                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit                         June 21, 2005

                                                                  Charles R. Fulbruge III
                               No. 04-40513                               Clerk


                         UNITED STATES OF AMERICA

                                   Plaintiff-Appellee,


                                    v.

                         JOSE PEDRO SANCHEZ-TORRES
                                   Defendant-Appellant



            Appeal from the United States District Court
                  for the Southern District of Texas
                           No. 1:04-CR-13-1



Before SMITH, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

     Jose Pedro Sanchez-Torres challenges his sentence imposed

following his guilty plea to being unlawfully present in the United

States following deportation, a violation of 8 U.S.C. § 1326.

Sanchez-Torres argues that the district court plainly erred in

enhancing   his   base   offense   level   by   four   levels    pursuant      to

U.S.S.G. § 2L1.2(b)(1)(E) on the basis of his three Washington

State fourth degree assault convictions.         Sanchez-Torres contends


     *
      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this opinion should not be published and is not precedent except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.

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that, based on the evidence in the record, the Government failed to

prove that his prior convictions were categorically crimes of

violence as defined by U.S.S.G. § 2L1.2.2                     We agree.

                                       BACKGROUND

      The relevant facts of this case are undisputed.                     On January 1,

2004, Sanchez-Torres pleaded guilty and was convicted as an alien

unlawfully      present    in    the    United        States     following    a   prior

deportation.     Though the probation officer originally recommended

a   different    sentence       enhancement      in     his    pre-sentence    report,

Sanchez-Torres successfully argued that the originally recommended

enhancement was inapplicable.            Consequently, the probation officer

modified the pre-sentence report and recommended that Sanchez-

Torres’s sentence be enhanced under § 2L.1.2(b)(1)(E) on the ground

that Sanchez-Torres’s three prior convictions in Washington state

for fourth degree assault were crimes of violence.

      The   modified      pre-sentence         report    describes    the     facts   in

support of the misdemeanor assault convictions in lurid detail.

Though that report indicates that Sanchez-Torres pleaded guilty to

each offense, the judgments of conviction and plea colloquies for


      2
      Sanchez-Torres also contends that his sentence is invalid
under the Supreme Court’s recent decision in United States v.
Booker, 125 S. Ct. 738, 739 (2005), because the district court
imposed a sentence under the erroneous belief that the recommended
sentence under the Sentencing Guidelines was mandatory rather than
merely advisory. Because we vacate Sanchez-Torres’s sentence on
another ground, we need not consider whether his sentence would be
invalid under Booker. See United States v. Villegas, 404 F.3d 355,
365 (5th Cir. 2005).

                                           2
each offense are not in the record.

      On April 22, 2004, the district court adopted the facts and

recommendations set forth in the modified pre-sentence report and

sentenced Sanchez-Torres to 24 months’ imprisonment, the statutory

maximum for his offense.       This is because, with the four-level

enhancement under § 2L1.2 (1)(b)(E) crime of violence, the minimum

sentence in the Guidelines range for his sentence exceeded the

statutory   maximum,   and   pursuant       to   §   5.G1.1(a),    in   such   an

instance, the statutory maximum becomes the “Guideline sentence.”

Though Sanchez-Torres raised no objection to his crime of violence

sentence enhancement during sentencing, he timely appeals.

                         ANALYSIS   AND   CONCLUSIONS

      Because Sanchez-Torres did not raise his legal objection to

the imposition of the four-level sentence enhancement in district

court, this court’s review of that sentence enhancement is for

plain error.   See, e.g., United States v. Aderholt, 87 F.3d 740,

743 (5th Cir. 1996); cf. United States v. Booker, 125 S. Ct. 738,

769   (2005)(instructing     appellate        courts    to   apply      ordinary

prudential doctrines such as plain-error review).                  Plain error

occurs when: (1) there was an error; (2) the error was clear and

obvious; and (3) the error affected the defendant’s substantial

rights. United States v. Olano, 507 U.S. 725, 732-37 (1993); United

States v. Mares, 402 F.3d 515, 520 (5th Cir. 2005).               “If all three

conditions are met, an appellate court may then exercise its



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discretion to notice a forfeited error but only if the error

seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Mares, 402 F.3d at 520 (quoting United

States v. Cotton, 535 U.S. 625, 631, 152 L. Ed. 2d 860, 122 S. Ct.

1781 (2002)).

      This court has recently held that the usual de novo standard

of review for a district court’s application of the Guidelines

remains unchanged following Booker. United States v. Villegas, 404

F.3d 355, 359 (5th Cir. 2005).       Thus, in determining whether there

was   plain   error   in   the   district   court’s   application   of   the

Guidelines, that application is reviewed de novo.          Id. at 363.

      U.S.S.G. § 2L1.2(b)(1)(E) states that a defendant’s base

offense level should be increased four levels if he “previously was

deported, or unlawfully remained in the United States, after . .

.three or more convictions for misdemeanors that are crimes of

violence or drug trafficking offenses.” U.S.S.G. § 2L1.2(b)(1)(E).

“Crime of violence” is defined to include “any offense under

federal, state, or local law that has 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); see United States v.

Vargas-Duran, 356 F.3d 598, 599-600 (5th Cir.) (en banc), cert.

denied, 124 S. Ct. 1728 & 125 S. Ct. 494 (2004); United States v.

Calderon-Pena, 383 F.3d 254, 256 (5th Cir. 2004) (en banc), cert.

denied, 135 S. Ct. 932 (2005).


