*This order and judgment is not binding precedent except under the doctrines of law of

the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### February 7, 2006
Elisabeth A. Shumaker Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. EMILIO TRETO-BANUELOS, Defendant - Appellant. No. 05-3074 (D. Kansas) (D.Ct. No. 04-CR-10191-MLB)

____________________________ ORDER AND JUDGMENT *

Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Emilio Treto-Banuelos pled guilty to illegal reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b)(1). He was sentenced to forty-two months1 Treto-Banuelos was sentenced pursuant to the November 1, 2004 edition of the

United States Sentencing Guidelines Manual. All citations to the guidelines in this order and judgement refer to the 2004 guidelines unless otherwise indicated. -2- imprisonment. On appeal, Treto-Banuelos argues the district court erred in enhancing his sentence sixteen levels based on the court’s conclusion that his prior felony conviction was a “crime of violence” u nder USSG §2L1.2(b)(1)(A). 1 Exercising jurisdiction under 18 U.S.C. § 3742(a) a nd 28 U.S.C. § 1291, we affirm. I. Background In December 1996, Treto-Banuelos pled guilty in Kan sas state court to felony criminal threat in violation of K AN . S TAT . ANN . § 21-3419. He was subsequently deported. In July 2004, Treto-Banuelo s was found in Dodge City, Kansas, without having permission to be in the Unit ed States. On August 11, 2004, he was indicted in the United States District Court for the District of Kansas for illegal reentry after deportation subseq uent to an aggravated felony conviction in violation of 8 U.S.C. § 1326(a) and ( b)(2). On November 12, 2004, the government filed a superseding information, whi ch was amended on November 15, 2004. The amended superseding informa tion charged TretoBanuelos with illegal reentry after deportation in violation of 8 U.S.C. § 1326(a) and (b)(1). On November 15, 2004, Treto-Banuelos p led guilty to the amended superseding information.2 In his plea agreement, Treto-Banuelos waived his right to appeal but preserved

his right to appeal in the event the district court enhanced his sentence under USSG §2L1.2(b)(1)(A). -3- Thereafter, a presentence report was prepared. Con cluding that TretoBanuelos’ prior Kansas conviction for criminal thre at was a “crime of violence,” the probation officer recommended a 16-level enhanc ement to the base offense level pursuant to USSG §2L1.2(b)(1)(A). Treto-Banu elos objected to this enhancement. The district court overruled the obje ction. With a total offense level of 21 and a criminal history level of III, Tr eto-Banuelos’ guideline range was forty-six to fifty-seven months imprisonment. However, considering the factors set forth in 18 U.S.C. § 3553(a), the distr ict court sentenced him to fortytwo months imprisonment. This appeal followed. 2
II. Discussion We are called upon to determine whether Treto-Banue los’ prior Kansas conviction for felony criminal threat is a “crime o f violence” within the meaning of USSG §2L1.2(b)(1)(A). Our review is de novo. United States v. PerezVargas , 414 F.3d 1282, 1284 (10th Cir. 2005). Section 2L1.2(b)(1)(A) calls for a 16-level enhance ment to a defendant’s base offense level if the defendant was previously deported after a conviction for a felony “crime of violence.” A “crime of violence ” is defined in relevant part as “any offense under federal, state, or local law tha t has as an element the use,-4-

attempted use, or threatened use of physical force against the person of another.” USSG §2L1.2, comment. (n.1(B)(iii)). Because this definition confines our inquiry to “the terms of the statute of conviction, ” we employ the “categorical approach” to determine whether Treto-Banuelos’ prio r conviction for “criminal threat” is a “crime of violence” warranting a 16-le vel enhancement. United States v. Martinez-Hernandez , 422 F.3d 1084, 1086 (10th Cir. 2005); see Perez-Vargas , 414 F.3d at 1284-85. Under the categorical approac h, we look to the terms of the underlying statute of conviction rather than the ac tual facts underlying the conviction. Martinez-Hernandez , 422 F.3d at 1086. In certain circumstances, however, the categorical approach permits courts to look beyond the statute of conviction. Id. “When the underlying statute reaches a broad rang e of conduct, some of which merits an enhancement and some of whi ch does not, courts resolve the resulting ambiguity by consulting reliable judi cial records, such as the charging document, plea agreement, or plea colloquy .” Id. ; see Shepard v. United
States , 125 S.Ct. 1254, 1259-60, 1263 (2005). However, w e are prohibited from probing police reports or complaint applications as they would require us to inquire into the factual basis for the earlier conv iction, thereby upsetting the purpose of the categorical approach which is to avo id collateral trials. Shepard, 125 S.Ct. at 1257, 1261. At the time of Treto-Banuelos’ conviction in 1996, K AN . S TAT . ANN . § 21--5-

3419 stated in relevant part: (a) A criminal threat is any threat to: (1) Commit violence communicated with intent to te rrorize another, or to cause the evacuation of any building, place o f assembly or facility of transportation, or in reckless disregar d of the risk of causing such terror or evacuation; or (2) adulterate or contaminate any food, beverage, d rug or public water supply.
K AN . S TAT . ANN . § 21-3419 (1993). Treto-Banuelos argues that und er the categorical approach, because § 21-3419 can be viol ated without the “use, attempted use, or threatened use of physical force against the person of another” ( i.e. , § 21-3419(a)(2)), his prior conviction is not a “ crime of violence” under USSG §2L1.2(b)(1)(A). His argument is without meri t. As stated previously, when we are faced with a stat ute of conviction that reaches a broad range of conduct, some of which mer its an enhancement and some of which does not, we may resolve the ambiguity by consulting reliable judicial records, such as the charging document, plea agreem ent, or plea colloquy. Section 21-3419 is such a statute. Therefore, we m ay consider the official court records of Treto-Banuelos’ underlying conviction. The original complaint alleged Treto-Banuelos “unla wfully, maliciously, intentionally and without authority discharge[d] a firearm at a motor vehicle, or other means of conveyance of persons or property in which there is a human3 There is no indication in the record that Treto-Banuelos objected to the amended

complaint’s or Journal Entry of Judgment’s description of his offense as a person felony. -6- being, who is placed in immediate apprehension of b odily harm which results in bodily harm to a person during the commission there of.” (R. Supp. Vol. I at Attachment 1.) It charged him with “Criminal Disch arge of a Firearm at an occupied vehicle which results in bodily harm to a person[,] a severity level 5 person felony, in violation of K.S.A. 21-4219.” (Id .) The amended complaint, to which Treto-Banuelos pled guilty, alleged he “unlaw fully [] communicate[d] any threat to commit violence with the intent to terror ize another, in violation of K.S.A. 21-3419. CRIMINAL THREAT is a Severity Leve l 9, person felony.” (Id. at Attachment 2.) Consistent with the amended com plaint, the Journal Entry of Judgment indicates Treto-Banuelos’ offense was a “Person Felony Committed With a Firearm.” 3 (Id. ) Thus, it is clear Treto-Banuelos’ prior Kansas c onviction for criminal threat constitutes a “crime of violenc e” under USSG §2L1.2(b)(1)(A) as it involved the “use, attempted use, or threaten ed use of physical force against the person of another.” Consequently, the 16-level enhancement to his sentence was appropriate.
AFFIRMED.

Entered by the Court:-7- Terrence L. O’Brien United States Circuit Judge