            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                                FILED
                                                                             January 23, 2009

                                          No. 08-50140                    Charles R. Fulbruge III
                                                                                  Clerk

UNITED STATES OF AMERICA

                                                      Plaintiff-Appellee
v.

MARIO ROBLEDO-LEYVA

                                                      Defendant-Appellant



                      Appeal from the United States District Court
                           for the Western District of Texas
                                USDC No. 2:07-cr-00263


Before SMITH and SOUTHWICK, Circuit Judges and RODRIGUEZ1, District
Judge.
PER CURIAM:**
       Defendant-Appellant Mario Robledo-Leyva appeals his sentence, arguing
that the district court erroneously concluded that his prior Florida conviction for
battery on a law enforcement officer was a “crime of violence” under U.S.S.G.
§2.L1.2(b)(1)(A)(ii). We affirm.



       1
            District Judge of the Western District of Texas, sitting by designation.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                         No. 08-50140

                       I. Factual & Procedural Background
      Robledo pled guilty to illegal reentry after removal, in violation of 8 U.S.C.
§ 1326. At sentencing, the district court concluded that Robledo’s prior Florida
conviction for battery on a law enforcement officer1 constituted a “crime of
violence” under U.S.S.G. §2L1.2(b)(1)(A)(ii).           The district court overruled
Robledo’s objection to the “crime of violence” enhancement. This resulted in a
sixteen-level enhancement to the base offense level of 8.            After a 3-level
reduction for acceptance of responsibility, this resulted in a total offense level of
21, which when combined with Robledo’s criminal history category of VI,
produced a Guidelines range of 77 to 96 months. The district court sentenced
Robledo to 84 months’ imprisonment. Robledo filed a timely notice of appeal.
                                         II. Analysis
      The district court’s interpretation of the Guidelines is reviewed de novo.
United States v. Dominguez, 479 F.3d 345, 347 (5th Cir.), cert. denied, __ U.S. __,
128 S. Ct. 61, 169 L.Ed.2d 51 (2007) . Under section 2L1.2(b)(1)(A)(ii) of the
guidelines, a sixteen-level increase applies if a defendant illegally reenters the
United States after having been convicted of a felony that is a “crime of
violence.” At the time of Robledo’s sentencing, “crime of violence” was defined
in the Commentary as “any of the following offenses under federal, state, or local
law: Murder, manslaughter, kidnapping, aggravated assault, forcible sex
offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion,
extortionate extension of credit, burglary of a dwelling, or 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 another.”2




      1
          Fla. Stat. Ann. § 784.07.
      2
          Application Note 1(B)(iii) (2007).

                                               2
                                  No. 08-50140

      The prior conviction used to enhance Robledo’s base offense level was a
1991 conviction for violating Fla. Stat. Ann. § 784.07 (committing battery of law
enforcement officer).   The Government concedes that § 784.07 is not an
enumerated offense. Accordingly, the issue is whether Fla. Stat. Ann. § 784.07
“has as an element the use, attempted use, or threatened use of physical force
against the person of another.”
      Section 784.07 provides for enhanced penalties for committing a battery
on a law enforcement officer. The substantive crime of battery under Florida law
is governed by section 784.03(1)(a). This section states: “The offense of battery
occurs when a person: 1. Actually and intentionally touches or strikes another
person against the will of the other; or 2. Intentionally causes bodily harm to
another person.”
      In deciding whether a prior statute of conviction qualifies as a crime of
violence, this court has alternatively employed (1) a “common sense approach,”
defining the offense according to its “ordinary, contemporary, [and] common
meaning,” or (2) a “categorical approach.”          See e.g., United States v.
Mungia-Portillo, 484 F.3d 813, 816 (5th Cir.), cert. denied, __ U.S. __,128 S. Ct.
320, 169 L.Ed.2d 226 (2007). In United States v. Mungia-Portillo, we stated
“that the methodology employed depends upon whether the prior offense
constitutes a crime of violence (1) because it is an enumerated offense or (2)
because it has as an element the use or attempted use of force. If it is the
former, then the common sense approach is used; if it is the latter, then the
categorical approach is used.” Id. at 816 (citations omitted).
      As noted, the offense of battery on a police officer is not an enumerated
offense, and thus the categorical approach applies.       Under the categorical
approach, the court “looks to the elements of the crime, not to the defendant’s
actual conduct in committing it.” United States v. Calderon-Pena, 383 F.3d 254,
257 (5th Cir. 2004) (en banc) (emphasis in original). If an offense statute

