                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                                F I L E D
                       REVISED OCTOBER 17, 2006
                                                               September 26, 2006
               IN THE UNITED STATES COURT OF APPEALS
                                                           Charles R. Fulbruge III
                        FOR THE FIFTH CIRCUIT                      Clerk



                            No. 05-10451



UNITED STATES OF AMERICA

                Plaintiff - Appellee

     v.

ANSELMO VELASCO, also known as Antonio Rodriguez, also known as
Charro Velasco

                Defendant - Appellant


          Appeal from the United States District Court
                for the Northern District of Texas


Before KING, GARWOOD, and JOLLY, Circuit Judges.

KING, Circuit Judge:

     Defendant-appellant Anselmo Velasco pleaded guilty to

illegally reentering the country after having been deported.           On

appeal, he challenges the imposition of a sixteen-level sentence

enhancement under U.S. SENTENCING GUIDELINES MANUAL § 2L1.2.    For the

following reasons, we AFFIRM.

               I.   FACTUAL AND PROCEDURAL BACKGROUND

     On October 18, 2004, defendant-appellant Anselmo Velasco, a

citizen of Mexico, was arrested by the United States Border


                                 -1-
Patrol in Anson, Texas.    Velasco was charged with the offense of

illegal reentry after deportation in violation of 8 U.S.C.

§ 1326.1   On January 6, 2005, Velasco pleaded guilty to the

illegal reentry charge.

     Velasco was sentenced under the 2004 version of the United

States Sentencing Guidelines (“the Sentencing Guidelines”) on

March 25, 2005.   The sentencing guideline applicable to a

violation of § 1326 calls for a base offense level of eight.

U.S. SENTENCING GUIDELINES MANUAL § 2L1.2(a) (2004).   This base


     1
        Velasco was deported from the United States on July 10,
1998. He did not have permission from the Attorney General or the
Secretary of the Department of Homeland Security to reenter the
United States. Section 1326 reads in relevant part:
          (a) Subject to subsection (b) of this section,
          any alien who –
               (1) has been denied admission, excluded,
               deported, or removed or has departed the
               United   States   while   an   order   of
               exclusion, deportation, or removal is
               outstanding, and thereafter
               (2) enters, attempts to enter, or is at
               any time found in, the United States,
               unless . . . the Attorney General has
               expressly consented to such alien’s
               reapplying for admission . . .
          shall be fined under Title 18, or imprisoned
          not more than 2 years, or both.
          (b) Notwithstanding subsection (a) of this
          section, in the case of any alien described in
          such subsection –
               . . .
               (2) whose removal was subsequent to a
               conviction    for   commission    of   an
               aggravated felony, such alien shall be
               fined under such Title, imprisoned not
               more than 20 years, or both.
               . . .
8 U.S.C. § 1326.

                                  -2-
offense level is increased by sixteen levels if the defendant was

previously deported after a conviction for a “crime of violence.”

Id. § 2L1.2(b)(1)(A).   The presentence report (“the PSR”)

prepared by the United States Probation Office recommended a base

offense level of eight, an increase of sixteen levels because of

Velasco’s 1996 Illinois conviction for aggravated battery,2 which

the Probation Office classified as a “crime of violence,” and a

decrease in three levels for Velasco’s acceptance of

responsibility, for a total offense level of twenty-one.

     Velasco objected to the characterization of his 1996

Illinois conviction for aggravated battery as a “crime of

violence” for sentence-enhancement purposes.   The district court

overruled the objection and adopted the PSR’s characterization of

Velasco’s Illinois aggravated battery conviction as a “crime of

violence,” resulting in an offense level of twenty-one.    On March

25, 2005, the district court sentenced Velasco to fifty-seven

months of imprisonment, three years of supervised release, and a

     2
        The PSR initially characterized a separate prior offense
committed by Velasco as a “drug trafficking offense for which the
sentence imposed exceeded thirteen months,” which under the
Sentencing Guidelines qualifies in the alternative for the same
sixteen-level enhancement as a “crime of violence.” Velasco
objected to the characterization of his prior drug conviction.
The government amended the PSR to reflect that the prior offense
was for possession of a controlled substance rather than for the
manufacture and delivery of cocaine, which removed the drug-
related offense from consideration as an offense qualifying for a
sixteen-level enhancement. The district court recognized the
amendment as proper during sentencing and considered only the
aggravated battery conviction as a basis for sixteen-level
enhancement.

                                -3-
special assessment of $100.

