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

### July 15, 2005 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 04-1321 RAMON PEREZ-VARGAS, a/k/a Ramon Perez, Jr.,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO (D.C. NO. 04-CR-79-B)

Lynn C. Hartfield, Research and Writing Specialist (Robert W. Pepin, Assistant Federal Public Defender, and Raymond P. Moore, Fede ral Public Defender, on the briefs), Office of the Federal Public Defender, Dis trict of Colorado and Wyoming, Denver, Colorado for Defendant-Appellant. John M. Hutchins, Assistant United States Attorney (William J. Loene, Acting United States Attorney, with him on the brief), Off ice of the United States Attorney, Denver, Colorado for Plaintiff-Appellee.

Before SEYMOUR , KELLY , and TYMKOVICH , Circuit Judges.

TYMKOVICH , Circuit Judge.-2-

Ramon Perez- Vargas challenges the district court’s 16-level se ntence enhancement of his sentence, which resulted from th e court’s conclusion that his prior conviction for third degree assault in Colora do was a “crime of violence,” as defined by United States Sentencing Guideline (USSG ) § 2L1.2. In addition, Perez-Vargas argues the district court violated United States v. Booker , 125 S. Ct. 738 (2005), when it mandatorily applied the Guideli nes to his sentence. Taking jurisdiction pursuant to 28 U.S.C. § 1291, we rever se the district court’s application of the crime of violence enhancement, a nd remand for re-sentencing.
I. BACKGROUND Perez-Vargas pled guilty to one count of unlawful r eentry in violation of 8 U.S.C. § 1326(a) and (b)(2). The plea agreement in cluded an admission of the relevant facts surrounding the unlawful reentry. T he agreement also set forth Perez-Vargas’s criminal history, including two prio r convictions in Colorado. One conviction stemmed from a third degree assault, for which he received two years imprisonment; a second conviction resulted fr om an attempted theft of between $500 and $15,000, for which he received thr ee years imprisonment. The plea agreement contained no other information aboutthese prior convictions. The plea agreement established Perez-Vargas’s crimi nal history as category VI, the total offense level as either 21 or 13, and the range of sentence as either 77 to 96 months or 33 to 41 months. The variations were the result of the-3-

disagreement that forms the basis of this appeal, i .e., whether Perez-Vargas’s prior convictions should increase the base offense level by 8 or 16 levels. The base offense level for unlawful reentry is 8. USSG § 2L1.2(a). The government contended a 16-level enhancement applied based on the third degree assault, which the presentence report (PSR) charact erized as a violent felony. See USSG § 2L1.2(b)(1)(A) (the base offense level is in creased 16 levels “[i]f the defendant previously was deported, or unlawfully re mained in the United States after—a conviction for a felony that is . . . (ii) a crime of violence”). PerezVargas, on the other hand, contended that third deg ree assault is not necessarily a crime of violence under the Guidelines since some n onviolent conduct could be covered by the broad language of Colorado’s third d egree assault statute. Thus, he argued that only an 8-level enhancement should apply based on his prior conviction for attempted theft, which Perez-Vargas admitted was an aggravated felony. See USSG § 2L1.2(b)(1)(c) (the base offense level is in creased by 8 if the defendant had “a [prior] conviction for an aggravat ed felony”). The district court agreed with the government that third degree assault was a violent crime and enhanced the sentence 16-levels . Ultimately, Perez-Vargas received a 77-month sentence, which was at the low end of the applicable guideline range (77 to 96 months).
II. ANALYSIS-4-

We review de novo the district court’s interpretati on of the Guidelines and its determination that Perez-Vargas’s prior convict ion for third degree assault in Colorado is a “crime of violence.” See United States v. Venegas-Ornelas , 348 F.3d 1273, 1274 (10th Cir. 2003); United States v. Holbert , 285 F.3d 1257, 1259 (10th Cir. 2002). A. Defining “Crime of Violence” When determining whether a prior conviction is a cr ime of violence, the Supreme Court has instructed sentencing courts to t ake “a formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.” Taylor v. United States , 495 U.S. 575, 600 (1990). In applying Taylor , we have held that if “the statute is ambiguous, or broad enough to encompass both violent and nonviolent crimes, a court can look beyond the statute ‘to certain recor ds of the prior proceeding, such as the charging documents, the judgment, any plea t hereto, and findings by the [sentencing] court.’” United States v. Dwyer , 245 F.3d 1168, 1171 (10th Cir. 2001) (quoting United States v. Zamora , 222 F.3d 756, 764 (10th Cir. 2000)). Recently, in Shepard v. United States , 125 S. Ct. 1254 (2005), the Supreme Court added new depth to Taylor ’s analysis. Unlike the prior convictions in Taylor , which followed jury trials, the prior convictions at issue in Shepard were the result of guilty pleas. The Court found “ Taylor ’s reasoning controls the1 The Supreme Court’s decision in Almendarez-Torres v. United States , 523

