United States Court of Appeals Fifth Circuit F I L E D REVISED February 22, 2007 August 24, 2006 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk ______________________ No. 03-60721 ______________________

JUAN LARIN-ULLOA,

Petitioner, versus

ALBERTO GONZALES, UNITED STATES ATTORNEY GENERAL

Respondent. ____________________________________________________

On Petition for Review of an Order of the Board of Immigration Appeals _____________________________________________________

Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge.

Juan Larin-Ulloa (“Larin”), a native and citizen of

El Salvador, petitions for review of (i) the decision

of the Board of Immigration Appeals (“BIA”) that he is

removable for having been convicted of an aggravated

felony, see

(a)(2)(A)(iii); and (ii) the

BIA’s denial of his motion to reopen his appeal.

1 Because we find that the record does not establish that

Larin was convicted of an aggravated felony, as that

term is defined at

(a)(43), we grant

Larin’s petition, vacate the order of removal, and

remand the case to the BIA for any further proceedings

consistent with this opinion.

I. Facts and Procedural History

Larin was admitted to the United States in 1981,

and he became a lawful permanent resident in 1989. In

2000, Larin pleaded guilty to one count of aggravated

battery under Kansas law. Kansas’ aggravated battery

statute contains multiple sections and subsections,

each of which defines one or more types of conduct that

violates the statute. The statute,

, provides, in pertinent part:

(a) Aggravated battery is:

(1)(A) Intentionally causing great bodily harm to another person or disfigurement of another person; or

(B) intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great

2 bodily harm, disfigurement or death can be inflicted; or

(C) intentionally causing physical contact with another person when done in a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted;

. . . .

(b) Aggravated battery as described in subsection (a)(1)(A) is a severity level 4, person felony. Aggravated battery as described in subsections (a)(1)(B) and (a)(1)(C) is a severity level 7, person felony. . . .

. Precisely which branch of

this statute provided the basis for Larin’s conviction

is an issue of particular importance to his petition

for review.

The bill of information under which Larin

originally was charged tracked the language of

subsection (a)(1)(A). It charged that Larin

“unlawfully, intentionally cause[d] great bodily harm

or disfigurement to another person, to wit: Isarael

Rosas; Contrary to Kansas Statutes Annotated 21-

3414(a)(1)(A), Aggravated Battery, Severity Level 4,

3 Person Felony.” Prior to Larin’s guilty plea, however,

the state amended the bill of information, by

handwritten interlineation, to charge that Larin

“unlawfully, intentionally in a manner whereby

[illegible] could have [illegible] cause great bodily

harm or disfigurement to another person, to wit:

Isarael Rosas; Contrary to Kansas Statutes Annotated

21-3414(a)(1)(A), Aggravated Battery, Severity Level 7,

Person Felony.” Although the amended bill of

information still referred to subsection (a)(1)(A) of

the statute (and notwithstanding its grammatical

shortcomings), the language of the amended information,

as well as the corresponding amendment to the charged

severity level,2 suggests that the state intended to

charge Larin with a violation of either subsection

(a)(1)(B) or (a)(1)(C). Indeed, Larin’s written guilty

plea recited that he was pleading guilty to one count

2 Under Kansas law, the severity level of a crime is used to calculate the applicable sentencing guidelines. Crimes are assigned a severity level between one and ten, with level one representing the most severe crimes and level ten representing the least severe. See

. 4 of aggravated battery in violation of subsection

(a)(1)(B).

Despite the changes to the amended bill of

information, the journal entry that recorded the

judgment against Larin stated that he was convicted

under subsection (a)(1)(A). The state court then

sentenced Larin to 24 months probation, with an

underlying suspended prison term of 12 months.

In 2002, the Immigration and Naturalization Service

(“INS”)3 initiated removal proceedings against Larin.

The INS alleged that Larin was removable because his

Kansas aggravated battery conviction was a “crime of

violence” and, therefore, an “aggravated felony”4 that

rendered Larin removable under

(a)(2)(A)(iii). At a hearing before the

3 As of March 1, 2003, the INS’s administrative, service and enforcement functions were transferred to the newly created Department of Homeland Security. See Bah v. Ashcroft,

, 350 n.1 (5th Cir. 2003). 4 “Aggravated felony” is defined at

(a)(43). Among the crimes defined as aggravated felonies under that section is any “crime of violence,” as that term is defined at

, for which the term of imprisonment is at least one year. See

(a)(43)(F). 5 immigration judge, Larin’s counsel conceded that Larin

had been convicted under subsection (a)(1)(A) of the

Kansas aggravated battery statute, but asserted that a

conviction under that section was not a crime of

violence for purposes of removal. The immigration

judge held that Larin’s conviction was for a crime of

violence and found that he was removable on that basis.

