                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       July 11, 2008
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                        Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                          No.07-2043
                                                  (D.C. No. CR-06-1161 JCH)
 v.
                                                   (District of New Mexico)
 MARVIN ANTHONY HERRERA,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before LUCERO, HOLLOWAY and McCONNELL, Circuit Judges.



                                  I. INTRODUCTION

      Marvin Anthony Herrera was charged in an indictment with one count of

illegally re-entering the United States after prior deportation in violation of 8

U.S.C. §§ 1326(a)(1), 1326(a)(2), and 1326(b)(2). Pursuant to a plea agreement,

Mr. Herrera pled guilty to the lone charge in the indictment. The Probation

Office prepared a Pre-Sentence Report (“PSR”) which alleged that in 2004, Mr.

Herrera was convicted of battery in a California state court under Cal. Penal Code


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P.32.1 and 10th
Cir. R. 32.1.
§ 242. The PSR stated that pursuant to Section 2L1.2 of the Guidelines,

unlawfully entering or remaining in the United States carries a base offense level

of eight. In addition to the initial base offense level of eight, the PSR

recommended a sixteen level “crime of violence” enhancement pursuant to

U.S.S.G. § 2L1.2(b)(1)(A)(ii) based on the previous California battery conviction.

The final base offense level calculated by the PSR was twenty-one after a three

level reduction for acceptance of responsibility.

      At sentencing, Mr. Herrera moved for a downward departure from the

PSR’s recommended criminal history category V, but did not challenge the

sixteen level enhancement. The district court denied the motion, adopted the

findings of the PSR, and sentenced Mr. Herrera to the low end of the guideline

range – a seventy month term of imprisonment. Mr. Herrera timely appealed and

argued, for the first time, that the application of the sixteen level enhancement

was in error. We have appellate jurisdiction under 28 U.S.C. § 1291.

                               II. BACKGROUND

      In October of 2004, Mr. Herrera was convicted of battery on a peace officer

under § 242 of the California Penal Code for which he received a two year

sentence in the California penal system. He was released from prison on October

17, 2005 whereupon his parole commenced. On December 14, 2005, Mr. Herrera

was deported to Honduras.

      This prior California battery conviction provides the foundation for the

                                          -2-
issue raised in the instant case. It is critical to note that the PSR was the sole

source of the information concerning Mr. Herrera’s previous California battery

conviction. The government did not submit any documents from the California

court of conviction to establish that Mr. Herrera was convicted of battery in

California. Any information with respect to the California conviction was

discovered by the Probation Office and then used in formulating the PSR. The

government provided no court documents from the California state court of

conviction in support of the sixteen level enhancement.

      The events giving rise to the instant appeal occurred on February 23, 2006,

when Mr. Herrera was apprehended by United States Border Patrol agents near

Hachita, New Mexico. On May 23, 2006, a New Mexico grand jury returned a

one count indictment against Mr. Herrera charging him with illegally re-entering

the United States after a previous deportation in violation of 8 U.S.C. §

1326(a)(1), (a)(2), and (b)(2). Mr. Herrera pled guilty to the illegal re-entry

charge on June 30, 2006.

      The Probation Office prepared the PSR and stated that the initial base

offense level for Mr. Herrera was eight, pursuant to U.S.S.G. § 2L1.2(a). The

PSR also recommended that the sixteen level enhancement found in U.S.S.G. §

2L1.2(b)(1)(A)(ii) be imposed because Mr. Herrera had previously been convicted

of a “crime of violence” as defined by the Guidelines. See U.S.S.G. § 2L1.2, cmt.

n.1(B)(iii). The PSR found Mr. Herrera to have a criminal history category V and

                                           -3-
determined the final base offense level to be twenty-one after a three level

reduction for acceptance of responsibility.

      Before the sentencing hearing, Mr. Herrera filed a motion for a downward

departure based on the argument that the criminal history category over-

emphasized his prior criminal conduct. The motion requested lowering the

criminal history category from V to IV. The motion did not contest the

imposition of the sixteen level enhancement. On February 6, 2007, the district

court held the sentencing hearing. The court denied the Defendant’s motion for a

downward departure and adopted the factual findings of the PSR. The advisory

guideline range for an offense level of twenty-one and a criminal history category

V was seventy to eighty-seven months’ imprisonment. At the conclusion of the

hearing, the district court sentenced Mr. Herrera to seventy months’

imprisonment. Mr. Herrera filed a timely notice of appeal on February 13, 2007.

      On appeal, Mr. Herrera presents a new argument not made below.

Specifically, Mr. Herrera contends that battery under § 242 of the California

Penal Code is not categorically a “crime of violence” under the Guidelines and

therefore the sixteen level enhancement should not be applied in the instant case.

Mr. Herrera urges this court to remand for re-sentencing with instructions to

remove the sixteen level enhancement.

                                   III. DISCUSSION

A. Standard of Review

                                         -4-
      Generally, this court exercises de novo review over the district court’s

interpretation and application of the sentencing guidelines. United States v.