                                      4
      Under this court’s en banc decision in Calderon-Pena, and the

categorical approach mandated by the Guidelines, the facts of a

particular offense should not be used to determine whether a prior

conviction of a non-enumerated offense is a conviction for a crime

of violence. Calderon-Pena, 383 F.3d at 257. Instead, the relevant

question is whether the elements of that offense, involve the “use,

attempted use, or threatened use of force against the person of

another,” and the elements of an offense are found in the statute

of conviction. Calderon-Pena, 383 F.3d at 256-57.          In order for an

offense to qualify as a crime of violence “the intentional use of

force must be a ‘constituent part of a claim that must be proved

for the claim to succeed.’” Vargas-Duran, 356 F.3d at 605 (quoting

Black’s Law Dictionary 538 (7th ed. 1999)).           “If any set of facts

would support a conviction without proof of that component, then

the   component   most    decidedly   is   not   an   element–implicit   or

explicit–of the crime.”       Id.

      In Washington state, a person commits assault in the fourth

degree if “under circumstances not amounting to assault in the

first, second, or third degree, or custodial assault, he or she

assaults another.”       WASH. REV. CODE ANN. § 9A.36.041(1) & (2) (West

2004).   Because the term “assault” is not defined by statute,

Washington courts apply the common law definition of assault.            See

Clark v. Baines, 84 P.3d 245, 247 n.3. (Wash. 2004).             Thus, in

Washington, there are three recognized definitions of assault: “(1)



                                      5
an attempt, with unlawful force, to inflict bodily injury upon

another ; (2) an unlawful touching with criminal intent; and (3)

putting another in apprehension of harm whether or not the actor

intends to inflict or is incapable of inflicting harm.”         Id.   Based

on these common law definitions as well as the Washington assault

statutes, a person commits assault in the fourth degree when the

intentional touching is harmful or offensive but does not involve:

(1) great bodily harm or a weapon; (2) recklessly inflicted bodily

injury that is substantial; (3) negligently inflicted bodily injury

or injury resulting in substantial pain and suffering.           See WASH.

REV. CODE. ANN. §§ 9A.36.011 (describing assault in the first

degree); 9A.36.021 (describing assault in the second degree);

9A.36.031 (assault in the third degree). Accordingly, we conclude

that a Washington state prosecutor may secure a conviction for

fourth degree assault by proving that there was an intentional

touching that is either “harmful” or “offensive.” Washington v.

Plush,   2000   Wash.   App.   LEXIS   209   at   *5   (Wash.   Ct.   App.

2000)(affirming conviction for assault because spitting on an

officer was an offensive intentional unlawful touching); Washington

v. C.D., 2002 Wash. App. LEXIS 2873 (Wash. Ct. App. 2002)(affirming

conviction for assault because touching of complainant’s breast and

buttocks could be an offensive touching).

     This court has previously stated that the use of force element

of a crime of violence involves “destructive or violent force.”



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United States v. Landeros-Gonzales, 262 F.3d 424, 426 (5th Cir.

2001). Consequently, while a “harmful” touching likely involves as

an element the use, attempted use, or threatened use of destructive

or violent force against the person of another necessary to qualify

for a crime of violence sentence enhancement under U.S.S.G. §

2L1.2, an offensive touching may not involve such an element. See,

e.g., Plush, 2000 Wash. App. LEXIS 209 at *5; C.D., 2002 Wash. App.

LEXIS 2873.   Hence, the mere fact that Sanchez-Lopez was convicted

for fourth degree assault in Washington state does not demonstrate

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

against the person of another was an essential element necessary to

support that conviction. See Vargas-Duran, 356 F.3d at 605.      Given

that the record is devoid of any additional evidence, such as the

judgment of conviction, or the plea colloquy, from which we may

ascertain the essential elements of Sanchez-Torres’s Washington

fourth   degree   assault   convictions,   we   cannot   categorically

determine those convictions to be crimes of violence under U.S.S.G.

§ 2L1.2(b)(1)(E). See United States v. Martinez-Paramo, 380 F.3d

799, 801, 805-06 (5th Cir. 2004).     Thus, it was error to apply the

four-level crime of violence enhancement in this case based on

merely the existence of those convictions.      See United States v.

Rodriguez-Rodriguez, 388 F.3d 466, 470 (5th Cir. 2004); United

States v. Alfaro, 2005 U.S. App. LEXIS 7325, *11 (5th Cir. 2005).

     Because we have determined that it was error to apply the



                                  7
four-level    crime   of   violence   enhancement   to   Sanchez-Torres’s

sentence, and because that error is obvious under this Circuit’s

precedent, Sanchez-Torres has met the first two prongs of the plain

error test. See Villegas, 404 F.3d at 364; Alfaro, 2005 U.S. App.

LEXIS at *11-12.      As the parties do not dispute that his sentence

is significantly longer with the enhancement (24 months) than

without (likely between 12 and 18 months) and there is no overlap,

Sanchez-Torres has also established the third prong of the plain

error test–viz. that the error affected his substantial rights and

affected the fairness, integrity, or public reputation of the

judicial proceedings. Villegas, 404 F.3d at 364; Alfaro, 2005 U.S.

App. LEXIS at *11-12.      Finding plain error, we accordingly VACATE

Sanchez-Torres’s sentence and REMAND to the district court for re-

sentencing.




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