   Case: 10-40272       Document: 00511625660         Page: 1     Date Filed: 10/06/2011




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

                                                                            FILED
                                                                          October 6, 2011
                                       No. 10-40272
                                                                           Lyle W. Cayce
                                                                                Clerk



UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

versus

CESAR DIAZ-CORTES,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                No. 5:09-CR-746-1




Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Cesar Diaz-Cortes pleaded guilty of illegal reentry by a previously
deported alien, in violation of 8 U.S.C. § 1326. His base offense level was set at 8
for the illegal reentry and was increased by sixteen for a 2003 Illinois conviction
of “Aggravated Battery/Peace Officer/Fireman.” He was given a two-level reduc-
tion for acceptance of responsibility, resulting in a net offense level of 22, which,
coupled with a criminal history category of III, yielded a sentencing guideline

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-40272    Document: 00511625660      Page: 2   Date Filed: 10/06/2011

                                    No. 10-40272

range of 51-63 months. He was sentenced, below the range, to 46 months’
imprisonment, three years’ supervised release, and a $100 special assessment.
      On appeal, Diaz-Cortes raises only one issue: whether the district court
erred in imposing the sixteen-level “crime of violence” enhancement under
U.S.S.G. § 2L1.2(b)(1)(A)(ii). We agree with Diaz-Cortes that the Illinois con-
viction was not a “crime of violence.”
      The probation officer supplied a “Certified Statement of Conviction/-
Disposition,” which we assume arguendo can be used to supply information
regarding the conviction. That document indicates that Diaz-Cortes pleaded
guilty to Count One of the information, simple battery by causing bodily harm,
under an Illinois statute that states that “(a) A person commits battery if he
intentionally or knowingly without legal justification and by any means,
(1) causes bodily harm to an individual.” The conviction became an aggravated
battery under Illinois law because the battery was of a police officer.
      We agree with Diaz-Cortes that the conviction does not qualify as a crime
of violence, because it does not have as an element the “use, attempted use, or
threatened use of physical force against the person of another.” U.S.S.G.
§ 2L1.2, comment. (n.1(B)(ii)(I)). This result is required under United States v.
Calderon-Pena, 383 F.3d 254 (5th Cir. 2004) (en banc), and United States v.
Vargas-Duran, 356 F.3d 598 (5th Cir. 2004) (en banc). And in United States v.
Gomez-Vargas, 111 F. App’x 741, 743 (5th Cir. 2004) (per curiam), we concluded
that “[t]he Illinois aggravated battery statute provides for the commission of the
offense in a number of different ways, some of which do not require the use of
physical force against a person.”
      Accordingly, the judgment of sentence is VACATED and REMANDED for
resentencing. Because Diaz-Cortes may already have served more time than he
will be required to serve after resentencing, we direct the district court to expe-
dite the resentencing. To accelerate that process, we also instruct the clerk to
issue the mandate forthwith.

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