United States Court of Appeals Fifth Circuit F I L E D REVISED SEPTEMBER 13, 2004 August 24, 2004 UNITED STATES COURT OF APPEALS For the Fifth Circuit Charles R. Fulbruge III Clerk

No. 02-20331

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

PEDRO CALDERON-PENA,

Defendant-Appellant.

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

Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, and PICKERING, Circuit Judges.

PER CURIAM:

This case involves the application of the sixteen-level “crime

of violence” sentence enhancement under § 2L1.2 of the Sentencing

Guidelines. Defendant Pedro Calderon-Pena’s seventy-month sentence

for illegally reentering the United States in violation of

included a sixteen-level enhancement based on a prior

conviction of the Texas crime of child endangerment. In accordance

with our recent decision in United States v. Vargas-Duran,

(5th Cir. 2004) (en banc), we hold that Defendant’s child-

endangerment 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 under § 2L1.2. We accordingly vacate

Defendant’s sentence, and remand for re-sentencing.

I. BACKGROUND

In February 1999, Calderon-Pena, at that time a lawful

permanent resident, pleaded guilty to two counts of the Texas

offense of child endangerment for a January 1999 incident involving

his two children. He was sentenced to fifteen months’

imprisonment. In April 2000, the INS issued Calderon-Pena a notice

to appear for a removal hearing. At the hearing, the immigration

judge determined that the child-endangerment convictions were

“aggravated felonies” under

(a)(43)(F), which

rendered Calderon-Pena removable under

. After

being removed in June 2000, Calderon-Pena was found unlawfully

present in the United States in January 2001 and was later indicted

for same under

. Calderon-Pena filed a motion to

dismiss the indictment, which the district court denied.1 The

1 Calderon-Pena’s motion charged that his prior removal, an element of the illegal reentry conviction that he now appeals, was invalid because the immigration judge both incorrectly determined that his prior offenses were aggravated felonies and failed to inform him of certain avenues of relief. We voted this case en banc to resolve issues related to the application of the sixteen- level sentence enhancement, which was the ground urged in the petition for rehearing. We now reinstate that portion of the panel

2 court then found him guilty on stipulated facts and sentenced him

to seventy months’ imprisonment. The sentence included a sixteen-

level enhancement predicated on the finding that child endangerment

was a “crime of violence” within the meaning of § 2L1.2 cmt.

n.1(B)(ii) of the 2001 Sentencing Guidelines, the version that was

in force at the time of sentencing.

A panel of this court affirmed Calderon-Pena’s conviction and

sentence, United States v. Calderon-Pena,

(5th Cir.

2003) (“Calderon-Pena I”), and later denied panel rehearing,

(5th Cir. 2004) (“Calderon-Pena II”). We granted

Calderon-Pena’s petition for rehearing en banc,

(5th

Cir. 2004), and now vacate his sentence.

II. ANALYSIS

Calderon-Pena was sentenced under § 2L1.2 of the 2001 version

of the Sentencing Guidelines. That section calls for a sixteen-

level enhancement if the defendant has previously been convicted of

a “crime of violence.” The relevant commentary defines the term

“crime of violence” as follows:

“Crime of violence”--

(I) means an 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; and

(II) includes murder, manslaughter, kidnapping,

opinion, United States v. Calderon-Pena,

(5th Cir. 2003), that rejected Calderon-Pena’s attempt to collaterally attack his prior removal.

3 aggravated assault, forcible sex offenses (including sexual abuse of a minor), robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.

U.S.S.G. § 2L1.2 cmt. n.1(B)(ii) (2001).2 The government does not

contend that the child-endangerment conviction is an enumerated

offense under paragraph (II). Thus, the question before us is

whether, under paragraph (I), the district court properly held that

the prior offense “has as an element the use, attempted use, or

threatened use of physical force against the person of another.”

We review the district court’s interpretation of the Sentencing

Guidelines de novo. United States v. Medina-Anicacio,

(5th Cir. 2003).

Identifying the elements of the defendant’s prior offense

The child-endangerment statute under which Calderon-Pena was

convicted provides, in relevant part:

A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment.

TEX. PEN. CODE ANN. § 22.041(c) (Vernon 2003).3 The record in this

case contains the state indictments that led to the prior guilty-

2 The 2002 and 2003 versions of the Guidelines retain this same language, though the 2003 definition of “crime of violence” has been rearranged in ways not relevant to this case. Compare U.S.S.G. § 2L1.2 cmt. n.1(B)(ii) (2001), and U.S.S.G. § 2L1.2 cmt. n.1(B)(ii) (2002), with U.S.S.G. § 2L1.2 cmt. n.1(B)(iii) (2003). 3 The relevant portion of this statutory provision has remained unchanged since the time of Calderon-Pena’s 1999 conviction.

4 plea convictions. Apart from the name of the child involved, the

two indictments are identical and charge that Calderon-Pena:

[O]n or about JANUARY 3, 1999, did then and there [i.e., in Harris County, Texas] unlawfully, intentionally and knowingly engage in conduct that placed [his son], a child younger than fifteen years of age and hereafter called the Complainant, in imminent danger of bodily injury, namely, by striking a motor vehicle occupied by the Complainant with the Defendant’s motor vehicle.

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. U.S.S.G.

§ 2L1.2 cmt. n.1(B)(ii)(I) (emphasis added). The elements of an

offense of course come from the statute of conviction, see United

States v. White,

(5th Cir. 2001), not from the

particular manner and means that attend a given violation of the

statute.4 Prior decisions of this court have accordingly held that

the statute of conviction, not the defendant’s underlying conduct,

4 For example, suppose that an indictment charged a defendant with the crime of disturbing the peace (or even the crime of littering) and also specified that he committed the crime “by throwing a bottle at the victim’s head.” Under state law, the prosecution might be required to prove that the defendant indeed engaged in that charged conduct, but throwing a bottle at someone is not an element of the disturbing-the-peace statute (or of littering). It is, rather, one manner of violating the statute.

5 is the proper focus. See, e.g., Vargas-Duran,

(concluding that the inquiry is limited to “[l]ooking only at the

fact of [the defendant’s] conviction and the statutory

definition”); United States v. Rodriguez-Rodriguez,

(5th Cir. 2003) (same).

The understanding of “elements” just described comports as

well with the Supreme Court’s decision in Taylor v. United States,

(1990), which, in the context of a different sentence

enhancement, distinguished the question of whether a crime has the

use of force “as an element” from the question of whether the crime

“involves” the use of force “in a particular case.”