U.S. 224 (1998), creates an explicit exception to Apprendi v. New Jersey , 530 U.S. 466 (2000), and its progeny by allowing a judg e to determine a fact of prior conviction without violating a defendant’s Sixth Am endment rights. The fact of prior conviction is not at issue here; we are conce rned with the facts underlying the prior conviction. -5- identification of . . . convictions following pleas , as well as convictions on verdicts.” Shepard, 125 S. Ct. at 1259. As a consequence, when deter mining whether a prior conviction resulting from a guilty plea is a violent felony, a court is limited to an examination of the language of the statute of conviction, and, if it is ambiguous, “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant . . . , or to some comparable judicial record of this information.” Id. at 1262. 1 According to the Supreme Court, then, we must limitourselves to (1) an examination of the language of the statute under wh ich Perez-Vargas was convicted, (2) the charging document or court recor ds of comparable reliability, and (3) any admissions (including those within the plea agreement) Perez-Vargas made regarding the facts of his prior convictions. See Taylor , 495 U.S. at 600; Shepard 125 S. Ct. at 1262. In this appeal, the record before us does not conta in any charging documents describing the underlying assault, nor any admission by Perez-Vargas.-6-

Consequently, the PSR is the only source of information about the crime. In it, the government claims, according to “court document s,” that the defendant was arrested by the Greeley Colorado Pol ice Department for shooting and injuring five victims in a drive-by s hooting in the 900 block of 31st Avenue, Greeley, Colorado, on July 9, 1995. Following a dispute with several individuals, the defendant d ischarged a shotgun into a crowd of pedestrians causing [] injuries. PSR, ¶ 26. Of course, this description, if accurate, describes a crime of violence by any definition. And if supported by proof allow able under Taylorand Shepard, the charged conduct would authorize the sentencin g enhancement. Unfortunately, we do not have in the record on appe al the “court documents” relied on by the PSR. We thus cannot evaluate whet her the records would be acceptable under the strictures of Supreme Court pr ecedent. B. Third Degree Assault in Colorado We must therefore turn to the plain language of the Colorado statute itself to determine if, standing alone, it would support t he crime of violence enhancement. We start with the Guidelines’ definit ion of a “crime of violence.” A crime of violence is: any 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.-7-

USSG § 2L1.2, Application Note 1(B)(iii) (emphasis added). The Guidelines, however, provide no additional explanation of the c ritical phrase—“the use of physical force.” Moving from the Guidelines to the Colorado statutes , third degree assault occurs when the defendant knowingly or recklessly causes bodily injury to another person or with criminal negligence he causes bodily injury to another person by means of a deadly weapon. C.R.S. §18-3-204 (emphasis added). The statute goe s on to define bodily injury as “physical pain, illness, or any impairment of physical or mental condition.” C.R.S. § 18-1-901(3)(c). Using the statutory definitions as a backdrop, Pere z-Vargas argues that third degree assault in Colorado is not necessarilya crime of violence as defined by the Guidelines because the Guidelines focus on the means by which an injury occurs (the use of physical force). Colorado’s thi rd degree assault statute, on the other hand, focuses on the result of a defendant’s conduct, i.e. , bodily injury. In other words, Colorado’s statute looks to the conseq uences of the conduct, however applied, whereas the Guidelines look to the type of conduct that causes the injury. The government counters that third deg ree assault necessarily requires the use of force in order to cause bodily injury. Both Perez-Vargas and the government thus focus their arguments on the questi on of whether one must use-8-

or threaten the use of physical force in order to c ommit third degree assault in Colorado. Turning first to the language of the Colorado statu te that defines third degree assault, we note that while it is likely mos t third degree assaults will involve the use or threatened use of physical force , thus qualifying the crime as a violent one under the Guidelines, the language of t he statute allows for other possibilities. Indeed, at oral argument, Perez-Var gas’s counsel provided several examples of third degree assault that would not use or threaten the use of physical force: recklessly shooting a gun in the air to cel ebrate, intentionally placing a barrier in front of a car causing an accident, or i ntentionally exposing someone to hazardous chemicals. One can imagine a number of o ther hypotheticals. Since the language of the statute is broad, we turn to Colorado courts for interpretive assistance. Unfortunately, we have fo und no Colorado case law definitively holding that the third degree assault statute necessarily requires the application of force. While several cases in this context describe the use of force, they do not categorically imply one must always use force to violate the statute. See, e.g., People v. Moore , No. 01-CA-1760, 2005 WL 1412181 (Colo. Ct. App. Jun. 16, 2005); People v. Goldfuss , 98 P.3d 935 (Colo. Ct. App. 2004); People v. Howard, 89 P.3d 441 (Colo. Ct. App. 2003).2 We held in an unpublished decision prior to Shepard that Colorado’s third degree assault statute supported a crime of violenc e enhancement where the summons and complaint and the defendant’s plea agre ement disclosed that the defendant had struck another person. United States v. Miller , 98 Fed. Appx. 801 (10th Cir. May 25, 2004). The record here, in cont rast, does not have similar evidence disclosing the underlying crime.

