                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                    REVISED NOVEMBER 16, 2006
                                                            October 31, 2006
              IN THE UNITED STATES COURT OF APPEALS
                                                         Charles R. Fulbruge III
                      FOR THE FIFTH CIRCUIT                      Clerk



                           No. 05-40988



     UNITED STATES of AMERICA,


                                          Plaintiff-Appellee,
          versus


     EFREN VILLEGAS-HERNANDEZ,

                                          Defendant-Appellant.




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



Before KING, GARWOOD, and JOLLY, Circuit Judges.

GARWOOD, Circuit Judge:

     Defendant–Appellant   Efren   Villegas-Hernandez     (Villegas-

Hernandez) contends that the district court erred in applying an

eight-level sentence enhancement because his prior Texas conviction

for assault is not a “crime of violence” as defined for this

purpose by the United States Sentencing Guidelines.        We agree.

Accordingly, we VACATE his sentence and REMAND for resentencing.
                   FACTS AND PROCEEDINGS BELOW

     On October 25, 2004, Border Patrol agents found Villegas-

Hernandez in Cameron County, Texas and determined him to be a

citizen of Mexico who had entered the United States illegally.

Villegas-Hernandez had been deported from the United States on May

13, 2003, after pleading guilty to assault in Texas state court.1

     On February 23, 2005, Villegas-Hernandez pleaded guilty to

violating 8 U.S.C. § 1326(a) and (b),2 which proscribe knowingly


     1
     On February 15, 2001, Villegas-Hernandez pleaded guilty to
the offense of assault before the County Court at Law No. 3 of
Cameron County, Texas. For this offense, he was sentenced to 12
months’ confinement suspended for 18 months.
     2
      Section 1326, “Reentry of removed aliens,” states in
pertinent part:
     “(a) In general
     Subject to subsection (b) of this section, any alien
     who—
          (1) has been denied admission, excluded, deported,
          or removed or has departed the United States while
          an order of exclusion, deportation, or removal is
          outstanding, and thereafter
          (2) enters, attempts to enter, or is at any time
          found in, the United States, unless (A) prior to
          his reembarkation at a place outside the United
          States or his application for admission from
          foreign contiguous territory, the Attorney General
          has expressly consented to such alien’s reapplying
          for admission; or (B) with respect to an alien
          previously denied admission and removed, unless
          such alien shall establish that he was not
          required to obtain such advance consent under this
          chapter or any prior Act,
     shall be fined under Title 18, or imprisoned not more
     than 2 years, or both.
     (b) Criminal penalties for reentry of certain removed
     aliens
     Notwithstanding subsection (a) of this section, in the
     case of any alien described in such subsection—

                                2
and unlawfully being present in the United States after having been

“denied    admission,   excluded,   deported,   or   removed”   following

certain convictions.

     For   violations   within   section   1326,   sentencing   guideline

2L1.2(b)(1)(C) provides for an eight-level enhancement if the




          (1) whose removal was subsequent to a conviction
          for commission of three or more misdemeanors
          involving drugs, crimes against the person, or
          both, or a felony (other than an aggravated
          felony), such alien shall be fined under Title 18,
          imprisoned not more than 10 years, or both;
          (2) whose removal was subsequent to a conviction
          for commission of an aggravated felony, such alien
          shall be fined under such Title, imprisoned not
          more than 20 years, or both;
          (3) who has been excluded from the United States
          pursuant to section 1225(c) of this title because
          the alien was excludable under section
          1182(a)(3)(B) of this title or who has been
          removed from the United States pursuant to the
          provisions of subchapter V of this chapter, and
          who thereafter, without the permission of the
          Attorney General, enters the United States, or
          attempts to do so, shall be fined under Title 18
          and imprisoned for a period of 10 years, which
          sentence shall not run concurrently with any other
          sentence. or
          (4) who was removed from the United States
          pursuant to section 1231(a)(4)(B) of this title
          who thereafter, without the permission of the
          Attorney General, enters, attempts to enter, or is
          at any time found in, the United States (unless
          the Attorney General has expressly consented to
          such alien’s reentry) shall be fined under Title
          18, imprisoned for not more than 10 years, or
          both.
     For the purposes of this subsection, the term ‘removal’
     includes any agreement in which an alien stipulates to
     removal during (or not during) a criminal trial under
     either Federal or State law.” 8 U.S.C. § 1326 (2000).