                            II. DISCUSSION

     Velasco appeals his sentence on the ground that the district

court improperly characterized his conviction for aggravated

battery as a “crime of violence” and thus improperly enhanced his

sentence.    He also appeals the constitutionality of treating

prior convictions as sentencing factors rather than offense

elements under 8 U.S.C. § 1326(b).      We review a district court’s

application and interpretation of the Sentencing Guidelines de

novo.    United States v. Villegas, 404 F.3d 355, 359 (5th Cir.

2005) (per curiam).    Guideline commentary “is given controlling

weight if it is not plainly erroneous or inconsistent with the

guidelines.”     United States v. Urias-Escobar, 281 F.3d 165, 167

(5th Cir. 2002) (citing Stinson v. United States, 508 U.S. 36,

42-45 (1993)).    We review the constitutionality of federal

statutes de novo.     United States v. Bredimus, 352 F.3d 200, 203

(5th Cir. 2003).

A.   Sentence Enhancement

     Velasco was sentenced under § 2L1.2 of the 2004 version of

the Sentencing Guidelines.3    Section 2L1.2(b)(1)(A) calls for a


     3
        The PSR relied on the November 1, 2004 version of the
Sentencing Guidelines. Application of the 2004 Sentencing
Guidelines is proper under U.S. SENTENCING GUIDELINES MANUAL § 1B1.11
and does not implicate the Ex Post Facto Clause of the U.S.
Constitution because the 2004 sentencing provision at issue is
identical to the 2003 sentencing provision in effect when Velasco
committed the offense of illegal reentry on October 18, 2004.

                                  -4-
sixteen-level enhancement if the defendant previously has been

convicted of a “crime of violence.”     The commentary to § 2L1.2

defines the term “crime of violence” as follows:

          “Crime   of   violence”   means any   of  the
          following: murder, manslaughter, kidnapping,
          aggravated assault, forcible sex offenses,
          statutory rape, sexual abuse of a minor,
          robbery,    arson,   extortion,  extortionate
          extension of credit, burglary of a dwelling,
          or any offense under federal, state, or local
          law that has as an element the use, attempted
          use, or threatened use of physical force
          against the person of another.

U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 cmt. n.1(B)(iii)(2004).

     An offense can be a “crime of violence” either because it

fits within the enumerated list of qualifying offenses or because

it has as an element the use of force.     United States v. Rayo-

Valdez, 302 F.3d 314, 316-19 (5th Cir. 2002).      The district court

enhanced Velasco’s sentence upon finding that Velasco was

convicted under a specific disjunctive portion of the Illinois

aggravated battery statute and that this disjunctive portion had

as an element the use of physical force.     Thus, the question

before us is whether the district court properly held that

Velasco’s Illinois aggravated battery conviction “has as an

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

force against the person of another.”4

     4
        The government does not argue that Velasco’s aggravated
battery conviction constitutes an enumerated crime of violence
for sentence-enhancement purposes. Although we resolve this case
under the “use of physical force” definition of a crime of
violence, we note that Velasco’s conviction for aggravated

                                 -5-
       In United States v. Vargas-Duran, this court, sitting en

banc, held that for a non-enumerated offense to “have as an

element” the use, attempted use, or threatened use of physical

force necessary for a sentence enhancement under § 2L1.2, the use


battery is sufficiently similar to the Model Penal Code’s
definition of aggravated assault to qualify as the enumerated
offense of aggravated assault.
      The Sentencing Guidelines do not define what constitutes an
“aggravated assault.” Where an offense is not defined by the
Sentencing Guidelines, this court applies a “common sense
approach,” defining the enumerated crime by its “generic,
contemporary meaning.” United States v. Izaguirre-Flores, 405
F.3d 270, 275 & n.16 (5th Cir. 2005) (citing United States v.
Dominguez-Ochoa, 386 F.3d 639, 642-43 (5th Cir. 2004)). Under
the categorical approach set forth by the Supreme Court in Taylor
v. United States, 495 U.S. 575, 577-78 (1990), we look to sources
such as the Model Penal Code and legal treatises and dictionaries
to “evaluat[e] the correspondence between [the] generic
contemporary meaning and the statutory definition of the prior
offense.” United States v. Torres-Diaz, 438 F.3d 529, 536 (5th
Cir. 2006).
      Under the Model Penal Code, a person is guilty of aggravated
assault if he:
            (a) attempts to cause serious bodily injury
            to another, or causes such injury purposely,
            knowingly, or recklessly under circumstances
            manifesting extreme indifference to the value
            of human life; or
            (b) attempts to cause or purposely or
            knowingly causes bodily injury to another
            with a deadly weapon.
MODEL PENAL CODE § 211.1(2).
      In examining Velasco’s indictment and the Illinois
aggravated battery statute, we can discern that Velasco was
convicted under § 12-4(b)(1) of the Illinois aggravated battery
statute in that he committed a battery — specifically, by
intentionally causing bodily harm to another — using a deadly
weapon. 720 IL. COMP. STAT. 5/12-4(b)(1) (1995). Comparing the
Illinois aggravated battery statutory elements to those of the
Model Penal Code, they correspond to § 211.1(2)(b). In
particular, the comparison reveals that the two definitions are
identical in regard to the required elements of mens rea,
causation of bodily harm, and use of a deadly weapon.