On appeal to the BIA, Larin’s new counsel argued

primarily that the confused and ambiguous bill of

information failed to validly charge Larin with any

crime. The BIA rejected this challenge and found that

Larin’s aggravated battery conviction was a crime of

violence regardless of whether he was convicted under

subsection (a)(1)(A) (as reflected in the journal entry

recording the judgment and as Larin conceded before the

immigration judge) or subsection (a)(1)(B) (as

reflected by Larin’s written guilty plea) of the Kansas

statute. The BIA noted that subsections (a)(1)(A) and

(a)(1)(B) both contain as an element that the defendant

intentionally cause the victim bodily harm, and,

relying on the panel decision in United States v.

6 Calderon-Pena,

(5th Cir. 2003), vacated on

reh’g en banc,

(5th Cir. 2004), held that

this element of intentionally causing bodily harm was

sufficient to render a conviction under either

subsection a crime of violence.

After the BIA’s decision, Larin moved to vacate his

conviction in Kansas state court on the ground that the

amended bill of information did not charge all of the

elements of any subsection of the Kansas aggravated

battery statute. The Kansas court did not vacate

Larin’s conviction, but instead issued a judgment nunc

pro tunc5 stating that Larin’s conviction actually was

based on subsection (a)(1)(C) of the Kansas aggravated

battery statute.

Larin then filed a motion with the BIA to reopen

his appeal and terminate the proceedings against him on

the ground that his conviction under subsection

5 A nunc pro tunc judgment is “[a] procedural device by which the record of a judgment is amended to accord with what the judge actually said and did, so that the record will be accurate.” Black’s Law Dictionary 848 (7th ed. 1999).

7 (a)(1)(C) was not for a crime of violence and he was

therefore not removable for having committed an

aggravated felony. As noted above, aggravated battery

under section 21-3414(a)(1)(C) is “intentionally

causing physical contact with another person when done

in a rude, insulting or angry manner with a deadly

weapon, or in any manner whereby great bodily harm,

disfigurement or death can be inflicted.”

(a)(1)(C). Thus, subsection (a)(1)(C)

defines two separate crimes: (1) intentionally causing

physical contact with another person when done in a

rude, insulting or angry manner with a deadly weapon;

and (2) intentionally causing physical contact with

another person in any manner whereby great bodily harm,

disfigurement or death can be inflicted. Larin argued

that he was convicted of violating the second part of

subsection (a)(1)(C) and that a conviction under that

portion of the statute was not a crime of violence

under

.

The BIA denied Larin’s motion to reopen. In its

decision, the BIA apparently considered the judgment

8 nunc pro tunc as valid, but concluded that, like the

original judgment, the judgment nunc pro tunc

established that Larin was convicted of a crime of

violence. The BIA noted that the state court’s journal

entry form, on which the rendition of the judgment nunc

pro tunc was recorded, also contained a notation

regarding Larin’s sentence that suggested that the

sentencing judge had been informed that the offense was

committed with a firearm. The BIA inferred from that

notation that Larin had been convicted of violating the

first part of subsection (a)(1)(C) of the Kansas

statute.6 The BIA explained its decision as follows:

[T]he judgment nunc pro tunc clearly reflects that the respondent committed the aggravated battery with a firearm. See Matter of Sweetser,

(BIA 1999) (court may look to conviction records when statute is

6 The Kansas court’s journal entry included panels containing various notations regarding Larin’s sentence: e.g., Presumptive Sentencing Range: [Mid 12 High 13 Low 11]; Presumptive Prison [blank]; Sentence Imposed: [Probation for 24 months; Underlying Prison Term 12 months]; Guideline Range Imposed [Mid]; Special Rule Applicable to Sentence: [Person felony committed with a firearm]; Postrelease Supervision Term: [12 months]; Probation to: [Community Corrections Field Services]. 9 divisible). Thus, the respondent’s conviction falls under the part of the statute stating that “intentionally causing physical contact with another when done in a rude, insulting or angry manner with a deadly weapon.” Use of a deadly weapon while intentionally causing physical contact clearly involves a substantial risk that physical force against another person may be used. Consequently, the respondent’s conviction constitutes an aggravated felony as defined under section 101(a)(43)(F) of the Act and he is removable pursuant to section 237(a)(2)(A)(iii) of the Act.

Larin timely petitioned this court for judicial

review of the question of law raised by the BIA’s final

order of removal and its denial of his motion to reopen

— whether the BIA correctly determined that Larin’s

aggravated battery conviction was a crime of violence

under

, thus rendering Larin removable

under

(a)(2)(A)(iii).