Tisdale, 248 F.3d 964, 975 (10th Cir. 2001); United States v. Contreras, 210 F.3d

1151, 1152 (10th Cir. 2000). The standard of review changes, however, when the

defendant fails to make a particular objection to the district court’s application or

interpretation of the guidelines. United States v. Munguia-Sanchez, 365 F.3d 877,

878 (10th Cir. 2004) (citing United States v. Whitney, 229 F.3d 1296, 1308 (10th

Cir.2000). In the instant case, Mr. Herrera did not make a specific objection to

the application of the U.S.S.G. § 2L1.2(b)(1)(A)(ii) enhancement thereby limiting

this court to review only for plain error. Munguia-Sanchez, 365 F.3d at 878. As

we stated in Mungia-Sanchez, in order

      [t]o establish plain error, [a defendant] must show: (1) an error, (2)
      that is plain, which means clear or obvious under current law, and (3)
      that affect[s] substantial rights. If these three elements are satisfied,
      then we may exercise discretion to correct the error if it seriously
      affect[s] the fairness, integrity, or public reputation of judicial
      proceedings.

Id. at 878-879 (internal quotations and citations omitted; alterations in the

original). Mr. Herrera concedes that plain error is the appropriate standard of

review.

B. U.S.S.G. and California Statutory Provisions

      The sole issue on appeal is whether the district court committed plain error

when it applied the sixteen level “crime of violence” enhancement found in



                                         -5-
U.S.S.G. § 2L1.2(b)(1)(A)(ii) to Mr. Herrera. Reviewing the language of the

relevant Sentencing Guidelines’ provisions is necessary in conceptualizing this

issue. Section 2L1.2(b)(1)(A)(ii) of the Guidelines states that a sixteen level

enhancement is warranted “[i]f the defendant previously was deported...after (A)

a conviction for a felony that is...(ii) a crime of violence.” U.S.S.G. §

2L1.2(b)(1)(A)(ii). Under § 2L1.2 of the Guidelines, the phrase “crime of

violence” is defined as

      any of the following: murder, manslaughter, kidnaping, 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.

U.S.S.G. § 2L1.2, cmt. n.1(B)(iii)(emphasis added). Since battery is not

one of the twelve enumerated offenses, the relevant language for the instant

appeal is the catchall provision providing that a crime of violence is any

offense “that has as an element the use, attempted use, or threatened use of

physical force against the person of another.” Id.

      Having laid out the framework of the Sentencing Guidelines provisions at

issue, we now must turn to the underlying California statute of conviction, § 242

of the California Penal Code. California Penal Code § 242 defines battery as the

“...willful and unlawful use of force or violence upon the person of another.” Cal.

Penal Code § 242. As stated above, battery is not one of the twelve enumerated


                                          -6-
offenses in U.S.S.G. § 2L1.2, cmt. n.1(B)(iii). Therefore, in order to determine if

§ 242 qualifies under the Guidelines as a crime of violence, we must decide

whether battery under California law “...has as an element the use, attempted use,

or threatened use of physical force against the person of another.” U.S.S.G. §

2L1.2, cmt. n.1(B)(iii).

      Mr. Herrera contends that a California battery conviction under § 242 is not

necessarily a crime of violence because it does not require that an individual use,

attempt to use, or threaten to use physical force against the person of another.

Mr. Herrera argues that battery under § 242 includes crimes that do not have as an

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

person of another as required by the Guidelines’ definition of a crime of violence.

Put another way, one can commit battery in California, thereby violating § 242,

without using, attempting to use, or threatening to use physical force against the

person of another. Mr. Herrera maintains that this prevents battery under § 242

from being a categorical crime of violence under the Guidelines.

      Certainly, § 242 does indeed cover crimes of violence as defined by the

Guidelines under U.S.S.G. § 2L1.2, cmt. n.1(B)(iii). This is clear because § 242

would include a category of crimes that have as an element the use, attempted

use, or threatened use of physical force against the person of another. However,

Mr. Herrera argues that § 242 also proscribes another category of crimes – crimes

not involving the use, attempted use, or threatened use of physical force against

                                         -7-
the person of another – that are not covered by U.S.S.G. § 2L1.2, cmt. n.1(B)(iii).

Mr. Herrera contends that both of these categories of conduct are covered by §

242: (1) conduct involving the use, attempted use or threatened use of force

against the person of another and (2) conduct not involving the use, attempted use

or threatened use of force against the person of another. Thus, Mr. Herrera

argues that § 242 is too broad to be a categorical crime of violence as defined

under the Guidelines because there is no way to discern which type of conduct

was committed.

      Ultimately, Mr. Herrera maintains that it is possible to commit battery

under Cal. Penal Code § 242 and yet not commit a crime of violence under §

2L1.2 of the guidelines. Thus, Mr. Herrera contends that a reversal of the sixteen

level crime of violence enhancement is required and he requests remand to the

sentencing court for re-sentencing. This argument, the crux of the appeal, will be

explored in depth in section D. However, prior to addressing that issue, we must

address the proper approach to be used in evaluating whether or not Mr. Herrera

committed a crime of violence under the Guidelines when he was convicted of

battery under § 242 of the Cal. Penal Code.

