IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-40498

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

GERMAN ANDINO-ORTEGA,

Defendant-Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before BARKSDALE, GARZA, and DENNIS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Appellant German Andino-Ortega appeals his 60-month sentence. For the

reasons set forth herein, we VACATE Andino-Ortega’s sentence and REMAND

for resentencing.

I

Andino-Ortega pleaded guilty to one count of being unlawfully present in

the United States following deportation, in violation of 8 U.S.C. § 1326. Under

the Guidelines applicable to this case, the presentence report (“PSR”)

recommended a base offense level of eight. See U.S.S.G. § 2L1.2(a). The PSR

also recommended a 16-level enhancement pursuant to § 2L1.2(b)(1)(A)(ii), after

concluding that Andino-Ortega’s prior Texas conviction for injury to a child,

under TEX. PENAL CODE ANN. § 22.04(a), qualified as a crime of violence. The

United States Court of Appeals

Fifth Circuit

F I L E D

June 8, 2010

Lyle W. Cayce

Clerk

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No. 09-40498

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PSR included a two-level reduction for acceptance of responsibility, but indicated

that the Government did not plan to pursue an additional one-point reduction

pursuant to U.S.S.G. § 3E1.1(b). Andino-Ortega’s resulting offense level of 22,

combined with a criminal history category of III, resulted in a Guidelines range

of 51–63 months imprisonment.

Andino-Ortega requested a downward variance on the basis that he

originally believed that his prior conviction would result in a four-level

enhancement under case law finding that injury to a child by omission does not

constitute a crime of violence. However, Andino-Ortega admitted that his prior

conviction was for “intentionally and knowingly causing bodily injury to [a child]

by striking her with a weedeater,” which is not an injury caused by omission.

The Government requested a within-Guidelines sentence, noting that AndinoOrtega had a history of family violence and returned to the United States shortly

after his prior deportation.

Andino-Ortega also argued that he was entitled to an additional one-point

reduction under § 3E1.1(b) simply for entering a timely guilty plea. However,

the Government refused to move for the reduction because Andino-Ortega would

not waive his appellate rights. At sentencing, the district court overruled

Andino-Ortega’s objection, finding that the Government had authority under

this circuit’s precedent to refuse to move for the additional reduction. The

district court declined to grant a downward variance.

The district court considered all the arguments of counsel and concluded

that a within-Guidelines sentence would satisfy the § 3553(a) factors. The court

sentenced Andino-Ortega to 60 months in prison, to be followed by a three-year

term of supervised release.

II

At the outset, we must address the Government’s argument that AndinoOrtega waived the right to appeal his sentence because he specifically addressed

the 16-level enhancement under § 2L1.2(b)(1)(A)(ii) and conceded that it was

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proper under his understanding of the case law. In particular, the Government

points to the following statements by defense counsel:

The predicate offense in this case was injury to a child. . . . There

is case law that says that injury to a child by omission is not a crime

of violence and would only garner a 4-level enhancement.

However, there is case law—[p]articularly, I’m looking here at

Perez-Munoz v. Keisler, 507 F.3d 357 [5th Cir. 2007], which finds

that if there—the injury to a child stems from an intentional act,

then it definitely is a crime of violence. Your Honor, . . . my client’s

position throughout has been that [the injury] was the result of an

accident.

Now, the fact remains that he pled to the offense as charged in the

indictment which charged an intentional offense. . . . 

Based on this colloquy, the Government contends that Andino-Ortega “knew of

the sentencing guidelines issue and that he consciously chose to forego it.”

Andino-Ortega contends that the statements, in fact, show that defense counsel

misunderstood Perez-Munoz and failed to account for precedent indicating that

the Texas offense of injury to a child is not a “crime of violence.”

Waiver is the intentional relinquishment of a known right. United States

v. Olano, 507 U.S. 725, 733 (1993). A waiver “occurs by an affirmative choice by

the defendant to forego any remedy available to him, presumably for real or

perceived benefits resulting from the waiver.” United States v. Dodson, 288 F.3d

153, 160 (5th Cir. 2002). In contrast, forfeiture is the failure to make the timely

assertion of a right. Olano, 507 U.S. at 733.

We have found only one case in this circuit that suggests that counsel’s

statements, here, might constitute a waiver. See United States v.