II. Jurisdiction and Standard of Review

Our jurisdiction in this case is governed by

. Although section 1252(a)(2)(C)

generally prohibits judicial review of “any final order

10 of removal against an alien who is removable by reason

of having committed” certain designated criminal

offenses, including an aggravated felony under

(a)(43), the REAL ID Act of 2005,

Stat. 231, amended section 1252(a)(2) to

provide that section 1252 does not bar judicial review

of “constitutional claims or questions of law raised

upon a petition for review filed with an appropriate

court of appeals in accordance with this section.”

(a)(2)(D). This amendment applies

retroactively to cases that were already pending on the

date of its enactment. See Rodriguez-Castro v.

Gonzales,

(5th Cir. 2005). Because

the question of whether Larin’s aggravated battery

conviction is a crime of violence is a purely legal

one, we have jurisdiction to review Larin’s petition.

See

(holding that whether an alien’s conviction

involves a crime of moral turpitude is a question of

law).7

7 Many of our sister circuits have similarly concluded that whether a conviction is an aggravated 11 Moreover, even if the REAL ID Act did not provide

us with jurisdiction, we have long held that we have

jurisdiction to determine our own jurisdiction, i.e.,

to determine whether a conviction qualifies as an

aggravated felony. See, e.g., Omari v. Gonzales,

(5th Cir. 2005) (citing Lopez-Elias v.

Reno,

, 791 n.3 (5th Cir. 2000)). Finally,

that Larin seeks review of the BIA’s denial of a motion

to reopen does not alter our jurisdictional analysis.

See Zhao v. Gonzales,

(5th Cir.

2005).

Although we review the BIA’s denial of a motion to

reopen for abuse of discretion, a denial based on an

error of law constitutes an abuse of discretion, and we

review the BIA’s resolution of questions of law de

felony is a reviewable question of law. See Vargas v. Dep’t of Homeland Sec.,

, 1107 (10th Cir. 2006); Morales-Alegria v. Gonzales,

(9th Cir. 2006); Canada v. Gonzales,

(2d Cir. 2006); Aguiar v. Gonzales,

(1st Cir. 2006); Tostado v. Carlson,

(8th Cir. 2006); Iysheh v. Gonzales,

(7th Cir. 2006); Ng v. Attorney Gen. of U.S.,

(3d Cir. 2006). 12 novo.8 Alarcon-Chavez v. Gonzales,

(5th Cir. 2005); see also Kaweesa v. Gonzales,

(1st Cir. 2006); Sotelo v. Gonzales,

(9th Cir. 2005).

III. The Effect Of The Judgment Nunc Pro Tunc

The first question we must answer is which of the

two Kansas judgments — the original judgment of

conviction or the judgment nunc pro tunc — is the

operative judgment of conviction for determining

whether Larin is subject to removal. In denying

Larin’s motion to reopen, the BIA appears to have

considered the judgment nunc pro tunc as the operative

judgment of conviction for immigration purposes, as it

addressed the merits of Larin’s argument that his

conviction under subsection (a)(1)(C) of the Kansas

8 We owe deference to the BIA’s interpretation of the Immigration and Nationality Act (“INA”), in accordance with the principles of Chevron, U.S.A., Inc. v. Natural Resources Defense Council,

(1984), but we review de novo whether a state criminal statute constitutes an aggravated felony under the INA. See Omari,

; Smalley v. Ashcroft,

(5th Cir. 2003). 13 aggravated battery statute was not for a crime of

violence. We find no reason to depart from the BIA’s

apparent conclusion that the judgment nunc pro tunc is

the operative judgment for determining whether Larin

was convicted of a crime of violence.

This is not a case in which the petitioner has

persuaded a state court to vacate a conviction or

otherwise mitigate its severity in order to avoid the

immigration consequences of the conviction. Here, it

is clear that the Kansas court’s judgment nunc pro tunc

simply corrected an error in what was otherwise an

inconsistent and self-contradictory judgment. As

described above, the Kansas state court documents in

this case are wholly lacking in clarity. Larin

originally was charged with violating

(a)(1)(A), a severity level four, person felony.

The bill of information was later amended by hand, and

the amended information contained charging language

that seems to have been intended to charge petitioner

with violating either subsection (a)(1)(B) or

(a)(1)(C), but which does not completely match either

14 of those subsections. The amendment also changed the

severity level of the charged offense to level seven,

which is consistent with a charge under subsection

(a)(1)(B) or (a)(1)(C), but inconsistent with a charge

under subsection (a)(1)(A). See

§ 21-3414(b)

(stating that a violation of subsection (a)(1)(A) is a

severity level four offense, but that a violation of

subsection (a)(1)(B) or (a)(1)(C) is a severity level

seven offense). Nevertheless, the amended bill of

information still referred to subsection (a)(1)(A) as

the basis for the charge. To compound the confusion,

Larin’s written plea acknowledgment recited that he had

agreed to plead guilty to a violation of subsection

(a)(1)(B). Finally, the journal entry that recorded

the original judgment was internally inconsistent, as

it, like the amended bill of information, stated that

petitioner was convicted of violating subsection

(a)(1)(A), but also stated that the crime was a

severity level seven offense. The only change effected

by the Kansas court’s judgment nunc pro tunc was to

correct the original judgment to clarify that Larin’s

15 conviction actually fell under subsection (a)(1)(C),

rather than subsection (a)(1)(A). Under such

circumstances, we find that it is appropriate to give

effect to the judgment nunc pro tunc.