.

Taylor instructed, moreover, that a sentencing court’s inquiry

should, as a general rule, look only to the statutory definition of

an offense and the fact of conviction and “not to the facts

underlying the prior conviction[].”

.

At oral argument in this case, the government contended at

certain points that defendants can qualify for the sixteen-level

enhancement when they have previously been charged with and

convicted of conduct that involved force, notwithstanding that no

portion of the statute of conviction itself requires force.

According to the government, the elements expand “beyond the

statute” to include factual material about the method of committing

the offense that, when alleged in charging papers, must then be

proven at trial. That is, the government contends, if the

statutory language itself fails to require force, we would turn to

6 the manner of commission in the particular case (as charged) to see

if that involved force. Thus, on this view, the ultimate question

in this case would be whether Calderon-Pena’s act of “striking a

motor vehicle occupied by the Complainant with the Defendant’s

motor vehicle” involved the use of force. 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 child-endangerment statute

would then require its own individualized “use of force” inquiry,

asking whether a particular method of endangering--leaving a child

in a hot car, leaving a child near a deep pool, denying medical

treatment, and so on, ad infinitum--involves force. This

cumbersome approach would essentially excise the “element” language

from the Guideline.5

Moreover, under Texas law, the manner and means, even when

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

element of the offense, but rather satisfies the due process

concerns relating to providing defendants with sufficient notice of

5 Many sentencing provisions lack the “as an element” language at issue here, and we have permitted broader uses of charging papers in such cases. See, e.g., United States v. Rodriguez-Duberney,

(5th Cir. 2003) (allowing for use of the indictment and the underlying charged conduct to determine whether a Travel Act violation under

was a drug trafficking offense that necessitated a sixteen-level enhancement pursuant to § 2L1.2(b)(1)(A)(i)).

7 the crime for which they have been charged.6 See Boney v. State,

(Tex. Crim. App. 1978) (“An indictment for

aggravated assault need not allege the manner and means used to

commit the assault as such is not an element of the offense but

relates only to the certainty and definiteness required to enable

the defendant to reasonably understand the nature and cause of the

accusation against him.”).

The panel that originally decided this case agreed that it

would not be proper to “look[] to the indictment to see whether the

facts there shown required force.” Calderon-Pena I,

. The panel then contrasted that concededly impermissible

activity with the distinct activity of “looking to the indictment

to determine which elements in a statute of conviction were

satisfied.”

It concluded that the sentencing court could look

to the indictment or jury instructions “for the limited purpose of

determining which of a series of disjunctive elements a defendant’s

6 We do not imply that the meaning of the term “element” in § 2L1.2 is determined by the law of any particular state, noting simply that Texas is not unusual in its understanding of the elements of an offense. The criminal law has traditionally distinguished between the elements of an offense and the manner and means of committing an offense in a given case. Indeed, the Guidelines themselves recognize such a distinction. Compare U.S.S.G. § 4B1.2(a)(1) (2003) (using “as an element” language), with id. § 4B1.2(a)(2) (using the phrase “involves conduct”). The distinction is also recognized in the commentary to § 4B1.2. See id. § 4B1.2, cmt. n.1 (defining a “crime of violence” as an offense that either “has as an element the use, attempted use, or threatened use of physical force against the person of another”; or where the “conduct set forth . . . in the count of which the defendant was convicted . . . by its nature, presented a serious potential risk of physical injury to another”).

8 conviction satisfies.” Id. Under that approach, whenever a

statute provides a list of alternative methods of commission--just

as the statute in Taylor referred to burglaries of several

different types of structures,

n.1--we may look to

charging papers to see which of the various statutory alternatives

are involved in the particular case. We agree that such a use of

the indictment--a matter not at issue in Vargas-Duran--is

permissible. Cf. United States v. Landeros-Gonzales,

(5th Cir. 2001) (using allegations from an indictment to

determine which of several statutory subsections the defendant had

violated).7

7 Judge Jones argues in her dissent that the “as an element” language permits us to look to the particular facts charged in a case when an offense can be committed in both violent and non- violent ways. Our court’s approach, she writes, marks us as an outlier, “alone” among the courts of appeals. We are compelled to disagree with Judge Jones’s assessment of the law of our sister circuits as neither our understanding of the “as an element” language, nor our reading of Taylor is novel. See, e.g., United States v. Fulford,

(11th Cir. 2001) (holding, in a case involving the “serious violent felony” sentencing statute, that the statute’s “as an element” language bars a sentencing court from examining the particular facts alleged in the charging papers); United States v. Doe,

(1st Cir. 1992) (Breyer, C.J.) (explaining that sentencing courts are limited to looking to the crime as the statute defined it rather than considering whether the defendant, in fact, committed the predicate crime in a violent manner). We respectfully submit that Judge Jones’s charge that we are an outlier results from a misreading of some of the cases that she cites. For instance, while the Fourth Circuit’s decision in United States v. Coleman,

(4th Cir. 1998) (en banc), permitted the district court to examine the factual method of committing common law assault, it also noted: [A]n offense that actually may have been committed by the use of physical force against the person of another nevertheless is not considered to be a violent felony if

9 the elements of the offense do not include the use, attempted use, or threatened use of physical force. . . . In those narrow circumstances in which an offense could have been committed in two ways, one of which required a finding that physical force was used and the other of which did not, a district court must look past the fact of conviction and the elements of the offense to determine which type of offense supported the defendant's conviction. . . . A Maryland conviction for common-law assault presents the unusual situation in which an offense may be committed in one of two ways--one of which requires the use, attempted use, or threatened use of physical force and one of which does not.

