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

                                                                            FILED
                                                                         February 4, 2008

                                       No. 06-41243                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

FERNANDO DE LA ROSA-HERNANDEZ, also known as Fernando De La
Rosa

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Southern District of Texas
                          USDC No. 5:06-CR-00530-ALL


Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
       Having pleaded guilty to being found in the United States without
permission after deportation, Fernando De La Rosa-Hernandez appeals only his
sentence. Primarily at issue is whether his prior California conviction for
making terroristic threats is a requisite crime of violence (COV) under
Sentencing Guidlines § 2L1.2. He concedes our precedent forecloses his other




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-41243

issue.      Conviction AFFIRMED; sentence VACATED; REMANDED for
resentencing.
                                         I.
         De La Rosa was indicted in April 2006 for illegal re-entry after
deportation, in violation of 8 U.S.C. § 1326 and 6 U.S.C. §§ 202 and 557. That
May, he pleaded guilty, pursuant to a plea agreement in which he did not waive
any appellate rights.
         The post-Booker sentencing was under the 2005 version of the advisory
Guidelines. The presentence investigation report (PSR) recommended, inter
alia, a 16-level increase under Guidelines § 2L1.2(b)(1)(A)(ii), based on De La
Rosa’s 1995 California conviction for making terroristic threats, in violation of
California Penal Code § 422. In one of his objections to the PSR, De La Rosa
maintained this prior conviction was not a COV because it did not have as an
element the use, attempted use, or threatened use of physical force against the
person of another. De La Rosa’s objections were overruled; he was sentenced,
inter alia, to 48 months’ imprisonment.
                                         II.
                                         A.
         Primarily at issue is whether the district court erred by enhancing De La
Rosa’s sentence under § 2L1.2, based on ruling his prior conviction for making
terroristic threats was a COV. Post-Booker, district courts must still properly
calculate the advisory guidelines sentencing range. See Gall v. United States,
128 S. Ct. 586, 596-97 (2007). Whether the district court properly applied the
enhancement        is   reviewed    de   novo.      E.g.,   United    States    v.
Santiesteban-Hernandez, 469 F.3d 376, 378 (5th Cir. 2006). If the enhancement


                                         2
                                  No. 06-41243

was applied erroneously, we must decide whether that error was harmless. E.g.,
United States v. Moore, 452 F.3d 382, 391 (5th Cir.), cert. denied 127 S. Ct. 423
(2006).
                                        1.
      Section 2L1.2(b)(1)(A)(ii) provides for a 16-level increase when a defendant
previously was deported after a COV conviction. Making terroristic threats is
not an enumerated COV under the Guidelines. See § 2L1.2, cmt. n.1(B)(iii).
Therefore, to qualify for the enhancement, De La Rosa’s prior offense must have
“as an element the use, attempted use, or threatened use of physical force
against the person of another”. Id. (emphasis added).
      A categorical approach is employed for determining whether a state
offense qualifies as a COV. See United States v. Calderon-Pena, 383 F.3d 254,
257 (5th Cir. 2004) (en banc). Under that approach, the elements of the offense,
not the underlying facts, are considered. Id. If the statute contains disjunctive
elements, however, the charging instrument, as well as other documents, may
be consulted, as discussed in Shepard v. United States, 544 U.S. 13, 20-21 (2005).
Calderon-Pena, 383 F.3d at 258.
      To qualify as a COV, the intentional use of force must be a constituent part
of the offense. See United States v. Vargas-Duran, 356 F.3d 598, 605 (5th Cir.
2004). “If any set of facts would support a conviction without proof of that
component, then the component most decidedly is not an element–implicit or
explicit–of the crime.” Id. This court has construed the term “force” when used
in defining a COV to imply destructive or violent force. See United States v.
Landeros-Gonzales, 262 F.3d 424, 426 (5th Cir. 2001) (addressing use of force
under 18 U.S.C. § 16(b)).


                                        3
                                  No. 06-41243

      California’s Terroristic Threats law under which De La Rosa was convicted
provides:
      Any person who willfully threatens to commit a crime which will
      result in death or great bodily injury to another person, with the
      specific intent that the statement, made verbally, in writing, or by
      means of an electronic communication device, is to be taken as a
      threat, even if there is no intent of actually carrying it out, which,
      on its face and under the circumstances in which it is made, is so
      unequivocal, unconditional, immediate, and specific as to convey to
      the person threatened, a gravity of purpose and an immediate
      prospect of execution of the threat, and thereby causes that person
      reasonably to be in sustained fear for his or her own safety or for his
      or her immediate family’s safety, shall be punished by
      imprisonment in the county jail not to exceed one year, or by
      imprisonment in the state prison.