That the judgment nunc pro tunc was issued solely

to correct an error in the original judgment, and not

to amend the substance of the original judgment, is

further shown by the limited circumstances under which

Kansas courts are permitted to issue nunc pro tunc

orders. Kansas courts have long held that the proper

function of a nunc pro tunc order is to correct a

clerical error or omission, so that the journal entry

recording a judgment accurately reflects the judgment

that was actually issued. See State v. Lyon,

(Kan. 1971) (“[A] court possesses inherent

power to enter judgments, orders and decrees nunc pro

tunc for the purpose of correcting its records, and . .

. where a journal entry fails to reflect accurately the

judgment which was actually rendered, it becomes the

duty of the court to make it speak the truth.”); see

also State v. Thomas,

(Kan. 1986)

16 (noting availability of nunc pro tunc orders to correct

clerical mistakes, including “typographical errors,

incorrect statute numbers, [or] failure to include the

statute number”). It is equally clear that Kansas

courts may not use a nunc pro tunc order to alter the

substance of the judgment that was actually issued.

See State v. Mebane,

(Kan. 2004)

(“[A]ny complaint regarding the Parole Board’s

computation of parole eligibility is not properly

brought via a motion for nunc pro tunc order, the

purpose of which is to correct actual clerical errors

or errors arising from oversight or omission.”); State

v. Vawney,

(Kan. 1997) (finding that

trial court had no jurisdiction to grant nunc pro tunc

order when order “did not correct any omission or

clerical error,” but instead altered a properly entered

sentence). Insofar as it is clear from the record and

from Kansas law that the judgment nunc pro tunc in this

case simply corrected a clerical error concerning the

statutory basis for Larin’s conviction in the original

journal entry, the BIA correctly considered the

17 judgment nunc pro tunc in connection with Larin’s

motion to reopen. Cf. Garcia-Lopez v. Ashcroft,

(9th Cir. 2003) (holding that BIA was

bound by post-conviction state court order classifying

conviction as a misdemeanor rather than a felony).

This court’s decisions in Renteria-Gonzalez v. INS,

(5th Cir. 2002), and Moosa v. INS,

(5th Cir. 1999), are not to the contrary. In

Renteria-Gonzalez and Moosa, we held that a conviction

that is later vacated by the sentencing court remains a

“conviction” for immigration purposes under

(a)(48)(A). See Renteria-Gonzalez,

(vacated federal conviction); Moosa,

(state deferred adjudication procedure). Here,

by contrast, the judgment of conviction has not been

vacated, deferred or altered. Instead, the judgment

nunc pro tunc was entered to make the record conform to

the true judgment of the Kansas court. Accordingly, we

conclude that the BIA correctly considered the judgment

nunc pro tunc as the operative judgment of conviction

for determining whether Larin was convicted of a crime

18 of violence.

IV. Is Larin’s Conviction Under

- 3414(a)(1)(C) Necessarily An Aggravated Felony?

We next consider whether Larin’s conviction under

subsection (a)(1)(C) qualifies as an aggravated felony.

To determine whether an alien’s guilty plea conviction

constitutes an aggravated felony for removal purposes,

we apply a “categorical approach,” under which we refer

only to the statutory definition of the crime for which

the alien was convicted (rather than attempt to

reconstruct the concrete facts of the actual criminal

offense) and ask whether that legislatively-defined

offense necessarily fits within the INA definition of

an aggravated felony. See Omari,

(citing Lopez-Elias,

); Nguyen v.

Ashcroft,

(5th Cir. 2004).

This methodology has its roots in the categorical

approach adopted by the Supreme Court in Taylor v.

United States,

(1990), to determine

whether a prior conviction constitutes a predicate

19 offense under the sentence enhancement provisions of

the Armed Career Criminal Act,

(e).

