                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                          REVISED OCTOBER 13, 2004
                   IN THE UNITED STATES COURT OF APPEALS            September 21, 2004

                           FOR THE FIFTH CIRCUIT                 Charles R. Fulbruge III
                                                                         Clerk
                           _____________________

                               No. 03-20345
                           _____________________


              UNITED STATES OF AMERICA

                               Plaintiff - Appellant-Cross-Appellee

              v.

              RODRIGO ACUNA-CUADROS, also known as Rodrigo Cuadros-
              Acuna

                               Defendant - Appellee-Cross-Appellant

_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
_________________________________________________________________

Before KING, Chief Judge, and JONES and SMITH, Circuit Judges.

PER CURIAM:

      This case involves the proper application of the sixteen-level

“crime of violence” sentence enhancement under § 2L1.2(b)(1)(A)(ii)

of the Sentencing Guidelines.         The defendant was convicted after a

bench trial of illegal reentry after deportation following a

conviction for an aggravated felony, in violation of 8 U.S.C.

§   1326(a)    and   (b)(2).   The   district   court   did   not   apply    the

enhancement because it found that the aggravated felony, the Texas

crime of retaliation, did not qualify as a “crime of violence.”                In

accordance with our recent decision in United States v. Calderon-
Pena, No. 02-20331, 2004 WL 1888407 (5th Cir. Aug. 24, 2004) (per

curiam), we hold that the defendant’s retaliation conviction does

not “ha[ve] as an element the use, attempted use, or threatened use

of physical force against the person of another” for purposes of

the sixteen-level “crime of violence” enhancement and we therefore

AFFIRM the defendant’s sentence.1

                           I. Background

     Rodrigo Acuna-Cuadros, a Mexican citizen, was indicted for the

offense of retaliation under Texas law.    In November 1995, Acuna-

Cuadros pled guilty and was placed on six-years probation, but in

November 1996, his probation was revoked and he was imprisoned.   In

1999, Acuna-Cuadros was released from prison and deported to

Mexico.   Sometime in 2001, Acuna-Cuadros reentered the United

States and was consequently convicted under 8 U.S.C. § 1326 for

illegally entering the United States after having been deported

following a conviction of an aggravated felony.

     At the sentencing hearing, the district court sentenced Acuna-

Cuadros to twenty-four months imprisonment, followed by three years

supervised release, and ordered him to pay a one-hundred dollar

special assessment.   The district court did not apply the sixteen-

level enhancement to Acuna-Cuadros under § 2L1.2(b)(1)(A)(ii) of

     1
       Acuna-Cuadros also argues that the district court erred in
denying his motion to dismiss his indictment because his 1999
deportation was constitutionally invalid. However, Acuna-Cuadros
acknowledges that this argument is foreclosed by this court’s
decision in United States v. Lopez-Ortiz, 313 F.3d 225 (5th Cir.
2002).

                                 2
the Sentencing Guidelines, which is applicable if a defendant has

been previously deported following a conviction of a “crime of

violence.”   The court found that an offense under the Texas

retaliation statute did not qualify as a “crime of violence” within

the meaning of § 2L1.2(b)(1)(A)(ii) since the offense did not have

as an element the use, attempted use, or threatened use of force.

In making its determination, the district court looked to the Texas

retaliation statute, but not to the underlying facts of Acuna-

Cuadros’s offense.

     The United States appealed and contends that retaliation is a

“crime of violence” under § 2L1.2(b)(1)(A)(ii) of the Sentencing

Guidelines, and thus, that the district court improperly rejected

the enhancement.

                      II. Standard of Review

     We review the district court’s application of the Sentencing

Guidelines de novo and its findings of fact for clear error.

United States v. Mitchell, 366 F.3d 376, 378 (5th Cir. 2004).

                         III. Discussion

     Our recent decision in Calderon-Pena disposes of this case.

The question before us here, as in Calderon-Pena, is whether the

Texas offense, retaliation, has as an element the use, attempted

use, or threatened use of physical force.

     Our inquiry “looks to the elements of the crime, not to the

defendant’s actual conduct in committing it.”   Calderon-Pena, 2004


                                3
WL 1888407, at *2.       The retaliation statute under which Acuna-

Cuadros was convicted provides in relevant part:

     (a) A person commits an offense if he intentionally or
     knowingly harms or threatens to harm another by an
     unlawful act:
          (1) in retaliation for or on account of the service
          or status of another as a:
               (A) public servant, witness, prospective
               witness, or informant; or
               (B) person who has reported or who the actor
               knows intends to report the occurrence of a
               crime . . . .