                               -6-
of physical force must be a fact that is necessary for the

prosecution to secure a conviction.    356 F.3d 598, 605 (5th Cir.

2004) (en banc) (noting that “an element is a ‘constituent part

of a claim that must be proved for the claim to succeed’”

(quoting BLACK’S LAW DICTIONARY 538 (7th ed. 1999)).   If any set of

facts would secure a conviction under the statute without proof

of the intentional use of force against the person of another,

then the offense cannot be characterized as a crime of violence

for sentence-enhancement purposes.     Id.

     When determining whether a prior conviction qualifies as a

“crime of violence” under the Sentencing Guidelines, this court

is bound by the categorical approach of Taylor v. United States,

495 U.S. 575, 577-78 (1990).    See also Shepard v. United States,

544 U.S. 13, 19-20 (2005) (holding that Taylor’s categorical

approach applies equally to convictions following guilty pleas

and jury verdicts).   Taylor requires us to consider only the

statutory definition of the offense charged, rather than the

defendant’s actual conduct underlying the offense, to determine

whether the offense contains an element involving the use of

force.   See, e.g., United States v. Calderon-Pena, 383 F.3d 254,

257 (5th Cir. 2004) (en banc) (per curiam), cert denied 543 U.S.

1076 (2005); United States v. Gracia-Cantu, 302 F.3d 308, 312-13

(5th Cir. 2002).   If there are several methods of committing a

crime under a statute, each method of violating the statute must

qualify as a “crime of violence,” without inquiry into the

                                 -7-
defendant’s actual use of force.        Taylor, 495 U.S. at 577-78.

However, if an offense statute contains disjunctive statutory

alternatives under which a defendant may be convicted, a

sentencing court may look to the offense conduct described in the

indictment or jury instructions for the limited purpose of

determining which of the disjunctive alternatives a defendant’s

conviction satisfies.     Calderon-Pena, 383 F.3d at 258.    If the

precise disjunctive statutory alternative can be determined from

the indictment, then the court may look to that particular

provision to determine whether the use of force is a required

element of the offense.     Id. at 258-59.

     Velasco was convicted under the Illinois aggravated battery

statute.   720 ILL. COMP. STAT. 5/12-4 (1995).5    This court twice

     5
        Section 12-4 details a number of specific ways in which
aggravated battery can be committed. Relevant portions of the
statute are listed here to illustrate its disjunctive nature and
the range of ways in which aggravated battery can be committed:
          (a) A person who, in committing a battery,
          intentionally or knowingly causes great bodily
          harm, or permanent disability or disfigurement
          commits aggravated battery.
          (b) In committing a battery, a person commits
          aggravated battery if he or she:
               (1) Uses a deadly weapon other than
               by the discharge of a firearm;
               (2) Is hooded, robed or masked, in
               such manner to conceal his identity;
               . . .
          (c) A person who administers to an individual
          or causes him to take, without his consent or
          by threat or deception, and for other than
          medical purposes, any intoxicating, poisonous,
          stupefying, narcotic or anesthetic substance
          commits aggravated battery;
          (d) A person who knowingly gives to another

                                  -8-
previously has examined this statute to determine whether it

contains an element requiring the prosecution to prove that the

defendant engaged in the use of physical force.    United States v.

