                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit
                                                                                        F I L E D
                                                  In the                                 August 17, 2007
                       United States Court of Appeals                               Charles R. Fulbruge III
                                      for the Fifth Circuit                                 Clerk
                                            _______________

                                              m 06-40342
                                            _______________




                                   UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                                 VERSUS

                                      ROLANDO GARCIA-ORTIZ,

                                                              Defendant-Appellant.



                                     _________________________

                             Appeal from the United States District Court
                                  for the Eastern District of Texas
                                        m 4:05-CR-153-ALL
                               ______________________________



Before JONES, Chief Judge, REAVLEY                        Rolando Garcia-Ortiz appeals the sixteen-
  and SMITH, Circuit Judges.                           level sentence enhancement he received based
                                                       on a Texas conviction of attempted aggravated
JERRY E. SMITH, Circuit Judge:*                        sexual assault. We vacate and remand for de-
                                                       velopment of the record.

                                                                              I.
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-        Garcia-Ortiz pleaded guilty of being unlaw-
termined that this opinion should not be published     fully present in the United States after being
and is not precedent except under the limited cir-     deported, in violation of 8 U.S.C. § 1326. The
cumstances set forth in 5TH CIR. R. 47.5.4.            presentence report (“PSR”) recommended a
base offense level of 8 pursuant to U.S.S.G.             conduct. United States v. Velasco, 465 F.3d
§ 2L1.2 and a 16-level increase under § 2L1.2-           633, 638 (5th Cir. 2006). “If a statute con-
(b)(1)(A)(ii) because Garcia-Ortiz had a Tex-            tains multiple, disjunctive subsections, courts
as conviction of attempted aggravated sexual             maylook beyond the statute to certain ‘conclu-
assault, a “crime of violence.” Garcia-Ortiz             sive records made or used in adjudicating
objected to the PSR, contesting its description          guilt’ in order to determine which particular
of his earlier conviction and claiming that his          statutory alternative applies to the defendant’s
confession to that crime was induced by police           conviction.” United States v. Bonilla-Mungia,
coercion. The court adopted the PSR (with                422 F.3d 316, 320 (5th Cir.) (quoting United
certain exceptions not relevant to this appeal)          States v. Garza-Lopez, 410 F.3d 268, 274 (5th
and sentenced Garcia-Ortiz to 71 months’ in-             Cir. 2005)), cert. denied, 546 U.S. 1070
carceration.                                             (2005). These records are generally limited to
                                                         the “charging document, written plea agree-
                        II.                              ment, transcript of the plea colloquy, and any
    Because Garcia-Ortiz did not object in the           explicit factual finding by the trial judge to
district court, our review is for plain error.           which the defendant assented.” Id. (quoting
United States v. Gracia-Cantu, 302 F.3d 308,             Shepard v. United States, 544 U.S. 13, 16
310 (5th Cir. 2002). The sentencing guide-               (2005)).
lines provide for a sixteen-level enhancement
if “the defendant previously was deported, or               Our first task is to determine of what par-
unlawfully remained in the United States after           ticular offense Garcia-Ortiz was convicted.
a conviction for a felony that is . . . a crime of       The PSR indicates that he was convicted, by
violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). A              guilty plea, of attempted aggravated sexual as-
conviction can qualify as a “crime of violence”          sault in 1997. Although the PSR notes that
in either of two ways: (1) if the conviction is          the conviction was verified by a copy of the
for one of the enumerated offenses listed in the         judgment, the appellate record does not in-
commentary to § 2L1.2, United States v.                  clude the judgment, and the PSR does not spe-
Garcia-Mendez, 420 F.3d 454, 456 (5th Cir.               cify the statute of conviction. The parties
2005); or (2) if the crime of conviction “has as         agree, however, that Garcia-Ortiz was con-
an element the use, attempted use, or threat-            victed of attempted aggravated sexual assault.
ened use of physical force against the person
of another,” id. (quoting U.S.S.G. § 2L1.2,                 Section 15.01 of the Texas Penal Code de-
comment n.1(B)(iii)).                                    fines the preparatory offense of criminal at-
                                                         tempt, and section 22.021 defines aggravated
   We apply the categorical approach of Tay-             sexual assault. Section 22.021 essentially re-
lor v. United States, 495 U.S. 575, 602                  cites the statutory definition of sexual assault,
(1990),1 under which courts determine the ele-           TEX. PENAL CODE § 22.011,2 and adds three
ments of the crime by looking to the statute of
conviction, not the defendant’s underlying                  2
                                                              A violation of Texas Penal Code § 22.011-
                                                         (a)(1) is not a crime of violence for purposes of
                                                         § 2L1.2. United States v. Luciano-Rodriguez, 442
   1
    See, e.g. United States v. Hernandez-Rodri-          F.3d 320, 323 (5th Cir.), cert. denied, 127 S. Ct.
guez, 467 F.3d 492, 494 (5th Cir. 2006) (citations       747 (2006). A violation of § 22.011(a)(2) does
omitted).                                                                          (continued...)

