     Case: 13-40049      Document: 00512502157         Page: 1    Date Filed: 01/15/2014




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

                                      No. 13-40049                              FILED
                                                                         January 15, 2014
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                                                 Plaintiff - Appellee
v.

CESAR ANTONIO CORTEZ-ROCHA,

                                                 Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:12-CR-1156-1


Before JOLLY, HIGGINBOTHAM, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Cesar Cortez-Rocha pled guilty to being found unlawfully present in the
United States after deportation, in violation of 8 U.S.C. § 1326(a), (b). Cortez
was sentenced to 77 months imprisonment by the district court based on the
presentence report calculation of a base level offense of eight and a 16-level
“crime of violence” enhancement stemming from a 1997 Texas conviction for
“aggravated assault.” Cortez appeals his sentence and argues that his prior




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-40049    Document: 00512502157     Page: 2   Date Filed: 01/15/2014



                                 No. 13-40049
conviction does not constitute a crime of violence under the sentencing
guidelines. We agree and VACATE and REMAND for resentencing.
                 BACKGROUND AND PROCEDURAL HISTORY
      Cortez was sentenced following his guilty plea to being found unlawfully
present in the United States following deportation. 8 U.S.C. § 1326(a), (b). The
presentence report (PSR) recommended that Cortez’s base offense level of eight
be increased by 16 levels due to a 1997 Texas state court conviction for
“aggravated assault,” which the PSR considered to be a crime of violence under
the Sentencing Guidelines. U.S.S.G. § 2L1.2(b)(1)(A)(ii). The prior Texas
conviction stemmed from an indictment for attempted murder, but Cortez pled
to the lesser included offense of aggravated assault.
      The crime of violence enhancement led to an offense level of 24, reduced
to a level of 22 for Cortez’s acceptance of responsibility. The recommended
criminal history score placed him in a criminal history category of VI and
resulted in a Guidelines range of 84-105 months. Cortez filed an objection to
the 16-level enhancement, arguing that the government “has failed to present
competent evidence that would justify such an enhancement”; he also argued
that the Texas conviction was not a crime of violence under U.S.S.G. § 2L1.2
because the statute can be violated in a way that does not constitute the generic
offense of aggravated assault and is not otherwise a crime of violence under
U.S.S.G. § 2L1.2. The district court adopted the 16-level enhancement in the
PSR, implicitly overruling the objection. Cortez was sentenced to a 77-month
term of imprisonment, at the bottom of the guideline range after Cortez
received a reduction in level for acceptance of responsibility. Cortez filed a
timely notice of appeal.
                                 DISCUSSION
      The district court’s characterization of a prior offense as a crime of
violence is a question of law we review de novo where the issue has been
                                       2
    Case: 13-40049      Document: 00512502157     Page: 3   Date Filed: 01/15/2014



                                   No. 13-40049
preserved. United States v. Bonilla, 524 F.3d 647, 651-52 (5th Cir. 2008). “To
preserve error, an objection must be sufficiently specific to alert the district
court to the nature of the alleged error and to provide an opportunity for
correction.” United States v. Neal, 578 F. 3d 270, 272 (5th Cir. 2009); see FED
R. CRIM. P. 51(b). At sentencing, Cortez objected to the application of the
crime-of-violence enhancement in arguing that the Government “failed to
present competent evidence that would justify such an enhancement” and that
“should the Government present competent evidence to establish the nature of
the offense of conviction, the elements of the offense, and the fact of conviction,
it is urged that the same does not qualify as a crime of violence, as defined
under U.S.S.G. §2L1.2.” While short of the specific articulation and citation to
authority of the arguments before us, Cortez’s objections were sufficiently
specific to explain the substance of his objection and to preserve the error and
its attendant de novo standard of review.
        Section 2L1.2(b)(1)(A)(ii) of the Sentencing Guidelines provides in illegal
reentry cases for a 16-level increase to a defendant’s base offense level when
the defendant was previously deported following a conviction for a felony that
constitutes a crime of violence. An offense qualifies as a crime of violence if it
either falls under one of the enumerated offenses, or the residual clause as an
offense that has as an element the use, attempted use, or threatened use of
physical force. U.S.S.G. § 2L1.2 cmt. n.1(B)(iii); United States v. Martinez-
Flores, 720 F.3d 293, 295 (5th Cir. 2013). We consider each possibility.
   I.      Whether Cortez’s conviction qualifies as the enumerated offense of
           aggravated assault
        While aggravated assault is a listed offense in U.S.S.G. § 2L1.2, the
Guidelines do not define the offense. See U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). This
court must determine whether the Texas crime of aggravated assault fits
within the generic, contemporary meaning of the offense, even if the state’s
                                         3
    Case: 13-40049      Document: 00512502157     Page: 4    Date Filed: 01/15/2014



