IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 on him after

pleading guilty to illegally reentering the United States after deportation. He

contends the district court erred when calculating his offense level under the

United States Sentencing Guidelines, in particular by applying a sixteen-level

adjustment on the basis of an Oklahoma conviction 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 VACATE his

sentence and REMAND the case for re-sentencing.

United States Court of Appeals

Fifth Circuit

F I L E D

February 10, 2012

Lyle W. Cayce

Clerk

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No. 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 OKLA STAT.tit. 21, § 644C. 

Section 644C states that “[a]ny person who commits an 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 Guidelines at twenty-one, including a sixteen-level

crime-of-violence 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 conviction provided by §•2L1.2(b)(1)(D). The

probation officer declined to change the calculation in the pre-sentence report.

The probation officer supplemented the report with documents from the

Oklahoma conviction, including the charging instrument and findings of fact

memorializing Ortegon’s admission to the charging instrument’s allegations. 

Those allegations relate that Ortegon pulled his spouse into 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

 OKLA. STAT. tit. 21, § 644C (West, 2004). We use the version of section 644 current 2

when Ortegon was charged on June 25, 2005.

2

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not require the use of physical force because it can be committed with the

slightest unconsensual touching, and that this court’s precedents preclude

relying on the specific conduct underlying a conviction to determine whether his

offense was a crime 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 the 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 district court imposed a forty-one month

sentence, and Ortegon timely appealed. His only contention on appeal is that

an offense under 644C should not be categorized as a “crime of violence” within

the meaning of § 2L1.2(b)(1)(A)(ii). He urges us to vacate his sentence and

remand the case 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 commentary, 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

 383 F.3d 254, 256 (5th Cir. 2004) (en banc).

3

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another.” The physical force must be “capable of causing physical pain or injury 4

to another person.” United States v. Flores-Gallo. We must therefore determine 5

whether a violation of section 644C has as an element the attempted,

threatened, or actual use of physical force capable of causing physical 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. We may take a modified categorical approach, permitting consultation 6

of the allegations in the charging instrument, if the statute of conviction has

disjunctive elements. But we may look beyond the elements 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 that “only the slightest

touching is necessary to constitute the ‘force or violence’ element of battery.” 

Steele v. State. Moreover, the definition of “force” in that court’s uniform jury 10

instructions for assault and battery offenses states: “Any touching of a person

U.S.S.G. § 2L1.2(b)(1)(A)(ii) cmt. n.1(B)(iii). The definition also encompases several 4

enumerated crimes. Id. The parties agree that the enumerated crimes do not include the

offense at issue here.

 625 F.3d 819, 823 (5th Cir. 2010) (internal quotation marks and citation omitted).

5

 383 F.3d at 257. 

6

 Id. at 258. 7

 385 F.3d 875, 879 (5th Cir. 2004); Calderon-Pena, 383 F.3d at 258.

8

 OKLA. STAT. tit. 21, § 642 (West, 2004); Okla. Jury Inst. 4-26A. 9

 778 P.2d 929, 931 (Okla. Crim. App. 1989).

10

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regardless of how slight may be sufficient to constitute force.” The Tenth 11

Circuit has held that an Oklahoma assault and battery offense “reaches behavior

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 12

may be that most 644C prosecutions arise from offensive touching that threatens

or inflicts bodily injury. But under the categorical inquiry our precedents

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.

13

Ortegon’s guideline range would have been considerably lower if the

district court had not applied the sixteen-level crime-of-violence adjustment.

Applying the adjustment for an aggravated felony (eight levels) or for a felony

(four levels) would yield a guideline range with an upper limit that is

considerably lower than forty-one months. And there is no indication that the 14

 Okla. Jury Inst. 4-28. 11

652 F.3d 1244, 1247 (10th Cir. 2011) (citations and internal punctuation omitted).

12

The Tenth Circuit found that an Oklahoma assault-and-battery offense did not fall within the

first prong of the Armed Career Criminal Act (“ACCA”)’s “violent felony” definition, which

reads: “has as an element the use, attempted use, or threatened use of physical force against

the person of another.” § 924(e)(2)(B)(i); Smith, 652 F.3d at 1246. The Tenth Circuit

ultimately concluded that Oklahoma’s offense of assault and battery against an employee of

that state’s juvenile affairs office fell within the ACCA definition’s residual clause. 18 U.S.C.

§ 924(e)(2)(B)(ii) (taking in offenses that “otherwise involve[] conduct that presents a serious

potential risk of physical injury to another”); Smith, 652 F.3d at 1247-48. The commentary

to U.S.S.G. § 2L1.2(b)(1)(A)(ii) includes no equivalent residual clause.

____ U.S. ____, 130 S. Ct. 1265, 1269-71, (2010) (holding that Florida felony battery 13

conviction was not a “violent felony” under 18 U.S.C. § 924(e)(1)(2)(B)(i), because the offense’s

elements are “satisfied by any physical contact, no matter how slight” (quotation marks and

internal citation omitted)).

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

14

table).

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district court would impose the same sentence regardless of the guideline range. 

See United States v. Ibarra-Luna.

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III. CONCLUSION

We VACATE Ortegon’s sentence and REMAND the case to the district

court for re-sentencing.

 628 F.3d 712, 719 (5th Cir. 2010).

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