                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                  June 21, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                             No. 03-20969
                           Summary Calendar



UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

RODNEY JORDAN FERNANDEZ,

                                     Defendant-Appellant.

                      --------------------
          Appeal from the United States District Court
               for the Southern District of Texas
                     USDC No. 4:02-CR-635-1
                      --------------------

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

     Rodney Jordan Fernandez appeals his guilty-plea conviction

of illegal reentry after deportation, for which he was sentenced

to 70 months of imprisonment, three years of supervised release,

and a $100 special assessment.

     Fernandez argues for the first time on appeal that the

“felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(a)

and (b) are unconstitutional.    He acknowledges that his argument

is foreclosed, but he seeks to preserve the issue for possible


     *
       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this opinion should not be published and is not precedent except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. 03-20969
                                 -2-

Supreme Court review in light of Apprendi v. New Jersey, 530 U.S.

466 (2000).    As Fernandez concedes, this issue is foreclosed.

See Almendarez- Torres v. United States, 523 U.S. 224, 247

(1998); United States v. Garcia-Mejia, 394 F.3d 396, 398-99 (5th

Cir. 2004).

     Fernandez also argues that the district court erred in

enhancing his base offense level by 16 levels based on his prior

Texas conviction for injury to a child because it was not a crime

of violence.    He argues that the offense did not require proof of

the element of the use, attempted use, or threatened use of

physical force against a person.

     Section § 2L1.2 of the United States Sentencing Guidelines

provides that the offense level for unlawfully entering or

remaining in the United States shall be increased by 16 levels if

the defendant has a prior conviction for a “crime of violence.”

U.S.S.G. § 2L1.2(b)(1)(A)(ii).    The commentary to U.S.S.G.

§ 2L1.2 defines “crime of violence” as any of certain listed

offenses or “any offense under federal, state, or local law that

has as an element the use, attempted use, or threatened use of

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

comment. (n.1(B)(iii)).    Because injury to a child is not a

listed offense, the offense must involve the use, attempted use,

or threatened use of physical force to be a “crime of violence”

in this context.
                            No. 03-20969
                                 -3-

     In determining whether the offense is a crime of violence,

the court “looks to the elements of the crime, not to the

defendant’s actual conduct in committing it.”    United States v.

Calderon-Pena, 383 F.3d 254, 257 (5th Cir. 2004)(en banc), cert.

denied, 125 S. Ct. 932 (2005).   If an offense statute contains

disjunctive elements, a sentencing court may look to the offense

conduct described in the indictment or jury instructions for the

limited purpose of determining which of the elements were

satisfied in the defendant’s conviction.    Id. at 258.

     TEX. PENAL CODE ANN. § 22.04(a), the statute under which

Fernandez was indicted and convicted, “criminalizes acts or

omissions that intentionally, knowingly, recklessly, or

negligently result in injury to a child.”    United States v.

Gracia-Cantu, 302 F.3d 308, 312 (5th Cir. 2002).    The commission

of the offense does not require the use of physical force against

a person.   Id.; see United States v. Rodriguez-Rodriguez, 388

F.3d 466, 469 (5th Cir. 2004).

     Although Fernandez’s indictment charged that he struck a

child with a cord, the statute underlying his offense does not

require the use of physical force to be proved as an element of

the offense.   Furthermore, even if TEX. PENAL CODE ANN. § 22.04(a)

were pared down to include only those elements supported by the

indictment, it would not constitute a crime of violence in

Fernandez’s case because the statute’s requirement that the

defendant “cause[]” bodily injury is not equivalent to the
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                                -4-

requirement of “the use, attempted use, or threatened use of

physical force against the person of another” in the commentary

to U.S.S.G. § 2L1.2.   See United States v. Vargas-Duran, 356 F.3d

598, 606 (5th Cir.) (en banc), cert. denied, 124 S. Ct. 1728

(2004).   Thus, it was not a crime of violence warranting a 16-

level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii).

Accordingly, the sentence is VACATED and the case is REMANDED to

the district court for resentencing in accordance with this

opinion and United States v. Booker, 125 S. Ct. 738 (2005).

     SENTENCE VACATED; CASE REMANDED TO THE DISTRICT COURT FOR

RESENTENCING.
