                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                       F I L E D
                      UNITED STATES COURT OF APPEALS
                           for the Fifth Circuit                      November 30, 2005

                            _____________________                  Charles R. Fulbruge III
                                                                           Clerk
                                 No. 04-40173
                            _____________________



                          UNITED STATES OF AMERICA,

                                                          Plaintiff-Appellee,

                                    VERSUS

                      JOSE GUADALUPE GONZALEZ-CHAVEZ,

                                                         Defendant-Appellant.

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
_________________________________________________________________
                         (5:03-CR-872-ALL)

Before GARWOOD, SMITH, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

     On July 18, 2003, Jose Guadalupe Gonzalez-Chavez (“Gonzalez-

Chavez”) pled guilty to illegal reentry after deportation in

violation of 8 U.S.C. § 1326 and 6 U.S.C. §§ 202 and 557. The

district     court,    adopting    in    part   the     presentence     report’s

sentencing     recommendations,         which   included    a   sixteen-level

enhancement    for    a   prior   conviction    under    Florida   state     law,

sentenced Gonzalez-Chavez to a term of fifty-seven months in




                                         1
prison.1 He now appeals the judgment of the district court, arguing

that the district court plainly erred by (1) characterizing his

prior conviction under Florida law for aggravated battery as a

crime of violence under § 2L1.2 of the U.S. Sentencing Guidelines

Manual (“U.S.S.G.”) and (2) imposing a sixteen-level enhancement

based on that characterization. For the reasons stated below, we

vacate Gonzalez-Chavez’s sentence and remand for development of the

record and re-sentencing.

                                I.

     Gonzalez-Chavez   argues   that   his   prior   conviction   for

aggravated battery does not fall within the definition of “crime of

violence” as it appears in U.S.S.G. § 2L1.2(b)(1)(A)(ii) and that

the district court therefore improperly enhanced his offense level

by sixteen levels under that section. Because Gonzalez-Chavez

raises this issue for the first time on appeal, we review for plain

error. United States v. Bonilla-Mungia, 422 F.3d 316, 319 (5th Cir.

2005). When reviewing for plain error, we will find reversible

error only if “(1) there was an error; (2) the error was clear and

obvious; and (3) the error affected the defendant’s substantial

rights.” United States v. Gracia-Cantu, 302 F.3d 308, 310 (5th Cir.

2002) (citing United States v. Olano, 507 U.S. 725, 732 (1993)). If



     1
      The district court originally sentenced Gonzalez-Chavez to
a term of sixty-six months in prison, but it re-sentenced him
after granting his motion to correct sentence. That procedural
history is not relevant to this appeal.

                                 2
these elements are present, “we may exercise our discretion to

correct the error only if it ‘seriously affect[s] the fairness,

integrity, or public reputation of judicial proceedings.’” Id.

(alteration in original) (citing Olano, 507 U.S. at 732).

     U.S.S.G. § 2L1.2(b)(1)(A)(ii) provides for a sixteen-level

enhancement of a defendant’s offense level “[i]f the defendant

previously was deported, or unlawfully remained in the United

States, after a conviction for a felony that is . . . a crime of

violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii) (2002).2 The commentary to

that section defines a “crime of violence” as “an 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,” § 2L1.2(b)(1)(A)(ii), cmt. 1(B)(ii)(I), and

states   that   the   term   “crime   of   violence”   includes   “murder,

manslaughter, kidnapping, aggravated assault, forcible sex offenses

(including sexual abuse of a minor), robbery, arson, extortion,

extortionate extension of credit, and burglary of a dwelling,”

§ 2L1.2(b)(1)(A)(ii), cmt. 1(B)(ii)(II). The government does not

contend that aggravated battery is an enumerated offense under

subpart II of the commentary;3 thus, the only issue on appeal is


     2
      The district court used the 2002 edition of the U.S.
Sentencing Guidelines Manual in sentencing Gonzalez-Chavez.
     3
      This circuit has not yet addressed whether the Florida
offense of aggravated battery (or any other state aggravated
battery offense, for that matter) might be categorized as
“aggravated assault,” one of the enumerated crimes of violence,

                                      3
whether, under subpart I of the commentary, the district court

properly held that Gonzalez-Chavez’s prior conviction has as an

element the use, attempted use, or threatened use of physical force

against the person of another.

     The Fifth Circuit has had several opportunities now to examine

the “use of force” requirement in subpart I of the commentary to

U.S.S.G. § 2L1.2(b)(1)(A)(ii), and the following is the current

method of evaluating whether a prior offense is a crime of violence

under that subpart:

          When determining whether a prior offense is a crime
     of violence because it has as an element the use,
     attempted use, or threatened use of force, district
     courts must employ the categorical approach established
     in Taylor v. United States, 495 U.S. 575, 602, 110 S. Ct.
     2143, 109 L. Ed. 2d 607 (1990). Calderon-Pena, 383 F.3d
     [254,] 257-58 [(5th Cir. 2004)]; see also United States
     v. Alfaro, 408 F.3d 204, 208 (5th Cir. 2005); United
     States v. Gracia-Cantu, 302 F.3d 308, 309 (5th Cir.
     2002). Under that approach, courts determine the elements
     to which a defendant pleaded guilty by analyzing the
     statutory definition of the defense, not the defendant’s
     underlying conduct. Calderon-Pena, 383 F.3d at 257
     (citing United States v. Vargas-Duran, 356 F.3d 598, 606
     (5th Cir. 2004) (en banc)). If a statute contains
     multiple, disjunctive subsections, courts may look beyond
     the statute to certain “conclusive records made or used
     in adjudicating guilt” in order to determine which
     particular   statutory   alternative   applies   to   the
     defendant’s conviction. See United States v. Garza-Lopez,
     410 F.3d 268, 274 (5th Cir. 2005) (discussing the
     parameters of our review under Taylor). These records are
     generally limited to the “charging document, written plea
     agreement, transcript of the plea colloquy, and any


under the commentary to § 2L1.2(b)(1)(A)(ii). Because that issue
was not raised by the parties or adequately briefed by them when
they were given an opportunity to do so, we decline to address it
here. In re Acosta, 406 F.3d 367, 375 (5th Cir. 2005).

                                 4
     explicit factual finding by the trial judge to which the
     defendant assented.” Shepard v. United States, ___ U.S.
     ___, 125 S. Ct. 1254, 1257, 161 L. Ed. 2d 205 (2005).

          Thus, to decide whether the district court’s crime-
     of-violence enhancement was proper, we must answer the
     following questions: First what particular offense was
     [the defendant] convicted of? Second, does that offense
     require proof of the use, attempted use, or threatened
     use of physical force . . . ?

Bonilla-Mungia, 422 F.3d at 320.

     Gonzalez-Chavez was convicted of aggravated battery under

section 784.045 of the 1998 Florida Statutes, which provides three

distinct ways to commit aggravated battery.4 Unfortunately, the

record does not indicate under which subsection of section 784.045

Gonzalez-Chavez was convicted. Although the presentence report

(“PSR”)   contains   facts   relating   to   Gonzalez-Chavez’s   alleged

conduct in committing the aggravated battery, this Court will not

consider those facts because they are not explicit findings the

Florida court made or used in adjudicating Gonzalez-Chavez’s guilt.

Bonilla-Mungia, 422 F.3d at 321; see also Garza-Lopez, 410 F.3d at


     4
      Section 784.045 states,
     (1)(a)    A person commits aggravated battery who, in
     committing battery:
     1. Intentionally or knowingly causes great bodily harm,
     permanent disability, or permanent disfigurement; or
     2. Uses a deadly weapon.
        (b)    A person commits aggravated battery if the
     person who was the victim of the battery was pregnant
     at the time of the offense and the offender knew or
     should have known that the victim was pregnant.
Fla. Stat. § 784.045. Battery occurs under Florida law when a
person “[a]ctually and intentionally touches or strikes another
person against the will of the other” or “intentionally causes
bodily harm to another person.” Fla. Stat. § 784.03(1)(a).

                                   5
274 (“[A] district court is not permitted to rely on a PSR’s

characterization of a defendant’s prior offense for enhancement

purposes.”). And the record contains no other documents on which

this       Court     may   rely   to   determine   whether     Gonzalez-Chavez’s

conviction fits under the definition of crime of violence. Where we

cannot identify with legal certainty under which portion of a

statute a defendant was convicted, we cannot determine whether a

crime of violence enhancement was proper. Bonilla-Mungia, 422 F.3d

at 321. In such a case, we remand to the district court for

supplementation of the record and re-sentencing. Id.

       We reiterate the rule of Bonilla-Mungia here to emphasize that

in cases in which, as here, it is not clear (1) under which portion

of a multipart statute the defendant was previously convicted and

(2) whether the subsections of that statute qualify as crimes of

violence,          district   courts    must   ensure   that   the   appropriate

documentation5 is included in the record before imposing a sixteen-

level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Reliance on

a PSR will not suffice in these cases. We do not address on these

facts the case in which a statute’s subsections are all clearly




       5
      As discussed above, “[t]hese records are generally limited
to the ‘charging document, written plea agreement, transcript of
the plea colloquy, and any explicit factual finding by the trial
judge to which the defendant assented.’” Bonilla-Mungia, 422 F.3d
at 320.

                                           6
crimes of violence. In such a case, remand might not be required.6

     Accordingly, we VACATE the sentence imposed on Gonzalez-Chavez

and REMAND for development of the record and re-sentencing.

                                  II.

     On remand, the district court should order the government to

supplement the record with documents that might establish to which

elements of aggravated battery Gonzalez-Chavez pled guilty. Once

the government has supplemented the record, the district court

should reconsider whether a sixteen-level enhancement is warranted

under U.S.S.G. § 2L1.2, taking into consideration whether Gonzalez-

Chavez’s conviction for aggravated battery qualifies as a crime of

violence   under   either   subpart       of   the   commentary   to   U.S.S.G.

§ 2L1.2(b)(1)(A)(ii).




     6
      Here, at least one subsection of the statute, namely
subsection 1(b), is not clearly a crime of violence. This is
because battery of a pregnant woman can be committed without the
use, attempted use, or threatened use of force, for example, it
can be committed by spitting on a pregnant woman. See Johnson v.
State, 858 So. 2d 1071, 1072 (Fla. App. 3d Dist. 2003) (holding
that just because spitting on someone certainly “amounts to an
unwanted touching, it does not amount to the use or threat of use
of physical force or violence.”).

                                      7