                                    3
violation   follows   a   conviction            for   an   “aggravated   felony.”3

Application Note 3(A) for guideline 2L1.2 states that “[f]or

purposes of subsection (b)(1)(C), ‘aggravated felony’ has the

meaning given that term in section 101(a)(43) of the Immigration

and   Nationality   Act   (8   U.S.C.       §    1101(a)(43)).”      8   U.S.C.   §

1101(a)(43) in its various subparagraphs lists multiple offenses

that constitute an aggravated felony.                 The only one relevant to

this appeal is subparagraph (F), which provides that an aggravated

felony includes “a crime of violence (as defined in section 16 of


      3
      U.S.S.G. § 2L1.2, “Unlawfully Entering or Remaining in the
United States,” states:
     “(a) Base Offense Level: 8
     (b) Specific Offense Characteristic
          (1) Apply the Greatest:
          If the defendant previously was deported, or
          unlawfully remained in the United States, after—
               (A) a conviction for a felony that is (i) a
                    drug trafficking offense for which the
                    sentence imposed exceeded 13 months;
                    (ii) a crime of violence; (iii) a
                    firearms offense; (iv) a child
                    pornography offense; (v) a national
                    security or terrorism offense; (vi) a
                    human trafficking offense; or (vii) an
                    alien smuggling offense, increase by 16
                    levels;
               (B) a conviction for a felony drug
                    trafficking offense for which the
                    sentence imposed was 13 months or less,
                    increase by 12 levels;
               (C) a conviction for an aggravated felony,
                    increase by 8 levels;
               (D) a conviction for any other felony,
                    increase by 4 levels; or
               (E) three or more convictions for
                    misdemeanors that are crimes of violence
                    or drug trafficking offenses, increase
                    by 4 levels.” U.S.S.G. § 2L1.2 (2004).

                                        4
Title 18, but not including a purely political offense) for which

the term of imprisonment [is] at least one year.”4       18 U.S.C. § 16

provides:

     “The term ‘crime of violence’ means—
          (a) an offense that has as an element the use,
          attempted use, or threatened use of physical force
          against the person or property of another, or
          (b) any other offense that is a felony and that, by
          its nature, involves a substantial risk that
          physical force against the person or property of
          another may be used in the course of committing the
          offense.” 18 U.S.C. § 16 (2000).

     Citing guideline 2L1.2(b)(1)(C), the presentence report (PSR)

recommended   adding   eight   levels   to   Villegas-Hernandez’s   total

offense level, based on categorizing Villegas-Hernandez’s Texas

assault conviction as an aggravated felony.          Villegas-Hernandez

objected to this treatment of his assault conviction and further

objected that 8 U.S.C. § 1326 was facially unconstitutional. After

two sentencing hearings addressing Villegas-Hernandez’s concerns,

the district court overruled his objections and adopted the PSR’s

enhancement    recommendation,      rendering      Villegas-Hernandez’s

guideline total offense level thirteen5 and range for imprisonment


     4
     Under 8 U.S.C. § 1101(a)(48)(B) “any suspension of the
imposition or execution of” the confinement or sentence, in whole
or in part, is disregarded in determining whether the at least
one year requirement is met.
     5
      The offense level of thirteen was calculated as follows:
The base offense level is eight. U.S.S.G. § 2L1.2(a). Eight
levels were added as a result of categorizing Villegas-
Hernandez’s prior conviction as an aggravated felony, resulting
in an adjusted offense level of sixteen. See U.S.S.G. §
2L1.2(b)(1)(C). Two levels were subtracted for the

                                    5
eighteen to twenty-four months.

     On June 23, 2005, the district court sentenced Villegas-

Hernandez to twenty-one months of imprisonment and three years of

supervised release.

                                DISCUSSION

                                    I.

     Villegas-Hernandez, in his timely appeal, argues that the

district court erred in treating his Texas assault conviction as an

“aggravated felony” under U.S.S.G. § 2L1.2(b)(1)(C) because the

Texas assault offense for which he was convicted is not a “crime of

violence” as defined by 18 U.S.C. § 16, and therefore is not an

“aggravated felony” under 8 U.S.C. § 1101(a)(43)(F).         Subsections

16(a)   and   16(b)   offer   alternative    definitions   for   crime   of

violence.     Thus, the propriety of Villegas-Hernandez’s sentence

enhancement turns on whether his Texas conviction for assault meets

either the definition of crime of violence in subsection 16(a) or

the definition in subsection 16(b).           We discuss each of these

provisions in turn.

