* Pursuant to 5th Cir. R. 47.5, the court has determ ined th at this opinio n should not be published and is no t precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. 1 IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________ No. 05-41774

__________________________ UNITED STATES OF AMERICA, Pl aint iff- Appellee,

versus MAURO EDULIO JIMENEZ-BANEGAS, Defendant-Appellant.

___________________________________________________ Appeal from the United States District Court fo r the Southern District of Texas (No. 1:05-CR-122)

___________________________________________________ Before REAVLEY, STEWART, and CLEMENT, Circuit Judges. EDITH BROWN CLEMENT, Circuit Judge: * Mauro Edu lio Jimenez-Banegas (Jimenez) pleaded guilty to illegal reentry pursuant to 8 U.S.C. § 1326. The district court enhanced Jimenez’s sentence upon determ ining th at Jimenez’s prior conviction fo r attem

pted thir d deg ree sexual abuse was a crime o f vio lence. Jimenez appeals this determ inat io n. For the reasons that follow, we affirm. United States Court of Appeals Fifth Circuit 

## F I L E D December 11, 2006 Charles R. Fulbruge III Clerk2 I. FACTS AND PROCEEDINGS Jimenez pleaded guilt y to illegal reentry subsequent to an aggravated felo ny conviction. The PSR assessed a base of

fense level of eight pursuant to U.S.S.G. § 2L1.2(a). Sixteen levels were added pursuant to § 2L1.2(b)(1)(A) based on a prior conviction for a crime of violence: attempted thir d degree sexual abuse in the District of Col umbia, D.C. C ODE § 22-3004. Three levels were subtracted pursuant to § 3E1.1 for acceptance of responsibility, resulting in a total of fense level of twenty -one. S ix criminal hist ory point s established a criminal hist ory category of III. The guideline range of imprisonment was forty-six to fifty-seven months. Jimenez objected to the crime of vio lence enhancement. He also objected to his sentence on the basis th at § 1326(b) was unconstitutional, but he conced ed that thi s argument was foreclosed. The government filed a response to Jimenez’s objections, argued th at the enhancement was correctl y applied, and provided the district court wit h the indict ment , guilt y plea transcript, and docket sheets from the court file of the Superior Court of the District of Columbia in the attempted sexual abuse case against Jimenez. The district court overruled Jimenez’s objection and sentenced Jimenez to forty-six months of imprisonment fo llo wed by th ree years of supervised release. The district court found, alternatively, th at if attem

pted thir d degree sexual abuse was not a crime of vio lence, the prior conviction merit ed

an eight-level enhancement as an aggravated felo ny under § 2L1.2(b)(1)(C). S ee U.S.S.G. § 2L1.2, cmt . n.3(A). The district court stated that in the event of an eight-level enhancement and a revised guideline range of imprisonment of eighteen to twenty -four months, it would sentence Jimenez to eighteen mo nt hs of imprisonment. The district court overruled Jimenez’s constitutional challenge to1 Jimenez also asserts on appeal th at the provisions of 8 U.S.C. § 1326(b) are unconstitutional in light

o f Apprendi v. New Jersey , 530 U.S. 466 (2000), but concedes that the issue is foreclosed by Almendarez-Torres v. United States , 523 U.S. 224 (1998). 3 § 1326(b). Jimenez timely appealed the crime of violence enhancement. 1 II. STANDARD OF REVIEW Both aft er Booker and before, the district court’s application of the guidelines is reviewed de

novo. United States v. Smith , 440 F.3d 704, 706 (5th Cir. 2006). III. DISCUSSION Section 2L1.2(b)(1)(A)(ii) provides fo r a sixt een level enhancement to a defendant’s of fense level when a defendant wa s previously deported af ter a conviction for a “crime of violence.” A

convict io n can qualify as a “crime of violence” under this provision in one of two ways. First, it qualifies if t he conviction is one of the enumerated offenses. See United States v. Garcia-Mendez , 420 F.3d 454, 456 (5th Cir. 2005). The enumerated offenses include “forcible sex offenses.” U.S.S.G. § 2L1.2, cm

t n.1(B)(iii). Second, if the conviction is not one of the enumerated offenses, it still qualifies if it is “any of fe nse under f