                                  No. 13-40049
name for the offense is identical to that enumerated in the Guidelines. United
States v. Fierro-Reyna, 466 F.3d 324, 327 (5th Cir. 2006). This approach looks
to the Model Penal Code, treatises, modern state codes, and dictionary
definitions. United States v. Esparza-Perez, 681 F.3d 228, 229-30 (5th Cir.
2012). “When comparing the state conviction with the generic, contemporary
meaning of the crime, we examine the elements of the statute of conviction
rather than the specifics of the defendant’s conduct.” Martinez-Flores, 720 F.3d
at 296. If all of the conduct prohibited by a state statute falls within the generic
definition of the listed offense, then the prior offense is a crime of violence.
United States v. Gomez-Gomez, 547 F.3d 242, 244 (5th Cir. 2008).
      If the statute can be violated in a way such as to not constitute a crime
of violence, this court can decide whether the defendant’s conduct constituted
a crime of violence by reviewing, under what has become known as the
“modified categorical approach,” the charging papers, written plea agreement,
guilty-plea transcript, factual findings by the trial judge to which the
defendant assented, or jury instructions. Shepard v. United States, 544 U.S.
13, 16-17 (2005).
      The judgment on the 1997 conviction states that Cortez was convicted of
aggravated assault in the third degree and expressly makes no finding on use
of a deadly weapon. No statute of conviction is stated. The judgment refers to
the fact that he was charged by an indictment, but that indictment also does
not identify a section of the Texas Code that supports the charge. The parties
here agree that the conviction was under Section 22.02 of the Texas Penal
Code. At the time of the offense, October 14, 1993, Section 22.02(a) provided
that a person commits aggravated assault if he commits an assault under
Section 22.01 and he:
      (1)   causes serious bodily injury to another, including the person’s
            spouse;

                                         4
    Case: 13-40049      Document: 00512502157       Page: 5   Date Filed: 01/15/2014



                                    No. 13-40049
      (2)     threatens with a deadly weapon or threatens to cause bodily injury
              or causes bodily injury to [specified public employees, including
              peace officers], when the person knows or has been informed that
              the person assaulted is [one of the specified public employees]: (A)
              while the [specified public employee] is lawfully discharging an
              official duty; or (B) in retaliation for or on account of an exercise of
              official power or performance of an official duty [as a specified
              public employee];
      (3)     causes bodily injury to a participant in a court proceeding when
              the person knows or has been informed the person assaulted is a
              participant in a court proceeding: (A) while the injured person is
              lawfully discharging an official duty; or (B) in retaliation for or on
              account of the injured person’s having exercised an official power
              or performed an official duty as a participant in a court proceeding;
              or
      (4)     uses a deadly weapon.
TEX. PENAL CODE § 22.02(a)(1)-(4) (West 1989) (titled “Aggravated Assault”),
quoted as amended by Acts 1991, 72nd Leg., ch. 334, § 2, eff. Sept. 1, 1991.
      The Government concedes that some conduct prohibited by the statute
would not qualify for the enhancement. It contends, though, that using the
indictment under the modified categorical approach reveals that Cortez was
convicted of using a deadly weapon to commit the assault. It is true that the
indictment charged Cortez with attempted murder by firing into a vehicle with
a deadly weapon. We have held that a conviction under Section 22.02(a) for
“aggravated assault with a deadly weapon” constitutes a crime of violence
under the guidelines. United States v. Guillen-Alvarez, 489 F.3d 197, 199 (5th
Cir. 2007).
      The problem with the Government’s argument, though, is that the
modified categorical approach considers the elements of the crime of
conviction. See Descamps v. United States, 133 S.Ct. 2276, 2285 (2013). The
indictment is an important source of information under the modified
categorical approach, but we cannot rely on any part of an indictment that
“charges a crime of which [the defendant] was not convicted.” Bonilla, 524 F.3d
                                          5
    Case: 13-40049     Document: 00512502157    Page: 6   Date Filed: 01/15/2014