     A. 18 U.S.C. § 16(a)

     The Texas assault conviction constitutes a crime of violence

under subsection 16(a) if it “has as an element the use, attempted


defendant–appellant’s acceptance of responsibility, per U.S.S.G.
§ 3E1.1(a). On the government’s motion, Villegas-Hernandez’s
offense level was decreased by one additional level, pursuant to
U.S.S.G. § 3E1.1(b), leaving Villegas-Hernandez with a total
offense level of thirteen.

                                    6
use, or threatened use of physical force against the person or

property of another.”       When deciding whether a prior conviction is

a crime of violence because it has as an element the use of force,

we use the categorical approach established in Taylor v. United

States, 495 U.S. 575, 602, 110 S.Ct. 2143 (1990).                  United States v.

Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir. 2005).                        Under that

approach, this court must analyze an offense’s statutory definition

and not the defendant’s underlying conduct.                 Id.

     Villegas-Hernandez’s prior conviction was under Texas Penal

Code § 22.01(a), which provides:

     “A person commits an offense if the person:
     (1) intentionally, knowingly, or recklessly causes bodily
     injury to another, including the person’s spouse;
     (2) intentionally or knowingly threatens another with
     imminent bodily injury, including the person’s spouse; or
     (3) intentionally or knowingly causes physical contact
     with another when the person knows or should reasonably
     believe that the other will regard the contact as
     offensive or provocative.” TEX. PEN. CODE ANN. § 22.01(a)
     (Vernon 2003).

Both Villegas-Hernandez and the government agree that 22.01(a)(1)

of the Texas Penal Code, a Class A misdemeanor, constitutes the

relevant   assault    definition    in       this   case.      To   convict      under

22.01(a)(1),    the    government    must       prove       that    the    defendant

“intentionally, knowingly, or recklessly cause[d] bodily injury to

another . . . .”           The government contends that 22.01(a)(1)’s

requirement that a defendant cause bodily injury incorporates a

requirement    to   show   the   intentional        use   of   force,     such   that

Villegas-Hernandez’s prior assault conviction satisfies 16(a)’s

                                         7
definition of crime of violence.               We disagree for the following

reasons.

     First, as we have previously explained in relation to 16(b),

the term “force” has a specific meaning and, when “used in the

statutory definition of a ‘crime of violence,’ is ‘synonymous with

destructive or violent force.’” United States v. Landeros-Gonzales,

262 F.3d 424, 426 (5th Cir.              2001)    (quoting United States v.

Rodriquez-Guzman,      56   F.3d   18,    20    n.8   (5th   Cir.   1995),   which

explained that, in the context of burglary, force means “more than

the mere asportation of some property of the victim”).

     Second, under 16(a)’s clear language, use of force must be “an

element” of the offense, another term for which we have previously

delineated a specific meaning:

     “In our current legal terminology, an element is ‘[a]
     constituent part of a claim that must be proved for the
     claim to succeed.’ Black’s Law Dictionary 538 (7th ed.
     1999). . . . 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.” United States v. Vargas-Duran,
     356 F.3d 598, 605 (5th Cir. 2004) (en banc).

Thus,   an   assault   offense     under       section   22.01(a)(1)   satisfies

subsection 16(a)’s definition of a crime of violence only if a

conviction for that offense could not be sustained without proof of

the use of “destructive or violent” force.

     The bodily injury required by section 22.01(a)(1) is “physical

pain, illness, or any impairment of physical condition.”                TEX. PEN.