ederal, state or local law that has as an element the use, attem pted use, or th

reatened use of physical fo rce against the person of another.” U.S.S.G. § 2L1.2, cmt n.1(B)(iii); see Garcia-Mendez , 420 F.3d at 456. An attempt to com mit a crime of violence is also a crime of vio lence. U.S.S.G. § 2L1.2, cmt. n.5. The di strict court did not specify whether Jimenez’s prior conviction qualified as a crime of vio lence because it was an enumerated of fense or because it involved the use, attempted use, or threatened use of physical force. This court has descri

bed the term “forcible” in “forcible sex offense” as approximating the concept of fo rcible com

pulsion and requiring fo rce or th reatened fo rce extrinsic to penetration. United States v. Sarmiento-Funes , 374 F.3d 336, 344–45 (5th Cir. 2004). As a result, if Jimenez’s4

prior conviction does not qualify as a crime of vio lence fo r having as an element the use or attem pted use of force, then it is unlikely t o qual ify as a fo rcible sex offense. However, because we hold that Jimenez’s statute of conviction has as an element the use, attem pted use, or th

reatened use of physical fo rce, we do not decide whether it is also a forcible sex offense. “When determ

ining whether a prior of

fense is a crime of vio lence because it has as an element the use, attem

pted use, or th

reatened use of fo rce, district courts must employ the categorical approach established in Taylor v. United States , 495 U.S. 575 [ ] ( 1990).” U nited States v. Gonzalez-Chavez , 432 F.3d 334, 337 (5th Cir. 2005). Under that approach, a court determ ines the elements to which a defendant pleaded g uilt y by analyzing the statutory definition of the offense rather th an the defendant’s underlying conduct. I d. If the statute of conviction contains multiple, disjunctive subsections, “courts may look beyond the statute to certain conclusive records made or used in adjudicating guilt in order to determine which particular statutory alternative applies to the defen dant’s conviction.” I d. (int ernal quotation om

it ted). Under Shepard v. United States , th ose records are generally limit ed to the charging docum ent, written plea agreement, the transcript of a plea collo quy, and any explicit factual findings by the tri al judge to which the defendant assented. 544 U.S. 13, 16 (2005). Jimenez was convict ed of attem pting to violate D.C. C ODE § 22-3004, which defines thir d degree sexual abuse as engaging in or causing sexual contact wi th or by another person in the fo llo wing manner: (1) By using force against that other person; (2) By th reatening or placing th at other person in reasonable fear t hat any person will be subjected to death, bodily injury, or kidnapping; (3) After rendering that person unconscious; or2 The docket sheet abbreviates lesser included of fense as “L.I.O.” and provides in pertinent part: “Deft. enters plea[] . . . to L.I.O. of count ‘C’ (att. 3 deg. sex abuse) now count ‘I’.” 5 (4) After administering to th at person by fo rce or th reat of fo rce, or wit hout the knowledge or permission of th at other person, a drug, int oxicant, or similar substance th at substantially impairs the ability of that other person to appraise or control his or her conduct. (Em phasis added). Because § 22-3004 is defined wit h mult iple subsections, this court must look beyond the statute of conviction to other docum ents in the record to determ ine which statutory subsection applies to Jimenez’s conviction. In the original indictment, the second count (also labeled, for reasons that are unclear, count “C”) charged that Jimenez engaged in sexual contact wit h Eva Rebertha Brown, th at is, Mauro Jimenez-Banegas to uched Eva Rebertha Brown’s breast with the intent to abuse, humiliate, harass, degrade or arouse or grat ify the sexual desire of Mauro Jimenez-Banegas or Eva Rebertha Brown, by using force against Eva Rebertha Brown. (Third Degree Sexual Abuse, in violation of 22 D.C. Code Section 3004 (2001 ed.)) (Em phasis added). The fifth count (also labeled count “F”) charged that Jimenez engaged in sexual contact wit h Eva Rebertha Brown, th at is, Mauro Jimenez-Banegas touched Eva Rebertha Brown’s genitalia with the intent to abuse, humiliat e, harass, degrade or arouse or gratify th e sexual desire of Mauro Jimenez-Banegas or Eva Rebertha Brown, by using force against Eva Rebertha Brown. (Third Degree Sexual Abuse, in violation of 22 D.C. Code Section 3004 (2001 ed.)) (Em phasis added). The District of Columbia court docket sheet reflects that Jimenez pleaded guilty to a lesser included of

fense of count C: attem

pted thir d degree sexual abuse. 2 The record does not indicate whether Jimenez was reindicted on the lesser included offense and does not contain a charging document detailing the offense of conviction.6