(emphasis added). The endangerment statute at issue here in Calderon-Pena does not present the “unusual situation” that existed in Coleman, as the statute here simply does not provide explicitly that it can be violated in such a way that requires the use, attempted use, or threatened use of physical force against the person of another. In United States v. Kennedy,

(D.C. Cir. 1998), the second of the two principal cases relied upon by Judge Jones’s dissent, the D.C. Circuit indicated that the sentencing court could “look at the indictment or jury instructions to determine whether the charged crime was “by its nature” a crime of violence pursuant to § 924(c)(3)(B).” Id. at 57. Significantly, the statute defining the prior offense itself listed two methods of violation--“robbery or extortion”--and the court looked to the indictment only to see which prong of the statute was violated. Id. at 56-58. Thus, Kennedy comports with our position, not the dissent’s. In United States v. Gomez-Hernandez,

(8th Cir. 2002), the Eighth Circuit looked to the underlying charging papers (and apparently facts contained in the PSR as well) to determine the elements of the crime to which the defendant had pleaded guilty because the statutory definition encompassed conduct that may or may not have been considered a “crime of violence” under § 2L1.2. Gomez-Hernandez may go beyond even what Judge Jones would allow. But Gomez-Hernandez appears to conflict with a prior Eighth Circuit case, which (in agreement with our holding) stated that the categorical approach permitted use of charging papers “only to determine under which portion of the assault statute [the defendant] was convicted.” See United States v. Smith,

(8th Cir. 1999). In sum, while there may be some disagreement among the circuits regarding the use of the indictment, it is not accurate to claim, as Judge Jones’s dissent does, that we have embraced a perverse and anomalous position rejected by most courts. And, importantly, on the merits, our approach has the virtue of

10 Whether the child-endangerment offense has the use of force as an element

Although the above-described method of using the indictment to

pare down a statute is often useful, it is of no help to the

government in this particular case. The child-endangerment statute

provides that “[a] person commits an offense if he intentionally,

knowingly, recklessly, or with criminal negligence, by act or

omission, engages in conduct that places a child younger than 15

years in imminent danger of death, bodily injury, or physical or

mental impairment.” TEX. PEN. CODE ANN. § 22.041(c) (emphases added).

The statute thus sets forth a disjunctive list of elements; it

proscribes a range of conduct, from intentional acts that create a

mortal danger to negligent omissions that risk mental impairment.

The indictment, quoted earlier, allows us to narrow down the

statutory options, leaving us with the offense of “knowingly . . .

by act . . . engag[ing] in conduct that places a child younger than

15 years in imminent danger of . . . bodily injury.” But even

after we have used the indictment to identify which elements were

involved in Calderon-Pena’s case, the pared-down statute does not

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

against the victim’s person as a required element.

In the instant case it is notable that the offense of child

endangerment does not require any bodily contact (let alone violent

respecting the “as an element” language of the Guideline.

11 or forceful contact) or any injury in order for a conviction to

lie.8 To commit the offense, one need only knowingly create a

danger of bodily injury.9 The child need not even be aware of the

danger. As a matter of simple logic, the endangerment offense

can--but need not--involve the application of physical force to the

child’s person. Under the plain meaning of the phrase “use of

physical force against the person of another,” this offense does

not qualify for the sixteen-level enhancement.

We also reject the panel’s suggestion that Calderon-Pena’s

prior conviction had as an element the attempted use of physical

force against the person of another. In Vargas-Duran, this court

8 Part II.A of Judge Smith’s dissent contends that we have fallen into serious error in holding that the “use of force” always requires “bodily contact.” This opinion does not so hold. While it is true, as Judge Smith observes, that a perpetrator can injure (or even kill) a person without making bodily contact, that truism is beside the point in this case. The Texas child endangerment statute requires neither contact nor injury; and certainly there is no use of force when both are lacking. 9 We note that there is apparently some disagreement among the Texas courts over whether the statute’s mental-state element applies to the defendant’s “engag[ing] in conduct” or applies instead to the defendant’s mental state with regard to the creation of danger. Compare Walker v. State,

(Tex. App.—Fort Worth 2002, pet. ref’d) (holding that a defendant can intentionally or knowingly engage in conduct that endangers a child “[without] proof that the person intend or know that his conduct places the child in such imminent danger”), with Millslagle v. State,

, 897 n.1 (Tex. App.—Austin 2002, pet. ref’d) (suggesting a contrary reading). For purposes of argument, we can assume that the panel was correct in asserting that the mental state applies to the creation of a danger--that is, that Calderon- Pena knew that he was endangering the children, not just that he knew he was engaging in conduct. Calderon-Pena’s conduct would be less culpable if, under the rule of Walker, he lacked a mens rea with regard to the danger.

12 considered the meaning of the “crime of violence” definition in the

precise guideline at issue here. While the court there held that

the plain meaning of the term “use” requires intentionality,

Vargas-Duran,

, a second, alternative holding

established the meaning of the phrase “as an element,”

at 605-

06. Specifically, this court determined:

[I]n order for § 2L1.2 to apply, the intentional use of force must be a constituent part of a claim that must be proved for the claim to succeed. 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. at 605 (quotations and citation omitted).

Clearly, the pared-down statute can be successfully prosecuted

without proof of attempted use of force. One can knowingly

endanger without trying to make any bodily contact with the

victim’s person and without trying to inflict bodily injury on the

person. Our precedents have properly recognized that the

“attempted use of physical force” requires at least that the

perpetrator harbor an intent to use physical force against the

victim’s person. See Vargas-Duran,

; White,

. The child-endangerment offense does not require

any such intent to use physical force against the victim, for,

again, one can knowingly endanger (or even intentionally endanger)

without intending to make any physical contact with the victim or

intending to cause the victim any bodily injury. Under the plain

meaning of the phrase “attempted use of force against the person of

13 another,” the child-endangerment offense does not qualify.

Our decision is further reinforced by the observation that,

rather than involving the use of physical force against the victim,

the essence of endangerment is the wrongful creation of a risk of

harm. But unlike certain other provisions of the Sentencing

Guidelines, the § 2L1.2 “crime of violence” definition notably does

not contain language referring to the risk of harm.10 Compare

U.S.S.G. § 4B1.2(a)(2) (2003) (encompassing conduct that “presents

a serious potential risk of physical injury”). Creating a risk of

injury, even when done knowingly or intentionally, is clearly not

the same as using or attempting to use physical force against the

person of another. Cf. Dalton v. Ashcroft,

(2d

Cir. 2001) (observing that “[t]here are many crimes that involve a

substantial risk of injury but do not involve the use of force”);

United States v. Chapa-Garza,

(5th Cir. 2001)

(contrasting conduct that involves “a serious risk of physical

injury” with conduct that presents “a substantial risk that the

defendant will use physical force against another’s person”).11

10 It is important to recognize that in construing the provisions of § 2L1.2, we are focusing only on the definition of “crime of violence” as that term is used in this particular guideline provision. We do not purport to say that this definition applies to other guideline provisions that utilize the “crime of violence” terminology but with different definitional language. 11 The Sentencing Commission has explained its reasoning for creating in 2001 the four-level graduated sentencing enhancement in § 2L1.2. U.S.S.G. Supp. to App. C, amend. 632. Specifically, the Commission notes that the amendment was a response to concerns expressed by the Department of Justice, judges, probation officers,

14 and defense attorneys who felt that § 2L1.2 "sometimes result[ed] in disproportionate penalties because of the 16-level enhancement provided in the guideline for a prior conviction for an aggravated felony." Id. The Commission explains that: The disproportionate penalties result because the breadth of the definition of "aggravated felony" provided in

(a)(43), which is incorporated into the guideline by reference, means that a defendant who previously was convicted of murder, for example, receives the same 16-level enhancement as a defendant previously convicted of simple assault.