Among the considerations that led the Taylor court to

conclude that a categorical approach to prior

convictions was necessary were concerns about the

practical difficulties and fairness problems that would

arise if courts were permitted to consider the facts

behind prior convictions.9 The Court noted that a fact-

based approach to prior convictions would potentially

require federal courts to relitigate a defendant’s

prior conviction in any case where the government

alleged that the defendant’s actual conduct fit the

definition of a predicate offense. Taylor,

; see also Tokatly v. Ashcroft,

(9th Cir. 2004) (noting “fundamental principle” that

9 The Taylor court also emphasized that the language of

(e) supported a categorical approach because its sentence enhancement provisions are triggered by prior convictions, and not by the fact that the person has previously committed an offense. See Taylor,

. This rationale applies equally to the INA’s provision concerning aggravated felonies. See

(a)(2)(A)(iii) (“Any alien who is convicted of an aggravated felony at any time after admission is deportable.”). 20 “in determining whether a prior conviction constitutes

a predicate offense, we must avoid ‘the enormous

problems of re-litigating past convictions, especially

in cases where the defendant pleads guilty and there is

no record of the underlying facts’”) (quoting United

States v. Castillo-Rivera,

(9th

Cir. 2001)). The Taylor court also recognized the

unfairness that could result if a factual approach was

applied to prior guilty plea convictions:

[I]n cases where the defendant pleaded guilty, there is often no record of the underlying facts. Even if the Government were able to prove those facts, if a guilty plea to a lesser, nonburglary offense was the result of a plea bargain, it would seem unfair to impose a sentence enhancement as if the defendant had pleaded guilty to burglary.

Taylor,

.

The categorical approach is not absolute, however.

If the statute of conviction defines multiple offenses,

at least one of which does not describe an aggravated

felony, we apply a modified categorical approach, under

which we may also examine certain additional documents

21 (if contained in the record framing the guilty plea

conviction) to determine whether the conviction was

“necessarily” for a particular crime defined by the

statute that meets the aggravated felony criterion.

See Shepard v. United States,

(2005); Omari,

; see also Dickson v.

Ashcroft,

(2d Cir. 2003) (“In

reviewing a conviction under a divisible statute, the

categorical approach permits reference to the record of

conviction for the limited purpose of determining

whether the alien’s conviction was under the branch of

the statute that permits removal.”). In the case of

guilty plea convictions under such a divisible statute,

we may consider, in addition to the language of the

statute, the “‘charging document, written plea

agreement, transcript of plea colloquy, and any

explicit factual finding by the trial judge to which

the defendant assented.’” Omari,

(quoting Shepard,

). The use of these

documents is permitted because they are considered

sufficiently conclusive and reliable to establish the

22 facts to which the alien actually pleaded guilty. See

Shepard,

(stating that evidence of facts

should be “confined to records of the convicting court

approaching the certainty of the record of

conviction”). “Documents not of that kind, including

police reports and complaint applications, may not be

considered.” Omari,

.

If the documents that we may consider under the

modified categorical approach are insufficient to

establish that the petitioner was necessarily convicted

of an aggravated felony, we must find that “the

government has not met its burden of proving that the

conduct for which the petitioner was convicted

constitutes a predicate offense, and the conviction may

not be used as a basis for removal.” Tokatly,

; see Omari,

(same).

That a categorical approach is appropriate to

determine whether an alien’s prior conviction is for a

crime of violence is confirmed by the statutory

definition of a crime of violence.

provides:

23 The term “crime of violence” means ---

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

(emphasis added). As the Supreme Court

noted in Leocal v. Ashcroft,

(2004), “[t]his

language requires us to look to the elements and the

nature of the offense of conviction, rather than to the

particular facts relating to petitioner’s crime.”

(emphasis added); see also United States v. Chapa-

Garza,

(5th Cir. 2001) (“[T]he words

‘by its nature’ require us to employ a categorical

approach when determining whether an offense is a crime

of violence.”).

As we noted earlier,

-

3414(a)(1)(C) prohibits two, distinct types of conduct:

(i) intentionally causing physical contact with another

person in a rude, insulting or angry manner with a

24 deadly weapon; and (ii) intentionally causing physical

contact with another person in any manner whereby great

bodily harm, disfigurement or death can be inflicted.

We consider each part in turn to determine whether it

describes a crime of violence.

A. Categorical Approach

1. Intentional Physical Contact With A Deadly Weapon In A Rude, Insulting Or Angry Manner

In its denial of Larin’s motion to reopen, the BIA

found that the first part of section 21-3414(a)(1)(C)

was a crime of violence under

(b) because

intentionally causing physical contact with another

person with a deadly weapon in a rude, insulting or

angry manner “clearly involves a substantial risk that

physical force against another person may be used.” We

agree.10

The relevant question for determining whether a

crime is categorically a crime of violence under

Because we find that this part of section 10

21-3414(a)(1)(C) is a crime of violence under section 16(b), we do not address whether it also satisfies section 16(a). 25 section 16(b) is whether the crime inherently involves

a substantial risk that intentional physical force may

be used in the commission of the crime. See Leocal,

. While the inquiry under section 16(a)

is limited to looking at the elements of the offense,

section 16(b) “sweeps more broadly” to encompass those

crimes that can perhaps be committed without the use of

physical force, but that nevertheless always entail a

substantial risk that physical force may be used.

