                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-4212


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

ANTONIO RIVERA CRUZ,

                Defendant – Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.         Richard L.
Voorhees, District Judge. (5:10-cr-00026-RLV-DSC-1)


Argued:   January 20, 2012                 Decided:   March 14, 2012


Before DUNCAN, WYNN, and DIAZ, Circuit Judges.


Vacated and remanded by unpublished opinion.   Judge Diaz wrote
the majority opinion, in which Judge Duncan joined. Judge Wynn
wrote a separate concurring opinion.


ARGUED:   Peter   Adolf,  Assistant    Federal   Defender,   FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant.    Richard Lee Edwards, Assistant United
States   Attorney,   OFFICE   OF   THE   UNITED   STATES   ATTORNEY,
Asheville, North Carolina, for Appellee.          ON BRIEF: Angela
Parrott,   Acting   Executive    Director,   Ross   H.   Richardson,
Assistant Federal Defender, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Charlotte, North Carolina, for Appellant.       Anne
M. Tompkins, United States Attorney, Charlotte, North Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
DIAZ, Circuit Judge:

       Antonio Rivera Cruz pleaded guilty to reentry of a removed

noncitizen in violation of federal law.                        Concluding that Cruz’s

previous      Oklahoma    conviction          for     assault       and    battery      upon     a

police officer qualifies as a crime of violence under the U.S.

Sentencing      Guidelines,          the    district        court   applied       a    16-level

enhancement and sentenced Cruz to 46 months’ imprisonment.                                    Cruz

appeals the sentence, contending that his Oklahoma conviction

does not amount to a crime of violence.

        We    hold   that       because         the       Oklahoma        assault       statute

proscribes several distinct offenses, only some of which qualify

as crimes of violence, Cruz’s conviction under that statute is

not     categorically       a    crime        of      violence.            The    government

nevertheless urges us to apply the modified categorical approach

to     convictions    secured          pursuant        to    Oklahoma’s          nondivisible

assault statute.          But even assuming that analysis is proper, we

find    no    Shepard-approved             documents      demonstrating          that       Cruz’s

conviction      rested     on    anything          more      than    the    least       of    the

offenses encompassed            by    the     statute.         Reliance      on       the    facts

alleged in the state information is foreclosed by Cruz’s entry

of a plea of nolo contendere to the assault charge, and no other

judicially sanctioned records illuminate Cruz’s conduct beyond

the    bare   fact   of    conviction.             Accordingly,       we    vacate          Cruz’s

sentence and remand to the district court for resentencing.

                                               3
                                          I.

     A federal grand jury indicted Cruz for unlawful reentry

after    removal.         The    indictment    alleged    that   Cruz   illegally

entered    the     United       States   “after   he   had    been   deported   and

removed . . . and subsequent to a conviction for the commission

of an aggravated felony,” in violation of 8 U.S.C. §§ 1326(a),

(b)(2).     J.A. 6.       Without the benefit of a plea agreement, Cruz

pleaded guilty to the sole count in the indictment.

     Cruz    and    the     government     proceeded     to   sentencing,   during

which Cruz’s previous Oklahoma assault conviction took center

stage.    A criminal information filed in 2002 charged Cruz with

violating an Oklahoma statute proscribing assault and battery on

a police officer.           The information alleged that Cruz “knowingly

commit[ted] an assault and battery upon the person of one T.K.

Talley[,] a police officer for the City of Tulsa[,] by head

butting and contending with him while he was then and there

engaged in the performance of his duties as a police officer.”

United States’ Supp. J.A. 1. 1            Cruz ultimately entered a plea of

nolo contendere to the charge, and the court found him guilty


     1
        Although the government did not formally offer the
information as evidence to the district court, both the court
and the probation officer who prepared the presentence report
had access to the document.      The government filed a motion
before this court to supplement the appellate record with a copy
of the charging document, which we granted.



                                           4
“of the crime of Assault and Battery Upon A Police Officer.”

