     Case: 10-40338     Document: 00511882996         Page: 1     Date Filed: 06/11/2012




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

                                                                            FILED
                                                                           June 11, 2012

                                       No. 10-40338                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff – Appellee
v.

HELIODORO HERNANDEZ CABRERA,

                                                  Defendant – Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                            U.S.D.C. No. 5:09-CR-696-1


Before KING, HIGGINBOTHAM, and HAYNES, Circuit Judges.
PER CURIAM:*
        Heliodoro Hernandez Cabrera (“Hernandez”) appeals his sentence entered
upon a plea of guilty to illegal reentry after deportation. His sole substantive
appellate issue is whether his prior Texas conviction for “attempted deadly
conduct” constitutes a “crime of violence” for purposes of a 16-level enhancement
of his Guidelines sentence calculation.1 See U.S.S.G. § 2L1.2(b)(1)(A)(ii) & cmt.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
       Hernandez also argues the prior conviction was not a “crime of violence” because the
meaning of “attempt” under Texas law is broader than the federal meaning of “attempt.” He
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n.1(B)(iii) (2009). Because the relevant state-court documents do not clearly
show that Hernandez was convicted of a crime of violence, we VACATE and
REMAND for resentencing in accordance with this opinion.
                         I. Facts and Standard of Review
       Pertinent to this appeal, Hernandez pled guilty to illegal reeentry after
deportation. The presentence report (“PSR”) enhanced the base offense level of
eight by 16 levels, determining that Hernandez’s prior conviction was for a
“crime of violence.” The PSR calculated an advisory Guideline range of 51-63
months.2 Without the 16-level enhancement, the range would likely have been
at most 10-16 months.3 Hernandez received a 51-month sentence.
       Because Hernandez objected to the crime-of-violence enhancement, we
apply de novo review. United States v. Bonilla, 524 F.3d 647, 651 (5th Cir.
2008); United States v. Dominguez, 479 F.3d 345, 347 (5th Cir. 2007). We
address here only whether Hernandez’s Texas conviction for “attempted deadly
conduct” implicates the residual “use of force” prong of § 2L1.2’s definition of
“crime of violence,” which includes any state-law offense “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).
                                     II. Discussion
       Hernandez’s state-court indictment (“Indictment”) charged him with one
count of aggravated assault with a deadly weapon and one count of deadly



concedes, however, that this argument is foreclosed by our recent decision in United States v.
Sanchez, 667 F.3d 555, 560-66 (5th Cir. 2012).
       2
         The PSR placed Hernandez in criminal history category III and allowed him a two-
level reduction for acceptance of responsibility, resulting in a total offense level of 22.
       3
        This assumes a criminal history category of III, a four-level enhancement for a prior
felony conviction under § 2L1.2(b)(1)(D), and a two-level reduction for acceptance of
responsibility, yielding a total offense level of 10. Upon remand, of course, the Probation
Office will need to determine the proper calculation.

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                                   No. 10-40338

conduct. See TEX. PENAL CODE §§ 22.02 (aggravated assault), 22.05 (deadly
conduct). The deadly conduct count alleged that Hernandez had “knowingly
discharge[d] a deadly weapon . . . at or in the direction of one or more
individuals.” The State waived the aggravated assault charge and allowed
Hernandez to plead guilty to attempted deadly conduct, without filing a new
charging instrument.
      Under our precedents, section 22.05 of the Texas Penal Code is not, in its
entirety, a “crime of violence.” Compare United States v. Hernandez-Rodriguez,
467 F.3d 492, 495 (5th Cir. 2006) (concluding that 22.05(b)(1) is a crime of
violence and reasoning that the “discharge a firearm at or in the direction of one
or more individuals” poses a “real threat of force against [a] person”), with
United States v. Dixon, 265 F. App’x 383, 385-86 (5th Cir. 2008) (per curiam)
(unpublished) (holding, where a defendant charged with aggravated assault pled
guilty to attempted deadly conduct, that a generic conviction under section 22.05
is not a crime of violence because subsection (b)(2) “prohibits the knowing
discharge ‘of a firearm at or in the direction of a habitation, building, or vehicle,
with reckless disregard as to whether the habitation, building, or vehicle is
occupied’” (citations omitted)), and United States v. Alfaro, 408 F.3d 204, 208-09
(5th Cir. 2005) (holding that a defendant’s conviction under a Virginia statute
similar to subsection (b)(2) is not a crime of violence because it lacks, “as a
necessary element, the use, attempted use, or threatened use of force against
another” (citing VA. CODE ANN. § 18.2-279)); see also Tex. Penal Code § 22.05(a)
(lacking a “necessary” force element by requiring only “reckless[] . . . conduct
that places another in imminent danger of serious bodily injury”). Accordingly,
we must engage in the familiar, but not always simple, “narrowing” process to
determine whether Hernandez committed a crime of violence. See Shepard v.
United States, 544 U.S. 13 (2005); Taylor v. United States, 495 U.S. 575 (1990).



