IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-40272

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CESAR DIAZ-CORTES,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

No. 5:09-CR-746-1

Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Cesar Diaz-Cortes pleaded guilty of illegal reentry by a previously

deported alien, in violation of 8 U.S.C. § 1326. His base offense level was set at 8

for the illegal reentry and was increased by sixteen for a 2003 Illinois conviction

of “Aggravated Battery/Peace Officer/Fireman.” He was given a two-level reduction for acceptance of responsibility, resulting in a net offense level of 22, which,

coupled with a criminal history category of III, yielded a sentencing guideline

United States Court of Appeals

Fifth Circuit

F I L E D

October 6, 2011

Lyle W. Cayce

Clerk

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

Case: 10-40272 Document: 00511625660 Page: 1 Date Filed: 10/06/2011
No. 10-40272

range of 51-63 months. He was sentenced, below the range, to 46 months’

imprisonment, three years’ supervised release, and a $100 special assessment. 

On appeal, Diaz-Cortes raises only one issue: whether the district court

erred in imposing the sixteen-level “crime of violence” enhancement under

U.S.S.G. § 2L1.2(b)(1)(A)(ii). We agree with Diaz-Cortes that the Illinois conviction was not a “crime of violence.”

The probation officer supplied a “Certified Statement of Conviction/-

Disposition,” which we assume arguendo can be used to supply information

regarding the conviction. That document indicates that Diaz-Cortes pleaded

guilty to Count One of the information, simple battery by causing bodily harm,

under an Illinois statute that states that “(a) A person commits battery if he

intentionally or knowingly without legal justification and by any means,

(1) causes bodily harm to an individual.” The conviction became an aggravated

battery under Illinois law because the battery was of a police officer.

We agree with Diaz-Cortes that the conviction does not qualify as a crime

of violence, because it does not have as an element the “use, attempted use, or

threatened use of physical force against the person of another.” U.S.S.G.

§ 2L1.2, comment. (n.1(B)(ii)(I)). This result is required under United States v.

Calderon-Pena, 383 F.3d 254 (5th Cir. 2004) (en banc), and United States v.

Vargas-Duran, 356 F.3d 598 (5th Cir. 2004) (en banc). And in United States v.

Gomez-Vargas, 111 F. App’x 741, 743 (5th Cir. 2004) (per curiam), we concluded

that “[t]he Illinois aggravated battery statute provides for the commission of the

offense in a number of different ways, some of which do not require the use of

physical force against a person.”

Accordingly, the judgment of sentence is VACATED and REMANDED for

resentencing. Because Diaz-Cortes may already have served more time than he

will be required to serve after resentencing, we direct the district court to expedite the resentencing. To accelerate that process, we also instruct the clerk to

issue the mandate forthwith.

2

Case: 10-40272 Document: 00511625660 Page: 2 Date Filed: 10/06/2011