Appellant’s Supp. J.A. 1. 2         The court sentenced Cruz to a one-

year term of imprisonment.

      Cruz     and   the    government     disputed      whether    the    Oklahoma

assault conviction should be classified as a crime of violence

for       purposes     of   U.S.    Sentencing          Guidelines        Manual      §

2L1.2(b)(1)(A),        which   authorizes        a   16-level   enhancement         for

defendants who unlawfully entered the United States after having

been convicted of a crime of violence.                  The presentence report

(“PSR”) adopted the government’s view, determining that Cruz’s

assault conviction is a crime of violence, imposing a 16-level

enhancement,     and    calculating    a       Guidelines   range   of    46   to    57

months.      Responding to Cruz’s objections, the PSR concluded that

Cruz, by entering a guilty plea, had admitted the facts alleged

in the information, which established that he had head butted an

officer.      Acceptance of these facts was sufficient to sustain

the classification of Cruz’s assault conviction as a crime of

violence, reasoned the PSR.           Because the parties did not suggest

otherwise, the district court operated under the assumption that

      2
       The parties did not alert the district court to the nature
of Cruz’s plea in the Oklahoma state court.     Cruz moved before
us to supplement the appellate record with a copy of his state
court judgment a mere two days before oral argument. Though we
are baffled by the eleventh-hour disclosure of a fact that is
outcome determinative of the appeal, we nevertheless grant the
motion, which is unopposed by the government.



                                           5
Cruz’s conviction had been secured through a standard guilty

plea.      Were     Cruz’s     arguments      deemed      meritorious       by   the

sentencing judge, the PSR calculated a revised Guidelines range

of 8 to 14 months.

     Agreeing with the government’s position, the district court

adopted    the     PSR,    including    its       determination     that     Cruz’s

Oklahoma conviction qualifies as a crime of violence.                    The court

calculated a Guidelines range of 46 to 57 months and ultimately

imposed a 46-month sentence.

     This appeal followed.



                                       II.

     We    begin    by    summarizing       the    categorical     and     modified

categorical      approaches,   with    the        U.S.   Sentencing      Guidelines

serving as our starting point.             “If the defendant previously was

deported, or unlawfully remained in the United States, after . .

. a conviction for a felony that is . . . a crime of violence,”

states the Guidelines, “increase by 16 levels if the conviction

receives   criminal       history   points    under      Chapter   Four.”        U.S.

Sentencing    Guidelines     Manual    §    2L1.2(b)(1)(A).        This     dictate

naturally requires that we determine whether a defendant’s prior

conviction qualifies as a crime of violence.                 It is in response

to this inquiry that the categorical and modified categorical

approaches do their work.

                                        6
     To remain faithful to the central tenet of the categorical

approach, courts must look only to the statutory definition of

the offense, not to facts underlying a particular defendant’s

conviction under the statute.          Taylor v. United States, 495 U.S.

575, 600 (1990). 3    Courts focus on the generic form of the crime,

confined to considering “ ‘whether the elements of the offense

are of the type that would justify its inclusion [under the

“crime     of   violence”    umbrella],      without   inquiring    into   the

specific conduct of this particular offender.’ ”            Sykes v. United

States, 131 S. Ct. 2267, 2272 (2011) (quoting James v. United

States, 550 U.S. 192, 202 (2007)).               Applying the categorical

approach to a statute that captures a broad range of conduct, we

are required to conclude that the conviction rested on the least

serious of the acts proscribed.              Johnson v. United States, 130

S. Ct. 1265, 1269 (2010).

     In a narrow set of cases, courts may “go beyond the mere

fact of conviction,” Taylor, 495 U.S. at 602, and apply the

modified    categorical     approach    to   “determin[e]   which   statutory

phrase   (contained    within    a     statutory   provision   that    covers

several different generic crimes) covered a prior conviction,”

     3
       Given the similarity between the analyses, we rely on
precedent interpreting the Armed Career Criminal Act’s “violent
felony” language when confronting the Guidelines’ crime-of-
violence provisions.   United States v. Jenkins, 631 F.3d 680,
683 (4th Cir. 2011).