The Commission remarks that it specifically focused its attention on creating a distinction between the eight- and sixteen- level enhancements, noting that a sentencing court can make a more proportionate determination as to sentencing depending on the seriousness of the prior felony conviction. It suggests that the sixteen-level enhancement is proper if the defendant previously was deported, or unlawfully remained in the United States, after being convicted of "certain serious offenses," including specifically: a drug trafficking offense for which the sentence imposed exceeded 13 months, a felony that is a crime of violence, a felony that is a firearms offense, a felony that is a national security or terrorism offense, a felony that is a human trafficking offense, and a felony that is an alien smuggling offense committed for profit.

The Commission adds that "[a]ll other aggravated felony offenses will receive an 8-level enhancement."

This Court has previously recognized the policy behind the 2001 amendments. In United States v. Caicedo-Cuero,

(5th Cir. 2002), the panel concluded that: [T]he Commission intended the [2001] guideline amendments to break up aggravated felonies by providing for the sixteen-level increase only in the case of the more serious offenses, e.g., murder or serious drug trafficking offenses for which the sentence imposed was over 13 months, while providing lesser penalties for the less serious, but still aggravated, offenses, e.g., assault and simple drug possession.

. This Court went on to note that the broader definition of crimes of violence and drug trafficking offenses referenced in § 1101(a)(43) "apply to less severe aggravated felonies that warrant the eight-level enhancement." Id. We observe here that Calderon-Pena’s conviction for child endangerment is characterized under Texas law as a state jail felony, a categorization that receives the lowest quantum of punishment of all Texas felonies, among which are capital felonies,

15 III. CONCLUSION

For the foregoing reasons, we conclude that Calderon-Pena’s

seventy-month sentence should not have included the sixteen-level

“crime of violence” enhancement under U.S.S.G. § 2L1.2 cmt.

n.1(B)(ii). We leave it to the district court to determine on

remand whether Calderon-Pena’s prior offense can be considered an

“aggravated felony” that would call for application of § 2L1.2’s

eight-level sentence enhancement.

Accordingly, Calderon-Pena’s conviction is AFFIRMED, see supra

note 1, his sentence is VACATED, and the case is REMANDED for

further proceedings not inconsistent with this opinion.

first-degree felonies, second-degree felonies, and third-degree felonies. The range of punishment for a state jail felony varies from 180 days’ to two years’ confinement. It follows that an offense such as this which results in a defendant spending as few as 180 days in jail would not be subject to the same sixteen-level enhancement for a defendant who commits aggravated robbery, a first-degree felony under TEX. PEN. CODE ANN. § 29.03 (Vernon 2003), which carries a sentence ranging from five years’ imprisonment to life in prison. This scenario seems to highlight precisely the distinction the Commission was contemplating when it created the graduated sentencing enhancements in 2001. As such, we should recognize, in accordance with the Commission’s amendment commentary, that the graduated sentencing scheme does not contemplate a broad reading of § 2L1.2.

16 EDITH H. JONES, Circuit Judge, with Judge Rhesa H. Barksdale,

dissenting:

I share Judge Smith’s concern regarding the inutility of

this court’s continuing to hear sentencing guidelines cases en

banc. I write separately, however, to dissent from what I believe

is the majority’s pursuit of a “hyper-categorical” approach to

sentencing enhancements for crimes of violence. Calderon-Peña

plowed his car into another vehicle containing his children. The

enhancement issue is whether this prior crime had “as an element

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

the person of another.” U.S.S.G. § 2L1.2 cmt. n. 1(B)(ii). The

majority, interpreting our recent en banc decision in United States

v. Vargas-Duran,

(5th Cir. 2004), would hold that a

criminal act may never be a “crime of violence” under this and

similar enhancement provisions unless every imaginable way that an

offense could be committed under a given statute of conviction

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

force.

This approach is incorrect. It misreads the Supreme

Court’s opinion in United States v. Taylor,

,

,

(1990), misapplies this circuit’s

precedents, does not comport with the more reasoned approach

applied by our sister circuits, and reaches a patently absurd

result. The proper application of Taylor would allow consideration

17 of the facts contained in Calderon-Peña’s indictment not only to

“narrow” the statute of conviction, as the majority concedes, but

also to demonstrate that the intentional use of force was a key

fact in Calderon-Peña’s underlying conviction for child

endangerment. Under this view, his prior crime was a crime of

violence that should require enhanced punishment under § 2L1.2 for

this recidivist.

A. Understanding Taylor

Taylor held that in applying sentencing enhancements

based on prior convictions, trial courts should generally “look

only to the fact of the conviction and the statutory definition of

the prior offense.” See Taylor,

,

. The Court found such a “categorical approach” necessary

because the legislative history of the enhancement statute there

construed, whose language has been a model for later enactments,

revealed that Congress did not want trial courts to “engage in an

elaborate fact-finding process.”

,

.

Nonetheless, the Supreme Court also carefully noted that this

approach permits a sentencing court to “go beyond the mere fact of

conviction in a narrow range of cases” where the jury was required

by the indictment or jury instructions to find all the elements of

an offense that would fit within the enhancement.

,

. Taylor, in my view, thus refines the pure

categorical approach when a prior conviction is based on a statute

18 that includes various types of conduct, some of which would trigger

an enhancement and some of which would not. See

,

.

The enhancement of Taylor’s crime by the Supreme Court

explains the technique. The career criminal statute there enhanced

offenders’ penalties based on specific predicate offenses including

“burglary.”

,

. The Court held that

burglary must have a uniform national meaning under a federal

statute. It adopted the common definition of burglary as the entry

into a building or other structure with the intent to commit a

crime. See

,

. In some states,

however, burglary statutes more broadly encompass places like

automobiles and vending machines.

,

.

