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, Federal Public Defender, on the

briefs), Office of the Federal Public Defender, District 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), Office of the United States

Attorney, Denver, Colorado for Plaintiff-Appellee.

Before SEYMOUR , KELLY , and TYMKOVICH , Circuit Judges.

TYMKOVICH , Circuit Judge.
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Ramon Perez- Vargas challenges the district court’s 16-level sentence

enhancement of his sentence, which resulted from the court’s conclusion that his

prior conviction for third degree assault in Colorado 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 Guidelines to his sentence. Taking

jurisdiction pursuant to 28 U.S.C. § 1291, we reverse the district court’s

application of the crime of violence enhancement, and remand for re-sentencing. 

I. BACKGROUND

Perez-Vargas pled guilty to one count of unlawful reentry in violation of 8

U.S.C. § 1326(a) and (b)(2). The plea agreement included an admission of the

relevant facts surrounding the unlawful reentry. The agreement also set forth

Perez-Vargas’s criminal history, including two prior convictions in Colorado. 

One conviction stemmed from a third degree assault, for which he received two

years imprisonment; a second conviction resulted from an attempted theft of

between $500 and $15,000, for which he received three years imprisonment. The

plea agreement contained no other information about these prior convictions.

The plea agreement established Perez-Vargas’s criminal 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
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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) characterized as a violent felony. See

USSG § 2L1.2(b)(1)(A) (the base offense level is increased 16 levels “[i]f the

defendant previously was deported, or unlawfully remained 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 degree assault is not necessarily a

crime of violence under the Guidelines since some nonviolent conduct could be

covered by the broad language of Colorado’s third degree 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 increased by 8 if the

defendant had “a [prior] conviction for an aggravated 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
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We review de novo the district court’s interpretation of the Guidelines and

its determination that Perez-Vargas’s prior conviction 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 crime of violence, the

Supreme Court has instructed sentencing courts to take “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 records of the prior proceeding, such

as the charging documents, the judgment, any plea thereto, 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 the
1

 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 judge to determine a fact of prior

conviction without violating a defendant’s Sixth Amendment rights. The fact of

prior conviction is not at issue here; we are concerned with the facts underlying

the prior conviction.

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identification of . . . convictions following pleas, as well as convictions on

verdicts.” Shepard, 125 S. Ct. at 1259. As a consequence, when determining

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 limit ourselves to (1) an

examination of the language of the statute under which Perez-Vargas was

convicted, (2) the charging document or court records 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 contain any charging

documents describing the underlying assault, nor any admission by Perez-Vargas.
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Consequently, the PSR is the only source of information about the crime. In it,

the government claims, according to “court documents,” that

 the defendant was arrested by the Greeley Colorado Police Department

for shooting and injuring five victims in a drive-by shooting in the 900

block of 31st Avenue, Greeley, Colorado, on July 9, 1995. Following

a dispute with several individuals, the defendant discharged 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 allowable under Taylor and

Shepard, the charged conduct would authorize the sentencing enhancement. 

Unfortunately, we do not have in the record on appeal the “court documents”

relied on by the PSR. We thus cannot evaluate whether the records would be

acceptable under the strictures of Supreme Court precedent.

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 the crime of violence

enhancement. We start with the Guidelines’ definition 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. 
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USSG § 2L1.2, Application Note 1(B)(iii) (emphasis added). The Guidelines,

however, provide no additional explanation of the critical 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 goes 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, Perez-Vargas argues that

third degree assault in Colorado is not necessarily a 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 third 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 consequences of the conduct,

however applied, whereas the Guidelines look to the type of conduct that causes

the injury. The government counters that third degree 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 question of whether one must use
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or threaten the use of physical force in order to commit third degree assault in

Colorado. 

Turning first to the language of the Colorado statute that defines third

degree assault, we note that while it is likely most 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 the statute allows for other

possibilities. Indeed, at oral argument, Perez-Vargas’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 celebrate, intentionally placing a

barrier in front of a car causing an accident, or intentionally exposing someone to

hazardous chemicals. One can imagine a number of other hypotheticals.

Since the language of the statute is broad, we turn to Colorado courts for

interpretive assistance. Unfortunately, we have found 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 violence enhancement where the

summons and complaint and the defendant’s plea agreement 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 contrast, does not have similar

evidence disclosing the underlying crime.

3

 An immigrant is removable if he is convicted of a crime 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 offense that has as an element the

use, attempted use, or threatened use of physical force against the person or

(continued...)

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Turning to circuit precedent for help, one recent case 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 statute was a crime of

violence. We found there must be “a distinction between crimes that potentially

involve violent conduct and crimes that merely involve the possibility of resulting

harm.” Id. Thus, we found that not every “sufficiently dangerous 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 a drunk driving conviction

does not necessarily include the intent element required 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 Second Circuit considered

whether the defendant, an immigrant, was removable after he violated

Connecticut’s third degree assault statute.3 The court found in Chrzanoski that
3

(...continued)

property of another, or (b) any other offense that is a felony and that, by its

nature, involves a substantial risk that physical force against the person or

property of another may be used in the course of committing the offense.” This

definition is identical to the one found in USSG § 2L1.2 except that the

Guidelines’ definition does not include (b). 

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“[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 crime of violence under § 16(a).” 

Chrzanoski, 327 F.3d at 191. The court concluded that nothing in the Connecticut

third degree assault statute “require[d] the government 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 degree for injury caused not by

physical force, but by guile, deception, or even deliberate 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 determine 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 prohibited causing

“bodily injury” to a child, the court applied a categorical 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.
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(emphasis added). The court cited to examples of when 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 remove a child from an abusive

caretaker, or failing to provide proper medical care to a child. Id. at 312-13. The

court ultimately concluded Gracia-Cantu’s prior conviction for injury to a child

was not a crime of violence. See id.

Colorado’s third degree assault statute suffers from the same infirmities.

Applying Taylor and Shepard, we conclude the statutory language of Colorado’s

third degree assault statute does not necessarily include 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 categorically a crime of violence

under USSG § 2L1.2. Since we have an inadequate record of the facts supporting

the prior conviction, our analysis is constrained by 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 crime of violence. 

III. CONCLUSION

The district court erred in applying the crime of violence 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
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application of the enhancement, and REMAND for further proceedings and resentencing.