### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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-Cort e s p l e aded 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 c riminal history category of III, yielded a sentencing guideline U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 6, 20 11 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-40272 Document: 00511625660 Page: 1 Date Filed: 10/06/2011No. 10-40272

range of 5 1

- 6 3 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 o n e i s sue: whether the district court erred in imposing the sixteen-level “crime of violence” enhanc e m e nt 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 S t at ement of Conviction/- D i sposition,” which we assume arguendo can be used to supply informati o n regarding th e c onviction. 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 justificati o n a nd 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 a s a n 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. Ca lderon-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 o f wh ic h d o 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 cle rk to issue the mandate forthwith.
2 Case: 10-40272 Document: 00511625660 Page: 2 Date Filed: 10/06/2011