                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  March 17, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                             No. 04-41150
                           Summary Calendar




UNITED STATES OF AMERICA

                Plaintiff - Appellee

     v.

ALEJANDRO RAMIREZ-AGUILAR

                Defendant - Appellant


           Appeal from the United States District Court
                for the Southern District of Texas
                     USDC No. 1:04-CR-221-ALL


Before KING, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Alejandro Ramirez-Aguilar appeals his guilty-plea conviction

and sentence for illegal reentry into the United States following

deportation subsequent to a felony conviction for an aggravated

felony.   8 U.S.C. § 1326(a)-(b) (2000).      Ramirez-Aguilar was

sentenced to thirty-three months of imprisonment and a three-year

term of supervised release.




     *
        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that this opinion should not be published and is not precedent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. 04-41150
                                  -2-

     For the first time on appeal, Ramirez-Aguilar argues that 8

U.S.C. § 1326(b) is unconstitutional on its face and as applied

because it does not require the fact of a prior felony or

aggravated felony conviction to be charged in the indictment and

proved beyond a reasonable doubt.     Ramirez-Aguilar’s

constitutional challenge is foreclosed by Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998).      Although Ramirez-

Aguilar contends that Almendarez-Torres was incorrectly decided

and that a majority of the Supreme Court would overrule

Almendarez-Torres in light of Apprendi v. New Jersey, 530 U.S.

466 (2000), we have rejected such arguments on the basis that

Almendarez-Torres remains binding.     See United States v.

Garza-Lopez, 410 F.3d 268, 276 (5th Cir. 2005), cert. denied, 126

S. Ct. 298 (2005).    Ramirez-Aguilar properly concedes that his

argument is foreclosed in light of Almendarez-Torres and circuit

precedent, but he raises it here to preserve it for further

review.

     Ramirez-Aguilar also argues for the first time on appeal

that his prior Texas conviction for Class A misdemeanor assault

was not a crime of violence for purposes of an eight-level

enhancement pursuant to U.S. SENTENCING GUIDELINES MANUAL

§ 2L1.2(b)(1)(C) (2003) [hereinafter U.S.S.G.].      Because he

failed to raise this issue in the district court, this court

reviews for plain error.    United States v. Bonilla-Mungia, 422

F.3d 316, 319 (5th Cir. 2005).     When determining whether a prior
                           No. 04-41150
                                -3-

conviction is a crime of violence because it has as an element

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

district courts must employ the categorical approach established

in Taylor v. United States, 495 U.S. 575, 602 (1990).        Bonilla-

Mungia, 422 F.3d at 320.   “Under that approach, courts determine

the elements to which a defendant pleaded guilty by analyzing the

statutory definition of the offense, not the defendant’s

underlying conduct.”   Id. (citing United States v. Calderon-Pena,

383 F.3d 254, 257 (5th Cir. 2004) (en banc), cert. denied, 543

U.S. 1076 (2005)).   If a statute contains multiple, disjunctive

subsections, the court may look beyond the statute to certain

records to determine which particular statutory provision applies

to the defendant’s conviction, but “[t]hese records are generally

limited to the ‘charging document, written plea agreement,

transcript of the plea colloquy, and any explicit factual finding

by the trial judge to which the defendant assented.’”        Id.

(quoting Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254,

1257 (2005)).

     Ramirez-Aguilar’s prior conviction arose under either TEX.

PENAL CODE ANN. § 22.01(a)(1) or (a)(3) (Vernon 2003).   A

conviction under § 22.01(a)(1) is a crime of violence sufficient

to trigger the § 2L1.2(b)(1)(C) enhancement.     See United States

v. Shelton, 325 F.3d 553, 561 (5th Cir. 2003).    A conviction

under § 22.01(a)(3), however, is not a crime of violence and does

not trigger the enhancement.   See Gonzalez-Garcia v. Gonzales,
                           No. 04-41150
                                -4-

2006 WL 346298, at **3-4 (5th Cir. Feb. 14, 2006) (unpublished).

Unfortunately, the record does not tell us which subsection of

§ 22.01--(a)(1) or (a)(3)--applies to Ramirez-Aguilar’s

conviction.   Although the presentence report (“PSR”) contains

facts pertaining to Ramirez-Aguilar’s alleged conduct in

committing the underlying offense, we are not permitted to rely

on the PSR’s characterization of Ramirez-Aguilar’s prior

conviction for enhancement purposes.   Bonilla-Mungia, 422 F.3d at

320-21 (citing Garza-Lopez, 410 F.3d at 274 (“[U]nder Shepard, a

district court is not permitted to rely on a PSR’s

characterization of a defendant’s prior offense for enhancement

purposes.”)).   Aside from the judgment of conviction, which does

not indicate whether Ramirez-Aguilar was convicted under

§ 22.01(a)(1) or § 22.01(a)(3), the record contains no other

documents--such as an indictment, information, plea agreement, or

transcript of the plea colloquy from Texas state court--that this

court may rely on to determine whether Ramirez-Aguilar’s

conviction constituted a crime of violence.   Id.    Where, as here,

we cannot identify with legal certainty under which portion of a

statute a defendant was convicted, we remand to the district

court for supplementation of the record and resentencing.     See

id. (reviewing crime of violence enhancement for plain error and

remanding to the district court for supplementation of the record

and resentencing where the court could not determine “with legal

certainty which portion of the sexual battery statute [the
                           No. 04-41150
                                -5-

defendant] was convicted under”); United States v. Gonzalez-

Chavez, 432 F.3d 334, 338 (5th Cir. 2005) (“Where we cannot

identify with legal certainty under which portion of a statute a

defendant was convicted, we cannot determine [under plain-error

review] whether a crime of violence enhancement was proper.    In

such a case, we remand to the district court for supplementation

of the record and re-sentencing.”) (internal citations omitted).

Accordingly, we vacate the sentence imposed on Ramirez-Aguilar

and remand to the district court for development of the record

and resentencing.1

     On remand, the district court should order the government to

supplement the record with documents that might establish to

which elements of assault Ramirez-Aguilar pleaded guilty.    Once

the government has supplemented the record, the district court

should reconsider whether an eight-level enhancement is warranted

under U.S.S.G. § 2L1.2(b)(1)(C), taking into consideration

whether Ramirez-Aguilar’s conviction for assault qualifies as a

crime of violence.   See Shelton, 325 F.3d at 561; Gonzalez-

Garcia, 2006 WL 346298, at **3-4.   In making this determination,

the district court will no longer be bound by the Guidelines, but

it should still determine the applicable guideline range and


     1
        The judgment of conviction indicates that Ramirez-Aguilar
was ultimately convicted of a reduced charge. While the
indictment may not be particularly helpful in this case, the
government should supplement the record with other documents,
including the information filed in state court, so that the
district court may discern (with legal certainty) under which
provision Ramirez-Aguilar was convicted.
                             No. 04-41150
                                  -6-

consider the factors under 18 U.S.C. § 3553(a).2   See United

States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005), cert. denied,

126 S. Ct. 43 (2005).

     VACATED and REMANDED.




     2
        Because we vacate Ramirez-Aguilar’s sentence and remand
on other grounds, it is unnecessary to address Ramirez-Aguilar’s
argument in his supplemental letter brief that the district court
erred by mandatorily applying the Guidelines. See Bonilla-
Mungia, 422 F.3d at 321 n.6 (citing United States v. Alfaro, 408
F.3d 204, 210 n.2 (5th Cir. 2005), cert. denied, 126 S. Ct. 271
(2005)).