CAL. PENAL CODE. § 422; see also People v. Fisher, 12 Cal. App. 4th 1556, 1558
(Cal. Dist. Ct. App. 1993) (quoting statute). The criminal information charged
De La Rosa with a felony violation of § 422 by “willfully and unlawfully
threaten[ing] to commit a crime which would result in death and great bodily
injury to [the victim], with the specific intent that the statement be taken as a
threat”, including making an immediate and specific threat that conveyed to the
victim “a gravity of purpose and an immediate prospect of execution”. The
information charged that the victim reasonably was fearful for her safety and
that of her family. This language tracks that of § 422.
      Our court has not addressed whether the California terroristic-threats
offense is a COV under § 2L1.2. The Government urges that we adopt the Ninth
Circuit’s reasoning in Rosales-Rosales v. Ashcroft, 347 F.3d 714 (9th Cir. 2003),
which held § 422 was, on its face, a COV. As De La Rosa points out, however,
our precedent precludes our finding § 422 to be a COV because our court

                                        4
                                  No. 06-41243

construes the use-of-force standard to require more than a showing of bodily
injury.
      In United States v. Villegas-Hernandez, 468 F.3d 874, 878-79 (5th Cir.
2006), cert. denied, 127 S. Ct. 1351 (2007), our court rejected the contention that
conviction for a Texas assault offense that penalized “intentionally, knowingly,
or recklessly caus[ing] bodily injury to another” met the requirements for
establishing a use of force under 18 U.S.C. § 16. (Unlike § 2L1.2’s definition, an
offense is also a COV under § 16 if it involves the use, attempted use, or
threatened use of force against the property of another, as well as against
another’s person.) In so holding, our court recognized bodily injury could result
from a number of acts that did not involve use of force. Id. at 879. Thus, our
rule is clear: if the defendant may be found guilty of the offense under a set of
facts not involving the actual, attempted, or threatened use of physical force
against another, the offense is not a COV. See id. at 882.
      Section 422 requires that the defendant “willfully threaten[ed] to commit
a crime which will result in death or bodily injury to another person”. The
statute does not, however, require that the threatened criminal act involve the
use of destructive or violent force. See People v. Toledo, 26 P.3d 1051, 1055 (Cal.
2001) (listing elements). “There is . . . a difference between a defendant’s
causation of an injury and the defendant’s use of force.” Villegas-Hernandez,
468 F.3d at 880 (quoting United States v. Vargas-Duran, 356 F.3d 598, 606 (5th
Cir. 2004) (internal quotation marks omitted)). As in Villegas, a defendant could
violate § 422, for example, by threatening either to poison another or to guide
someone intentionally into dangerous traffic, neither of which involve “force”, as
that term is defined by our court. See id. at 879.


                                        5
                                  No. 06-41243

      Therefore, because “it is possible under [California] law for the State to
obtain a conviction under . . . the terroristic threats statute without proof of the
threatened use of physical force against another person, this is not an element
of the offense”. United States v. Naranjo-Hernandez, 133 F. App’x 96, 98 (5th
Cir. 2005) (unpublished) (holding Minnesota terroristic-threats statute not a
COV). Accordingly, the COV enhancement was applied erroneously.
                                         2.
      Because De La Rosa preserved the challenge to the enhancement by
objecting in district court, the Government must demonstrate beyond a
reasonable doubt that the error was harmless in order to avoid having the
sentence vacated. Moore, 452 F.3d at 391-92. To do so, it must show the
sentence imposed would not have been different absent the error. Id.
      Needless to say, the Government can not show the sentence would have
been the same absent the 16-level enhancement. At most, his conviction should
have subjected him to an eight-level enhancement under § 2L1.2(b)(1)(C), which,
after his three-level acceptance-of-responsibility deduction, would yield an
offense level of 13. This level, when coupled with De La Rosa’s criminal history
category of III, would produce an advisory Guidelines range of 18 to 24 months,
far shorter than the 48 months imposed. The district court made no indication
on the record that it would have imposed the same sentence even if the COV
enhancement was erroneously calculated.          Accordingly, the error was not
harmless.
                                        B.
      De La Rosa additionally contends 8 U.S.C. § 1326(b)(1) and (2)
unconstitutionally treat prior felony and aggravated felony convictions as


                                         6
                                  No. 06-41243

sentencing factors, rather than elements of the offense that must be proven to
a jury. Recognizing this contention was explicitly rejected in Almendarez-Torres
v. United States, 523 U.S. 224 (1998), De La Rosa nevertheless makes the
familiar contention that the Court would now overrule its decision in the light
of Apprendi v. New Jersey, 530 U.S. 466 (2000). As De La Rosa properly
concedes, however, this issue is foreclosed in our circuit; he presents it only to
preserve it for possible review. See United States v. Pineda-Arrellano, 492 F.3d
624, 625 (5th Cir. 2007), cert. denied, No. 07-6202, 2008 WL 59441 (7 Jan. 2008).
                                       III.
      For the foregoing reasons, the conviction is AFFIRMED; the sentence is
VACATED; and this matter is REMANDED for resentencing.




                                        7