C. Pure Categorical v. Modified Categorical Approach

      This area of sentencing review is complicated and is prone to producing

decisions that may, at times, lack the utmost clarity. Luckily, this court has had

the opportunity to review this area recently. In evaluating whether or not an

                                         -8-
underlying conviction constitutes a “crime of violence” this court has had the

opportunity to comment on the appropriate approach – pure categorical or

modified categorical – to use in determining whether the application of the

enhancement was proper. See United States v. Maldonado-Lopez, 517 F.3d 1207

(10th Cir. 2008); United States v. Hays, 526 F.3d 674 (10th Cir. 2008).

      Regardless of the approach used, our precedent indicates that it is proper

for this court to look to the state court’s analysis of its own law in interpreting the

underlying state law conviction which serves as the basis for the sixteen level

“crime of violence” enhancement. See United States v. Perez-Vargas, 414 F.3d

1282, 1286 (10th Cir. 2005) (stating that “[s]ince the language of the statute is

broad, we turn to Colorado courts for interpretive assistance”); United States v.

Reina-Rodriguez, 468 F.3d 1147 (9th Cir. 2006); United States v. Bolanos-

Hernandez, 492 F.3d 1140, 1143 (9thCir. 2007).

      The pure categorical approach focuses on the elements of the underlying

conviction alone without evaluating the underlying facts of the defendant’s

conduct. Taylor v. United States, 495 U.S. 575, 600 (1990); United States v.

Perez-Vargas, 414 F.3d 1282, 1284 (10th Cir. 2005). However, there is an

exception to the pure categorical approach. The exception allows for the

sentencing court to consult reliable court documents from the underlying court of

conviction. This is called the modified categorical approach.

      In applying Taylor, we have stated that the modified approach applies

                                          -9-
where the underlying statute of conviction “is ambiguous, or broad enough to

encompass both violent and nonviolent crimes, [then] a court can look beyond the

statute to certain records of the prior proceeding, such as the charging documents,

the judgment, any plea thereto and findings by the sentencing court.” Perez-

Vargas, 414 F.3d at 1284. In United States v. Hays, this court stated that “[w]hen

the underlying statute [of conviction] reaches a broad range of conduct, some of

which merits an enhancement and some of which does not, courts resolve the

resulting ambiguity by consulting reliable judicial records, such as the charging

document, plea agreement, or plea colloquy.” Hays, 526 F.3d at 676 (quoting

United States v. Martinez-Hernandez, 422 F.3d 1084, 1086 (10th Cir. 2005). This

statement resembles that made by the Supreme Court in Taylor, and cited above.

However, Hays also contains a critical limiting factor that narrows the number of

situations when the modified categorical approach may be used. In Hays, we said

that “[s]uch review does not involve a subjective inquiry into the facts of the

case, but rather its purpose is to determine ‘which part of the statute was charged

against the defendant and, thus, which portion of the statute to examine on its

face.’” Hays, 526 F.3d at 676 (quoting United States v. Sanchez-Garcia, 501 F.3d

1208, 1211 (10th Cir. 2007) (emphasis added) (internal quotation and citation

omitted).

      The key portion of the statements from Hays informs us that the modified

approach is properly used when the underlying statute of conviction contains

                                         -10-
multiple element sets and is therefore divisible. This statement, that documents

may be consulted when the statute provides two distinct avenues for a violation,

limits the initially broad statement by the Supreme Court in Taylor that a statute

need only be ambiguous and reach both violent and non-violent conduct in order

for the sentencing court to utilize the modified approach and properly consider

judicial documents. For example, in Hays, we examined a Wyoming battery

statute that read as follows: “[a] person is guilty of battery if he unlawfully

touches another in a rude, insolent or angry manner or intentionally, knowingly or

recklessly causes bodily injury to another.” Wyo. Stat. Ann. § 6-2-501(b). There

are two ways that a person may commit battery in Wyoming: first, the individual

may unlawfully touch another in a rude, insolent or angry manner and second, the

individual may intentionally, knowingly or recklessly cause bodily injury to

another. Id. Thus, since there are two ways to commit battery in Wyoming, the

court may properly consider reliable judicial documents in an attempt to discern

which method was used by the defendant in committing battery.

      However, in Hays, the only document provided in the record that

referenced the Wyoming battery conviction was the PSR in the ongoing federal

criminal case. No documents from the Wyoming court of conviction were

provided to the sentencing court. With regard to that situation, we stated that the

“presentence report in the present case...is not one of the documents that this

court may examine to resolve this ambiguity.” Hays, 526 F.3d at 678. This

                                          -11-
discussion of Hays indicates that the modified categorical approach is properly

used when the underlying crime of conviction may be accomplished by two or

more separate element sets.

      It is also helpful that this court recently decided United States v.

Maldonado-Lopez, 517 F.3d 1207 (10th Cir. 2008), which tackled the issue of the

proper approach to be implemented when deciding if the defendant’s underlying

conviction constituted a “crime of violence” under U.S.S.G. § 2L1.2. As in the

instant case, Maldonado-Lopez dealt with the definition of a “crime of violence”

as defined under U.S.S.G. § 2L1.2. Maldonado-Lopez, 517 F.3d at 1208-09. In

Maldonado-Lopez, we considered whether or not the defendant had three prior

convictions for crimes of violence which would warrant the imposition of a four

level enhancement under U.S.S.G. § 2L1.2(b)(1)(E). Id. at 1208. The defendant

in Maldonado-Lopez had three prior convictions for harassment in Colorado; the

precise question before the court in Maldonado-Lopez was whether the

convictions were considered crimes of violence under the Guidelines. Id.

