* Pursuant to 5 T H C IR

. 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this opinion should not be published and is not precedent except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 5 TH C IR

. 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 Jua n Naranjo-Hernandez (Naranjo) appeals

his guilty-plea conviction and sentence for il legal 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 (20 00). Naranjo

acknowledges that his argumen t is foreclosed by A lmendarez-Torres

v. United States

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

issue for Sup reme Court review. A pprendi did not overrule United States Court of Appeals

Fifth Circuit 

## F I L E D

May 24, 2005

Charles R. Fulbruge III

Clerk2

Almendarez-Torres

. S ee 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 ins truments for this predicate offense is granted.

See Uni ted 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. U nited 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. Ville gas , ___ 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 pers on 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 examine3

only the elements of the offense. S ee 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 M INN

. S TAT

. A NN

. § 609.713 (2000). We may therefore examine the

charging instruments.

Naranjo was charged in the Minnes ota criminal complaint with

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

commi t 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.

M INN

. S TAT

. A NN

. § 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 whic h Naranjo was

charged without threatening to use physical force aga inst another

person. S ee M INN

. S TAT

. A NN

. §§ 609.1095(1)(d)

, 609.561, 609.855(5).

Altho ugh the underlying facts of the instant case may reveal that

Naranjo actually threatened to use physical fo rce against another

individual, we do not consider such facts in the categorical

approach. S ee Calderon-Pena

, 383 F.3d at 257-58. As it is possible4

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. S ee 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.