The Court accordingly reasoned that where a defendant is convicted

under a broad burglary statute that “include[s] entry of an

automobile as well as a building, if the indictment or information

and jury instructions show that the defendant was charged only with

a burglary of a building, and that the jury necessarily had to find

an entry of a building to convict, then the government should be

allowed to use the conviction for enhancement.”

,

(emphasis added). I infer that, under Taylor, if a

state statute encompasses a range of conduct broader than that

which invokes a federal enhancement, the sentencing court may

properly consider the indictment and the jury instructions to

determine whether the enhancement should be applied.

19 Properly read, Taylor requires courts first to decide

whether a statute of conviction embodies a per se crime of violence

under the relevant enhancement provision. Taylor,

,

. If it does not, the inquiry ends and the prior

offense may not be used to enhance a defendant’s sentence.1 As

discussed in greater detail below, this court’s decision in Vargas-

Duran – the opinion’s broad language notwithstanding – was made at

this step of the Taylor inquiry. If, however, a predicate criminal

statute contains subsections, or if the offense is described so

broadly as to include some acts that fall within the “crime of

violence” definition and some that do not, Taylor permits reference

to the indictment and jury charge. See United States v. Landeros-

Gonzales,

(5th Cir. 2001); United States v.

Allen,

(5th Cir. 2002). This order of analysis effec-

tuates Congress’s clear intention, in adopting its “crime of

violence” provision, to broaden the class of offenses eligible for

certain sentence enhancements, while not bogging courts down in

complex mini-trials over criminal history. I believe the

1 Our circuit’s decisions in United States v. Chapa-Garza,

(5th Cir. 2001) (felony DWI not a crime of violence under

(b)), United States v. Charles,

(5th Cir. 2002) (en banc) (theft of motor vehicle not a crime of violence under U.S.S.G. § 4B1.2(a)(2)), and United States v. Rodriguez-Rodriguez,

(5th Cir. 2003) (burglary of a building and unauthorized use of a motor vehicle are not crimes of violence under the 16-level “has as an element” enhancement contained in U.S.S.G. § 2L1.2, but are per se crimes of violence under

(b)), which involve various enhancement provisions, are all justifiable at this categorical level.

20 majority’s adoption of Vargas-Duran’s hyper-categorical language

unfairly exaggerates the latter concern while minimizing the

former.

B. Vargas-Duran and Calderon-Peña

The majority holds that Taylor’s “categorical approach”

requires this court to imagine whether there are any circumstances,

no matter how far removed from the plain facts of a recidivist’s

prior crime, under which his statute of conviction may be violated

without the use, attempted use, or threatened use of force. This

conclusion assertedly derives from the guideline’s inquiry whether

a prior crime “has as an element” the use, attempted use, or

threatened use of physical force. The majority relies on Vargas-

Duran’s language, which suggests that in order for a “component” of

a conviction to be an “element” of the offense, the component must

be present under “any set of facts” that constitute a violation of

the statute.

. The majority believes not only that

it may ignore the facts contained in Calderon-Peña’s indictment and

guilty plea, but that it is unable to enhance his sentence because,

under the open-ended language in Texas’s statutory offense of child

endangerment, the statute might be violated in a non-violent

manner. Under the majority’s reasoning, no offense charged under

this provision may ever be classified as a crime of violence under

§ 4B1.2, no matter how brutal the conduct. The majority errs in

two ways.

21 First, Vargas-Duran did not depend on this “any set of

facts” language. Vargas-Duran,

. In Vargas-Duran,

the question before our court was whether the defendant’s prior

intoxication assault conviction in Texas could be considered a

crime of violence under the same “has as an element” language of

the Guidelines.

. The en banc majority, which I

joined, held that force must be used intentionally for a given

offense to qualify for the enhancement.

. The

majority concluded that because the Texas intoxication assault

statute, by definition, does not require the proof of any mens rea,

the intentional use of force could not be an “element” of the

crime.

. Vargas-Duran’s analysis stopped at what I have

just described as Taylor’s first step. Its reference to the “any

set of facts” approach was irrelevant to the case. As the majority

acknowledges, the child endangerment statute is not amenable to

first-step treatment at least on intentionality, as it can be

violated in multiple ways and with various mental states:

A person commits an offense if he intentionally, knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that places a child younger than 15 years in imminent danger of death, bodily injury, or physical or mental impairment.

TEX. PENAL CODE ANN. § 22.041(c)) (VERNON 2003). The majority and I

part company, however, on whether the statute includes conduct that

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

force. This disagreement reflects my second major bone of

contention with the majority — on the definition of “elements” of

22 an offense under the enhancement. As the Vargas-Duran opinion

notes, Black’s Law Dictionary defines an element as “[a]

constituent part of a claim that must be proved for the claim to

succeed,” BLACK’S LAW DICTIONARY 538 (7th ed. 1999). Our court has

held that “traditionally, an ‘offense’ was defined by its

‘elements,’ i.e., facts necessary to support a conviction for the

offense,” United States v. Williams,

(5th Cir.

2003). See Vargas-Duran,

. The “elements” of an

offense may be viewed generically under a statute’s language, as

the majority does, or they may be considered particularly in light

of what the defendant actually did to comprise the offense of

conviction. Where, as here, a defendant pleads guilty to the

particular offense based on explicit factual allegations in the

indictment, the distinction made by the majority between the

“elements” of the offense and the “manner and means” of the offense

becomes purely theoretical. Further, that distinction does not

serve the enhancement’s purpose of identifying and penalizing more

strictly recidivists who engaged in violent crimes.

The majority does concede, helpfully, that if a statute

has disjunctive elements or multiple subsections, rather than apply

“any set of facts” to prevent all enhancements, the indictment’s

allegations and jury charge may be used to “pare down” the statute

to the precise subsection that was violated. But taking the next

logical step, the court should have acknowledged that when a

statute may, by the breadth of its language, irrespective of

23 subparts, be violated in both violent and non-violent ways, the

indictment and jury instructions may then be used to ascertain

whether the underlying offense constituted a crime of violence

under the guidelines. In failing to do so, the majority’s opinion

forecloses a sensible and obvious path chosen by other circuits.