CODE ANN. § 1.07(a)(8).       Such injury could result from any of a

                                         8
number of acts, without use of “destructive or violent force”; for

example, making available to the victim a poisoned drink while

reassuring him the drink is safe, or telling the victim he can

safely back his car out while knowing an approaching car driven by

an independently acting third party will hit the victim. To convict

a defendant under any of these scenarios, the government would not

need to show the defendant used physical force against the person

or property of another.   Thus, use of force is not an element of

assault under section 22.01(a)(1), and the assault offense does not

fit subsection 16(a)’s definition for crime of violence.6


     6
      We recognize that our understanding of the term “use of
force” as it appears in subsection 16(a) assigns that term a
definition less expansive, and less directly connected to the
defendant, than perhaps it arguably could be. See, for example,
the following from one of the dissenting opinions in United
States v. Calderon-Pena, 383 F.3d 254, 270 (5th Cir. 2004) (per
curiam):
     “[T]he ‘use of physical force’ and ‘attempted use of
     physical force’ under the crime-of-violence guideline
     should extend to cover those applications of force that
     are subtle or indirect . . . .
          If a someone lures a poor swimmer into waters with
     a strong undertow in order that he drown, or tricks a
     victim into walking toward a high precipice so that he
     might fall . . . the perpetrator has at least attempted
     to make use of physical force . . ., either through the
     action of water to cause asphyxiation or by impact of
     earth on flesh and bone. However remote these forces
     may be in time or distance from the defendant, they
     were still directed to work according to his will, as
     surely as was a swung fist or a fired bullet.
          . . . [B]atteries and assaults punishable under .
     . . statutes can involve uses or attempted uses of
     physical force that are subtle or indirect. For
     example, a person may be indicted and convicted for
     Texas assault if he ‘intentionally . . . causes bodily
     injury to another, including the person’s spouse.”

                                 9
       This court had previously held that an assault offense under

section 22.01(a)(1) “has, as an element, the use . . . of physical

force” under 18 U.S.C. § 921(a)(33)(A)(ii) so as to meet that

section’s definition of “misdemeanor crime of domestic violence” and

thus constitute a predicate offense for purposes of 18 U.S.C. §

922(g)(9).    See United States v. Shelton, 325 F.3d 553, 557, 561

(5th   Cir.   2003)   (stating   that    “because”   Texas   Penal   Code   §

22.01(a)(1) “requires bodily injury it includes as an element the

use of physical force”).     In Shelton, a panel of this court relied

largely on the panel opinion in United States v. Vargas-Duran, 319

F.3d 194 (5th Cir. 2003).        Shelton, 325 F.3d at 558, 561.7        The


       Tex. Penal Code Ann. § 22.01(a)(1) (Vernon 2003). The
       bodily injury need not result from a violent physical
       contact between the defendant and the victims; subtle
       or indirect means would do, whether by tricking a
       person into consuming poison, or luring him to walk off
       a cliff. . . .” United States v. Calderon-Pena, 383
       F.3d 254, 270 (5th Cir. 2004) (per curiam).

     We conclude that such an expansive view of “use of force”
for purposes of § 16(a), which the government does not argue for
here, was at least implicitly rejected by the en banc court in
Calderon-Pena in its construction of the definition of “crime of
violence” provided (in language almost identical to that of §
(16)(a)) in paragraph (I) of comment n.1(B)(ii) to § 2L1.2 of the
2001 Guidelines. See Calderon-Pena at 256, 257, 259-60.
       7
     See Shelton at 558 (“Applying the analysis of Vargas-Duran
to the case at bar, it appears that the ‘bodily injury’ element
of Shelton’s predicate [§ 22.01(a)(1)] offense would also
encompass a requirement that Shelton used force to cause the
injury”), and at 561 (relying on Vargas-Duran’s “rejecting
argument that a defendant could be convicted of Texas offense of
intoxicated assault for causing serious bodily injury without
using physical force;” and, also relying on “our analogous
reasoning in Vargas-Duran” to “hold that because Shelton’s

                                    10
Vargas-Duran panel had concluded that Texas’s intoxication assault

offense, Texas Penal Code § 49.07,8 included use of force as an

element by virtue of its requirement of causation of serious bodily

injury and was hence a crime of violence under U.S.S.G. (2001) §

2l.1.2(b)(1)(A)(ii), note 1(B)(ii)(I) (stating definition almost

identical to section 16(a)).   Vargas-Duran, 319 F.3d at 196.   After

Shelton, however, Vargas-Duran was taken en banc. 336 F.3d 418 (5th

Cir. 2003).   In the en banc opinion we held the opposite namely:

     “There is . . . a difference between a defendant’s
     causation of an injury and the defendant’s use of force.
     Consequently, Vargas-Duran’s use of force was simply not
     a fact necessary to support his conviction for
     intoxication assault. Vargas-Duran, 356 F.3d 598, 606


predicate offense of misdemeanor assault requires bodily injury
it includes as an element the use of physical force”).
     The Vargas-Duran panel opinion is the only sentencing
guidelines (or § 16) case, and also the only Fifth Circuit case,
on which Shelton relies to support its holding. Shelton does
rely on the decisions in United States v. Nason, 269 F.3d 10 (1st
Cir. 2001), and United States v. Smith, 171 F.3d 617 (8th Cir.
1999), that the Maine assault statute (proscribing intentionally
causing bodily injury or offensive physical conduct to another)
and the Iowa assault statute (prohibiting an act intended to
cause pain, injury or offensive or insulting physical contact),
respectively, met the “has, as an element, the use or attempted
use of physical force” definition in 18 U.S.C. §
921(a)(33)(A)(ii) so as to qualify as “crime of domestic
violence” under 18 U.S.C. § 922(g)(9).
     8
      Section 49.07 of the Texas Penal Code, at the time of the
defendant’s conviction in Vargas-Duran, stated that “a defendant
is guilty of a third degree felony if he or she ‘by accident or
mistake, while operating an aircraft, watercraft, or motor
vehicle in a public place while intoxicated, by reason of that
intoxication cause[d] serious bodily injury to another.” Vargas
Duran, 319 F.3d at 196 n.3 (quoting TEX. PEN. CODE ANN. § 49.07
(Vernon 1994)).