      Ultimately, the Maldonado-Lopez court decided that the statute of

conviction, Colo. Rev. Stat. § 18-9-111(1)(a), provided that an individual

committed harassment in Colorado without the use of physical force, thereby

preventing the four level enhancement from automatically applying. 517 F.3d at

1210. We reasoned that Colorado’s harassment statute was broad enough to cover

violent crimes, such as striking a victim, and also non-violent crimes, such as

                                        -12-
spitting on a victim. Maldonado-Lopez, 517 F.3d at 1209.

      The majority opinion then stated that because the statute was broad enough

to cover both violent and non-violent crimes, it was proper for the sentencing

court to look to the charging documents (indictment, jury instructions, plea

transcripts, judgments, and plea agreement if any exist) from the defendant’s

three prior convictions. Id. The court determined that in two of the convictions,

sufficient information existed in the plea transcripts that supported the sentencing

court’s finding that the defendant had committed a crime of violence. Id.

However, with respect to the third harassment conviction, the court only had the

judgment from the court of conviction to consult and it failed to provide evidence

that the defendant engaged in conduct that constituted a crime of violence.

Maldonado-Lopez, 517 F.3d at 1209-10. Ultimately, we held that the

enhancement was not supported and remanded for re-sentencing. Id. at 1210.

      The concurrence by Judge McConnell focused on which approach was

appropriate in that case: the pure categorical approach or the modified categorical

approach. Id. at 1210. At the outset, the concurrence explains the pure

categorical approach and when it is utilized and also explains the “exception” to

the pure categorical approach – also known as the modified categorical approach:

      [w]hen a sentencing enhancement is framed in terms of the statute of
      conviction, the categorical approach applies and the sentencing court
      must look not to the particular facts of the prior conviction but to the
      terms of the underlying statute. United States v. Martinez-
      Hernandez, 422 F.3d 1084, 1086 (10th Cir. 2005). Even within the

                                        -13-
      scope of the categorical approach, however, the Supreme Court has
      recognized an “exception” for cases where the jury was actually
      required to find all the elements of the generic offense in order to
      convict, but where it is not clear from the statute itself which version
      of the crime the defendant was charged with. Taylor v. United
      States, 495 U.S. 575, 602 (1990); Shepard v. United States, 544 U.S.
      13, 17 (2005). In such a case, the sentencing court may consult the
      indictment, jury instructions, plea colloquy transcript, and written
      plea agreement, if these exist.

Maldonado-Lopez, 517 F.3d at 1210 (internal citations omitted). Both the

concurrence and the majority agreed that the Colorado statute at issue did not

necessarily require the use, attempted use, or threatened use of physical force

against the person of another. However, the concurrence concluded that what the

defendant actually did was irrelevant in determining whether the underlying

statute of conviction had as an element the use, attempted use, or threatened use

of physical force against the person of another. Thus, the concurrence

recommended utilizing the pure categorical approach and not examining the

charging documents as allowed under the modified categorical approach. In

contrast, the majority opinion considered it appropriate to examine further into

the charging documents to determine if they would reveal what part of the

Colorado harassment statute was violated and whether or not that violation

qualified as a crime of violence. The concurrence stated that utilizing the

modified categorical approach, where charging documents are examined, is

appropriate where “the statute itself has subparts with different enumerated

elements, and it is not clear which set of elements the defendant was convicted

                                         -14-
under.” Id. at 1211. This principle echoes the analysis in Hays. Looking to the

charging documents when the underlying statute of conviction at issue has

subparts allows the sentencing court to determine under which set of elements the

defendant was convicted.

      Another recent case, United States v. Zuniga-Soto, --- F.3d ----, 2008 WL

2252561 (10th Cir. 2008), furthers the analysis found in Hays and Maldonado-

Lopez. In Zuniga-Soto, the defendant pleaded guilty to assaulting a public servant

in violation of Tex. Pen.Code § 22.01. 1 Zuniga-Soto, 2008 WL 2252561, *2. As

in the instant case, the same sixteen level crime of violence enhancement from the

Guidelines was at issue in Zuniga-Soto. Id. at *3. The court addressed which

approach – pure categorical or modified categorical – to use in analyzing whether

the defendant’s underlying Texas assault conviction qualified as a crime of

violence under the Guidelines. Id. at *7-8. The Zuniga-Soto court noted, as

mentioned above, that there appears to be an intra-circuit split where at times the

opinions have allowed

      an inquiry beyond the statutory definitions of crimes. E.g., United
      States v. Maldonado-Lopez, 517 F.3d 1207, 1209 (10th Cir.2008)
      (noting that a sentencing court applying § 2L1.2's definition of
      “crime of violence” may “deviate from the categorical approach to
      determine whether a conviction under [a Colorado harassment
      statute] is a crime violence”); United States v. Hernandez-Garduno,
      460 F.3d 1287, 1294 (10th Cir.2006) (observing that “[i]f the

      1
        Tex. Pen.Code § 22.01 reads:
(a) A person commits an [assault] if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another...