Fernandez-Cusco, 447 F.3d 382, 384 (5th Cir. 2006). In Fernandez-Cusco, the

court sua sponte considered whether the defendant waived his appeal of the

application of a 16-level enhancement for his prior conviction on the basis that

the prior crime was not a “crime of violence.” Id. The court acknowledged that

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a “defendant does not waive plain-error review simply by ‘fail[ing] to object to

the characterization of his prior offense as a crime of violence.’” Id. (quoting

United States v. Alfaro, 408 F.3d 204, 207 n.1 (5th Cir.), cert. denied, 546 U.S.

911 (2005)) (alteration in original). But it found that the defendant “did more

than fail to object . . .; he affirmatively recognized [the enhancement] was being

applied and indicated it was proper.” Id. The court concluded that these

statements did not rise to the level of waiver, but “arguably” constituted invited

error. In an abundance of caution, the court nonetheless reviewed for plain

error. Id.

Although we recognize the factual similarity here—Andino-Ortega’s

counsel acknowledged that the 16-level enhancement was proper—he did so on

the basis of a misunderstanding of this court’s precedent. The statements

regarding the propriety of the crime-of-violence enhancement do not constitute

a waiver because they do not evidence an intentional and knowing

relinquishment of a right. Counsel’s failure to object below because he did not

recognize the argument now being made on appeal is not a waiver. See United

States v. Castaneda-Baltazar, 239 F. App’x 900, 901 (5th Cir. 2007)

(unpublished); see also United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir.

2006) (finding no waiver of sentencing guidelines issue even though defense

counsel stated that “other than the Blakely objection, he had no problem with

the PSR”). Accordingly, we review for plain error.

III

Following United States v. Booker, 543 U.S. 220 (2005), this court reviews

sentences for reasonableness in light of the factors in 18 U.S.C. § 3553(a).

United States v. Mares, 402 F.3d 511, 519–20 (5th Cir. 2005). Pursuant to Gall

v. United States, 552 U.S. 38, 51 (2007), the court determines whether the

sentence is procedurally sound and whether it is substantively reasonable. This

court reviews a district court’s interpretation of the guidelines de novo and its

factual findings for clear error. United States v. Cisneros-Gutierrez, 517 F.3d

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751, 764 (5th Cir. 2008). Because Andino-Ortega did not object below, he must

establish that the district court plainly erred in applying the guidelines.

Arviso-Mata, 442 F.3d at 384. Under plain error, the appellant must show an

error, that is clear or obvious, and that affected his substantial rights. See

Puckett v. United States, 129 S. Ct. 1423, 1429 (2009); United States v. Villegas,

404 F.3d 355, 358 (5th Cir. 2005). If these requirements are met, this court may

remedy the error if it “seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings.” Puckett, 129 S. Ct. at 1429 (quotation

omitted) (alteration in original).

A

The Guidelines provide for a 16-level increase in a defendant’s base offense

level if he was previously deported after being convicted of a crime of violence.

U.S.S.G. § 2L1.2(b)(1)(A)(ii). A “crime of violence” is defined as either one of a

list of enumerated crimes or “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.” § 2L1.2, comment. (n.1(B)(iii)) (emphasis

added). The crime of “injury to a child,” for which Andino-Ortega was previously

convicted, is not one of the enumerated crimes. Thus, to qualify for the 16-level

enhancement, the statute of conviction must have “as an element the use,

attempted use, or threatened use of physical force.” Texas Penal Code § 22.04(a)

provides that: “A person commits an offense if he intentionally, knowingly,

recklessly, or with criminal negligence, by act or intentionally, knowingly, or

recklessly by omission, causes to a child . . . serious bodily injury; serious mental

deficiency, impairment, or injury; or bodily injury.”

In determining whether an offense is a crime of violence, this court “looks

to the elements of the crime, not to the defendant’s actual conduct in committing

it.” United States v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2004) (en banc).

The elements come from the statute of conviction, not from the “particular

manner and means that attend a given violation of the statute.” Id. However,

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 Although the actual conduct described involved the use of physical force, that is 1

irrelevant for the purposes of this case. The inquiry is whether the use of physical force is an

element under the statute of conviction, not whether the defendant’s actual conduct involved

the use of physical force. See, e.g., Calderon-Pena, 383 F.3d at 257.