                                        3
                                        No. 08-50140

contains disjunctive elements, a sentencing court may look to the offense conduct
described in the charging instrument for the limited purpose of determining
which of the elements were satisfied in the defendant’s conviction.3 Id. at 258;
Perez-Munoz v. Keisler, 507 F.3d 357, 361 (5th Cir. 2007) (noting that “it is
permissible to use a charging instrument to pare down a statute to determine
if a violation of part of a statute constitutes a crime of violence when the statute
as a whole categorically does not”); United States v. Carbajal-Diaz, 508 F.3d 804,
807 (5th Cir. 2007) (“Despite the general rule that a prior crime is defined
categorically by the statute of conviction, we have nevertheless permitted some
narrowing of the crime's definition based on specific facts contained in the
charging papers.”), cert. denied, __ U.S. __, 128 S. Ct. 1731, 170 L.Ed.2d 533
(2008). This approach has been termed the “modified categorical approach.”
Larin-Ulloa v. Gonzales, 462 F.3d 456, 464 (5th Cir. 2006).
       Robledo argues that Fla. Stat. Ann. § 784.03(1)(a) is not a crime of violence
because it does not have an element of force. The Florida offense of battery on
a police officer contains multiple disjunctive subsections and elements, and
provides for the commission of the offense in three different ways: (1) actually
and intentionally touching another person against his will; (2) actually and

       3
          The court may look to a number of “conclusive records made or used in adjudicating
guilt,” including the charging instrument, written plea agreement, transcript of the plea
colloquy, and any explicit factual finding by the trial judge to which the defendant assented.
Shepard v. United States, 544 U.S. 13 (2005); United States v. Garza-Lopez, 410 F.3d 268, 274
(5th Cir. 2005).
         Some decisions from this Court have stated that courts may look beyond the statute
to “pare down” the offense if the statute contains “multiple, disjunctive subsections.” See, e.g.,
United States v. Hernandez-Rodriguez, 467 F.3d 492, 494 (5th Cir. 2006); United States v.
Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir. 2005). However, the modified categorical
approach applies not only to statutes with multiple, disjunctive subsections, but also to
statutes with multiple disjunctive elements. See Calderon-Pena, 383 F.3d at 265 (Jones, J.,
dissenting) (“The majority does concede, helpfully, that if a statue has disjunctive elements or
multiple subsections, rather than apply ‘any set of facts’ to prevent all enhancements, the
indictment’s allegations and jury charge may be used to ‘pare down’ the statute to the precise
subsection that was violated.”). The offense statute at issue here contains multiple disjunctive
subsections and multiple disjunctive elements.

                                                4
                                     No. 08-50140

intentionally striking another person against his will; or (3) intentionally
causing bodily harm to another person. Because the offense can be committed
without the use or threatened use of physical force, e.g., by touching, we may
apply the modified categorical approach and look to the offense conduct
described in the charging instrument to determine which of the elements were
satisfied. Perez-Munoz, 507 F.3d at 362.
      The charging instrument read, in part, as follows: “Albert Herrera4 on the
17th day of February, 1991, did unlawfully and knowingly commit a battery upon
William Peircedorf [sic], an Alta Monte Springs police officer ... by actually and
intentionally touching or striking William Peirsedorph against his will by
striking William Peirsdorph with an automobile....”                (Emphasis added).
Although the first part of the instrument uses the broader language of the
statute, including both touching and striking, it then narrows the charge and
makes clear that Robledo was charged with only the act of striking the officer.
Striking involves the use of force. Thus, the offense as pared down under the
modified categorical approach qualifies as a crime of violence.
                                  III. Conclusion
      For the foregoing reasons, the district court’s judgment and sentence are
AFFIRMED.




      4
         The Court assumes Robledo used an alias. Robledo does not challenge the existence
or the validity of his Florida conviction.

                                            5