                                 11
     (5th Cir. 2004).

     Moreover, in Vargas-Duran the en banc court, id. at 305 n.10,

specifically cited with approval, as supporting its “ruling on the

‘element   requirement’       of”   section     2L1.2(b)(1)(A)(ii),    note

1(B)(ii)(I),   the   Second    Circuit’s      decision   in   Chrzanoski   v.

Ashcroft, 327 F.3d 188 (2d Cir. 2003), holding that the offense of

assault in the third degree under Connecticut General Statutes §

53a-61(a)(1) was not a crime of violence under section 16(a).              The

Connecticut statute provided that “A person is guilty of assault in

the third degree when (1) with intent to cause physical injury to

another person, he causes such injury to such person or to a third

person.”   With respect to whether under the statute use of physical

force against the person of another is an element of the offense,

the Connecticut statute is not materially different from Texas Penal

Code § 22.01(a) at issue here.9     The Chrzanoski Court recognized, as

the en banc court did in Vargas-Duran, that for purposes of section

16(a) “[a]n element of a crime is a fact that must be proven beyond

a reasonable doubt to obtain a conviction.”              Chrzanoski at 192.

Chrzanoski specifically considered and rejected the government’s


     9
     With respect to whether use of force is an element of the
offense there appears to be no material difference between the
“physical injury” provision of the Connecticut statute (defined
“as ‘impairment of physical condition or pain’ Conn. Gen. Stat. §
53-3(3)”; Chrzanoski at 193) and the “bodily injury” provision of
the Texas statute, which Tex. Pen. Code § 1.07(8) defines as
meaning “physical pain, illness, or any impairment of physical
condition.”

                                     12
argument “that force is implicit in the statute’s requirement of

intentional causation of physical injury,” id. at 193, and held

instead        that   “the   intentional        causation    of   injury   does   not

necessarily involve the use of force.”                Id. at 195.      The en banc

court in Vargas-Duran specifically stated its agreement with that

holding of Chrzanoski,10 and went on to hold, 356 F.3d at 606, that

the defendant’s “use of force was simply not a fact necessary to

support his conviction” for violating the statute (which required

that his conduct “cause serious bodily injury to another,” Tex. Pen.

Code § 49.07).

     Chrzanoski’s analysis of the ways in which the Connecticut

third        degree   assault   statute    could     be     violated   without    the

defendant’s use of force are likewise fully applicable to Tex. Pen.

Code § 22.01(a)(1), viz:

     “Given the elements of section 53a-61(a)(1) under
     Connecticut law, it seems an individual could be
     convicted of intentional assault in the third degree for
     injury caused not by physical force, but by guile,
     deception, or even deliberate omission. . . . Moreover,
     human   experience   suggests   numerous   examples   of
     intentionally causing physical injury without the use of
     force, such as a doctor who deliberately withholds vital

        10
         See Vargas-Duran, 356 F.3d at 605 n.10:
        “In Chrzanoski, the Government argued that, while the
        state statute in question did not expressly identify
        ‘the use, attempted use, or threatened use’ of physical
        force as an element, it was implicit in the statute’s
        requirement, that physical injury be caused. Id. at
        193. The Second Circuit rejected the Government’s
        argument and concluded that there was a difference
        between the use of force and the causation of injury.
        Id. at 194. We agree.” (emphasis added).

                                           13
     medicine from a sick patient. In sum, while there are
     undoubtedly many ways in which force could be used to
     commit third degree assault under Connecticut law, the
     plain language of the statute does not make use of force
     an explicit or implicit element of the crime. Rather,
     its language is broad enough to cover myriad other
     schemes, not involving force, whereby physical injury can
     be caused intentionally.” Id., 327 F.3d at 195-96.11

     In United States v. Calderon-Pena, 383 F.3d 254, 260 (5th Cir.