                                        7
Nijhawan v. Holder, 129 S. Ct. 2294, 2303 (2009).                        This approach

“permits a court to determine which statutory phrase was the

basis      for    the     conviction     by    consulting         the   trial    record--

including        charging       documents,    plea    agreements,       transcripts       of

plea colloquies, findings of fact and conclusions of law from a

bench trial, and jury instructions and verdict forms.”                           Johnson,

130   S.    Ct.     at    1273.        When   reviewing       a    conviction        secured

pursuant to a guilty plea, a sentencing court focuses on “the

statement of factual basis for the charge, shown by a transcript

of plea colloquy or by written plea agreement presented to the

court, or by a record of comparable findings of fact adopted by

the   defendant          upon    entering     the    plea.”        Shepard      v.    United

States, 544 U.S. 13, 20 (2005) (citation omitted).                            “With such

material in a pleaded case, a later court could generally tell

whether      the        plea     had   ‘necessarily’          rested     on     the     fact

identifying” the offense as a generic crime of violence.                              Id. at

20–21.

      We have restricted use of the modified categorical approach

when the underlying conviction was secured through entry of a

plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970).

United States v. Alston, 611 F.3d 219, 224–27 (4th Cir. 2010).

Sixth Amendment concerns animated our decision in Alston, and we

interpreted Supreme Court precedent as narrowing “materials that

a sentencing court may consult when evaluating the nature of a

                                              8
prior conviction in order to ensure that the court . . . is only

finding facts inherent in the fact of a prior conviction or

admitted by the defendant.”       Id. at 226.

      Alston had entered an Alford plea to second-degree assault,

which we found “did not necessarily rest on facts establishing

his   participation   in   a   type   of     assault   that   qualifies   as    a

violent felony in that (1) he admitted to no such facts and (2)

such facts are not inherent in a Maryland conviction for second-

degree assault.”      Id. at 221 (citation omitted).             Accordingly,

Alston’s assault conviction could not be classified as a violent

felony authorizing enhancement of his sentence.               Id.     Rejecting

the   government’s    attempts    to       use   the   factual      proffer    to

demonstrate that Alston had committed an aggravated assault, we

reasoned that Alston’s entry of an Alford plea meant that he

“explicitly pleaded guilty without admitting” the facts alleged

in the proffer such that those same facts “could not be found by

the sentencing court without risking a violation of the Sixth

Amendment.”    Id. at 227.



                                      III.

      We review de novo whether a conviction qualifies as a crime

of violence.     United States v. Diaz-Ibarra, 522 F.3d 343, 347

(4th Cir. 2008).      Looking first to the categorical approach, we

hold that the Oklahoma assault statute is not categorically a

                                       9
crime of violence.            The statute proscribes an array of crimes,

some of which do not constitute violent offenses.

     Cruz    asserts          that    the     inquiry       starts          and    stops       with

application of the categorical approach, faced as we are with a

nondivisible      statute       of    conviction.           The    government            counters

Cruz’s   analytical       model,       maintaining          that       we    may       apply   the

modified categorical approach.                 We need not resolve this dispute

to decide this case because resort to the modified categorical

approach is of no help to the government.                              Cruz’s entry of a

nolo contendere plea forbids us to consider the facts alleged in

the state information, and we find no Shepard-approved documents

demonstrating that Cruz was convicted of a crime of violence.



                                              A.

     Conducting      our           analysis     pursuant          to        the    categorical

approach,    we    have       no     trouble       determining         that       an    Oklahoma

conviction for assault and battery upon a police officer is not

categorically a crime of violence.

     The categorical approach posits that a particular offense

is   categorically        a    crime    of     violence       only          if    all    conduct

proscribed   by     the       statute       amounts    to    a     crime          of    violence.

Johnson, 130 S. Ct. at 1269.                    To so qualify, a statute must

encompass “a category of violent, active crimes.”                                      Leocal v.

