1 United States Court of Appeals

Fifth Circuit



## FILED

November 30, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

for the Fifth Circuit

_____________________

No. 04-40173

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JOSE GUADALUPE GONZALEZ-CHAVEZ,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________ (5:03-CR-872-ALL)

Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

On July 18, 2003, Jose Guadalupe Gonzalez-Chavez (“GonzalezC havez”) pled guilty to illegal reentry after deportat ion in

violation of 8 U.S.C. § 1326 and 6 U.S.C. §§ 202 and 557. The

district court, adopting in part the pres entence report’s

sentencing recommendations, which included a sixteen-level

enhancement for a prior conviction under Flor ida state law,

sentenced Gonzalez-Chavez to a term of fifty -seven months in1 The district court originally sentenced Gonzalez-Chavez to

a term of sixty-six months in prison, but it re-sentenced him

after granting his motion to correct sentence. That procedural

history is not relevant to this appeal.

2 prison. 1 He now appeals the judgment of the district court, arguing

that the district court plainly erred by (1) charact erizing his

prior conviction under Florida law for aggravated battery as a

crime of violence under § 2L1.2 of the U.S. Sentencing Guidelines

Manual (“U.S.S.G.”) and (2) imposing a sixteen-level enhancement

based on that cha racterization. For the reasons stated below, we

vacate Gonzalez-Chavez’s sentence and remand for development of the

record and re-sentencing.

I.

Gonzalez-Chavez argues that his prior conviction for

aggravated battery does not fall within the definition of “crime of

violence” as it appears in U.S.S.G. § 2L1.2(b)(1)(A)(ii) and that

the district court therefore improperly enhanced his offense level

by s i xteen levels under that section. Because Gonzalez-Chavez

raises this issue for the first time on appeal, we review for plain

error. United States v. Bonilla-Mungia

, 422 F.3d 316, 319 (5th Cir.

2005). When reviewing for plain error, we will find reversible

error only if “(1) there was an error; (2) the error was clear and

obvious; and (3) the error affect ed the defendant’s substantial

rights.” United States v. Gracia-Cantu

, 302 F.3d 308, 310 (5th Cir.

2002) (citing United States v. Olano

, 507 U.S. 725, 732 (1993)). If2 The district court used the 2002 edition of the U.S.

Sentencing Guidelines Manual in sentencing Gonzalez-Chavez.

3 This circuit has not yet addressed whether the Florida

offense of aggravated battery (or any other state aggravated

battery offense, for that matter) might be categorized as

“aggravated assault,” one of the enumerated crimes of violence,

3 these elements are present, “we may exercise our discretion to

correct the error only if it ‘seriously affect[s] th e fairness,

integrity, or public reputation of judicial proc eedings.’” I d.

(alteration in original) (citing Olano , 507 U.S. at 732).

U.S.S.G. § 2L1.2(b)(1)(A)(ii) provides for a sixteen-level

enh ancement of a defendant’s offense level “[i]f the defendant

previously was deported, or unlawfully remained in the United

States, after a conviction for a felony that is

. . . a crime of

violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2002). 2 The commentary to

that section defines a “crime of violence” as “an offense under

federal, state, or local law th at has as an element the use,

attempted use, or threatened use of physical force against the

person of another,” § 2L1.2(b)(1) (A)(ii), cmt. 1(B)(ii)(I), and

s tates that the term “crime of violence” includes “murder

,

manslaughter, kidnapping, aggravated assault, forcible sex offenses

(including sexual abuse of a minor), robbery, arson, extortion,

extortionate extension of credit, and burglary of a d welling,”

§ 2L1.2(b)(1)(A)(ii), cmt. 1(B)(ii)(II). The government does not

contend that aggr avated battery is an enumerated offense under

subpart II of the commentary; 3 thus, the only issue on appeal isunder the commentary to § 2L1.2(b)(1)(A)(ii). Because that issue

was not raised by the parties or adequately briefed by them when

they were given an opportunity to do so, we decline to address it

here. In re Acosta , 406 F.3d 367, 375 (5th Cir. 2005).

4 whether, under subpart I of the commentary, the district court

properly held that Gonzalez-Chavez’s prior convictio n has as an

element the use, attempted use, or threatened use of physical force

against the person of another.

The Fifth Circuit has had several opportunities now to examine

the “use of force ” requirement in subpart I of the commentary to

U.S.S.G. § 2L1. 2(b)(1)(A)(ii), and the following is the current

method of evaluating whether a prior offense is a crime of violence

under that subpart:

When determining whether a prior offense is a crime

of violence because it has as an element the use,

attempted use , or threatened use of force, district

courts must employ the categorical approach established

in Taylor v. United States

, 495 U.S. 575, 602, 110 S. Ct.

2143, 109 L. Ed. 2d 607 (1990). Calderon-Pena , 383 F.3d

[254,] 257-58 [(5th Cir. 2004)]; see also United States

v. Alfaro

, 408 F.3d 204, 208 (5th Cir. 2005); United

States v. Gracia-Cantu

, 302 F.3d 308, 309 (5th Cir.

