coercion, 3 (2) if the vict im is under fo urteen years of age or (3) if the vict im is sixt y- five years of age or ol der, i d

. § 22.021(a)(2). 4 The record does not tell us which subsections of section 22.021 Garcia-Ortiz’s conviction fo r attempted aggravated sexual assault was based upon.
Alt hough the PSR contains an alleged description of the events giving ri se to GarciaOrtiz’s earl

ier conviction, we cannot look to that description to determ ine whether the convict io n was of a crime of vio lence

. 5 The record does not contain any of th e docum ents, list ed earlier, that we are permitted to consult. Thus, on the record before us we are unable to identify wit h legal certaint y which subsections of the aggravated sexual assault statute Garc ia-Ortiz was convicted of , and thus wheth er th e conviction required proof of the use, at

tem pted use, or th

reatened use of physical fo rce. Where we cannot ascertain, under plain error review and fo r purposes of the § 2L1.2 enhancement, which subsection of a statute a defendant vio lat ed, we vacate and reman d fo r supplementation of the record. 6 Accordingly, (...continued) qualify, however. U

nited 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 Subdivis ion (1) directed toward the sam

e victim and occurring during the course of the same criminal episode; or (vi) administers or provides flunitrazepam, other wise known as rohypnol, gamma hydroxybutyrate, or ketamine to the victim of the offense with the intent of facilitating the commission of the offense.
T EX
. P ENA

L C ODE § 22.021(a)(2)(A).

4 “Attempt to commit an aggravated offense” is defined as when “an element that aggravates the offense accomp anie s the attempt.” T E X
. P ENA L C ODE § 15.01(b). “Attempt” is defined as when a (continued...) 4 (...continued)

person “with specifi c intent to commit an offense

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

5 Ga rza-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-Ch avez , 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 fo r 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).