6

where, as here, a statute lists alternative methods of committing a crime, a court

may look to charging papers to see which of the various statutory alternatives

were involved in a particular case. Id. at 258; see also Perez-Munoz, 507 F.3d at

362 (holding that TEX. PENAL CODE ANN. § 22.04(a) may be “pared down” by

reference to charging documents because a defendant can be convicted either for

an intentional act or an omission). Notwithstanding Andino-Ortega’s protests

that he “accidentally” caused injury to a child, it is clear that he was convicted

of causing injury by an act, rather than an omission. Specifically, Andino-Ortega

pleaded guilty to the charge that he “did . . . intentionally and knowingly cause

bodily injury to . . . a child younger than 15 years of age, by striking her with a

weedeater.”1

The question is whether a conviction for causing injury to a child by an act,

rather than omission, constitutes a “crime of violence” for purposes of § 2L1.2(b).

Andino-Ortega argues that the district court incorrectly relied on Perez-Munoz

in applying the sentencing enhancement, while the Government argues that

Perez-Munoz is on point and controlling. In Perez-Munoz, the court found that

if the charging documents demonstrated that the offense was committed by an

intentional act rather than by omission, the “injury to a child” offense may

qualify as a “crime of violence.” 507 F.3d at 362. Although Perez-Munoz deals

with the underlying statute of conviction at issue here, it interprets whether that

offense is a “crime of violence” under 18 U.S.C. § 16(b), which defines “crime of

violence” differently than § 2L1.2(b). Under § 16(b), an offense that involves a

“substantial risk that physical force against the person or property of another

may be used” constitutes a crime of violence, while under § 2L1.2, the offense

must “[have] as an element the use, attempted use, or threatened use of physical

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 The offense of child endangerment, under TEX. PENAL CODE ANN. § 22.041(c), is 2

slightly different than injury to a child, under § 22.04(a). Under § 22.041(c), a person commits

the offense of child endangerment if he “intentionally, knowingly, recklessly, or with criminal

negligence, by act or omission, engages in conduct that places a child . . . in imminent danger

of death, bodily injury, or physical or mental impairment.” The court characterized the

difference thus: The “salient difference between § 22.04(a) and § 22.041(c) is that in the latter,

the perpetrator places a child ‘in imminent danger’ of injury, death, etc., whereas in § 22.04(a)

the conduct actually results in the injury, death, etc., of the child.” Calderon-Pena, 339 F.3d

7

force.” Because of the difference in the definition of “crime of violence,”

Perez-Munoz is clearly not controlling.

Instead, Andino-Ortega contends that United States v. Gracia-Cantu, 302

F.3d 308 (5th Cir. 2002), is controlling because in that case, the definition of

“crime of violence” matches the definition at issue here. The court determined

that “injury to a child” under TEX. PENAL CODE ANN. § 22.04(a) was not a crime

of violence under 18 U.S.C. § 16(a), which provides a substantially similar

definition to that set forth in U.S.S.G. § 2L1.2. Id. at 311–12. The court

accepted the argument that “injury to a child” did not constitute a crime of

violence because § 22.04(a) does not require that the perpetrator actually use,

attempt to use, or threaten to use physical force. Id. at 311. However, the court

so held because it could not determine whether the “injury to a child” occurred

by act or omission. Because such injury could occur by omission, the offense was

“not, ‘by its nature,’ a crime of violence.” Id. at 313 (citing United States v.

Velazquez-Overa, 100 F.3d 418, 420–21 (5th Cir. 1996)). Here, it is clear that

Andino-Ortega was convicted of causing injury by an intentional act, not an

omission. Thus, Gracia-Cantu is not dispositive.

Although the parties largely ignored this court’s decision in United States

v. Calderon-Pena, 383 F.3d 254 (5th Cir. 2004) (en banc), it is dispositive. In

that case, a panel of this court found that the offense of child endangerment

under TEX. PENAL CODE. ANN. § 22.041(c) constituted a crime of violence for

purposes of applying the sentencing enhancement under U.S.S.G. § 2L1.2. See

United States v. Calderon-Pena, 339 F.3d 320, 329 (5th Cir. 2003). The en banc 2

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at 327.

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court reversed. It found that although Calderon-Pena had previously committed

the offense of “knowingly . . . by act . . . engag[ing] in conduct that places a child

younger than 15 years in imminent danger of ... bodily injury,” the “ statute does

not have the use, attempted use, or threatened use of physical force against the

victim’s person as a required element.” Calderon-Pena, 383 F.3d at 260

(alteration in original).

This court previously decided that the phrase “has as an element” in

§ 2L1.2 means that “the intentional use of force must be a constituent part of a

claim that must be proved for the claim to succeed.” United States v.