                                        -15-
      charging documents, plea agreement, transcript of a plea colloquy, or
      sentencing court findings of the prior state court conviction
      demonstrate that third-degree assault did, in fact, involve the use ...
      of physical force, then the particular defendant's prior assault
      conviction qualifies as a crime of violence under §
      2L1.2(b)(1)(A)(ii)”).

Zuniga-Soto, 2008 WL 2252561, *8 (alterations in original).

      Ultimately, the Zuniga-Soto court held that consistent with our precedent,

“the express focus of § 2L1.2's definition of crime of violence was on the

elements of the state crime at issue rather than the unique underlying

circumstances of the crime. Id. at *9 (internal quotations and citations omitted).

The court first looked at the Texas assault statute and found that the state could

obtain a conviction against an individual by showing that a person “intentionally,

knowingly, or recklessly causes bodily injury to another...” Tex. Pen.Code §

22.01(a)(1). The Zuniga-Soto court found that while the statute was

grammatically divisible, there was no evidence that the defendant “was convicted

under a part of § 22.01 that excluded recklessness from its definition of assault.”

Zuniga-Soto, 2008 WL 2252561, *10. The court then proceeded to apply the pure

categorical approach to the underlying Texas assault statute. Id. at *9-10.

      An analysis of Cal. Penal Code § 242 results in our conclusion that the pure

categorical approach is appropriate in the instant case. Similar to the Texas

assault statute in Zuniga-Soto, here, the underlying statute, Cal. Pen. Code § 242,

is one that contains a disjunction “or” in its text, but does not contain multiple


                                         -16-
element sets or subparts. This mirrors the potential grammatical division found at

issue in Zuniga-Soto. Section 242 defines battery as “any willful and unlawful

use of force or violence upon the person of another.” Cal. Pen. Code § 242. One

could read this statute as having subparts or multiple element sets by construing

the disjunction “or” as follows:

      (1) the willful and unlawful use, of
             (a) force, or
             (b) violence,
      (2) against the person of another.

However, one could read the statute’s phrase “force or violence” as a term of art

that is not meant to be treated as two completely separate and distinct terms.

Since there are two reasonable interpretations of the ambiguous statute, pursuant

to Perez-Vargas, 414 F.3d at 1286, we look to the California state courts for

interpretive assistance.

      In People v. Page, the California Court of Appeal stated that the term

“force or violence” has “the special legal meaning of a harmful or offensive

touching.” People v. Page, 20 Cal.Rptr.3d 857, 864 n.1 (Cal. Ct. App. 2004)

(emphasis added); see also Galeana-Mendoza v. Gonzales, 465 F.3d 1054, 1059

(9th Cir. 2006); Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016 (9th Cir. 2006).

The California state courts’ determination that “force or violence” has a special

legal meaning that differs from the ordinary meaning of the two words makes it a

term of art. Black’s Law Dictionary defines a term of art as: “[a] word or phrase


                                        -17-
having a specific, precise meaning in a given specialty, apart from its general

meaning in ordinary contexts.” Black’s Law Dictionary 1511 (8th ed. 2004); see

also Hamling v. United States, 418 U.S. 87, 118 (1974).

      Since the phrase “force or violence” is a term of art, as determined by the

California courts, it is not possible to separate § 242 into subparts or multiple

element sets. Additionally, the California Supreme Court states that “force or

violence...has the special legal meaning of a harmful or offensive touching.

People v. Pinholster, 4 Cal.Rptr.2d 765 (Cal. 1992). In Page, the California

Court of Appeals stated that “[i]t has long been established, both in tort and

criminal law, that the least touching may constitute battery.” Page, 20

Cal.Rptr.3d at 864 n.1 (citing People v. Colantuono, 26 Cal.Rptr.2d 908 (Cal.

1994)) (internal quotations omitted).

      In People v. Mansfield, 245 Cal.Rptr. 800, 803 (Cal. Ct. App. 1988), the

California Court of Appeals stated that to constitute battery, “force against the

person is enough; it need not be violent or severe, it need not cause bodily harm

or even pain, and it need not leave any mark.” Mansfield, 245 Cal.Rptr at 803

(internal citations and quotations omitted); see also People v. Martinez, 83

Cal.Rptr. 914, 915 (1970)(“Any harmful or offensive touching constitutes an

unlawful use of force or violence.”). Furthermore, there is no indication from the

California courts that an individual could be charged with only using force to

commit battery or only using violence to commit battery. The California battery

                                         -18-
statute does not have multiple element sets, nor does it have subparts that provide

for a variety of elements that may be found by a jury (or plead guilty to by a

defendant) in order to convict the individual for battery. Section 242 is composed

of one single statement that defines battery. In California, all that is required for

battery is the intent to commit a “willful and unlawful use of force or violence

upon the person of another.” People v. Lara, 51 Cal.Rptr.2d 402, 405 (Cal. Ct.

App. 1996)(citing People v. Colantuono, 26 Cal.Rptr.2d 908 (Cal. 1994)). Any

individual who either pleads guilty to or is found guilty of battery in California

satisfies the following elements – and only these elements – in every situation: (1)

willful and unlawful use of, (2) force or violence, (3) against the person of

another.

