     Case: 10-51011     Document: 00511635056         Page: 1     Date Filed: 10/17/2011




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                         October 17, 2011

                                       No. 10-51011                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

BERNARDO TORRES-REYES,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:10-cr-00145


Before SMITH, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Appellant Bernardo Torres-Reyes’ principal challenge on appeal is to the
district court’s ruling that his prior conviction for child abuse constitutes a
“crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Based on this ruling, the
district court applied a sixteen-level enhancement to Torres-Reyes’s guideline
sentence. Bound by our precedent, we conclude that his prior conviction does not
constitute a crime of violence and therefore vacate and remand for re-sentencing.



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 10-51011       Document: 00511635056          Page: 2     Date Filed: 10/17/2011



                                       No. 10-51011

       The subsection of the New Mexico statute under which Torres-Reyes was
previously convicted provides that: “Abuse of a child consists of a person
knowingly, intentionally or negligently, and without justifiable cause, causing
or permitting a child to be . . . tortured, cruelly confined or cruelly punished.”
N.M. Stat. Ann. § 30-6-1(C)(2) (1978). The offense of child abuse is not an
enumerated offense under the guideline, and thus, we must determine whether
this subsection of the child abuse statute must be committed with the use of
physical force against the victim. United States v. Flores-Vasquez, 641 F.3d 667,
670 (5th Cir. 2011). This Court has previously determined that because Texas’s
child endangerment statute did “not require any bodily contact (let alone violent
or forceful contact) or any injury” to support a conviction, the statute did not
have as an element the use of physical force against the victim. United States
v. Calderon-Pena, 383 F.3d 254, 260 (5th Cir. 2004) (en banc). For example, in
the instant case, a child could be cruelly confined without the use of force against
the child. Without using any force, a child could be kept locked in a room
without access to food or water. Because the New Mexico statute prohibiting
child abuse does not require the use of force, it does not qualify as a crime of
violence under § 2L1.2(b)(1)(A)(ii). Therefore, it was error for the district court
to assess a sixteen-level enhancement to Torres-Reyes’s sentence.1
       Accordingly, we VACATE and REMAND for re-sentencing.




       1
          Also, in his initial brief, Torres-Reyes argued that he should not receive an eight-
level enhancement based on having a prior conviction for an aggravated felony under
§ 2L1.2(b)(1)(C). We first note that the district court did not apply an eight-level
enhancement. Thus, we have doubts that this argument is properly before us at this time.
In any event, he has since abandoned the argument and conceded that his prior conviction for
the unlawful taking of a motor vehicle qualifies as an aggravated felony under § 2L1.2(b)(1)(C).
Our discussion of an eight-level enhancement does not, of course, suggest we are infringing
or providing guidance with respect to the district court’s discretion on re-sentencing.

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