                                                            United States Court of Appeals
                                                                     Fifth Circuit
                                                                   F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                        May 13, 2005

                                                              Charles R. Fulbruge III
                                                                      Clerk
                            No. 04-41172
                          Summary Calendar


                      UNITED STATES OF AMERICA,

                         Plaintiff-Appellee,
                                versus

                      JOSE LUIS VASQUEZ-TORRES,

                        Defendant-Appellant.

                        --------------------
            Appeal from the United States District Court
                 for the Southern District of Texas
                      USDC No. 7:03-CR-934-ALL
                        --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jose   Luis   Vasquez-Torres     appeals    his    sentence    imposed

following his guilty plea conviction for illegal reentry into the

United States following deportation.         Vasquez was sentenced to a

term of imprisonment of forty-six months to be followed by a two-

year term of supervised release.

     Vasquez-Torres   argues   that    the   district    court     erred   in

enhancing his base offense level by 16 levels based on his prior

conviction for injury to a child because it was not a crime of

violence.   He argues that the offense did not require proof of the


     *
       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this opinion should not be published and is not precedent except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. 04-41172
                                        -2-

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

force against a person and that the district court erred in relying

on the indictment in determining that the offense involved the use

of force.

     Section § 2L1.2 of the United States Sentencing Guidelines

provides    that    the    offense     level   for    unlawfully        entering   or

remaining in the United States shall be increased by 16 levels if

the defendant has a prior conviction for a “crime of violence.”

U.S.S.G. § 2L1.2(b)(1)(A)(ii).           The commentary to U.S.S.G. § 2L1.2

defines “crime of violence” as any of certain listed offenses 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.S.G.          §   2L1.2,   comment.

(n.1(B)(iii)).      Because injury to a child is not a listed offense,

the offense must involve the use or threatened use of force to be

a “crime of violence” in this context.

     In determining whether the offense is a crime of violence, the

court “looks to the elements of the crime, not to the defendant’s

actual conduct in committing it.”            United States v. Calderon-Pena,

383 F.3d 254, 257 (5th Cir. 2004)(en banc), cert. denied, 125 S.

Ct. 932 (2005).           As the elements of an offense come from the

statute of conviction, the elements, and not the defendant’s

underlying conduct, are the proper focus.                  Id.

     TEX.   PENAL   CODE    ANN.   §   22.04(a),     the    statute      under   which

Vasquez-Torres was indicted and convicted, criminalizes acts or
                                 No. 04-41172
                                      -3-

omissions that intentionally, knowingly, recklessly, or negligently

result in injury to a child.          The commission of the offense does

not require the use of physical force against a person.           See United

States v. Gracia-Cantu, 302 F.3d 308, 312 (5th Cir. 2002).

      Although Vasquez-Torres’ indictment charged that he hit a

child, the statute underlying his offense does not require the use

of physical force to be proved as an element of the offense.           Thus,

it was not a crime of violence warranting a 16-level enhancement

pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).           See United States v.

Acuna-Cuadros, 385 F.3d 875, 877-78 (5th Cir.), cert. denied, 125

S. Ct. 675, (2004).           The sentence is vacated and the case is

remanded to the district court for resentencing.

      Vasquez-Torres also argues that in light of Apprendi v. New

Jersey, 530 U.S. 466 (2000), the holding in Almendarez-Torres v.

United States, 523 U.S. 224 (1998), that the enhanced penalties in

8   U.S.C.   §   1326   (b)    are   sentencing   factors,   is   no   longer

controlling law.        He also argues that if Almendarez-Torres is

overruled, his sentence could be affected by the holding in Blakely

v. Washington, 124 S. Ct. 2531 (2004).              He concedes that his

arguments are foreclosed by Supreme Court and circuit precedent.

      Apprendi did not overrule Almendarez-Torres.           See Apprendi,

530 U.S. at 489-90; United States v. Sarmiento-Funes, 374 F.3d

336, 346 (5th Cir. 2004). This court must follow Almendarez-Torres

“‘unless and until the Supreme Court itself determines to overrule

it.’”   United States v. Mancia-Perez, 331 F.3d 464, 470 (5th Cir.)
                                No. 04-41172
                                     -4-

(citation omitted), cert. denied, 540 U.S. 935 (2003).            Blakely

dealt with state sentencing guidelines and held that the relevant

statutory maximum for purposes of Apprendi is the maximum sentence

a judge may impose “solely on the basis of the facts reflected in

the jury verdict or admitted by the defendant.”          Blakely, 124 S.

Ct. at 2537.    Although United States v. Booker, 125 S. Ct. 738,

755-56 (2005) held that Blakely applies to the federal sentencing

guidelines, the Court has not held that it is applicable to cases

arising under Almendarez-Torres.       Because Booker did not overrule

Almendarez-Torres, the Blakely argument fails and Vasquez-Torres

cannot successfully argue that a Sixth Amendment violation occurred

because he did not admit that he had prior convictions.

      Booker excised from the Sentencing Reform Act the mandatory

duty of district courts to apply the federal sentencing guidelines

and effectively rendered the guidelines advisory only.          125 S. Ct

at 764.   Because the case is being remanded to the district court

for   resentencing,   it   is   unnecessary    to   determine   whether   a

different sentence would have been imposed under the advisory

sentencing system.

       SENTENCE VACATED; CASE REMANDED TO THE DISTRICT COURT FOR

RESENTENCING.