      Based on the Zuniga-Soto opinion and our recently developed jurisprudence

in this area, the pure categorical approach will be used in the instant case where

the underlying statute of conviction, Cal. Penal Code § 242, does not proscribe

battery in multiple element sets or subparts. The pure categorical approach does

not allow for charging documents to be considered in discerning whether or not

the defendant committed a crime of violence. As Judge McConnell stated in his

Maldonado-Lopez concurrence, under the pure categorical approach “[t]he

elements are the elements, and they can be determined only by reading and

interpreting the statute itself.” 517 F.3d at 1211.

      In fact, this case is very much like those in Maldonado-Lopez and Zuniga-

                                         -19-
Soto where the underlying statute of conviction encompasses both violent and

non-violent crime. The concurrence recommended applying the formal

categorical approach and we adopt that recommendation in the instant appeal for

the following reasons. Were this court to apply the modified categorical

approach (thereby allowing the examination of the Taylor-Shepard approved court

documents from the underlying conviction) the particular conduct of the

defendant would be examined and taken into account, which is improper. In

United States v. Lewis, 405 F.3d 511 (7th Cir. 2005), cited by the concurrence in

Maldonado-Lopez, the Seventh Circuit explained the function of allowing the

sentencing court to examine the charging documents in the underlying conviction:

      The list in Shepard is designed to identify documents that illuminate
      what crime the defendant committed, which can be hard to pin down
      if one statute defines both ‘violent’ and ‘non-violent’ versions of a
      single offense. Using additional materials such as affidavits to
      ascertain how this person violated a statute departs from the
      categorical approach that Shepard and Taylor adopt.

Lewis, 405 F.3d at 515. For example, the consultation of documents pertaining to

the underlying conviction would be particularly helpful were the statute one that

had two distinct subparts – with which an individual may be charged – which

individually provided (1) an element set for a violent version of the crime and (2)

another different element set for the non-violent version of the crime. Thus, by

examining the court documents, there may be an indication as to which element

set the individual was charged with and convicted under – not what the defendant



                                        -20-
actually did to the victim. See Zuniga-Soto, 2008 WL 2252561, * 8 (holding that

a court may examine judicial records to determine which part of a statute was

charged against the defendant but not to engage in a subjective inquiry into the

factual circumstances of the underlying conviction).

      However, in the instant case, the California battery statute does not have

subparts or distinct element sets, but it does encompass both violent and non-

violent versions of battery which is substantially similar to the situation in

Maldonado-Lopez and Zuniga-Soto. See Ortega-Mendez v. Gonzales, 450 F.3d

1010, 1014 (9th Cir. 2006) (holding that the pure categorical approach is used

when determining whether Cal. Penal Code § 242 constitutes a crime of violence

under 18 U.S.C. § 16). Since we have concluded that the categorical approach

applies in the instant case, we are not allowed to examine any judicial documents

from the underlying court of conviction or from the ongoing federal case in

determining whether the conviction has as an element the use, attempted use, or

threatened use of force against the person of another.

D. § 242 and the Use, Attempted Use, or Threatened Use of Physical Force

      This is the crux of the instant appeal: whether § 242 has as an element the

use, threatened use, or attempted use of physical force against the person of

another. Under Perez-Vargas, noted above, it is proper for this court to consider

the state court’s interpretation of the underlying statute of conviction, in this case

§ 242. Furthermore, we give deference to the state court’s interpretation of its

                                         -21-
own law. See United States v. Perez-Vargas, 414 F.3d 1282, 1286 (10th Cir.

2005); see also United States v. Bolanos-Hernandez, 492 F.3d 1140, 1143 (9th

Cir. 2007) (holding that under the Taylor-Shepard framework, state statutes are

read according to the state court interpretation); United States v. Reina-

Rodriguez, 468 F.3d 1147, 1152 (9th Cir. 2006) (holding that when utilizing the

categorical approach, the court is bound by the state court's interpretation of the

statute) overruled on other grounds by United States v. Grisel, 488 F.3d 844, 851

(9th Cir.2007) (en banc).

      In reviewing California Supreme Court precedent, we find that “the least

touching constitutes battery.” People v. Colantuono, 7 Cal. 4th 206, 214, n.4

(1994) (internal quotation marks omitted). This is a general statement about

battery under § 242 in California. The Supreme Court’s ruling in Leocal v.

Ashcroft, 543 U.S. 1 (2004), is relevant in analyzing this statement from

Colantuono. In Leocal, the court examined whether or not a driving under the

influence offense from Florida qualified as a “crime of violence” under 18 U.S.C.

§ 16 – which defines a crime of violence with a broader definition than that found

in the Guidelines. 543 U.S. at 5; see United States v. Jaimes-Jaimes, 406 F.3d

845, 849 (7th Cir. 2005) (“[n]otably, ‘crime of violence’ is defined more narrowly

in § 2L1.2 than in other contexts because the definition does not encompass acts

involving the use of force against property or acts that merely pose a risk of harm

to another person.” See United States v. Calderon-Peña, 383 F.3d 254, 261 (5th

                                         -22-
Cir.2004) (en banc)). As cited by Hays, the Court in Leocal contemplated the

category of crimes qualifying as crimes of violence under § 16 or the Guidelines

as “violent, active crimes.” Id. (citing Leocal v. Ashcroft, 543 U.S. at 11). The

principle in Leocal – that crimes of violence suggest a category of active, violent

crimes – does not correlate with the statement made by the California Supreme

Court in Colantuono – that the least touching constitutes battery in California

under § 242.