2004), the en banc court reaffirmed the Vargas-Duran en banc holding

that for purposes of the “has as an element the use . . . of

physical force” language of U.S.S.G. § 2L1.2, Application Note

1(B)(ii)(I) (2001), “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.”

     Because   the   en   banc   opinion   in   Vargas-Duran   comes   after

Shelton, which is itself a panel opinion, and because of Shelton’s

heavy reliance on the panel opinion in Vargas-Duran which was later

reversed en banc, we feel compelled to decide whether Tex. Pen. Code

§ 22.01(a)(1) “has as an element the use, attempted use, or

threatened use of physical force against the person or property of

another” within the meaning of section 16(a) on the basis of the

principles set down in Vargas-Duran and Calderon-Pena rather than

in reliance on Shelton.      On this basis we conclude that although

section 22.01(a)(1) requires that the defendant “intentionally,


     11
      We also observe that Chrzanoski specifically did “not find
. . . persuasive” in the present context the Nason and Smith
cases by the First and Eighth Circuits on which Shelton relied
(see note 7 supra). See Chrzanoski, 327 F.3d at 193 n.9.

                                     14
knowingly, or recklessly cause[s] bodily injury to another,” that

section may be violated by the defendant so causing such injury by

means other than the actual, attempted, or threatened “use of

physical force against the person of another,” and hence does not

have such use of force as an element and does not fall within

section 16(a).12



     In addition to its reliance on Shelton, the government leans

heavily on the district court’s finding of family violence and the

conduct underlying Villegas-Hernandez’s conviction to support its

claim that the prior assault conviction is a crime of violence under


     12
      See also, e.g., United States v. Perez-Vargas, 414 F.3d
1282, 1285-87 (10th Cir. 2005) (Colorado third degree assault
statute denouncing one who “knowingly or recklessly causes bodily
injury to another” does not have “as an element” the use of
physical force against the person of another so as to be a crime
of violence under U.S.S.G. § 2L1.2, Application Note 1(B)(iii);
relying on, inter alia, Chrzanoski); United States v. Fierro-
Reyna, 466 F.3d 324, 326, (5th Cir. 2006), stating that the 1974
Texas simple assault statute (Tex. Pen. Code 1974 § 22.01;
identical to the current § 22.01(a)(1) except for the current
version’s addition of “including the person’s spouse”) ”did not
have use of force as an element.”
     The government relies on our unpublished summary calendar
opinion in United States v. Ramirez-Aguilar, No. 04-41150, 2006
WL 684433 (5th Cir. March 17, 2006) (per curiam), in which we
stated “conviction under [Tex. Pen. Code] § 22.01(a)(1) is a
crime of violence sufficient to trigger the § 2L1.2(b)(1)(C)
enhancement,” citing Shelton but not Vargas-Duran or any other
authority and without any supporting reasoning or discussion.
Our ultimate holding in Ramirez-Aguilar was to remand the case
for further findings as to which subsection of § 22.01 the
conviction was under. Under 5th Cir. R. 47.5.4 Ramirez-Aguilar,
as an unpublished opinion issued after January 1, 1996, is not
precedential, and we decline to follow its quoted statement
concerning § 22.01(a)(1).

                                 15
subsection 16(a).     The government quotes the information charging

Villegas-Hernandez:

     “[O]n or about the 9TH day of OCTOBER, A.D. 2000, and
     before the making and filing of this Information, in
     Cameron County, Texas, EFREN HERNANDEZ VILLEGAS, the
     Defendant, did then and there unlawfully, intentionally,
     knowingly, or recklessly cause bodily injury to another,
     namely, ADRIANA HERNANDEZ, a family member, by HITTING
     ADRIANA HERNANDEZ WITH DEFENDANT’S HAND AND/OR KICKING
     ADRIANA HERNANDEZ WITH DEFENDANT’S FOOT.”

In his plea colloquy, Villegas-Hernandez admitted hitting his wife,

although he neither denied nor admitted kicking her.

     Under   the   categorical   approach   described   above,   however,

conduct underlying an offense may not be employed to meet the

definition   of    crime   of    violence   under   subsection     16(a).

Accordingly, the government may not rely for this purpose on facts

alleged in an indictment or information.     This court clarified this

matter in United States v. Calderon-Pena, where we considered

whether the Texas child endangerment offense included use of force

as an element:

     “Although 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 for
     purposes of this case. The inquiry under paragraph (I)
     looks to the elements of the crime, not to the
     defendant’s actual conduct in committing it. This rule
     springs directly from the language of the ‘crime of
     violence’ definition itself, which states that a ‘crime
     of violence’ is an offense that ‘has as an element’ the
     use of force.” 383 F.3d at 257.

