### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-51129

UNITED STATES OF AMERICA, Plaintiff - Appellee
v. JOSE LUIS MIRANDA-ORTEGON, Defendant - Appellant

Appeal from the United States District Court for the Western District of Texas

Before REAVLEY, DAVIS, and PRADO, Circuit Judges. REAVLEY, Circuit Judge: Jose Miranda Ortegon challenges the sentence imposed o n h i m after pleading guilty to illegally reentering the Un ited States after deportation. He contends the district court erred when calculating h i s offense level under the United States Sentencing Guidelines, in particular by applying a sixteen-level adjustment on the basis of an O k l a h o m a c onviction for domestic assault and battery, which the district court concluded was a “crime of violence” under U.S.S.G. §•2L1.2(b)(1)(A)(ii). We agree with Ortegon, and we VA C AT E his sentence and REMAND the case for re-sentencing. 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 Februa ry 10 , 20 12 Lyle W . Cayce Clerk Case: 10-51129 Document: 00511754483 Page: 1 Date Filed: 02/10/2012No. 10-51129 I. BACKGROUND Ortegon pleaded guilty, without a plea agreement, to one count of illegal reentry, in violation of 8 U.S.C. § 1326. Guidelines § 2L1.2(b)(1)(A)(ii) increases the offense level for a § 1326 violation by sixteen if the defendant was previously deported after being convicted of a crime of violence. Prior to his deportation, 1 Ortegon was convicted in Oklahoma after pleading guilty to two counts of “assault and battery–domestic abuse,” in violation of O K LA S TA T
. tit. 21, § 644C. Section 644C states that “[a]ny person who c o m m i t s a n assault and battery against a current or former spouse . . . [or] a child

. . . shall be guilty of domestic abuse.” 2 After Ortegon pleaded in the instant case, the probation officer calculated his offense level under the Gu i d e l i nes at twenty-one, including a sixteen-level crime-of

- v i olence increase based on the 644C conviction. Ortegon objected to categorizing a 644C offense as a crime of violence, arguing instead for the fourlevel increase for a felony c o n v i c t i on provided by §•2L1.2(b)(1)(D). The probation officer declined to change the calculation in the pre-sentence report. The proba tion officer supplemented the report with documents from the Oklahoma conviction, incl u d i ng the charging instrument and findings of fact memorializing Ortegon’s admission to the charging instrument’s allega tions. Those allegations r elate that Ortegon pulled his spou s e i n t o a bedroom by her hair and wrists, pushed her onto a bed, and struck her with an open hand, and that Ortegon strangled and punched the other victim, his son. Ortegon renewed his objection at sentencing. He argued that an offense under section 644C does

U. S. S. G. § 2L1.2 (b) (1) (A) (ii ). 1
O KL A

. S TAT

. tit

. 21, § 6 44C (Wes t, 200 4). We use the vers ion of sect ion 644 cur rent 2 wh en Or tegonw as char ged on June 25, 2005.2 Case: 10-51129 Document: 00511754483 Page: 2 Date Filed: 02/10/2012No. 10-51129

not require the use of physical force because it can be c o m mitted with the slightest unconsensual touc h i n g , and that this court’s precedents preclude relying on the specific conduct underlying a conviction to determine whether his offense wa s a c r ime of violence under §•2L1.2(b)(1)(A)(ii). The district court agreed that a 644C “offense can be committed a number of different ways,” but nevertheless applied t h e crime-of-violence adjustment because Ortegon had admitted to the physically injurious violence alleged in the charging instrument. An offense level of twenty-one yielded a guideline range of between fortyone and fifty-one months. The d i s trict court imposed a forty-one month sentence, and Ortegon timely appealed. His o n ly contention on appeal is that

an offense under 644C should not be categorized as a “crime of violence” within the meaning of § 2 L 1

. 2 (b )(1)(A)(ii). He urges us to vacate his sentence and remand t h e c ase for re-sentencing. We do so because precedent requires us to distinguish between the actual conduct of the defendant and the crime for which he was convicted. He did use violence against his wife and son, but the crime for which he was convicted does not embrace that violence.

II. DISCUSSION We review the district court’s interpretation of the sentencing guidelines de novo. United States v. Calderon-Pena

. Under the applicable portion of the 3 definition supplied in § 2L.1.2’s c o m m e n t a r y , 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 o f p h y s i cal force against the person of

383 F. 3d 254, 256 ( 5th Cir. 200 4) (enban c)

. 3 3 Case: 10-51129 Document: 00511754483 Page: 3 Date Filed: 02/10/2012No. 10-51129

another.” The physical force must be “capable of causing physical pain or injury

4 to anoth e r person.” United States v. Flores-Gallo

. We must therefore determine 5 whether a violation o f s e ction 644C has as an element the attempted, threatened, or actual use of physical force capable of causing p h y s ical pain or injury. Our precedents mandate a categorical inquiry that “looks to the elements of the crime, not to the defendant’s actual conduct in committing it.” CalderonPena