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      Precedent circumscribes the type of evidence we can use in the narrowing
inquiry. See, e.g., United States v. Carbajal-Diaz, 508 F.3d 804, 810 (5th Cir.
2007). “Where a prior conviction results from a guilty plea,” as here, we are
generally limited to reviewing “‘the terms of the charging document, the terms
of a plea agreement[,] or transcript of colloquy between judge and defendant in
which the factual basis for the plea was confirmed by the defendant.’” Id.
(quoting Shepard, 544 U.S. at 26). We may rely on “facts contained in those
documents to the extent the ‘prior conviction necessarily involved (and a prior
plea necessarily admitted) facts equating to’” a crime of violence. Id. (quoting
Shepard, 544 U.S. at 24).
      This case thus turns on whether the record contains state-court documents
that are susceptible to “narrowing” under Taylor-Shepard and, if so, whether the
documents prove that Hernandez was convicted of attempted deadly conduct
under subsection (b)(1). The parties agree that “Shepard-approved” documents
exist, but they draw different conclusions from those documents.
      The Government largely relies on the Indictment and on language from
the first paragraph of a document entitled “Judgment and Sentence of the Court”
(“Judgment”). The second count of the Indictment charged Hernandez with
firing a weapon at or in the direction of another individual, conduct clearly
encompassed by subsection (b)(1). The Judgment notes that the State waived
the aggravated assault charge and “proceed[ed] with the 2nd count of the
Indictment” and that Hernandez “entere[d] a plea of GUILTY to the charge in
the indictment relied upon by the State” (emphasis removed). The Government
contends that this shows that Hernandez admitted to attempting to fire a
weapon at or in the direction of a person. Because the Guidelines treat attempts
to commit crimes of violence the same as completed crimes, the Government
argues that Hernandez was convicted of a crime of violence. See U.S.S.G. §



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                                  No. 10-40338

2L1.2 cmt. n.5 (“Prior convictions of offenses counted under [§ 2L1.2(b)(1)]
include . . . attempting[] to commit such offenses.”).
      Hernandez emphasizes two different state-court documents: the “Plea of
Guilty, Admonishments, Voluntary Statements, Waivers, Stipulation & Judicial
Confession” (“Judicial Confession”), and the cover page to the Judgment in the
minute book of the court summarizing the terms of the Judgment and entitled
“Judgment on Plea of Guilty Before the Court” (“Record of Judgment”). The
Judicial Confession notes that the State originally charged Hernandez with
deadly conduct, but “move[d] to reduce the charged offense to: attempted deadly
conduct.” Hernandez “stipulat[ed]” and “confess[ed]” in the same document that
he “committed and [was] guilty of the lesser included offense of: attempted
deadly conduct.” The Judicial Confession neither elaborates further on the
factual basis for Hernandez’s plea nor identifies the subsection of the deadly
conduct statute that Hernandez attempted to violate. Consonant with the
Judicial Confession, the Record of Judgment also specifies only that Hernandez
was convicted of attempted deadly conduct.
      Our case law is clear. When a charging instrument “charges a crime of
which [the defendant] was not convicted, it cannot be used to ‘pare down the
statute of conviction to determine under which subsection [he] pleaded guilty.’”
Bonilla, 524 F.3d at 652 (quoting United States v. Neri-Hernandes, 504 F.3d 587,
590 (5th Cir. 2007)); see also United States v. Turner, 349 F.3d 833, 836 (5th Cir.
2003) (“An allegation in an indictment alone does not [establish the nature of the
underlying conduct]. ‘Thus, a district court may not rely on a charging document
without first establishing that the crime charged was the same crime for which
the defendant was convicted.’” (citation omitted)).
      It makes no difference that Hernandez was convicted of a lesser included
offense. Unless a defendant is reindicted on the pled-to crime or the original
indictment specifies the relevant lesser included offense, courts may not rely on

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                                       No. 10-40338

the indictment’s factual allegations. See, e.g., Bonilla, 524 F.3d at 653 n.4 (“In
this case, we have a certificate of disposition that does not refer back to a lesser
offense in the original indictment.”). Because the Indictment does not list
attempted deadly conduct,4 we cannot use it to establish the nature of
Hernandez’s conviction. See Turner, 349 F.3d at 836; see also Neri-Hernandes,
504 F.3d at 589-90 (concluding that the district court erred in relying on an
indictment charging the defendant with “assault in the second degree,
subsection 2” under New York law—a crime of violence—when the defendant
pled guilty to “attempted assault in the second degree” (citation omitted)).
       The Government’s position, then, necessarily depends on the Judgment,
the Record of Judgment, or the Judicial Confession. None of these documents,
however, identify the subsection of conviction or allege facts that would support
a conviction under subsection (b)(1). The Judicial Confession and Record of
Judgment provide only that Hernandez was convicted of attempted deadly
conduct.
       The Government again points to the Judgment and relies in part on
United States v. Martinez-Vega, 471 F.3d 559 (5th Cir. 2006). The state-court
judgment there specified that the defendant, originally charged with “first
degree aggravated sexual assault,” id. at 562, pled guilty to “sexual assault.” Id.
at 561 (citing TEX. PENAL CODE § 22.011). Reviewing for plain error, we held
that the defendant had committed a crime of violence, finding it significant that
the judgment provided that the defendant had been convicted of “the lesser
charge contained in the indictment,” sexual assault of a minor. Id. at 563. By