As it is used in section 16, the term physical force

“is synonymous with destructive or violent force.”

United States v. Rodriguez-Guzman,

, 20 n.8

(5th Cir. 1995); see also Leocal,

(“[Section] 16's emphasis on the use of physical force

against another person . . . suggests a category of

violent, active crimes . . . .”). To illustrate the

intended reach of section 16(b), the Leocal court

explained how that section applies to the crime of

burglary: “A burglary would be covered under § 16(b)

not because the offense can be committed in a generally

reckless way or because someone may be injured, but

26 because burglary, by its nature, involves a substantial

risk that the burglar will use force against a victim

in completing the crime.” Leocal,

.

We have little difficulty concluding, as did the

BIA, that intentional physical contact made with a

deadly weapon in a rude, insulting or angry manner is a

crime of violence under section 16(b). Although the

mere act of intentionally causing physical contact with

a deadly weapon under these circumstances might not

always involve a use of physical force (an issue we do

not decide), the prohibited conduct is by its very

nature provocative, and it invites a response from the

victim of the offense. One who violates this part of

section 21-3414(a)(1)(C) therefore necessarily creates

a substantial risk that the confrontation may escalate

to physical violence, thus requiring the perpetrator to

use physical force against the victim. See

Accordingly, we find that the first part of section 21-

3414(a)(1)(C) is categorically a crime of violence.

2. Intentional Physical Contact In Any Manner

27 Whereby Great Bodily Harm, Disfigurement Or Death Can Be Inflicted

Our next inquiry is whether the second part of

section 21-3414(a)(1)(C) also qualifies as a crime of

violence under

(a) or (b). Because the

BIA concluded that Larin was convicted under the first

part of subsection (a)(1)(C), it did not address this

issue.

The second part, or crime definition, in section

21-3414(a)(1)(C) does not require that the defendant

use physical force in order to support a conviction.

Rather, it requires only that the defendant

“intentionally caus[e] physical contact with another

person” under circumstances where “great bodily harm,

disfigurement or death” can result.

(a)(1)(C). As numerous cases have recognized,

physical contact is not the equivalent of physical

force. See United States v. Sarmiento-Funes,

(5th Cir. 2004) (finding that state statute

prohibiting non-consensual sexual intercourse did not

have force as an element; applying United States

28 Sentencing Guidelines § 2L1.2); United States v.

Velazquez-Overa,

(5th Cir. 1996)

(stating that crime of indecent sexual contact with a

child did not have use of force as an element; applying

U.S.S.G. § 2L1.2); Singh v. Ashcroft,

(9th Cir. 2004) (stating that use of force was

not an element of state harassment statute prohibiting

offensive physical contact); Flores v. Ashcroft,

(7th Cir. 2003) (discussing distinction

between physical contact and physical force).

The second part of section 21-3414(a)(1)(C) also,

however, contains the element that the physical contact

be made in a manner “whereby great bodily harm,

disfigurement or death can be inflicted.”

(a)(1)(C). This element of risk of harm

to the victim certainly opens up the possibility that

the intentional physical contact used to commit the

offense might in some instances amount to physical

force. Notably, though, section 21-3414(a)(1)(C) does

not require that the defendant intend to injure or use

29 force on the victim11 or that the physical contact

itself be violent, harmful, offensive, or even non-

consensual.12 These deliberate omissions convince us

that the second part of section 21-3414(a)(1)(C) can be

violated by physical contact that does not constitute a

use of physical force.

Larin posits several hypothetical scenarios that

would arguably involve violations of the second part of

section 21-3414(a)(1)(C), but that do not involve the

use of physical force, such as a physician negligently

injecting a medication to which the patient is

extremely allergic. Similarly, the statute potentially

could be violated by a dentist who negligently used

non-sterile equipment to clean a patient’s teeth. Each

of these situations involves intentional physical

See State v. Esher,

(Kan. Ct.

) (holding that section 21-3414(a)(1)(C) does not require intent to injure); see also State v. Campbell,

(Kan. Ct. App. 2002) (holding that battery under Kansas law is a general intent crime requiring only that the defendant intend to cause physical contact with another person). Consent is often not a defense to the crime of 12

battery. See 1 Wayne R. LaFave, Substantive Criminal Law § 6.5(a) (2d ed. 2003). 30 contact that creates a risk of great bodily harm, but

that is also not the type of violent or destructive

contact that constitutes a use of physical force. As

each of the foregoing examples plausibly violates the

statute, we find that the use, attempted use, or

threatened use of physical force is not an element of

the second part of section 21-3414(a)(1)(C).