. W e m a y take a modified categorical approach, permitting consultation

6 of the allegations in the charging instrument, if th e s t a tute of conviction has disjunctive elements. But we may look beyond th e e l e m e nts and the fact of 7 conviction only for the limited purpose of ascertaining which of the disjunctive elements the charged conduct implicated. United States v. Acuna-Cuadros

. 8 The elements of a 644C offense include the use of “force or violence.” But 9 the Oklahoma Court of Criminal Appeals has held t h a t “only the slightest touching is necessary to constitute the ‘force or violence’ e l e m ent of battery.” Steele v. State

. Moreover, the definition of “force” in that court’s uniform jury 1 0 instructions for assaul t a n d battery offenses states: “Any touching of a person

U. S. S. G. § 2L1.2 (b) (1) (A) (ii) cm t. n.1( B)( iii)

. The def init ion als o enco mp ase s se veral 4
enum erat ed cri me s. Id. The par tie s agree that the enum erat ed cri me s do not inclu de the off ens e a t iss ue here

. 625 F.3d819 , 823 (5t h Cir

. 2010) ( inte rnal quot atio n m ark s and cit atio n o mi tte d)

. 5

383 F.3dat257

. 6
Id. at 258. 7
385 F.3d875 , 879 (5t h Cir

. 2004) ; Cal der on- Pena , 383 F.3dat 258

. 8
O KL A

. S TAT

. tit

. 21, § 6 42 (Wes t, 200 4); O kl a. Jury Inst

. 4-26 A. 9
778 P.2d929 , 931 (O kl a. Crim

. App

. 1989)

. 1 0
4 Case: 10-51129 Document: 00511754483 Page: 4 Date Filed: 02/10/2012No. 10-51129

regardless of how slight may be sufficient to constitute force.” The Tenth 1 1 C i r c u i t has held that an Oklahoma assault and battery offense “reaches b e h avi o r that does not have as an element the use, attempted use, or threatened use of physical force against the person of another . . . .” United States v. Smith

. It 1 2
may be that most 644 C p r o s e c u t i o ns arise from offensive touching that threatens

o r i n f l icts bodily injury. But under the categorical inquiry our precede n t s require, a 644C offense is not a “ crime of violence” within the meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii). Cf. Johnson v. United States

. 1 3 Ortegon’s guideline range would have been considerably lower if the dist r ict court had not applied the sixteen-level crime-of-violence adjustment. A p p l ying the adjustment for an aggravated felony (eight levels) or for a felo n y (four levels) would yield a guideline range wi t h a n u pper limit that is considerably lower than forty-one months. And there is no indication that the 1 4
Ok la. Jur y Ins t. 4- 28. 1 1

652 F.3d124 4, 1247 (10 th Cir. 2011) (c itat ions and i nter nal punc tuat ion om itt ed)

. 1 2 The Tenth Circ uit fou nd that an Ok lahom a ass ault- and- batt ery off ens e did not fal l wi thin the fir st pr ong of the Arm ed Caree r Crim inal Act (“ACCA”)’ s “viol ent fel ony” def init ion, wh ich read s: “has as an elem ent the use , att em pt ed use , or thr eate ned use of phys ical for ce agains t the per so n of anot her. ” § 924( e)( 2)( B)( i); Smi th , 65 2 F .3d at 1246. The Tenth Circ uit ulti mat ely conc lude d that Ok lahom a’s off ens e of as sau lt and batt ery agains t an emp loyee of that st ate’ s juvenile aff airs off ice fel l wi thin the ACCA def init ion’ s resid ual claus e. 18 U. S. C. § 9 24(e )( 2)( B)( ii) (t ak ing in off ens es that “ot herw ise involve[ ] cond uct that pr es ents a se riou s pot enti al ris k of phys ical injury to ano t h e r”) ; Smi th , 652 F.3d at 1247- 48. The com me ntar y to U. S. S. G. § 2L1.2 (b) (1) (A) (ii ) inclu des no eq uivalent r es idua l c laus e.

____ U. S.

____ , 130 S. Ct. 1265, 1269- 71, (201 0) (ho ldi ng that Flori da fel ony batt ery 1 3 convic tio n wa s not a “viol ent fel ony” unde r 18 U. S. C. § 924( e)( 1)( 2)( B)( i), beca use the off ens e’s elem ents are “s atis fie d by any physic al cont act , no mat terhow s light” (quot atio n mark s and inte rnal cit atio n o mi tte d) ).

See U. S. S. G. §§ 2L1.2 (b) (1) (C) , 2L1.2 (b) (1) (D ); U. S. S. G. Ch. 5 pt

. A (s e n t e n c i n g 14 tabl e).

5 Case: 10-51129 Document: 00511754483 Page: 5 Date Filed: 02/10/2012No. 10-51129

district court would impose the same sentence regardless of the guideline range. See United States v. Ibarra-Luna

. 1 5

III. CONCLUSION We VACATE Ortegon’s sentence and REMAND the case to t h e d i strict court for re-sentencing.

628 F.3d712 , 719 (5t h Cir

. 2010)

. 1 5 6 Case: 10-51129 Document: 00511754483 Page: 6 Date Filed: 02/10/2012