Aguilar-Delgado, 120 F. App’x 522 (5th Cir. 2004) (unpublished);

United States v. Gomez-Vargas, 111 F. App’x 741 (5th Cir. 2004)

(per curiam) (unpublished).   In each prior case we determined

that the Illinois aggravated battery statute provides for the

commission of the offense of aggravated battery in a number of

different ways, some of which do not require the use of physical

force against a person.6   Aguilar-Delgado, 120 F. App’x at 523;

Gomez-Vargas, 111 F. App’x at 743.    In both cases the records on

appeal did not contain the indictments for the Illinois

convictions and the court was unable to discern under which of

the disjunctive statutory elements the defendants were charged

and convicted.   See, e.g., Aguilar-Delgado, 120 F. App’x at 523

(“The record in this case does not include the indictment for the

Illinois conviction and we are unable to ‘pare down’ the statute


           person any food that contains any substance or
           object that is intended to cause physical
           injury if eaten, commits aggravated battery.
720 ILL. COMP. STAT. 5/12-4 (1995).
     6
        For example, use of a poison, as proscribed by § 12-4(c),
does not require the use of physical force:
           (c) A person who administers to an individual
           or causes him to take, without his consent or
           by threat or deception, and for other than
           medical purposes, any intoxicating, poisonous,
           stupefying, narcotic or anesthetic substance
           commits aggravated battery.
720 ILL. COMP. STAT. 5/12-4(c) (1995).

                                -9-
to determine which of its disjunctive elements were used to

charge and convict [the defendant].”).    Accordingly, in each case

we held that the relevant conviction under the Illinois

aggravated battery offense statute could not be properly

characterized as a “crime of violence” because the use of

physical force could not be shown to be a required element

underlying the conviction.

     Velasco relies on our decisions in Aguilar-Delgado and

Gomez-Vargas to argue that an Illinois aggravated battery

conviction categorically does not qualify as a “crime of

violence” for sentence-enhancement purposes.    However, our prior

examinations of Illinois’s aggravated battery statute are not

dispositive of the present case.   In contrast to the records on

appeal in Gomez-Vargas and Aguilar-Delgado, Velasco’s indictment

for aggravated battery is included in the record and identifies

the disjunctive portion of the aggravated battery statute under

which Velasco was charged and convicted.    As such, we again turn

to the Illinois aggravated battery statute, with a more narrow

inquiry into whether the disjunctive portion under which Velasco

was convicted requires as an element the use of physical force.

We conclude that it does.

     Under Illinois law, “aggravated battery” occurs when “[a]

person who, in committing a battery, intentionally or knowingly

causes great bodily harm, or permanent disability or

disfigurement.”   720 ILL. COMP. STAT. 5/12-4(a) (1995).   The

                                -10-
statute provides, in subsections (b) through (d), a number of

specific ways in which an aggravated battery can be committed.

Velasco’s indictment for aggravated battery indicates that he was

charged under § 12-4(b)(1) of the Illinois aggravated battery

statute:

            ANSELMO VELASCO committed the offense of
            AGGRAVATED BATTERY in that HE, INTENTIONALLY
            OR KNOWINGLY WITHOUT LEGAL JUSTIFICATION
            CAUSED BODILY HARM TO BRAULIO MATA WHILE USING
            A DEADLY WEAPON, TO WIT: A KNIFE IN VIOLATION,
            OF CHAPTER 720, ACT 5, SECTION 12-4(B)(1).

Section 12-4(b)(1) provides that “[i]n committing a battery,7 a

person commits aggravated battery if he or she: (1) uses a deadly

weapon other than by the discharge of a firearm.”    720 ILL. COMP.

STAT. 5/12-4 (1995).   Beyond explicitly naming the portion of the

aggravated battery statute under which Velasco was convicted, the

indictment’s description of Velasco’s conduct — “caused bodily

harm while ... using a deadly weapon ... a knife” — corresponds

to the offense proscribed by § 12-4(b)(1).    As a result, we look

only to § 12-4(b)(1) to determine whether the use of force is a

required element of Velasco’s conviction for aggravated battery.

     There is only one means of conviction under § 12-4(b)(1),

which is to prove that the defendant actually “used” a deadly

weapon.    Under Illinois law, a deadly weapon is “an instrument

     7
        A person commits battery under Illinois law “if he
intentionally or knowingly without legal justification and by any
means, (1) causes bodily harm to an individual or (2) makes
physical contact of an insulting or provoking nature with an
individual. 720 ILL. COMP. STAT. 5/12-3 (1995).