We further noted that “under Texas law, the manner and means, even

when required to be charged in the indictment, does not constitute



                                   16
an element of the offense.”     Id. at 258.     Rather, inclusion of

manner and means serves to satisfy due process concerns related to

adequately notifying defendants.    Id.   Thus, if statutory language

is wholly result-oriented, as here, an offense is not a crime of

violence under subsection 16(a) simply because an indictment or

information describes force being used in a particular commission

of that offense.13   We do not say here that an indictment is always

off-limits; a charging instrument may appropriately be referenced

in order to determine which of several statutorily specified or



     13
      The government’s reliance on the state trial court having
stated “I will make an affirmative finding of family violence” is
misplaced. That finding, as the government recognizes, was
obviously made pursuant to Tex. Code Crim. P. art. 42.013 (first
enacted in 1993) which provides that: “in the trial of an offense
under Title 5 [which includes § 22.01], Penal Code, if the court
determines that the offense involved family violence, as defined
by Section 71.004, Family Code, the court shall make an
affirmative finding of that fact . . .” Clearly this provision
of the Texas Code of Criminal Procedure does not add any element
to any of the offenses denounced in the Penal Code. The Penal
Code does provide, in § 22.01(b)(2), that if the victim of an
offense under § 22.01(a) is a family member, and if the defendant
has previously been convicted of any offense under Chapter 22 (or
various other chapters) of the Penal Code in which the victim was
a family member, then the § 22.01 offense is a third degree
felony. As the court said in State v. Eakins, 71 S.W.3d 443, 444
(Tex. App.–Austin 2002; no writ), “Article 42.013 was obviously
intended to simplify the prosecution of subsequent family assault
cases . . . . The state may rely on the affirmative finding in
the prior judgment to prove that the victim of the defendant’s
previous assault was a family member.”
     Moreover, Section 71.004(1) of the Family Code, to which
Article 42.013 refers, speaks of conduct intended to “result in
physical harm, bodily injury, assault, or sexual assault”
(emphasis added) and not to the means used – whether physical
force against the person or other means – to produce such a
result.

                                   17
referenced     methods        of   committing   an     offense    (or     statutory

subdivisions containing different offense definitions or elements)

are involved in a given case.            See id. at 258.

     B. 18 U.S.C. § 16(b)

     Subsection 16(b) defines crime of violence as “any other

offense that is a felony and that, by its nature, involves a

substantial risk that physical force against the person or property

of another may be used in the course of committing the offense.”

18 U.S.C. § 16(b).            Subsection 16(b) expressly pertains only to

felonies.     Therefore, Villegas-Hernandez’s assault conviction is a

crime of violence as that term is defined by 16(b) only if it

constitutes a felony.          Because the offense described in Texas Penal

Code § 22.01(a)(1) cannot be classified as a felony under either

state or federal law, we hold that Villegas-Hernandez’s prior

conviction     does     not    satisfy   16(b)’s     definition   for     crime   of

violence.14

     Texas     law    specifically       categorizes     an   assault     under    §

22.01(a)(1) as a Class A misdemeanor, which may be punished by

imprisonment for not more than one year.               See TEX. PEN. CODE ANN. §

22.01(b)      (Vernon     2003)     (classifying      assault     under    section

22.01(a)(1) as a Class A misdemeanor); id. § 12.21 (Class A

misdemeanors are punishable by up to one year in prison).                   Federal



      14
      Whether it would do so were it a felony we need not and do
not address.

                                         18
law, in turn, makes clear that the lowest class of felony within the

federal system must be punishable by more than one year.                   18 U.S.C.

§ 3559(a)(5) (2000) (defining a Class E felony).                 As such, neither

Texas nor federal law permits us to categorize Villegas-Hernandez’s

assault conviction as a felony.

      The   government     argues    that,       while     the   default    federal

definition of a felony is, as noted above, an offense punishable by

more than one year, in this case, assault under 22.01(a)(1) is a

felony under federal law because 8 U.S.C. § 1101(a)(43)(F) defines

aggravated felony for the purposes of guideline 2L1.2(b)(1)(C) as

“a crime of violence (as defined in section 16 of Title 18 . . .)

for which the term of imprisonment [is] at least one year.”                  We find

this argument unpersuasive.