A transcript of the guilt y plea hearing also reflects th at Jimenez pleaded guilt y to the of fense of attem pted thir d degree sexual abuse. According to the transcript, at the hearing, the prosecutor recited the factual basis, and the district court followed with two questions: PROSECUTOR: On March 18th, 2000 and 3, between 2:30 and 3:00 p.m ., [Jimenez] went to 710 Col

umbia Road Northwest, the home of the com plainant. Mr. Banegas Jimenez, who had done som

e work, repair work at the com plainant’ s hom

e approximately a year earlier, spoke wit h the com

plainant th

rough the storm door. Mr. Banegas Jimenez then entered the com plainant’s home wit hout her permission and against her will. Mr. Banegas Jimenez then entered the com

plainant’s home. He did enter the home voluntarily and on purpose without legal authority to do so. Once inside the com

plainant’ s home the defendant a ttempted to touch the com plainant’s vagina wit h his hand and did so by using force to attem pt to restrain t he complainant. Mr. Banegas Jimenez attem

pted to touch the com

plainant’s vagina against the com plainant’s will and with the intent to gratify his own sexual desire. All t hese events occurred within the District of Columbia. THE COURT: Now, Mr. Jimenez, back on M arch 18th did you enter the home at 710 Col umbia Road against the wishes of the complainant? DEFENDANT: Yes. THE COURT: And did you attempt to touch her vagina against her will? DEFENDANT: Yes. (Em phasis added). The sentencing judge did not ask Jimenez to admit to the use of force, asking only if the touching of Brown was against he r wi ll. Jimenez’s admissions did not include an explicit admission th at he used, attem pted to use, or th

reatened to use physical fo rce to touch Brown’s body. The plea collo quy and the district court docket sheet are inconsistent as to which body part Jimenez attem

pted to touch. The docket sheet states that Jimenez pleaded guilty to the lesser included of

fense of attem

pt to com mit the of fense alleged in c ount “C.” Count “C” alleged that Jimenez touched Brown’s breast by using fo rce against her. The plea colloquy suggests that Jimenez7

pleaded guilty to the lesser included offense of attem pt to com mit the of fense alleged in count “F.” Count “F” alleged th at Jimenez touch Brown’s genitalia by using fo rce against her. However, both counts, as well as the factual basis, alleged th at Jimenez touched Brown by using force against her.

Jimenez argues th at the district court erred in treating his attem pted thir d degree sexual abuse conviction as a crime of vio lence under § 2L1.2(b)(1)(A)(ii). Jimenez contends that the documents submit ted by the government—the indictment, transcript of the guilty plea hearing, and the district court docket sheets—are not reliable and do not permit a court to determ ine th at his prior conviction qualifies as a crime of vio lence. In support, he points to the discrepancy between the factual basis presented at the guilt y plea hearing and the district court docket sheet; one suggests Jimenez pleaded guilt y to an attem

pt of the crime in count “F,” and the other indicates the plea was an attem pt of the crime in count “C.” Jimenez cites U nited States v. Gutierrez-Ram irez fo r the proposition th at unreliable record docum

ents may not be considered fo r possible sentence enhancements. S ee United States v. Gutierrez-Ramirez , 405 F.3d 352, 357–59 (5th Cir.), cert. denied , 126 S. Ct. 217 (2005) (holding th at a state court ab stract of judgment—because its preparation represented a clerical function, and because it only summarized the judgment and would not control were it different from the tri al court’s oral judgment—was not rel iable for the purpose of justifying a sentence enhance ment ). A dditionally, Jimenez maintains that the factual basis offered by the prosecutor is insufficient because Jimenez did not specifically assent to it and because the district court did not lat er question him about whether he com mit ted the crime wit h fo rce. Jimenez argues that he did not confirm the factual basis as is required under Shepard