                                 No. 13-40049
at 652. We agree with the reasoning of a non-precedential opinion of this court
that the indictment language is not usable even if a defendant “was convicted
of a lesser included offense [of one of the counts in an indictment]. Unless a
defendant is re-indicted on the pled-to crime or the original indictment
specifies the relevant lesser included offense, courts may not rely on the
indictment’s factual allegations.” United States v. Cabrera, 478 F. App’x 204,
208 (5th Cir. 2012).
      We identify what we do know about the 1997 conviction. Cortez was
convicted under Section 22.02 of the Texas Penal Code, but nothing reveals
which particular subsection of Section 22.02 applied.      His conviction was
categorized as being for a third-degree aggravated assault. The state court’s
judgment explicitly stated that no findings were made about the use of a deadly
weapon.    Because no usable document provides information to limit the
breadth of Section 22.02 as applied to Cortez’s conviction, “we consider [the
statute] as a whole to determine whether [the defendant’s] conviction qualifies
as a crime of violence.” Bonilla, 524 F.3d at 653.
      We have previously held that a conviction under Section 22.02(a) is not
one “within the generic, contemporary meaning of aggravated assault as it is
used in Section 2L1.2.” Fierro-Reyna, 466 F.3d at 329-30. At least some of
Section 22.02’s subparts involve “prohibited behavior that is not within the
plain, ordinary meaning of the enumerated offense, [and thus] the conviction
is not a crime of violence as a matter of law.” Id. at 327 (quotation marks
omitted). For example, through its categorizing simple assault on a police
officer as an aggravated assault, Section 22.02 can be violated by means
beyond the generic, contemporary meaning of aggravated assault. Id. at 329.
Thus, the whole of the statute cannot be read to constitute a crime of violence.
      Cortez’s conviction under Section 22.02, considered as the whole statute
and without the ability to pare down his conviction to a particular subsection,
                                       6
    Case: 13-40049       Document: 00512502157     Page: 7   Date Filed: 01/15/2014



                                    No. 13-40049
cannot be a conviction for a crime of violence involving the enumerated offense
of aggravated assault.
   II.      Whether Cortez’s conviction qualifies as a crime of violence under the
            use of physical force clause
         Cortez argues his conviction is not a crime of violence under the use of
physical force clause because on its face it does not include as an element the
use, attempted use, or threatened use of physical force against the person of
another. “Force,” when “used in the statutory definition of a ‘crime of violence,’
is ‘synonymous with destructive or violent force.’” United States v. Landeros-
Gonzales, 262 F.3d 424, 426 (5th Cir. 2001) (quoting United States v.
Rodriguez-Guzman, 56 F.3d 18, 20 n.8 (5th Cir. 1995).
         A conviction under the Texas statute for simple assault, Section 22.01,
is not a crime of violence under the use of force clause because it merely
requires that the defendant cause bodily injury to another, which may occur
from acts other than the actual, attempted, or threatened use of physical force.
See United States v. Villegas-Hernandez, 468 F.3d 874, 882 (5th Cir. 2006).
Conviction under Section 22.02 requires the commission of an assault in
violation of Section 22.01 and one or more of the aggravating factors listed
within the statute.        TEX. PENAL CODE § 22.02(a) (West 1989).           These
aggravating factors include “caus[ing] serious bodily injury to another” and
factors based on the status or position of the victim. Id. In either case, an
assault under Section 22.01 and a Section 22.02 aggravating factor could be
committed absent the use of destructive or violent force. As Cortez could be
convicted under the Texas statute for causing serious bodily injury or for
assaulting a peace officer absent proof he used physical force, his prior offense
is not a crime of violence based on U.S.S.G. § 2L1.2’s use of force clause. See
Villegas-Hernandez, 468 F.3d at 880-81.
         We VACATE the sentence and REMAND for resentencing.
                                           7