Turning to

(b), we also conclude that

the second part of section 21-3414(a)(1)(C) does not

“by its nature, involve[] a substantial risk that

physical force against the person or the property of

another may be used in the course of committing the

offense.”

(b). As we explained above,

section 16(b) reaches those crimes, such as burglary of

a dwelling, that inherently present a substantial risk

that intentional physical force may be used during the

commission of the offense. Although a crime can

qualify as a crime of violence under section 16(b) even

though one may imagine situations in which it is

possible to commit the offense without actually using

force, it can do so only if the nature of the offense

31 is such that there is a substantial risk that physical

force may be used in any case of conduct that violates

the statute. See Velazquez-Overa,

(noting that offense “cannot be a crime of violence ‘by

its nature’ in some cases, but not others, depending on

the circumstances”); Jobson v. Ashcroft,

(2d Cir. 2003) (holding that offense was not crime

of violence under section 16(b) where statutory

definition of offense inherently covered “situations

that do not involve any risk that the defendant will

apply force to the victim”).

In this case, we conclude that the second part of

section 21-3414(a)(1)(C) can be violated by conduct

that does not present a substantial risk that the

offender may use physical force. In fact, the examples

that we discussed above, which show that a person could

violate the second part of subsection (a)(1)(C) of the

Kansas statute without actually using physical force

against another person, also establish that a person

could violate the statute without a substantial risk

that physical force may be used in the commission of

32 the offense. In both of the examples, the defendant is

engaged in ostensibly consensual intentional physical

contact that falls short of force, and the defendant

does not intend to cause the victim bodily harm.

Because a defendant may thus violate the statute

without the intent to injure the victim or to overcome

any non-consent, the offense does not inherently

involve a substantial risk that the defendant may use

intentional physical force during the commission of the

offense. Accordingly, we conclude that

(a)(1)(C) is not categorically a crime of

violence under

(b).

B. Modified Categorical Approach

Because section 21-3414(a)(1)(C) is divisible, we

now apply the modified categorical approach to

determine whether Larin was necessarily convicted of

violating the first part of subsection (a)(1)(C)

(intentional physical contact in a rude, insulting or

angry manner with a deadly weapon), which is a crime of

violence. See Shepard,

(noting

33 that the inquiry must establish that the defendant’s

guilty plea “necessarily admitted” all of the elements

of the predicate offense); Omari,

(same).

As we have mentioned, when applying the modified

categorical approach to determine whether a conviction

under a divisible statute was necessarily for a

predicate offense, we may examine certain documents

from the record of conviction, including “the charging

document, the terms of a plea agreement or transcript

of colloquy between judge and defendant in which the

factual basis for the plea was confirmed by the

defendant, or . . . some comparable judicial record of

this information,” Shepard,

, but we may

not look to less-conclusive documents like a complaint

application or a police report.

; Omari,

.

In this case, we refer first to the amended bill of

information, the charging document that formed the

basis of Larin’s guilty plea conviction. The amended

bill of information closely tracks the second part of

34 subsection (a)(1)(C), as it charges that Larin

“unlawfully, intentionally in a manner whereby

[illegible] could have [illegible] cause great bodily

harm or disfigurement to another person.” Thus, the

amended bill of information does not charge Larin with

the elements necessary to convict him of the crime

defined by the first part of subsection (a)(1)(C),

i.e., intentionally causing physical contact with

another with a deadly weapon in a rude, insulting or

angry manner. The BIA, however, disregarded the fact

that the amended bill of information did not accuse

Larin of committing a battery with a deadly weapon in a

rude, insulting or angry manner. Instead, the BIA

looked at the journal entry form that had been filed in

the state court records and concluded that Larin had

been convicted of an aggravated felony. The BIA stated

that the “judgment nunc pro tunc clearly reflects that

[Larin] committed the aggravated battery with a

firearm. . . . Thus, [Larin’s] conviction falls under

the part of the statute stating that ‘intentionally

causing physical contact with another when done in a

35 rude, insulting or angry manner with a deadly weapon.’”

For the reasons discussed below, we conclude that the

BIA erred as a matter of law in at least two respects:

in considering the firearm notation on the journal

entry form and in finding that fact sufficient to

establish that Larin was necessarily convicted of an

aggravated felony.

The only evidence of the judgment nunc pro tunc in

the record is the information pertaining to that

judgment recorded on the journal entry form. The

journal entry form contains fill-in-the-box notations

as to, inter alia, the statutory basis for Larin’s

conviction, “21-3414(a)(1)(C),” and special factors

affecting the sentence, “Special Rule Applicable to

Sentence: Person felony committed with a firearm.”