                                                     2
discrete methods of elevating the sexual as-               not tell us which subsections of section 22.021
sault to aggravated sexual assault (1) using               Garcia-Ortiz’s conviction for attempted aggra-
one of six enumerated methods of coercion,3                vated sexual assault was based upon.
(2) if the victim is under fourteen years of age
or (3) if the victim is sixty-five years of age or             Although the PSR contains an alleged de-
older, id. § 22.021(a)(2).4 The record does                scription of the events giving rise to Garcia-
                                                           Ortiz’s earlier conviction, we cannot look to
                                                           that description to determine whether the con-
(...continued)                                             viction was of a crime of violence. 5 The rec-
qualify, however. United States v. Alvarado-Her-           ord does not contain any of the documents,
nandez, 465 F.3d 188, 190 (5th Cir. 2006).                 listed earlier, that we are permitted to consult.
   3
                                                           Thus, on the record before us we are unable to
       This prong is satisfied if the defendant            identify with legal certainty which subsections
                                                           of the aggravated sexual assault statute Gar-
   (i) causes serious bodily injury or attempts to
                                                           cia-Ortiz was convicted of, and thus whether
   cause the death of the victim or another person
                                                           the conviction required proof of the use, at-
   in the course of the same criminal episode;
                                                           tempted use, or threatened use of physical
   (ii) by acts or words places the victim in fear         force.
   that death, serious bodily injury, or kidnapping
   will be imminently inflicted on any person;                Where we cannot ascertain, under plain er-
                                                           ror review and for purposes of the § 2L1.2 en-
   (iii) by acts or words occurring in the presence        hancement, which subsection of a statute a de-
   of the victim threatens to cause the death, seri-       fendant violated, we vacate and remand for
   ous bodily injury, or kidnapping of any person;         supplementation of the record.6 Accordingly,

   (iv) uses or exhibits a deadly weapon in the
   course of the same criminal episode;                       4
                                                                 (...continued)
                                                           person “with specific intent to commit an offense
   (v) acts in concert with another who engages in         . . . does an act amounting to more than mere pre-
   conduct described by Subdivision (1) directed           paration that tends but fails to effect the commis-
   toward the same victim and occurring during             sion of the offense intended.” Id. § 15.01(a).
   the course of the same criminal episode; or
                                                              5
                                                                Garza-Lopez, 410 F.3d at 274 (“[U]nder
   (vi) administers or provides flunitrazepam, oth-        Shepard, a district court is not permitted to rely on
   erwise known as rohypnol, gamma hydroxybu-              a PSR’s characterization of a defendant’s prior of-
   tyrate, or ketamine to the victim of the offense        fense for enhancement purposes.”); see also United
   with the intent of facilitating the commission of       States v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir.
   the offense.                                            2006).
                                                              6
TEX. PENAL CODE § 22.021(a)(2)(A).                              See United States v. Gonzalez-Chavez, 432
                                                           F.3d 334, 338 (5th Cir. 2005) (“Where we cannot
   4
     “Attempt to commit an aggravated offense” is          identify with legal certainty under which portion of
defined as when “an element that aggravates the            a statute a defendant was convicted, we cannot de-
offense accompanies the attempt.” TEX. PENAL               termine whether a crime of violence enhancement
CODE § 15.01(b). “Attempt” is defined as when a            was proper. In such a case, we remand to the dis-
                                   (continued...)                                                (continued...)

                                                       3
the judgment of sentence is VACATED and
REMANDED for development of the record
and resentencing.




   6
     (...continued)
trict court for supplementation of the record and
re-sentencing.”) (citing Bonilla-Mungia, 422 F.3d
at 321).

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