      8 U.S.C. § 1101(a)(43)(F)’s definition of “aggravated felony”

has two requirements: First, that the offense meet either of section

16's alternative definitions of crime of violence; and second, that

the   offense’s   imprisonment      term    is    at     least   one   year.      The

government’s argument conflates the second requirement with the

separate    requirements     of     section      16    itself,    which    must    be

independently satisfied.

      An offense can meet 16(a)’s definition—and therefore constitute

an “aggravated felony” under 1101(a)(43)(F)—regardless of whether

it is considered a felony under state or federal law.                       This is

consistent with this court’s decision in United States v. Urias-



                                       19
Escobar, 281 F.3d 165 (5th Cir. 2002), where we held that although

a prior conviction was labeled as a misdemeanor by state law, it

could still be considered an “aggravated felony” under U.S.S.G.

2L1.2.   If the offense meets 16(a)’s definition of crime of

violence, section 1101(a)(43)(F) still requires that it have at

least a one-year imprisonment term.    If that second, imprisonment-

term requirement is met, the offense will be an “aggravated felony”

regardless of alternative definitions of “felony.”

     If an offense does not meet the requirements of 16(a), however,

then it must satisfy 16(b).     In 16(b), whether the offense is a

felony under state or federal law matters.    This is separate from

section 1101(a)(43)(F)’s second requirement of at least a one-year

imprisonment term.

     Because assault under Texas Penal Code § 22.01(a)(1) cannot be

described as a felony under either Texas or federal law, we do not

address whether subsection 16(b)’s requirement that an offense be

a felony looks to federal or state law definitions of felony.

Accordingly, this case is distinguishable from Francis v. Reno, 269

F.3d 162 (3d Cir. 2001).   In that case, the Third Circuit was forced

to determine whether a conviction for vehicular homicide, labeled

as a misdemeanor by Pennsylvania law but punishable by more than one

year and therefore within the federal default definition of a

felony, satisfied section 16's definition of crime of violence. See

id. at 169 (noting that the defendant–appellant’s prior conviction


                                  20
was “only arguably a felony because of the application of 18 U.S.C.

§ 3559").

     C. Prejudicial Error

     Villegas-Hernandez’s prior conviction was not a felony under

either state or federal law, and it therefore may not be considered

a “crime of violence” as defined in subsection 16(b).    Nor does his

assault conviction constitute a crime of violence under subsection

16(a), because 22.01(a)(1) does not include use of force as an

element.    Consequently, Villegas-Hernandez’s prior conviction was

not an “aggravated felony” under guideline 2L1.2(b)(1)(C), and it

was error to apply an eight-level enhancement under that guideline.

Villegas-Hernandez preserved this error by objecting at trial.

     Without   the   improper   eight-level   enhancement,   Villegas-

Hernandez would have had a total offense level of six,15 which

combined with a criminal history category III, would have led to a

two to eight month guideline sentence range.     See U.S.S.G. Ch. 5,

Pt. A, Sentencing Table.    This suffices to show prejudicial error.

     Under United States v. Booker, 125 S.Ct. 738 (2005), the

guidelines are advisory but not mandatory. This court has held that

a district court must nevertheless determine what the appropriate

guideline sentence range would be. United States v. Smith, 440 F.3d

704, 707 (5th Cir. 2006).   If the district court wishes to deviate



     15
      The base level of eight, less two levels for Villegas-
Hernandez’s acceptance of responsibility.

                                  21
from that calculated sentence range, it must explain why.      As the

government concedes, if this court finds the sentencing guideline

enhancement constituted error, it must remand Villegas-Hernandez to

the district court for resentencing.      And this is what we now do.

                                 II.

     Villegas-Hernandez also challenges the constitutionality of the

“felony” and “aggravated felony” sentencing provisions of 8 U.S.C.

§ 1326(b)(1) and (2).   He argues that statutory provisions 8 U.S.C.

§ 1326(b)(1) and (2) are unconstitutional under Apprendi v. New

Jersey, 530 U.S. 466 (2000), and should be severed from the statute,

requiring his conviction to be reduced to conform with the remaining

provision, 8 U.S.C. § 1326(a).   His sentence would thus need to be

vacated, he argues, and the case remanded for resentencing to no

more than one year of supervised release.       As we have previously

stated, and as the appellant recognizes, this court continues to be

bound by the Almendarez-Torres decision.     United States v. Bonilla-

Mungia, 422 F.3d 316, 318-19 (5th Cir. 2005).    We reject this claim

of error.

                             CONCLUSION

     We VACATE the defendant-appellant’s sentence and REMAND for

resentencing.

                        VACATED and REMANDED.




                                 22