      A closer look at § 242 as interpreted by the California courts reveals

similar concerns about the disparity between conduct covered by § 242 and more

violent conduct covered by the crimes of violence definition under the Guidelines.

For example, in People v. Pinholster, 824 P.2d 571 (Cal. 1992), the court stated

that the “[a]ny harmful or offensive touching constitutes an unlawful use of force

or violence” and that throwing a cup of urine in someone’s face was battery. 824

P.2d at 622 (citing People v. Martinez, 83 Cal. Rptr. 914, 915 (Cal. Ct. App.

1970)). Also, in County of Santa Clara v. Willis, 179 Cal.App. 3d 1240, 1251 n.6

(Cal. Ct. App. 1986), the court stated that “[t]he least unprivileged touching may

constitute a criminal battery.” In Willis, the court went on to further define

battery when it quoted from People v. Rocha, 3 Cal.3d 893, 899, n.12 (Cal. 1971),

“[i]n other words, force against the person is enough, it need not be violent or

severe, it need not cause bodily harm or even pain, and it need not leave any

mark.”

                                        -23-
      These interpretations of battery under § 242 have been reaffirmed recently

in People v. Thomas, 53 Cal.Rptr.3d 473, 482 (Cal. Ct. App. 2007); see Galeana-

Mendoza v. Gonzales, 465 F.3d 1054, 1059 (9th Cir. 2006) (reviewing California

state court interpretation of Cal. Penal Code § 242). A recent Ninth Circuit case

is particularly noteworthy. In Bushell-McIntyre v. City of San Jose, 252

Fed.Appx. 810, 811 (9th Cir. 2007), the court held that an officer had probable

cause to arrest the defendant for battery because the defendant touched the

officer’s badge.

      Having clearly found that offensive non-violent touching qualifies as

battery under Cal. Penal Code § 242, we must determine whether or not § 242's

definition has as an element the use, attempted use or threatened use of physical

force against the person of another as required by the enhancement at issue. As

stated by the Supreme Court in Leocal, crimes of violence suggest a category of

violent, active crimes. 543 U.S. at 11. This categorical statement conflicts with

the California courts’ numerous holdings that the least offensive touching may

constitute battery under § 242. Based on the cited statement from the Supreme

Court in Leocal, 543 U.S. at 11, which we have interpreted in Hays, non-violent

touching seems to exist outside the category of active, violent crimes.

      Aiding in our analysis are two other cases from the Ninth Circuit that

warrant discussion. The first, United States v. Robinson, 967 F.2d 287, (9th Cir.

1992), held that § 242 was a crime of violence – because it had as an element the

                                        -24-
use of physical force – for the purposes of determining the defendant’s career

offender status under U.S.S.G. § 4B1.1.

      The second Ninth Circuit case is Ortega-Mendez v. Gonzales, 450 F.3d at

1018. The Ortega-Mendez court held that § 242 is not categorically a crime of

violence within the meaning of 18 U.S.C. § 16 – which defines a crime of

violence in broader terms than in the instant case. See United States v.

Jaimes-Jaimes, 406 F.3d 845, 849 (7th Cir. 2005) (“[n]otably, ‘crime of violence’

is defined more narrowly in § 2L1.2 than in other contexts because the definition

does not encompass acts involving the use of force against property or acts that

merely pose a risk of harm to another person. See United States v.

Calderon-Peña, 383 F.3d 254, 261 (5th Cir.2004) (en banc)). In contrast to

Robinson, the court in Ortega-Mendez examined California state court

interpretation of § 242 and found the same reasoning and came to the same

conclusion as we have discussed above, i.e. that § 242’s “force or violence”

phrase “is a term of art, requiring neither a force capable of hurting or causing

injury nor violence in the usual sense of the term.” Ortega-Mendez, 450 F.3d at

1016. The extensive analysis and review of California state court opinions

provide the basis for our consideration of Ortega-Mendez as persuasive authority.

See Ortega-Mendez, 450 F.3d at 1016-18; see also Servin v. Gonzales, 186

Fed.Appx. 780, 781 (9th Cir. 2006) (citing Ortega-Mendez with approval).

      Based on our own independent analysis and interpretation of Cal. Penal

                                          -25-
Code § 242, a thorough review of California state court interpretation of § 242,

the Ninth Circuit's examination of § 242, and the Supreme Court's interpretation

of what constitutes a crime of violence, we find that § 242 is not a categorical

crime of violence as defined by U.S.S.G. § 2L1.2, cmt. n.1(B)(iii).

E. Plain Error Review

      The Defendant-Appellant has conceded that the alleged error below was not

objected to, thereby requiring plain error review. United States v. Lopez-Flores,

444 F.3d 1218, 1221 (10th Cir.2006). “Plain error occurs when there is (1) error,

(2) that is plain, which (3) affects substantial rights, and which (4) seriously

affects the fairness, integrity, or public reputation of judicial proceedings.”

Lopez-Flores, 444 F.3d at 1222 (internal quotation marks omitted). The

Defendant-Appellant contends that the district court committed plain error by

imposing the sixteen level enhancement.