C. The Application of Taylor in Other Circuits

The majority’s reiteration of the “any set of facts”

interpretation of Taylor runs counter to the approach adopted by a

number of our sister circuits, including the First, Fourth, Eighth

and D.C. Circuits. Each of these courts holds that where a statute

may be violated in multiple ways — some of which qualify an offense

as a crime of violence and some of which do not — a court may

properly refer to the indictment and jury instructions.2

2 See United States v. Gomez-Hernandez,

(8th Cir. 2003) (where “the statutory definition [of the predicate offense] encompasses conduct which may or may not be included in the applicable guideline, we may look to the underlying charging papers to determine the elements of the crime to which the defendant pleaded guilty”); United States v. Coleman,

(4th Cir. 1998) (en banc) (where a predicate offense “may be committed in one of two ways, one of which requires a finding that physical force was used and the other of which does not, a district court must look past the fact of conviction and the elements of the offense to determine which type of offense supported the defendant’s conviction”); United States v. Kennedy,

(D.C. Cir. 1998) (a conviction under the Hobbs Act requires a district court to examine the indictment to determine whether the conviction qualifies for an enhancement); United States v. Damon,

(1st Cir. 1997) (under Taylor, “a sentencing court may go beyond the fact of conviction in those cases where the statute encompasses both violent felonies . . . and non-violent felonies . . . .”). See also United States v. Shepard,

(1st Cir. 2003); United States v. Londono-Quintero,

(1st Cir. 2002) (“Where the statutory definition encompasses both predicate and non-predicate offenses, however, it

24 In Coleman, for instance, the Fourth Circuit considered

whether a conviction for common-law assault under Maryland law

constituted a “violent felony” requiring enhancement under the

Armed Career Criminal Act of 1984.3 The court held that where a

predicate offense “may be committed in one of two ways, one of

which requires a finding that physical force was used and the other

of which does not, a district court must look past the fact of

conviction and the elements of the offense to determine which type

may be necessary to go beyond the statute and the fact of conviction”); United States v. Harris,

(1st Cir. 1992) (Breyer, C.J.) (noting that in cases where “a single statute . . . covers more than one crime . . . it would be appropriate for the sentencing court to look to the conduct . . . not because the court may properly be interested (in this context) in the violent or non-violent nature of that particular conduct, but because that conduct may indicate that the defendant and the government both believed that the generically violent crime . . . rather than the generically non-violent crime . . . was at issue”). The majority criticizes this dissent’s reliance on the above cited cases. See Majority Op. at 10 n.7. Anyone reading this authority with care will find that it in fact supports the dissent’s position. More telling is what the majority’s lengthy footnote does not say: Nowhere does the majority claim that the 1st, 4th, 8th or D.C. circuits follow the majority position. Footnote 7's sole purpose is to assert that the majority view is not “perverse and anomalous.” Unfortunately, to achieve their end, the majority shamelessly stretches precedent. Compare Majority Op. at 10 n.7 (mischaracterizing the statute at issue in Coleman as “explicitly” requiring a violation of the law “in such a way that requires the use, attempted use, or threatened use of physical force,” and therefore falling within the Taylor exception) with Coleman,

(“Nevertheless, because one of the ways in which a Maryland common-law assault can be committed involves [not ‘requires’] the use, attempted use, or threatened use of physical force against another . . . .”) (emphasis added). 3 This federal provision is the same one interpreted as to burglary in Taylor and contains the same language concerning the use of force as the “crime of violence” guideline before us in this case.

25 of offense supported the defendant’s conviction.”

(emphasis added). As a result, the en banc court held that the

district court properly relied on the charging papers4 to determine

that Coleman’s act of pointing a handgun at a police officer

constituted a violent felony for the purposes of the federal

sentencing enhancement.

.

Relying on Coleman and its antecedents, the Fourth

Circuit has also held that “the record of conviction, the charging

document and the jury instructions” may be examined, consistent

with Taylor, to determine whether a conspiracy conviction is a

crime of violence. United States v. Ward,

(4th Cir. 1999).

Similarly, in Kennedy, the D.C. Circuit held that the

Hobbs Act is one example of a “generic” criminal statute whose

violation requires a district court to examine the underlying

indictment to determine whether the conviction qualifies as a

“crime of violence” or a “serious violent felony” under federal

sentencing law. Kennedy,

. The Kennedy court held

this approach acceptable under Taylor where “a statute provides for

both violent and nonviolent means of violation,”

(emphasis added), and “the mere fact of conviction under the Hobbs

Act does not establish whether a defendant was convicted of a

4 Under Maryland law, the “charging papers” included the state-required affidavit of the complainant or arresting officer. Coleman,

.

26 violent or nonviolent crime.”5

Under the majority’s “any set of facts” approach to the

Taylor categorical inquiry, the result in conspiracy and Hobbs Act

cases, and those of similar ilk, such as retaliation, would

necessarily differ from Coleman and Kennedy. The majority,

unfortunately, demonstrates neither its awareness of the

overwhelmingly contrary precedents nor any explanation why it alone

understands Taylor and the other circuits are wrong.

The majority does express concern that going beyond the

statutory “elements” of a crime, even when the conviction’s under-

lying facts are plain and admitted, threatens to swallow the

categorical approach in favor of real-act sentencing. I disagree.

The First Circuit aptly explained that “[u]nder Taylor’s cate-

gorical approach, burglary is a crime of violence even if no

violence was used in the particular case; and conversely, being a

felon-in-possession is not a crime of violence even if the felon

happened to shoot someone but was convicted only under the felon-

in-possession statute.” See United States v. Sacko,

(1st Cir. 1999) (noting that under Taylor’s categorical approach,

the facts of the underlying offense are only relevant to “identify

the statutory or common law offense” of conviction and that

5 The D.C. Circuit noted that its approach in Kennedy was consistent with Taylor because it “avoids the factual inquiry that concerned the Supreme Court in Taylor, but permits courts to treat violent crimes as Congress intended they be treated.”

at 57- 58.

27 “collateral facts as to the defendant’s conduct on the earlier

occasion are not relevant for any other purpose”). The majority’s

concern is groundless.

D. Conclusion

In this case, applying a refined categorical approach

would require us to hold, as common-sense dictates, that an

individual who intentionally rams his car into another vehicle

containing his children has committed a crime of violence. He pled

guilty to the child endangerment offense on facts that proved his

intention to threaten or use actual force against his children.

While I agree with the result in our en banc decision in Vargas-

Duran, unlike the majority, I would jettison that opinion’s overly

broad “any set of facts” formulation — which the Vargas-Duran

majority did not actually apply to decide that case. Rather,

consistent with Taylor and the law of other circuits, we should

look to the facts contained in the underlying indictment and jury

instructions to apply crime of violence enhancements like that

before us. I respectfully dissent.

JERRY E. SMITH, Circuit Judge dissenting, joined by Judge Rhesa H.

