                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                            December 7, 2005
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 05-50140
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

MANUEL LIMON-RIVERA,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                   USDC No. 3:04-CR-1967-ALL-DB
                       --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Manuel Limon-Rivera (Limon) appeals his conviction and

sentence for illegal reentry.   See 8 U.S.C. § 1326.    He argues

that the district court plainly erred in characterizing his prior

battery conviction as a “crime of violence” under U.S.S.G.

§ 2L1.2(b)(1)(A) and using it to increase his guideline offense

level by 16.

     In determining whether an offense is a crime of violence,

this court “looks to the elements of the crime, not to the

     *
       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this opinion should not be published and is not precedent except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. 05-50140
                                  -2-

defendant’s actual conduct in committing it.”     United States v.

Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2004) (en banc).     “As

the elements of an offense come from the statute of conviction,

the elements, and not the defendant’s underlying conduct, are the

proper focus.”   Id.   However, if the statute contains disjunctive

elements, the charging instrument may be consulted.     See

Calderon-Pena, 383 F.3d at 258.    Because proof of the intentional

use of force is not required for a conviction under the Arkansas

second degree battery statute, ARK. CODE ANN. § 5-13-202, and

because the charging instrument is not part of the record from

which the disjunctive elements of § 5-13-202 can be determined,

we cannot conclude that Limon’s prior battery conviction is a

“crime of violence” under § 2L1.2(b)(1)(A).     See United States v.

Vargas-Duran, 356 F.3d 598, 605 (5th Cir.)(en banc), cert.

denied, 541 U.S. 965 (2004).    The district court plainly erred in

characterizing it as such.     United States v. Alarcon, 261 F.3d

416, 423-24 (5th Cir. 2001).    Accordingly, Limon’s conviction is

AFFIRMED, his sentence is VACATED, and this case is REMANDED for

resentencing.

     As Limon concedes, Almendarez-Torres v. United States, 523

U.S. 224 (1998) forecloses his argument that the “aggravated

felony” portion of 8 U.S.C. § 1326(b)(2) defines a separate

offense which must be charged in the indictment.     Apprendi v. New

Jersey, 530 U.S. 466 (2000), did not overrule Almendarez-Torres.

See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir. 2000).
                     No. 05-50140
                          -3-

CONVICTION AFFIRMED; SENTENCE VACATED AND CASE REMANDED FOR

RESENTENCING.
