* Pursuant to 5TH CIR. 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this opinion should not be published and is not precedent except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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-41081

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN NARANJO-HERNANDEZ,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

(M-03-CR-345-1)

--------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges. 

PER CURIAM:*

Defendant-Appellant Juan Naranjo-Hernandez (Naranjo) appeals

his guilty-plea conviction and sentence for illegal reentry

following a prior deportation, in violation of 8 U.S.C. § 1326. For

the first time on appeal, Naranjo argues that the sentencing

provisions of 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional in

light of Apprendi v. New Jersey, 530 U.S. 466 (2000). Naranjo

acknowledges that his argument is foreclosed by Almendarez-Torres

v. United States, 523 U.S. 224 (1998), but he seeks to preserve the

issue for Supreme Court review. Apprendi did not overrule

United States Court of Appeals

Fifth Circuit

F I L E D

May 24, 2005

Charles R. Fulbruge III

Clerk
2

Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; United States

v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000). The judgment of the

district court is therefore affirmed as to this ground.

Naranjo also contends that the district court erred in

enhancing his base offense level by 16 on a finding that his prior

Minnesota conviction for terroristic threats constituted a “crime

of violence” pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). The

government’s motion to supplement the record with copies of the

charging instruments for this predicate offense is granted.

See United States v. Charles, 301 F.3d 309, 313 n.7 (5th Cir.

2002)(en banc).

We review de novo the validity of the district court’s

application of such an enhancement. United States v. Calderon-Pena,

383 F.3d 254, 256 (5th Cir. 2004)(en banc), cert. denied, 125 S. Ct.

932 (2005); see also United States v. Villegas, ___ F.3d ___ (5th

Cir. Mar. 17, 2005) (No. 03-21220), 2005 WL 627963 at *4-*5. 

Section 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines

provides for a 16-level increase when a defendant was previously

deported after a conviction for a crime of violence. A crime of

violence is identified in part as “an 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.”

U.S.S.G. § 2L1.2, comment. (n.1(B)(ii)(I)) (2002). In determining

whether an offense meets the definition of a crime of violence, we

do not look to the facts underlying the offense. Rather, we examine
3

only the elements of the offense. See Calderon-Pena, 383 F.3d at

257-58. If the statute contains disjunctive elements, we may look

to the charging instrument. See id. at 258.

Under Minnesota law, there are various means by which an

individual can commit the offense of terroristic threats, some of

which do not require the “threatened use of physical force against

the person of another.” U.S.S.G. § 2L1.2, comment. (n.1)(B)(ii)(I);

see MINN. STAT. ANN. § 609.713 (2000). We may therefore examine the

charging instruments. 

Naranjo was charged in the Minnesota criminal complaint with

“wrongfully and unlawfully directly or indirectly threaten[ing] to

commit a crime of violence, with the purpose to cause, or in

reckless disregard of the risk of causing terror in another.” The

elements of this offense are that (1) the accused made threats, (2)

to commit a crime of violence, (3) with the purpose of terrorizing

another or in reckless disregard of the risk of terrorizing another.

MINN. STAT. ANN. § 609.713(1); State v. Schweppe, 237 N.W.2d 609, 613-

14 (Minn. 1975). As “crime of violence” is defined under Minnesota

law, an individual may commit the offense with which Naranjo was

charged without threatening to use physical force against another

person. See MINN. STAT. ANN. §§ 609.1095(1)(d), 609.561, 609.855(5).

Although the underlying facts of the instant case may reveal that

Naranjo actually threatened to use physical force against another

individual, we do not consider such facts in the categorical

approach. See Calderon-Pena, 383 F.3d at 257-58. As it is possible
4

under Minnesota law for the State to obtain a conviction under this

subsection of the terroristic threats statute without proof of the

threatened use of physical force against another person, this is not

an element of the offense. See United States v. Vargas-Duran, 356

F.3d 598, 605 (5th Cir. 2004) (en banc). 

Based on the foregoing, the district court erred in applying

the 16-level enhancement for a prior conviction of a crime of

violence. See U.S.S.G. § 2L1.2(b)(1)(A). Accordingly, we vacate

Naranjo’s sentence and remand to the district court for resentencing

in accordance with this opinion. Although the district court’s

misapplication of the Guidelines requires remand, pretermitting our

need to consider Naranjo’s argument that his sentence was improperly

imposed in light of United States v. Booker, 125 S. Ct. 738 (2005),

we are confident that the district court will resentence in

conformity with Booker on remand.

MOTION TO SUPPLEMENT RECORD GRANTED; CONVICTION AFFIRMED; SENTENCE

VACATED; REMANDED FOR RESENTENCING.