The BIA concluded that, because the journal entry form

contained information indicating that a firearm was

involved in the offense, Larin was necessarily

convicted of “intentionally causing physical contact

with another person when done in a rude, insulting or

angry manner with a deadly weapon.”

21-3414(a)(1)(C).

The BIA erroneously referred to the special

sentencing factor notation in the Kansas journal entry

form and erroneously inferred from that notation that

Larin necessarily was convicted of intentionally

causing contact with another in a rude, insulting or

angry manner with a deadly weapon. That sentencing

factor notation is not the type of documentary evidence

to which this court or the BIA may refer, under the

modified categorical approach as prescribed by Shepard,

to determine the nature of an alien’s guilty plea

conviction. Unlike the charging document, the guilty

plea, or the factual basis for the plea confirmed by

the defendant, sentencing reasons and factors do not

simply define the charge and the defendant’s guilty

plea, but, instead, frequently refer to facts neither

alleged nor admitted in court.13 Thus, the cryptic

Cf. United States v. Bonilla-Mungia,

, 13

320-21 (5th Cir.), cert. denied,

(2005) (holding that Shepard does not permit court to consider factual narrative in probation officer’s presentence investigation report); United States v. Garza-Lopez,

(5th Cir.), cert. denied, 126 S. 37 reference to a firearm sentencing factor contained in

the journal entry form in this case cannot be used as a

basis for inferring that Larin pleaded guilty to or was

convicted of causing physical contact with a deadly

weapon in a rude, insulting or angry manner.14

We note in passing that Larin, in his written

guilty plea, acknowledged that “[t]his offense involved

the use of a firearm.” His written guilty plea is, of

course, a type of document that may be considered under

Ct. 298 (2005) (same); Dickson v. Ashcroft,

(2d Cir. 2003) (holding that BIA could not look to factual statements in presentence investigation report to determine whether alien’s conviction was for crime of violence). 14 Although the firearm notation appeared on the journal entry form with other information concerning the sentence imposed, that notation does not thereby become a part of the judgment of conviction under Kansas law. See State v. Royse,

(Kan. 1993) (holding that court’s judgment and sentence “do not derive their effectiveness from the journal entry, or from any act of the clerk,” but instead are “effective when announced”); State v. Moses,

(Kan. 1980) (stating that a court’s “judgment is effective upon its pronouncement from the bench; the filing of a formal journal entry is but a record, evidence of what has been done”). The journal entry recording the judgment contains a litany of information about the case, in addition to a notation of the judgment actually entered. See

- 3426. 38 the modified categorical approach authorized by

Shepard. The BIA did not refer to this statement in

reaching its conclusion, however, and, more important,

this statement, by itself or in the context of the

record as a whole, does not establish that Larin

necessarily pleaded guilty to or was convicted of

causing contact with another with a deadly weapon in a

rude, insulting or angry manner. In other words,

although the state elicited an admission from Larin

that a firearm was somehow involved in the offense, the

amended bill of information did not charge him with the

elements of using a firearm to cause contact with

another in a rude, insulting or angry manner,15 and

Larin did not admit to these elements in his guilty

plea.

Moreover, that the offense involved a firearm is

not inconsistent with a conviction under the second

15 To charge an offense under Kansas law, the information must contain “a plain and concise written statement of the essential facts constituting the crime charged,” although an information “drawn in the language of the statute[] shall be deemed sufficient.”

(b); see State v. Rome,

(Kan. 2000). 39 part of subsection (a)(1)(C). Although the first part

of subsection (a)(1)(C) includes as an element the use

of a deadly weapon and the second part does not,

nothing in the statute prevents a person from being

charged and convicted of violating the second part of

the statute even though he committed the offense with a

deadly weapon. Thus, the fact that Larin admitted that

the offense involved a firearm did not operate to

transform the charge or the judgment against him into a

conviction for intentionally causing physical contact

with a deadly weapon in a rude, insulting or angry

manner. Accordingly, the record is plainly

insufficient to establish that Larin was necessarily

convicted under the first part of subsection (a)(1)(C).

Because the record does not show that Larin was

necessarily convicted of violating the first, rather

than the second, part of

-

3414(a)(1)(C), we conclude that the record is

insufficient to establish that Larin was convicted of a

crime of violence for immigration purposes.

40 V. Conclusion

Because we find that the record is insufficient to

establish that Larin’s conviction under

(a)(1)(C) is an aggravated felony under

(a)(43), we GRANT Larin’s petition for

review, VACATE the order of removal, and REMAND to the

BIA for any further proceedings consistent with this

opinion.

41