Ashcroft, 543 U.S. 1, 11 (2004).                     A statute criminalizing mere

                                              10
touching, no matter how slight, is not categorically a crime of

violence.     Johnson, 130 S. Ct. at 1270.

     Cruz     was   convicted         under      an    Oklahoma     statute      imposing

criminal liability on individuals who assault a law enforcement

officer:

     Every person who, without justifiable or excusable
     cause knowingly commits battery or assault and battery
     upon the person of a police officer, sheriff, deputy
     sheriff, highway patrolman, corrections personnel, or
     other state peace officer employed or duly appointed
     by any state governmental agency to enforce state laws
     while said officer is in the performance of his
     duties, upon conviction, shall be guilty of a felony.

Okla. Stat. tit. 21, § 649.                    As used in the statute, “[a]n

assault is any willful and unlawful attempt or offer with force

or violence to do a corporal hurt to another.”                           Id. § 641.     A

battery, in turn, “is any willful and unlawful use of force or

violence    upon    the   person       of     another.”       Id.    §    642.     Under

Oklahoma    law,    “only      the    slightest        touching     is    necessary   to

constitute the ‘force or violence’ element of battery.”                           Steele

v. State, 778 P.2d 929, 931 (Okla. Crim. App. 1989).

     Oklahoma’s      assault         statute     is     almost    identical      to   the

statute     at   issue    in    Johnson,         and    the   dictates     of     Johnson

therefore lead us to conclude that the Oklahoma statute is not

categorically a crime of violence.                    Like the statute in Johnson,

130 S. Ct. at 1269–70, Oklahoma’s assault statute captures a

range of conduct that includes “the slightest touching,” Steele,


                                            11
778 P.2d at 931.            A conviction for “the slightest touching” is

not a crime of violence, however.                 Johnson, 130 S. Ct. at 1270.

Because    not       all    of   the   conduct    proscribed    by   the   Oklahoma

statute qualifies as a crime of violence, application of the

categorical approach precludes a finding that Cruz has a prior

conviction for a crime of violence.               See id. at 1269.



                                             B.

       We turn now to consider whether, as the government urges,

Cruz’s assault conviction, though not categorically a crime of

violence, nevertheless may be treated as one pursuant to the

modified categorical approach.                Here, however, even if we assume

that the modified categorical approach may be used to analyze

convictions          secured     under      Oklahoma’s     nondivisible      assault

statute,       we    find   no   Shepard-approved        documents   demonstrating

that    Cruz    was    convicted       of   anything   more   than   the   slightest

touching of a police officer.                 The government has consequently

failed to meet its burden of demonstrating that Cruz has been

convicted of a crime of violence.

       The government resists this conclusion by contending that,

under     the       modified     categorical      approach,    we    may   properly

consider the facts alleged in the information to determine the

basis for Cruz’s assault conviction.                   In the government’s view,

Cruz’s guilty plea necessarily rested on an admission of the

                                             12
information’s factual allegations--including that he head butted

an    officer--which       reveal          that    his    conviction            qualifies       as   a

crime of violence.               We reject this argument, concluding that

Alston forecloses us from considering the facts alleged in the

charging       document     when       a    defendant          enters       a    plea    of     nolo

contendere under Oklahoma law.

       We begin by noting that Alston’s logic applies with equal

force where, as here, a defendant’s prior conviction was secured

by entry of a plea of nolo contendere.                                See 611 F.3d at 224

(finding that the D.C. Circuit’s consideration of similar issue

with    respect     to    plea        of    nolo       contendere          is    an     “analogous

question[]”).            Both    types       of        pleas    are     hallmarked        by     the

defendant’s refusal to admit guilt.                        Id. at 226 (reasoning that

a defendant who enters an Alford plea “does not admit guilt”);

Wester    v.    State,     764       P.2d    884,       887    (Okla.      Crim.      App.     1988)

(noting that a defendant “does not actually admit guilt” when

entering a nolo contendere plea).                       Thus, to maintain fidelity to

the    strictures    of     the       Sixth       Amendment,          we    must      sanction       a

finding that Cruz’s prior conviction qualifies as a crime of

violence only if he admitted facts so establishing it or such

facts    are    inherent        in    a     conviction         under       Oklahoma       law    for

assault and battery upon a police officer.                            See Alston, 611 F.3d

at 221.