Barksdale:

I.

I respectfully dissent from the well-intentioned position tak-

en by a majority of the judges. My disagreement is in regard not

only to the result the majority reaches, but also to the manner in which this court is handling its sentencing guideline jurispru-

dence.

The majority’s result is intuitively absurd. It holds that a

defendant who intentionally rammed his car into a vehicle that he

knew contained his young children was not guilty of a “crime of

violence.” We are, of course, bound by the various definitions and

explanations set forth in the applicable statutes and sentencing

guidelines, from which we must discern the will of the drafters.

Congress could, if it wanted to, define an ax murder as not a

“crime of violence,” and we would be bound to adhere to that

definition.

Here, however, as I will explain, there is an easy path to

reaching the correct answer in this case, which is that Calderon-

Pena’s crime is indeed a “crime of violence.” There is, admit-

tedly, a colorable argument to the contrary, and Judge DeMoss has

ably articulated that explanation for the majority. But that does

not justify the fact that the court has even taken this case en

banc, when the panel had already carefully reconciled its result

with our recent en banc decision in United States v. Vargas-Duran,

(5th Cir. 2004) (en banc), and had issued s supplemen-

tal opinion on rehearing setting forth that explanation.

Some may view it as silly that a court of appeals takes sen-

tencing guideline cases en banc at all. I do not go that far, for

indeed there are times when conflicting caselaw needs to be

29 reconciled. This is not one of them.

The en banc court is not, and should not be, primarily a court

of error. The decision to take a case en banc is a prudential one

that should be based on a host of factors, including, among others,

the importance of an issue, the expenditure of judicial resources,

whether the issue creates a problem beyond the confines of the case

at hand, and the degree to which the panel’s result is perceived by

some not only as wrong, but as so wrong that it effects a grave

injustice or disrupts the court’s jurisprudence in a significant

way.

Even if, arguendo, the majority were correct in its result,

the case does not satisfy the other criteria for en banc review.

By taking this case en banc, the majority has created more ques-

tions than it has solved and has muddled our guidelines jurispru-

dence unnecessarily. Given, however, that the case is now present-

ed for decision by the en banc court, and that the majority has

reached a demonstrably erroneous result, I will explain the flaws

in its reasoning.

II.

As I approach the merits of the case, I first note my agree-

ment with the majority’s handling of the “elements” of an offense.

The government urges that when recitations of particular violent

actions are added to an indictment, the proof of those actions be-

30 comes “elements” of the offense for purposes of enhancement under

the sentencing guidelines. Such an approach would undermine Taylor

v. United States,

(1990); as the majority notes, “the

analysis of the statute would be superflous” under the government’s

theory. The “elements” of an offense are those enumerated in the

statute of conviction, and no others.

I also agree with the majority’s acceptance of the notion that

a court may refer to charging papers to determine of which elements

of an offense a defendant was convicted. See Taylor,

;

United States v. Landeros-Gonzales,

(5th Cir.

2001). The “paring down” of statutes by reference to the charging

papers has been applied by other circuits, including the First,6

Seventh,7 Eighth,8 Tenth,9 and especially the Ninth.10

6 See, e.g., U.S. v. Shephard,

(1st Cir. 2003) (recognizing that Taylor allows that courts may look at the charging papers and jury instructions to identify the crime of conviction; noting that the First Circuit has approved “resort to pre-sentence reports but only to determine the character of the criminal offense for which the criminal was convicted (not whether violence was or was not used on the particular occasion) . . . where that determination cannot be made from the statutory language itself or from the charging documents” and those documents are reliable). 7 See, e.g., Flores v. Ashcroft,

(7th Cir. 2003) (opining that “when one state-law offense may be committed in multiple ways, and federal law draws a distinction, it is nec- essary to look behind the statutory definition,” and allowing examination of charging papers to determine the elements of a crime of which a defendant was convicted); United States v. Howze,

(7th Cir. 1997) (same). 8 See, e.g., United States v. Menteer,

(8th Cir. 2003) (allowing district court to look to presentence report’s characterization of defendant’s conduct, where defendant failed to (continued...)

31 I depart from the majority’s reasoning only at a later point.

The pared-down statute of conviction provides: “A person commits

an offense if he intentionally . . . by act . . . engages in con-

duct that places a child younger than 15 years in imminent danger

of . . . bodily injury.” This sufficiently describes the “at-

tempted use of physical force” in satisfaction of the relevant

crime of violence statute. U.S.S.G. § 2L1.2, application note

1(B)(ii)(I). In a nutshell, because the pared-down child endanger-

ment statute requires that a defendant have intentionally created

(...continued) object to PSR’s factual characterization of his conduct); United States v. Valladares,

(8th Cir. 2002) (stating that “when the statutory definition of a predicate offense encom- passes conduct that may or may not be included in the applicable guideline, the sentencing court may look to the underlying charging papers and jury instructions to determine the elements of the crime which the defendant was convicted” (citation omitted)). 9 See, e.g., U.S. v. Venegas-Ornelas,

(10th Cir. 2003) (“Although we may not consider the particular facts surrounding the conviction, if the statute reaches different types of conduct, we may look to the charging paper and judgment of conviction in order to ‘determine if the actual offense the defendant was convicted of qualifies as a crime of violence’” (citing Sareang Ye v. INS,

(9th Cir. 2000)). 10 See, e.g., United States v. de la Fuente,

(9th Cir. 2003) (holding that if a “statute reaches both conduct that would constitute a crime of violence and conduct that would not, we turn to a modified categorical approach, which allows us to examine documentation or judicially noticeable facts that clearly establish that the defendant’s actual offense qualifies as a crime of violence” (citing United States v. Sandoval-Venegas,

(9th Cir. 2002) (same)); United States v. Hernandez-Valdovinos,

(9th Cir. 2003); United States v. Wenner,

(9th Cir. 2003); Lara-Chacon v. Ashcroft,

; (9th Cir. 2003); United States v. Melton,

(9th Cir. 2003); United States v. Casarez-Bravo,

, 1077 n.1 (9th Cir. 1999)).

32 an imminent danger of bodily injury to another, he intended to use

physical force on that person, even if that force was of a subtle

and indirect nature.11 The majority is mistaken in concluding

otherwise.

A.

The majority states in conclusional fashion, “Clearly, the

pared-down statute can be successfully prosecuted without proof of

attempted use of force. One can knowingly endanger without trying

to make any bodily contact with the victim’s person and without

trying to inflict bodily injury on the person.” The majority em-

phasizes elsewhere that the statute can be violated without an

attempt to cause “physical contact.”