3 An immigrant is removable if he is convicted of acrime of violence as defined by 18 U.S.C. § 16. Section 16, containing similar language to USSG § 2L1.2, defines “crime of violence” as “(a) an off ense that has as an element the use, attempted use, or threatened use of physical f orce against the person or

(continued...) -9- Turning to circuit precedent for help, one recent c ase is illustrative. 2 In United States v. Lucio-Lucio , 347 F.3d 1202, 1206 (10th Cir. 2003), we had to determine whether violating Texas’s drunk driving s tatute was a crime of violence. We found there must be “a distinction be tween crimes that potentially involve violent conduct and crimes that merely invo lve the possibility of resulting harm.” Id . Thus, we found that not every “sufficiently dang erous activity . . . qualif[ies] as a crime of violence.” Id. Similarly, in United States v. Torres-Ruiz , 387 F.3d 1179 (10th Cir. 2004), we concluded that adrunk driving conviction does not necessarily include the intent element req uired by USSG § 2L1.2. Such is the case here. Other circuits have also addressed similar statutes . In Chrzanoski v. Ashcroft , 327 F.3d 188 (2d Cir. 2003), for example, the Sec ond Circuit considered whether the defendant, an immigrant, was removable after he violated Connecticut’s third degree assault statute. 3 The court found in Chrzanoskithat3 (...continued)

property of another, or (b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical f orce against the person or property of another may be used in the course of co mmitting the offense.” This definition is identical to the one found in USSG § 2L1.2 except that the Guidelines’ definition does not include (b). -10- “[u]nder the plain language of [18 U.S.C.] § 16(a), use of force must be an element of the offense for that offense to be a cri me of violence under § 16(a).” Chrzanoski , 327 F.3d at 191. The court concluded that nothin g in the Connecticut third degree assault statute “require[d] the govern ment to prove that force was used in causing the injury.” Id. at 193. Therefore, because “an individual could be convicted of intentional assault in the third de gree for injury caused not by physical force, but by guile, deception, or even de liberate omission,” one who violates Connecticut’s third degree assault statute does not necessarily commit a crime of violence. Id. at 195. The Fifth Circuit reached the same conclusion in United States v. GraciaCantu , 302 F.3d 308 (5th Cir. 2002). The court had to d etermine if GraciaCantu’s prior conviction in Texas for “injury to a child” constituted a crime of violence. Id. at 311. Looking to operative language that prohib ited causing “bodily injury” to a child, the court applied a cat egorical approach and found that “the statute criminalizing injury to a child, does not require that the perpetrator actually use, attempt to use, or threaten to use physical force against a child.” Id.-11-

(emphasis added). The court cited to examples of w hen the statute could be violated without the use of force: leaving a child unattended near a pool, failing to aid children during a kidnapping, failing to rem ove a child from an abusive caretaker, or failing to provide proper medical car e to a child. Id. at 312-13. The court ultimately concluded Gracia-Cantu’s prior con viction for injury to a child was not a crime of violence. See id. Colorado’s third degree assault statute suffers fro m the same infirmities. Applying Taylor and Shepard, we conclude the statutory language of Colorado’s third degree assault statute does not necessarily i nclude the use or threatened use of “physical force” as required by the Guidelines. A prior conviction for third degree assault in Colorado, therefore, is not categ orically a crime of violence under USSG § 2L1.2. Since we have an inadequate re cord of the facts supporting the prior conviction, our analysis is constrained b y the language of the relevant statutes and Guidelines. And, as described above, we cannot say Perez-Vargas’s prior conviction for third degree assault was a cri me of violence.
III. CONCLUSION The district court erred in applying the crime of v iolence enhancement without sufficient evidence of the underlying crime . In light of our disposition of the enhancement issue, we need not address Perez-Vargas’s argument under United States v. Booker . Accordingly, we REVERSE the district court’s-12-

application of the enhancement, and REMAND for further proceedings and resentencing.