                                                  13
     Whereas under Oklahoma law a defendant entering a guilty

plea “admits the facts pleaded in the information,” Lozoya v.

State, 932 P.2d 22, 30 (Okla. Crim. App. 1996), Oklahoma courts

have not held that entry of a nolo contendere plea supports a

finding     that   a   defendant    admitted    facts    alleged    in     the

information.       This judicial caution is consonant with the key

distinction between entry of a guilty plea and a nolo contendere

plea under Oklahoma law--that the defendant “does not actually

admit guilt” in the latter scenario, Wester, 764 P.2d at 887. 4

     Applying Oklahoma law to our Guidelines analysis here, we

cannot conclude that Cruz’s conviction for assault and battery

upon a police officer rested on anything more than the slightest

touching,    an    offense   that   is   categorically   not   a   crime    of

     4
       The Tenth Circuit, in an unpublished decision, found that
a plea of nolo contendere under Oklahoma law “admits the facts
pleaded in the information.”    Pettit v. Addison, 150 F. App’x
923, 924 n.1 (10th Cir. 2005). To reach this determination, the
court relied on two Oklahoma decisions:     Morgan v. State, 744
P.2d 1280, 1281 (Okla. Crim. App. 1987), which states that a
plea of nolo contendere has the same legal effect as a guilty
plea, except in civil proceedings; and Lozoya, 932 P.2d at 30,
which holds that a guilty plea admits facts alleged in the
information.    The Tenth Circuit did not acknowledge that a
defendant “does not actually admit guilt” when entering a nolo
contendere plea, Wester, 764 P.2d at 887, and we do not agree
that the reasoning in Morgan and Lozoya yields the conclusion
that a defendant admits facts charged in the information when so
pleading.   To the extent that Oklahoma law is ambiguous on the
precise import of a nolo contendere plea in further criminal
proceedings, we resolve any doubts against the government, which
bears the burden of demonstrating that a defendant’s prior
conviction permits sentence enhancement as a crime of violence.



                                     14
violence.         We may not consider the facts alleged in the state

information, as the government urges us to do, because Oklahoma

law does not posit that a defendant who enters a plea of nolo

contendere admits such facts.               See id.

       This feature of Oklahoma law distinguishes Cruz’s case from

United      States   v.   De   Jesus    Ventura,          565     F.3d      870     (D.C.       Cir.

2009),      relied   on   by   the   government.               In     Ventura,       the    court

considered facts alleged in the Virginia information to which

the   defendant      entered    a    plea     of      nolo       contendere,          but       only

because under Virginia law a defendant so convicted expressly

admits      the   facts   alleged      in    the      information.              Id.    at       879.

United      States   v.   Savage,      542    F.3d         959      (2d    Cir.      2008),      is

similarly unhelpful to the government’s position.                                   There, the

government conceded that the charging document did not narrow

the charge to include only predicate conduct, id. at 966–67, so

the court’s ensuing discussion is not germane to our purposes.

And, in any event, we are convinced that Oklahoma law read in

conjunction        with   Alston     forecloses            resort         to   the     charging

document here, regardless of the Second Circuit’s pronouncements

on    similar      issues.       Rather,         as       in     Alston,       because          Cruz

“explicitly pleaded guilty without admitting” the facts alleged

in    the    information,      the   facts       “could         not    be      found       by   the

sentencing        court   without      risking        a    violation           of    the    Sixth

Amendment,” 611 F.3d at 227.