2002). Under that approach, courts determine the elements

to which a defendant pleaded guilty by analyzing the

statutory definition of the defense, not the defendant’s

underlying conduct. Calderon-Pena

, 383 F.3d at 257

(citing United States v. Vargas-Duran

, 356 F.3d 598, 606

(5th Ci r. 2004) (en banc)). If a statute 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

defendant’s conviction. See United States v. Garza-Lopez

, 410 F.3d 268, 274 (5th Cir. 2005) (discussing the

parameters of our review under Taylor ). These records are

generally limited to the “charging document, written plea

agreement, transcript of the pl e a colloquy, and any4 Section 784.045 states,

(1)(a) A person commits aggravated battery who, in

committing battery:

1. Intentionally or knowingly causes great bodily harm,

permanent disability, or permanent disfigurement; or

2. Uses a deadly weapon.

(b) A person commits aggravated battery if the

person who was the victim of the battery was pregnant

at the time of the offense and the offender knew or

should have known that the victim was pregnant.

Fla. Stat. § 784.045. Battery occurs under Florida law when a

person “[a]ctually and intentionally touches or strikes another

person against the will of the other” or “intentionally causes

bodily harm to another person.” Fla. Stat. § 784.03(1)(a).

5 explicit factual finding by the trial judge to which the

defendant assented.” Shepard v. United States , ___ U.S.

___, 125 S. Ct. 1254, 1257, 161 L. Ed. 2d 205 (2005).

Thus, to decide whether the district court’s crimeof-violence enhancement was pro per, we must answer the

following questions: First what particular offense was

[the defendant] convicted of? Second, does that offense

require proof of the use, at tempted use, or threatened

use of physical force . . . ?

Bonilla-Mungia , 422 F.3d at 320.

Gonzalez-Chavez was convicted of aggravated battery under

section 784.045 of the 1998 Florida Statutes, which provides three

distinct ways to commit aggravated ba ttery. 4 Unfortunately, the

record does not indicate under which subsection of section 784.045

Gonzalez-Chavez was convicted. Although the presentence report

(“PSR”) contains facts relating to Gonzalez-Chavez’s alleged

conduct in committing the aggravated battery, this Court will not

consider those facts because they are not explicit findings the

Florida court made or used in adjudicating Gonzalez-Chavez’s guilt.

Bonilla-Mungia

, 422 F.3d at 321; see also Garza-Lopez

, 410 F.3d at5 As discussed above, “[t]hese records are generally limited

to the ‘charging document, written plea agreement, transcript of

the plea colloquy, and any explicit factual finding by the trial

judge to which the defendant assented.’” Bonilla-Mungia , 422 F.3d

at 320.

6 274 (“[A] district court is not permitt ed to rely on a PSR’s

characterization of a defendant’s prior offense for enhancement

purposes.”). And th e record contains no other documents on which

this Court may rely to determine whether Gonzalez-Chavez’s

conviction fits under the definition of crime of violence. Where we

cannot ide ntify with legal certainty under which portion of a

statute a defendant was convicted, we cannot determine whet her a

crime of violence enhancement was proper. Bonilla-Mungia

, 422 F.3d

at 321. In such a case, we remand to the district court for

supplementation of the record and re-sentencing. Id.

We reiterate the rule of Bonilla-Mungia here to emphasize that

in cases in which, as here, it is not clear (1) under which portion

of a multipart statute the defendant was previously convicted and

(2) whether the subsections of that statute qualify as crimes of

violence, district courts must ensure that the appropriate

documentation 5 is included in the record before imposing a sixteenlevel enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Reliance on

a PSR will not suffice in these cases. We do not address on these

facts the case in which a statute’s subsections are all clearly6 Here, at least one subsection of the statute, namely

subsection 1(b), is not clearly a crime of violence. This is

because battery of a pregnant woman can be committed without the

use, attempted use, or threatened use of force, for example, it

can be committed by spitting on a pregnant woman. See Johnson v.

State , 858 So. 2d 1071, 1072 (Fla. App. 3d Dist. 2003) (holding

that just because spitting on someone certainly “amounts to an

unwanted touching, it does not amount to the use or threat of use

of physical force or violence.”).

7 crimes of violence. In such a case, remand might not be required. 6

Accordingly, we VACATE the sentence imposed on Gonzalez-Chavez

and REMAND for development of the record and re-sentencing.

II.

On remand, the district court should order the government to

supplement the record with documents that might establish to which

elements of aggravated battery Gonzalez-Chavez pled guilty. Once

the government ha s supplemented the record, the district court

should reconsider whether a sixteen-level enhancement is warranted

under U.S.S.G. § 2L1.2, taking into consideration whether GonzalezChavez’s conviction for aggravated battery qualifies as a crime of

violence under either subpart of th e commentary to U.S.S.G.

§ 2L1.2(b)(1)(A)(ii).