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

                                                                            FILED
                                                                        November 13, 2007

                                       No. 06-51030                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

JUAN CARLOS ADAN GONZALEZ-UGARTE

                                                   Defendant-Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 3:06-CR-89


Before KING, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
       Juan Carlos Adan Gonzalez-Ugarte pleaded guilty to illegal reentry and
was sentenced, inter alia, to 36 months’ imprisonment. He challenges his
sentence on two bases. AFFIRMED.
                                              I.
       Gonzalez was arrested in December 2005 while attempting to enter the
United States illegally. In April 2006, he pleaded guilty to illegal reentry, in
violation of 8 U.S.C. § 1326. In doing so, he was informed, inter alia, he faced

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-51030

sentencing offense-level enhancements due to prior convictions. Subsequently,
under the advisory Sentencing Guidelines, he received an eight-level
enhancement because of a 1993 Idaho conviction for injury to children.
                                          II.
      Gonzalez challenges that enhancement, claiming the conviction was not
an aggravated felony for purposes of Guideline § 2L1.2(b)(1)(C).              He also
challenges the enhancement provision in 8 U.S.C. § 1326(b).
                                          A.
      Consistent with the Guidelines now only being advisory, United States v.
Booker, 543 U.S. 220 (2005), the district court stated correctly at sentencing that
it could impose a sentence as long as it was “in compliance with the voluntary
guidelines”. (Emphasis added.) Because Gonzalez’ assertion that his Idaho
conviction was not an aggravated felony is raised for the first time on appeal, our
review is even more limited; it is only for plain error.
      Accordingly, he must show a clear or obvious error that affects his
substantial rights; even if he does, we retain discretion to correct the error and
generally will do so only if it “‘seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings’”. United States v. Olano, 507 U.S. 725, 736
(1993) (quoting United States v. Atkinson, 297 U.S. 157, 160 (1936)); e.g., United
States v. Ochoa-Cruz, 442 F.3d 865, 866-67 (5th Cir. 2006).
      Section 2L1.2(b)(1)(C) provides for an eight-level increase to the offense
level if the defendant was previously deported following an aggravated-felony
conviction. For this guideline, the definition of “aggravated felony” is found at
8 U.S.C. § 1101(a)(43), which in turn incorporates the “crime of violence”
definition in 18 U.S.C. § 16. A “crime of violence” is defined as either:
      (a) an offense that has as an element the use, attempted use, or
      threatened use of physical force against the person or property of
      another, or


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      (b) any other offense that is a felony and that, by its nature, involves
      a substantial risk that physical force against the person or property
      of another may be used in the course of committing the offense.

18 U.S.C. § 16 (emphasis added).
      For determining whether an offense is a crime of violence, the statute of
conviction, not the defendant’s conduct in committing that offense, is considered.
E.g., United States v. Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2004) (en banc).
Gonzalez’ 1993 injury-to-children conviction was in violation of Idaho Code § 18-
1501(1). At that time, the statute provided:
      Any person who, under circumstances or conditions likely to produce
      great bodily harm or death, willfully causes or permits any child to
      suffer, or inflicts thereon unjustifiable physical pain or mental
      suffering, or having the care or custody of any child, willfully causes
      or permits the person or health of such child to be injured, or
      willfully causes or permits such child to be placed in such situation
      that its person or health is endangered, is punishable by
      imprisonment in the county jail not exceeding one (1) year, or in the
      state prison for not less than one (1) year nor more than ten (10)
      years.

Idaho Code § 18-1501(1) (emphasis added).
      “If a statute contains multiple, disjunctive subsections, courts may look
beyond the statute to certain [records, such as the charging document,] in order
to determine which particular statutory alternative applies to the defendant’s
conviction.” United States v. Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir. 2005)
(citing United States v. Garza-Lopez, 410 F.3d 268, 274 (5th Cir. 2005)). Because
the Idaho statute contains such subsections, it is appropriate to look to the
information filed against Gonzalez by Idaho to determine under which
subsection he pleaded guilty and was convicted. The Amended Prosecuting
Attorney’s Information charges Gonzalez with “inflicting . . . unjustifiable
physical pain or mental suffering” upon his 15-year-old daughter “under
circumstances likely to produce great bodily harm or death”. (Emphasis added.)

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      The statute does not have as an element the actual, attempted, or
threatened use of physical force, as required under the above-quoted 18 U.S.C.
§ 16(a). On the other hand, there is a crime of violence under subpart (b) for “a
substantial risk that physical force against the person . . . of another may be
used in the course of committing the offense”. Id. at § 16(b) (emphasis added).
      Subpart (b) does not require that physical force “must occur in every
instance; rather, a substantial risk requires only a strong probability that the
event, in this case the application of physical force during the commission of the
crime, will occur”. United States v. Velazquez-Overa, 100 F.3d 418, 420 (5th Cir.
1996) (quoting United States v. Rodriguez-Guzman, 56 F.3d 18, 20 (5th Cir.
1995)) (emphasis added). Gonzalez fails to show the district court committed
plain error at sentencing by finding that an offense “likely to produce great
bodily harm or death . . . by unlawfully inflicting upon [a] child unjustifiable
physical pain or mental suffering” is a felony that involves a substantial risk
that physical force may be used in the course of its commission. Moreover, even
if Gonzalez had shown plain error, nothing about the imposition of the
enhancement “seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings”.
                                        B.
      Gonzalez additionally claims, again for the first time on appeal, that the
felony and aggravated felony provisions of 8 U.S.C. § 1326 are unconstitutional.
He concedes this contention is foreclosed by Almendarez-Torres v. United States,
523 U.S. 224 (1998), but seeks to preserve it for review in light of Apprendi v.
New Jersey, 530 U.S. 466 (2000). Almendarez-Torres, 523 U.S. at 235, held 8
U.S.C. § 1326(b)(2) is a penalty provision and not a separate criminal offense.
United States v. Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), petition for
cert. filed, (Aug. 28, 2007) (No. 07-6202).



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                             III.
For the foregoing reasons, the judgment is AFFIRMED.




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