                                            15
     The    government   has   proffered   no   additional   evidence

demonstrating that Cruz’s conviction qualifies as a crime of

violence.    With no Shepard-approved documents to illuminate the

basis for Cruz’s conviction, we must assume that it rested on

the least serious of the acts encompassed by Oklahoma’s assault

statute.    See Johnson, 130 S. Ct. at 1269.      Oklahoma’s statute

proscribes even the “slightest touching,” Steele, 778 P.2d at

931, an offense that is categorically not a crime of violence,

Johnson, 130 S. Ct. at 1270.       We accordingly hold that Cruz’s

prior conviction for assault and battery upon a police officer

does not constitute a crime of violence.



                                 IV.

     For the foregoing reasons, we vacate Cruz’s sentence and

remand to the district court for resentencing.



                                                VACATED AND REMANDED




                                  16
WYNN, Circuit Judge, concurring:

       I write separately because it is unnecessary, in my view,

to   assume      the   use     of    the       modified        categorical         approach      in

ascertaining        whether         Cruz’s      conviction           under       the     Oklahoma

assault statute is a crime of violence.

       The modified categorical approach is only to be used when a

court is analyzing a prior conviction under a statute that is

drafted,      or    interpreted           to    be       capable      of     proof,      in   the

disjunctive        (i.e.,     with    alternative          elements         or    more    than    a

single set of elements).                   See Johnson v. United States, 130

S.Ct. 1265, 1273 (2010) (“When the law under which the defendant

has been convicted contains statutory phrases that cover several

different     generic        crimes,       .    .    .    the    ‘modified          categorical

approach’ . . . permits a court to determine which statutory

phrase was the basis for the conviction . . . .” (internal

citation     and    quotation        marks      omitted)        (emphasis         added));    see

also United States v. Vann, 660 F.3d 771, 778 (4th Cir. 2011)

(King,     J.,     concurring        in     judgment)          (“Use       of     the    modified

categorical approach is only appropriate when the statute of

conviction         encompasses            multiple         distinct             categories       of

behavior.”);       id.   at    799     (Keenan,          J.,    concurring)         (explaining

that   the    modified       categorical         approach        is    used       to    determine

“which   proscribed         criminal       behavior        in    a    disjunctively-worded

statute formed the basis of a defendant’s conviction”); id. at

                                                17
807 (Niemeyer, J., concurring in part and dissenting in part)

(explaining that “[b]ecause North Carolina’s indecent liberties

statute contains at least two separate generic offenses for ACCA

purposes,       it    is     appropriate,          .     .    .    to    employ       the    modified

categorical approach”).

        The    Oklahoma       assault        statute         has    only    a     single      set    of

elements,      constitutes          only      a    single         category       of    crime,       and,

consequently,          our    analysis            should      begin       and     end       with    the

categorical approach.                See United States v. Rivers, 595 F.3d

558,     564    (4th       Cir.     2010)     (holding            that     “the       statute       only

contains one category of crime and therefore cannot be analyzed

under the modified categorical approach”); see also Vann, 660

F.3d at 782 (King, J., concurring in judgment) (“The categorical

approach, when it applies . . . is mandatory and dispositive. .

.   .    [T]here      is     no    precedent           for    the       proposition         that    the

categorical          approach      is    a    tool       of       convenience         that    can    be

discarded       when        the     other         methodology            might        advance       the

government’s interest.”).                Because Cruz’s prior conviction under

the     Oklahoma       assault       statute            required         proof     of       only    the

“slightest touching,” Steele v. State, 778 P.2d 929, 931 (Okla.

Crim. App. 1989), this conviction did not have “as an element

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

against the person of another.”                          U.S.S.G. § 2L1.2, Application

Note 1(B)(iii) (defining “crime of violence”); see Johnson v.

                                                   18
United   States,   130   S.Ct.   1265    (2010)    (holding    that    simple

assault,   which   may   be   established   with    proof     of   “slightest

touching,” is categorically not a violent felony for purposes of

the ACCA).   Therefore, and as the majority holds, “the Oklahoma

assault statute is not categorically a crime of violence.”               Ante

at 10.   Our analysis should end here.




                                    19