                                -11-
that is used or may be used for the purpose of an offense and is

capable of producing death.”   Illinois v. Blanks, 845 N.E.2d 1,

12 (Ill. App. Ct. 2005).   Accordingly, in order to convict

Velasco of aggravated battery under § 12-4(b)(1), the government

was required to prove that Velasco “used” a deadly weapon for the

purpose of the offense of battery, which in this case was to

cause bodily harm.8

     We conclude that § 12-4(b)(1) does indeed require proof of

the element of the use of physical force against the person of

another.   In making this determination we note that it is

critical that the statute requires the actual “use” of the weapon

to commit the offense.   In United States v. Diaz-Diaz, we held

that a criminal offense involving the mere possession of a deadly

weapon is not a “crime of violence” because the offense required

nothing more than actually carrying a weapon.   327 F.3d 410, 414

(5th Cir. 2003) (holding that the crime of “knowing possession”

of a short-barrel shotgun was complete without the use of any

physical force against the person or the property of another).

We distinguish, however, the “use” of a deadly weapon from mere

possession in regard to the relationship between the “use” of a

weapon and physical force.   In order to “use” a weapon to cause

     8
        Under the Illinois general battery statute, battery
occurs when one either intentionally causes bodily harm to
another or makes physical contact of an insulting or provoking
nature. 720 ILL. COMP. STAT. 5/12-3 (1995). Velasco’s indictment
indicates that he was charged under the first alternative —
intentionally causing bodily harm to another.

                               -12-
bodily harm, one must, at the very least, threaten the use of

physical force.

     This decision is consistent with our case law.      In United

States v. Guevara, we held that weapons of mass destruction are

instruments of physical force, and as such, a conviction for

threatening to use a weapon of mass destruction (anthrax)

qualified as a crime of violence for sentence-enhancement

purposes.9   408 F.3d 252, 259 (5th Cir. 2005).    Similarly, a

deadly weapon, in that it is capable of producing death, is an

instrument of physical force.    Other circuits have also concluded

that the use of a deadly weapon to commit aggravated battery

necessarily involves the use of physical force for the purpose of

sentence enhancement under § 2L1.2(b)(1)(A).      In United States v.

Treto-Martinez, the court examined a Kansas aggravated battery

statute and reasoned that the use of a deadly weapon whereby

great bodily harm, disfigurement, or death can be inflicted has

as a required element the threatened use of physical force, and

therefore, sixteen-level enhancement as a “crime of violence” was

proper.   421 F.3d 1156, 1160 (10th Cir. 2005).

     We conclude that the “use” of a deadly weapon to cause

     9
         Guevara construed a “crime of violence” under U.S.
SENTENCING GUIDELINES MANUAL § 4B1.2(a)(1) and we are mindful that the
Sentencing Guidelines vary across subsections regarding the
offenses that qualify as “crimes of violence.” See United States
v. Charles, 301 F.3d 309, 311-12 (5th Cir. 2002). However, we
note the corresponding definition of “crime of violence” in
§ 4B1.2(a)(1) is identical to that contained in § 2L1.2 cmt.
n.1(B)(iii). As such, Guevara is relevant.

                                -13-
bodily harm — as expressly charged in Velasco’s indictment and

required by § 12-4(b)(1) — involves the element of the use of

destructive physical force against the victim’s person.     As a

result, we hold that a conviction under § 12-4(b)(1) of the

Illinois aggravated battery statute is a “crime of violence” for

sentence-enhancement purposes.

B.   Constitutionality of 8 U.S.C. § 1326(b)

     Title 8 U.S.C. § 1326(a) makes it a crime, punishable by up

to two years’ imprisonment, for an alien to reenter the country

without permission after having previously been removed.     Section

1326(b)(1)-(2) provides that aliens whose prior removal followed

a conviction of certain crimes may be imprisoned for

substantially longer terms.   In Almendarez-Torres v. United

States, the Supreme Court held that § 1326(b) set forth

sentencing factors rather than separate offenses such that an

indictment in an illegal reentry case need not allege a

defendant’s prior conviction, and that the statute was

constitutional.    523 U.S. 224, 247 (1998).

     Velasco contends that 8 U.S.C. § 1326(b) is unconstitutional

in light of Apprendi v. New Jersey, 530 U.S. 466, 489-90 (2000),

in which the Supreme Court held that facts that increase a

sentence beyond the statutory maximum must as a general matter be

found by a jury.   But Apprendi explicitly refrained from

overruling Almendarez-Torres, and this circuit has consistently



                                 -14-
rejected Velasco’s position, stating that it is for the Supreme

Court to overrule Almendarez-Torres.    See, e.g., United States v.

Sarmiento-Funes, 374 F.3d 336, 345-46 (5th Cir. 2004).   Velasco

concedes that the issue is foreclosed by circuit precedent, and

he presents the issue solely to preserve it for possible further

review.

                           III. CONCLUSION

     For the foregoing reasons, we AFFIRM Velasco’s judgment of

conviction and sentence.




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