      First, the defendant must show that the district court committed an error.

Lopez-Flores, 444 F.3d at 1222 (internal quotation marks omitted). Based on the

foregoing rationale from the California state courts and our own analysis of those

opinions, we find that it was an error to impose the sixteen level enhancement on

Mr. Herrera. An examination of the California courts’ interpretation of § 242

reveals the disparity in conduct covered by § 242 and more violent conduct

covered by the Guidelines’ crime of violence definition.

      Second, the defendant must show that the error was plain. Lopez-Flores,

                                         -26-
444 F.3d at 1222 (internal quotation marks omitted). In United States v. Olano,

507 U.S. 725, 734 (1993), the Supreme Court defined a “plain” error as one that

is obvious or clear. The Court also indicated that the error must be plain under

law at the time of the district court's decision. Olano, 507 U.S. at 735. We have

stated in United States v. Malone, 222 F.3d 1286, 1292 (10th Cir. 2000), that an

improper interpretation or application of the Guidelines is plain error. See also

United States v. Alessandroni, 982 F.2d 419, 420 (10th Cir. 1992) (same). We

have also recently reaffirmed this principle, albeit in dicta, in Zuniga-Soto. 2

      In the instant case, we determined above that § 242 does not necessarily

have as an element the use, attempted use, or threatened use of physical force

against the person of another. This necessarily means that the district court

wrongly interpreted § 242 as having as an element the use, attempted use, or

threatened use of physical force against the person of another. We are not

concluding that the district court erred in its interpretation of the Guidelines; we

are holding that the district court erred in interpreting Cal. Penal Code § 242.

The question then is whether this error is plain, clear or obvious.

      Under Olano, the Supreme Court held that “[a]t a minimum, a court of

appeals cannot correct an error pursuant to [Fed. R. Crim. Proc.] 52(b) unless the

error is clear under current law.” Olano, 507 U.S. at 734. The error in this case,

2
  The Zuniga-Soto panel did not need to address the argument that an incorrect
interpretation of the Guidelines satisfied the second prong of the plain error
analysis because the opinion reversed the enhancement on alternative grounds.

                                          -27-
that § 242 had the required element of force, is plain under our precedent in

Malone; but the error is also plain based on the numerous and unanimous

opinions of the California state courts interpreting § 242. Furthermore, we

discussed above the Ninth Circuit case, Ortega-Mendez, that existed at the time

the district court made the determination. Thus, the jurisprudence discussed

heretofore was in place and controlling at the time the district court applied the

sixteen level enhancement. Based on our foregoing analysis, we find that Mr.

Herrera has met the second prong of the plain error test.

      The third prong of the plain error review test requires that the defendant

show that the plain error affected substantial rights. Lopez-Flores, 444 F.3d at

1222 (internal quotation marks omitted). Mr. Herrera received a sixteen level

enhancement because of the plain error committed by the district court. This

results in a substantial increase in his base offense level and his term of

imprisonment.

      It is well-settled that sentences must be reasonable, which limitation has

both procedural and substantive components. United States v. Smart, 518 F.3d

800, 803 (10th Cir.2008). Procedural reasonableness entails a district court's

proper calculation of the base offense level. Gall, 128 S.C. at 597. When this

does not occur, the sentence is not procedurally reasonable and a remand is

appropriate unless the error was harmless. United States v. Scott, --- F.3d ----,

2008 WL 2502524, *6 (10th Cir. 2008) (citing United States v. Todd, 515 F.3d

                                         -28-
1128, 1134-35 (10th Cir.2008); see United States v. Kristal, 437 F.3d 1050, 1055

(10th Cir.2006) (holding that a non-harmless error applying the Guidelines

warrants remand). Thus, because the sixteen level enhancement is substantial and

necessarily affected the calculation of Mr. Herrera's base offense level, we find

that the error affected substantial rights.

      Finally, the fourth prong asks whether the plain error seriously affected the

fairness, integrity, or public reputation of judicial proceedings. Lopez-Flores,

444 F.3d at 1222 (internal quotation marks omitted). In United States v. Eddy,

523 F.3d 1268, 1270 (10th Cir. 2008), we stated that in order to meet the

requirement of the fourth prong, the defendant must show that a failure to correct

the error would be egregious and result in a miscarriage of justice. At the outset,

we note that the Defendant-Appellant’s base offense level was substantially

increased due to the sixteen level enhancement. We also note that there is a

reasonable likelihood that were this court to vacate the sentence and remand, a

significantly lower sentence would result. United States v. Brown, 316 F.3d

1151, 1161 (10th Cir. 2003). We consider it to be egregious and a miscarriage of

justice for a Defendant’s incarceration to be significantly lengthened based on an

improper interpretation of the law and an improper imposition of a significant

Guidelines’ enhancement. We conclude that there was plain error in the instant

case and that a remand for re-sentencing is proper.

                                IV. CONCLUSION

                                          -29-
      We REMAND this case to the district court with instructions to vacate the

present sentence of Mr. Herrera and to impose a new sentence in conformity with

this opinion.

      IT IS SO ORDERED.

                                                       Entered for the Court

                                                       William J. Holloway, Jr.
                                                       Circuit Judge




                                      -30-