Vargas-Duran, 356 F.3d 598, 605 (5th Cir. 2004) (en banc) (internal quotation

marks omitted). “If any set of facts would support a conviction without proof of

that component, then the component most decidedly is not an element—implicit

or explicit—of the crime.” Id. For instance, an offense under § 22.04 can be

committed by intentional act without the use of physical force by putting poison

or another harmful substance in a child’s food or drink. See Perez-Munoz, 507

F.3d at 362. Because the offense of injury to a child, even where committed by

an intentional act, does not require the use or attempted use of physical force,

the offense does not meet the definition of a “crime of violence” necessary for

imposition of the 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). This

conclusion follows clearly from the court’s analysis in Calderon-Pena and

Vargas-Duran, and accordingly, the district court’s error was clear or obvious.

The district court’s error in applying the 16-level enhancement affected

Andino-Ortega’s substantial rights. As a result of the enhancement, the

sentencing range was 51 to 63 months. Andino-Ortega received a sentence of 60

months’ imprisonment. If, as Andino-Ortega contends, he is subject to only a 4-

level enhancement pursuant to § 2L1.2(b)(1)(D), the applicable Guidelines range

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 We leave to the district court on remand to properly calculate the guidelines range.

3

We note, however, that Andino-Ortega can be subject to an 8-level enhancement under

§ 2L1.2(b)(1)(C), only if his prior conviction for injury to a child qualifies as an “aggravated

felony,” as defined by 8 U.S.C. § 1101(a)(43) and 18 U.S.C. § 16(b). See U.S.S.G. § 2L1.2,

comment. (n.3(A)).

 We find the Government’s argument that the district court imposed an alternate non- 4

Guidelines sentence wholly unpersuasive. The Government urges that any error was harmless

because the error did not affect the district court’s selection of the sentence imposed. See

United States v. Davis, 478 F.3d 266, 273 (5th Cir. 2007). Specifically, the Government

contends that the district court implicitly considered the lower sentencing range argued by

Andino-Ortega, but made clear that it nonetheless would have imposed the same sentence

even if the lower range applied. See United States v. Bonilla, 524 F.3d 647, 656 (5th Cir.

2008). We find no support for this contention in the record.

9

is 10 to 16 months, a range four to five times lower than his sentence. And even

if the Government is correct that Andino-Ortega is properly subject to an 8-level

enhancement under § 2L1.2(b)(1)(C), the Guidelines range would still only be 21

to 27 months, a range substantially lower than the sentence Andino-Ortega

received. Because these ranges, however calculated, do not overlap with the 3

range applied to Andino-Ortega, the district court’s error necessarily increased

his sentence and thus affected his substantial rights. See, e.g., Villegas, 404 F.3d

at 364.

We find that Andino-Ortega has satisfied his burden under the plain-error

test by showing that the district court misapplied the Guidelines in calculating

the sentencing range, the court imposed a sentence based on that miscalculation,

and the sentence was higher than the correct range under the Guidelines. See

id. Furthermore, because the district court’s error clearly affected AndinoOrtega’s sentence, we also find that the error seriously affected the fairness,

integrity, or public reputation of judicial proceedings. See id. Accordingly, we 4

vacate his sentence and remand for resentencing.

B

The second issue that Andino-Ortega raises is that the district court

abused its discretion in refusing his request for a one-level reduction for

acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1(b). This reduction is

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only applicable if the defendant qualifies for the two-point reduction under

§ 3E1.1(a) and “the offense level determined prior to the operation of subsection

(a) is level 16 or greater.” § 3E1.1(b). Whether Andino-Ortega is even eligible

for the additional reduction will depend on the calculation of his base offense

level. If, as discussed above, he is subject to only a 4-level enhancement

pursuant to § 2L1.2(b)(1)(D), then his base offense level will be less than 16 and

this issue will be moot. On the other hand, if the Government is correct that an

8-level enhancement applies under § 2L1.2(b)(1)(C), then Andino-Ortega’s base

offense level will be 16. For prudential reasons, we decline to pass on this

question before the district court calculates the applicable Guidelines range and

resentences Andino-Ortega. At that time, Andino-Ortega will be free to re-urge

his arguments regarding § 3E1.1(b), if that provision is applicable.

IV

For the foregoing reasons, we VACATE Andino-Ortega’s sentence and

REMAND for resentencing consistent with this opinion.

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