It a matter suitable for debate whether the child endangerment

statute may be satisfied without a perpetrator’s “trying to inflict

bodily injury” on a victim. Before addressing that issue, however,

I must note that the majority goes too far in its mention of

“bodily contact.”

I accept that it is possible “knowingly [to] endanger” a per-

son without trying to make any “bodily contact” or “physical con-

tact” with him. For instance, a person’s body may be imminently

endangered by poison left for him to consume, without the would-be

11 See United States v. Vargas-Duran,

(5th Cir. 2004) (en banc) (concluding that the crime of violence inquiry is limited to “[l]ooking only at the fact of [the defendant’s] conviction and the statutory definition”)

33 poisoner’s intending to achieve “bodily contact” with his victim.

But I cannot credit the suggestion that a perpetrator’s making

“bodily contact” with a victim is a requirement for the “physical

use of force,” or accordingly that a perpetrator’s attempt to make

“bodily contact” with a victim is a requirement for the “attempted

use of physical force.”

Rather, the “use of physical force” and “attempted use of phy-

sical force” under the crime-of-violence guideline should extend to

cover those applications of force that are subtle or indirect,

rather than only those embracing “bodily contact.” This is a mat-

ter of common sense.

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, it is a poor excuse

for the perpetrator to say, “Well, at least I didn’t attempt to use

physical force against my victim. I was only trying to kill or

maim him!” To the contrary, the perpetrator has at least attempted

to make use of physical force against the person of the target,

either through the action of water to cause asphyxiation or by im-

pact 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.

This interpretation also is logical, given the sort of crim-

inal statutes that might be considered “crimes of violence.”

34 Numerous statutes covering crimes that most would naturally think

to involve the “use” or “attempted use” of force may be satisfied

by subtle and indirect force. Most would agree, for example, that

an intentional battery statute requiring the actual injury of the

victim describes the “use of physical force.” As well, it should

be uncontroversial that formulations of assault requiring an intent

to injury of a victim should be considered to involve the attempted

use of force.

But batteries and assaults punishable under such 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.” 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.

Likewise, the crime of murder in many states may be satisfied

by subtle and indirect uses of force. A person may be indicted and

convicted for Texas murder, for example, if he “intentionally or

knowingly causes the death of an individual.” TEX. PENAL CODE ANN.

§ 19.02(b)(1) (Vernon 2003). Again, the defendant need never lay

a finger on his victim. Though murder is, quite fortunately, enum-

erated as a crime of violence under the second prong of the rel-

35 evant violence definition, it would be absurd to believe that mur-

der would not involve the “use of physical force” See U.S.S.G.

§ 2L1.2, application note 1(B)(ii)(II).

Additionally, although murder is enumerated as a “crime of

violence,” attempted murder is not. Attempted murder may be under-

taken by other than attempts to cause “bodily” or “physical” con-

tact, yet no court reasonably would hold that attempted murder is

a crime that does not involve the “attempted use of physical force

against the person of another.”

Accordingly, the majority’s insistence on “bodily contact” is

serious error. Physical forces, whether subtle and indirect, are

physical forces nonetheless.

B.

As for the majority’s holding that one can knowingly create an

imminent danger of another’s physical injury without “trying to in-

flict bodily injury on the person,” I disagree. I also take issue

with the majority’s related conclusion: “Creating a risk of in-

jury, even when done knowingly or intentionally, is clearly not the

same as using or attempting to use physical force against the per-

son of another.” This latter statement might contain some truth,

because people may not actually expect those harms that flow from

de minimis risks they choose to create, but the majority ignores

that the statute of conviction required not simply a “risk of in-

36 jury,” but an “imminent danger of bodily injury”12 (emphasis added).

An attempt is “the act or an instance at making an effort to

accomplish something “ BLACK’S LAW DICTIONARY 123 (7th ed. 1999).

Thus, for example, an attempted crime is “an overt act that is done

with the intent to commit a crime.” Id. An attempted use of

physical force, accordingly, is an overt act done with intent to

use physical force. The pared down child endangerment offense re-

quires just such an attempt.

It is axiomatic that people intend the likely results of their

actions; after all, intention is “the willingness to bring about

something planned or foreseen.” Id. at 814. Therefore, when a

person knowingly undertakes actions in order to create a “imminent

danger . . . of bodily injury,” he also demonstrates a willingness

to bring about the foreseeable result of his actionsSSthat is, his

use of physical force against the person of another to cause bodily

injury.

12 Thus, the majority’s reference to holdings in the Second Circuit to the effect that “[t]here are many crimes that involve a substantial risk of injury but to not involve the use of force” is inapt. See Dalton v. Ashcroft,

(2nd Cir. 2001). Likewise, this court’s effort in United States v. Chapa-Garza,

(5th Cir. 2001), to contrast conduct involving “a serious risk of physical injury” with conduct that presents “a substantial risk that the defendant will use physical force against another’s person” is of little help here. See

The Chapa-Garza court analyzed a different crime of violence guideline, and particularly a prong involving the creation of “substantial risk” of injury, rather than the attempted use” formulation at stake here.

37 This makes sense. When a person intends to create an imminent

danger of injury by such obvious means as ramming his car into

someone else’s, or less direct means such as by luring that person

to an ocean undertow or placing deadly poison in his drink, he is

actually attempting to control, and thus intentionally “use,” phy-

sical force against that person, whether in the form of collision

with a fast-moving automobile, water suffocating lungs, or cyanide

disrupting metabolism.

Accordingly, Calderon was convicted of a “crime of violence”

as described in § 2L1.2. Because his statute of conviction re-

quired him intentionally to have exposed a person to a physical

forces either created by him or made subject to his will, it

described the “attempted use of physical force” against the person

of another.

Thus, I respectfully dissent.

38 EMILIO M. GARZA, Circuit Judge, dissenting:

I write separately because I agree with both the “use of

force” analysis in Judge Smith’s dissent and with the interpreta-

tion of United States v. Taylor,

(1990) in Judge

Jones’s dissent. I do not agree with the portions of Judge Jones’s

dissent that indicate that the majority opinion in United States v.

Vargas-Duran,

(5th Cir. 2004) (en banc), is correct.

For the reasons expressed in my dissent in Vargas-Duran, I continue

to believe that Vargas-Duran was wrongly decided. See Vargas-

Duran,

(Garza, J. dissenting).

39