       4
         At oral argument, the Government argued for the first time that section 37.09 of the
Texas Code of Criminal Procedure allows us to rely on an indictment’s allegations to discern
the factual basis for a conviction procured on an unindicted lesser included offense. The
Government forfeited this argument by failing to brief it. See, e.g., Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993). In any case, section 37.09 simply defines what offenses constitute
lesser included offenses, and no one disputes that attempted deadly conduct is a lesser
included offense of deadly conduct.

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                                        No. 10-40338

analogy, the Government argues that the Judgment’s reference to the deadly
conduct count incorporates the Indictment’s allegations into the Judgment, i.e.,
that Hernandez fired a gun at or in the direction of another person.
       We read the Judgment differently than the Government.                         Although
initially referring to the Indictment, the Judgment later clarifies—without
mentioning the Indictment—that the court “called” the case again and adjudged
Hernandez guilty of attempted deadly conduct. The State may have “proceeded”
with and “relied upon” the deadly conduct count, but Hernandez ultimately pled
guilty to an offense that was not charged or otherwise enumerated in the
Indictment. Other than the Judgment’s initial reference to the Indictment’s
second count, it nowhere alleges facts that permit “narrowing” Hernandez’s
attempted deadly conduct conviction to a specific subsection.5
       Moreover, we rejected a similar argument in Bonilla, which distinguished
Martinez-Vega by noting that the lesser included offense there “was made clear
from the judgment, and was found by the court as actually being charged in the
original indictment.” Bonilla, 524 F.3d at 653 n.4 (emphasis added). The
Judgment language here does not “make clear” that it is incorporating parts of
the Indictment, which made no mention of attempted deadly conduct. The
Bonilla court also distinguished Martinez-Vega as a plain-error case. Id. Under




       5
         Interestingly, the Judgment specifies that Hernandez was sentenced to 364 days in
prison under section 12.44(a) of the Texas Penal Code, which permits a court to “punish a
defendant who is convicted of a state jail felony by imposing the confinement permissible as
punishment for a Class A misdemeanor.” Texas law caps Class A misdemeanor offenses at one
year in prison, whereas state jail felonies may be punished by 180 days to two years in prison.
See Texas Penal Code §§ 12.21 (Class A misdemeanors), 12.35(a) (state jail felonies).
       Texas law, however, also provides that defendants convicted of state jail felonies “shall
be punished for a third degree felony if . . . a deadly weapon . . . was used or exhibited during
the commission of the offense.” Id. § 12.35(c)(1). Thus, the face of the Judgment provides yet
another basis to question whether the facts in the Indictment were ultimately accepted by the
court in convicting and sentencing Hernandez.

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the de novo standard of review appropriate here, we are bound to follow Bonilla.6
Cf. Martinez-Vega, 471 F.3d at 563 (distinguishing Turner, which held that the
district court “erred in relying on the indictment because the defendant pleaded
guilty to a lesser included offense and was not reindicted on that count,” as a
case that “was not limited to plain error review” (citing 349 F.3d at 835-36)).
       In line with the Record of Judgment and Judicial Confession, furthermore,
the Judgment provides that the state court found that Hernandez confessed and
pled guilty to committing “attempted deadly conduct.” Notably, “‘written plea
agreement[s]’” and “‘explicit factual finding[s] by the trial judge to which the
defendant assented’” may serve as Shepard-approved evidence of the conduct
underlying a defendant’s conviction. Bonilla, 524 F.3d at 652 (citation omitted).
Here, those documents do not prove a “crime of violence.” Accordingly, the
district court erred in applying the crime-of-violence enhancement.                       The
Government does not contend that this error was harmless, and—given the 35-
month discrepancy between Hernandez’s sentence and the top of the likely
Guidelines range—it was not harmless.
       The Government concedes Hernandez’s final argument—that his judgment
should reflect that he was sentenced under 8 U.S.C. § 1326(b)(1) rather than
§ 1326(b)(2). We agree. Upon remand, the district court should correct the
criminal judgment and any other documents reflecting this error accordingly.
       VACATED and REMANDED, with the mandate to issue forthwith. We
direct defense counsel to bring this case to the district court’s attention
immediately so that resentencing can occur expeditiously.




       6
         The Bonilla court also believed that “extending Martinez-Vega . . .would unnecessarily
bring it into conflict with Neri-Hernandes and Gonzalez-Ramirez.” 524 F.3d at 653 n.4.

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