. See Shepard , 544 U.S. at 26.8

Finally, Jimenez asserts th at the original indict ment is not a reliable docum ent fo r paring down the statute of conviction because he pleaded guilty to a lesser included charge for which there was

no charging inst rum

ent. He cites United States v. Turner , 349 F.3d 833, 836 (5th Cir. 2003), fo r the proposition th at a district court may not rely on a charging instrument when the defendant was convicted of a different crime than the one originally charged. Our objective is to identify wit h legal certaint y the subsection of the D.C. statute under which Jimen ez was convicted in order to determ ine whether the district court’s crime of violence enhancement was sustainable. S ee Gonzalez-Chavez , 432 F.3d at 338; United Sta tes v. BonillaMungia , 422 F.3d 316, 321 (5th Cir. 2005). To do so, we rel y o n “conclusive records made or used in adjudicating guilt .” B onilla-Mungia , 422 F.3d at 320. As stated, Shepard has generally defined which records are appropri ate, and we have been mindful to disregard docum ents th at do not com

e wit hin Shepard ’s parameters when they are not reliable. See, e.g., Gutierrez-Ramirez , 405 F.3d at 357–59 (di sallo wing state court abstract of judgment); Gonzalez-Chavez , 432 F.3d at 338 (declining to use the facts set forth in the presentence report because they were not used by the state court in adjudicating guilt). We disagree with Jimenez’s position that the factual basis presented by the prosecutor is unreliable in the inst ant case. This court looks to documents or evidence that were used to adjudicate guilt , and the district court clearly relied on the factual basis fo r this purpose. A factual basis is of fered at a guilt y plea hearing to allo w the district court to determ ine if the defendant’s conduct

com es wit hin the ambit of th at defined as criminal. U nited States v. Reasor , 418 F.3d 466, 470 (5th Cir. 2005) (di scussing FED . R. C RIM . P. 11). Here, the fact that Jimenez’s actions were com mit ted “wit h fo rce” was critical to defining his conduct as criminal; wit hout this element, Jimenez’s conduct3 That the factual basis conflicts wit h the notes recorded on the district court docket sheets does not

render the transcrip t of th e guil ty plea hearing unreliable because we agree with Jimenez that the district court docket sheets are not the ty pe of jud icial record that a court should consider. S ee Gutierrez-Ramirez , 405 F.3d at 357–59; Gonzalez-Chavez , 432 F.3d at 338.

4 While the transcript of the plea collo quy does not exclude the theoretical possibilit y th at Jimenez was convicted under a different statutory subsection, this court has rejected such line of argumentation when the record adequately demonstrates which statutory subsection applies. C .f. United States v. Torres-Diaz , 438 F.3d 529, 535 (5th Cir. 2006) (rej ecting defendant’s argument th at this court should not consider the charging docum ent simply because the record did not excl ude the “theoretical possibilit y” t hat the defendant pleaded guilty to something other than the charging document). 9 would not have com

e within any of the four subsections of D.C. C O DE § 22-3004. Because the f actual basis, in com

binat io n wit h Jimenez’s lat er answers to the district court’s que sti ons, was conclusive in permitting the district court to adjudicate Jimenez’s guilt , we believe it is a reliable judicial record for identifying the subsection under which Jimenez was convicted. 3 Jimenez is correct th at, un der Shepard , the factual basis must be “confirmed” by the defendant, see Shepard , 544 U.S. at 26, but we do not understand Shepard to mean th at in all cases the defendant must affirmat ively and verbally state his approval fo llo wing the prosecutor’s recitation. Aft er the prosecutor of

fered the factual basis, the district court inquired whether Jimenez touched the vict im against her will , and Jimenez replied in the affirmative. Because this admission would not alo ne constitute criminal conduct under the statute of conviction, the lo gical inference to draw from Jimenez’s reply is th at he was confirming the factual basis of fered by the prosecutor. This inference is underscored by the fact th at Jimenez made no objections to the factual basis nor did he suggest th at he caused sexual contact w it h t he victim by o ne of the other prohibited statutory means, i .e. , by rendering her unconscious or by administering a drug. In fact, the factual basis does not allow the possibilit y th at Jimenez could have been convicted under one of the other th ree statutory subsections. 410

We hold th at the transcript of the guilt y plea hearing allo ws us to conclude wit h legal certaint y th at Jimenez was convicted under subsection one of D.C. C ODE § 22-3004. Subsection one contains

an element of fo rce , and, theref ore, the crime o f vio lence enhancement was justified. We do not address whether the original in dictment could also have been used to inform our decision that the sentence enhancement was proper. IV. CONCLUSION The judgment of the district court is AFFIRMED.