TEX. PENAL CODE ANN. § 36.06 (Vernon 1995).     No portion of the statute

itself requires physical force.           Although, as a matter of simple

logic, the offense can involve the application of physical force,

it need not involve physical force to maintain a conviction.

Calderon-Pena, 2004 WL 1888407, at *4.              Therefore, the Texas

statute plainly does not have as an element the use, attempted use,

or threatened use of physical force.

     The government relies on the narrow exception that the court

may look to the indictment whenever a statute has a series of

disjunctive elements to determine which elements a defendant’s

conviction satisfies.        Calderon-Pena, 2004 WL 1888407, at *3.       The

government contends this exception applies here because the term

“harm”   is   defined   as    “anything    reasonably   regarded   as   loss,

disadvantage, or injury, including harm to another person in whose

welfare the person affected is interested.” TEX. PENAL CODE ANN.

§ 1.07(a)(25) (Vernon 1994) (emphasis added).              The government

further contends that a subset of injury is bodily injury, which is


                                      4
defined as “physical pain, illness, or impairment of physical

condition.”    TEX. PENAL CODE ANN. § 1.07(a)(8) (Vernon 1994).                       The

government therefore argues that the statute contains a series of

disjunctive    elements     that    enables         the     court   to   look   to    the

indictment to see which specific elements were violated.                              The

indictment specifically averred that Acuna-Cuadros intentionally

and knowingly harmed another--striking and choking his sister--

because she was a prospective witness against him in another

proceeding. Thus, the government concludes that Acuna-Cuadros must

have been convicted of the crime of inflicting physical pain or

impairment of a physical condition, and since physical injury was

an element of the offense, Acuna-Cuadros was convicted of a crime

of violence.

     First, even if we were to read the definition of the word

“harm” in such a way as to import elements into the retaliation

offense, a questionable procedure, none of the words that define

“harm”--loss, disadvantage, or injury--requires the use of physical

force.   Thus, force is still not an element of the crime, even when

the statute is supplemented by the definition.                      The government’s

argument   that     “bodily      injury”       in   §     1.07(a)   is   a   source     of

disjunctive elements that involve physical force fails because

neither § 36.06 nor the definition of “harm” employs the term

“bodily injury;” the definition of “harm” includes only “injury.”

     Second,       under   the    exception,         we    could    only look to the

indictment    to    determine     which    of       the    disjunctive       elements   a

                                           5
defendant’s conviction satisfies.        Calderon-Pena, 2004 WL 1888407,

at *3.    This court has specifically held that “[a]lthough the

actual conduct described in the indictments could be construed to

involve the use of physical force against the person of another,

that is irrelevant” in determining whether physical force is in

fact an element of the offense. Calderon-Pena, 2004 WL 1888407, at

*2.   Applying this rule and accepting arguendo the government’s

argument that the definition of “harm” imports disjunctive elements

into the offense of conviction, we could consider that Acuna-

Cuadros struck and choked his sister only to determine under which

alleged element (loss, disadvantage, or injury) Acuna-Cuadros was

convicted.   We could not, however, consider those same facts to

determine, much less conclude, whether the use, attempted use, or

the   threatened   use   of   physical   force   is   an   element   of   the

retaliation statute.     The rationale for this rule, as articulated

in Calderon-Pena, merits repeating here:

      Under that approach, of course, the analysis of the
      statute would be superfluous: the determinative factor
      would be the forcefulness of the defendant’s underlying
      charged conduct, regardless of the statute of conviction.
      Each conviction under the . . . statute would then
      require its own individualized “use of force” inquiry,
      asking whether a particular method of [violating the
      statute] involves force. This cumbersome approach would
      essentially excise the “element” language from the
      Guideline.

Calderon-Pena, 2004 WL 1888407, at *3.        So even accepting the

government’s proposition that the court may look at the

indictment pursuant to the exception, we cannot use the fact that


                                    6
the offense involved the use of force to conclude that force is

an element of the statute.       Thus, given the plain meaning of the

statute and the purported disjunctive elements, the use,

attempted use, or threatened use of physical force is simply not

an element of the Texas retaliation statute.        As such, an offense

under the retaliation statute is not a “crime of violence” and

the district court properly rejected the sixteen-level

enhancement to Acuna-Cuadros’s sentence.

                               IV. Conclusion

     For     the   foregoing    reasons,   Acuna-Cuadros’s   sentence   is

AFFIRMED.2




     2
       Judge Jones concurs in the judgment only, subject to her
dissent in Calderon-Pena, 2004 WL 1888407, at *6.

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