United States v. Garcia-Ortiz

United States Court of Appeals
Fifth Circuit
F I L E D
August 17, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-40342
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
ROLANDO GARCIA-ORTIZ,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
m 4:05-CR-153-ALL
______________________________
Before JONES, Chief Judge, REAVLEY
and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Rolando Garcia-Ortiz appeals the sixteen-
level sentence enhancement he received based
on a Texas conviction of attempted aggravated
sexual assault. We vacate and remand for de-
velopment of the record.
I.
Garcia-Ortiz pleaded guilty of being unlaw-
fully present in the United States after being
deported, in violation of 8 U.S.C. § 1326. The
presentence report (“PSR”) recommended a
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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base offense level of 8 pursuant to U.S.S.G.
§ 2L1.2 and a 16-level increase under § 2L1.2-
(b)(1)(A)(ii) because Garcia-Ortiz had a Tex-
as conviction of attempted aggravated sexual
assault, a “crime of violence.” Garcia-Ortiz
objected to the PSR, contesting its description
of his earlier conviction and claiming that his
confession to that crime was induced by police
coercion. The court adopted the PSR (with
certain exceptions not relevant to this appeal)
and sentenced Garcia-Ortiz to 71 months’ in-
carceration.
II.
Because Garcia-Ortiz did not object in the
district court, our review is for plain error.
United States v. Gracia-Cantu, 302 F.3d 308,
310 (5th Cir. 2002). The sentencing guide-
lines provide for a sixteen-level enhancement
if “the defendant previously was deported, or
unlawfully remained in the United States after
a conviction for a felony that is . . . a crime of
violence.” U.S.S.G. § 2L1.2(b)(1)(A)(ii). A
conviction can qualify as a “crime of violence”
in either of two ways: (1) if the conviction is
for one of the enumerated offenses listed in the
commentary to § 2L1.2, United States v.
Garcia-Mendez, 420 F.3d 454, 456 (5th Cir.
2005); or (2) if the crime of conviction “has as
an element the use, attempted use, or threat-
ened use of physical force against the person
of another,” id. (quoting U.S.S.G. § 2L1.2,
comment n.1(B)(iii)).
We apply the categorical approach of Tay-
lor v. United States, 495 U.S. 575, 602
(1990),1 under which courts determine the ele-
ments of the crime by looking to the statute of
conviction, not the defendant’s underlying
conduct. United States v. Velasco, 465 F.3d
633, 638 (5th Cir. 2006). “If a statute con-
tains multiple, disjunctive subsections, courts
maylook beyond the statute to certain ‘conclu-
sive records made or used in adjudicating
guilt’ in order to determine which particular
statutory alternative applies to the defendant’s
conviction.” United States v. Bonilla-Mungia,
422 F.3d 316, 320 (5th Cir.) (quoting United
States v. Garza-Lopez, 410 F.3d 268, 274 (5th
Cir. 2005)), cert. denied, 546 U.S. 1070
(2005). These records are generally limited to
the “charging document, written plea agree-
ment, transcript of the plea colloquy, and any
explicit factual finding by the trial judge to
which the defendant assented.” Id. (quoting
Shepard v. United States, 544 U.S. 13, 16
(2005)).
Our first task is to determine of what par-
ticular offense Garcia-Ortiz was convicted.
The PSR indicates that he was convicted, by
guilty plea, of attempted aggravated sexual as-
sault in 1997. Although the PSR notes that
the conviction was verified by a copy of the
judgment, the appellate record does not in-
clude the judgment, and the PSR does not spe-
cify the statute of conviction. The parties
agree, however, that Garcia-Ortiz was con-
victed of attempted aggravated sexual assault.
Section 15.01 of the Texas Penal Code de-
fines the preparatory offense of criminal at-
tempt, and section 22.021 defines aggravated
sexual assault. Section 22.021 essentially re-
cites the statutory definition of sexual assault,
TEX. PENAL CODE § 22.011,2 and adds three
1 See, e.g. United States v. Hernandez-Rodri-
guez, 467 F.3d 492, 494 (5th Cir. 2006) (citations
omitted).
2 A violation of Texas Penal Code § 22.011-
(a)(1) is not a crime of violence for purposes of
§ 2L1.2. United States v. Luciano-Rodriguez, 442
F.3d 320, 323 (5th Cir.), cert. denied, 127 S. Ct.
747 (2006). A violation of § 22.011(a)(2) does
(continued...)

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discrete methods of elevating the sexual as-
sault to aggravated sexual assault (1) using
one of six enumerated methods of coercion,3
(2) if the victim is under fourteen years of age
or (3) if the victim is sixty-five years of age or
older, id. § 22.021(a)(2).4 The record does
not tell us which subsections of section 22.021
Garcia-Ortiz’s conviction for attempted aggra-
vated sexual assault was based upon.
Although the PSR contains an alleged de-
scription of the events giving rise to Garcia-
Ortiz’s earlier conviction, we cannot look to
that description to determine whether the con-
viction was of a crime of violence.5 The rec-
ord does not contain any of the documents,
listed earlier, that we are permitted to consult.
Thus, on the record before us we are unable to
identify with legal certainty which subsections
of the aggravated sexual assault statute Gar-
cia-Ortiz was convicted of, and thus whether
the conviction required proof of the use, at-
tempted use, or threatened use of physical
force.
Where we cannot ascertain, under plain er-
ror review and for purposes of the § 2L1.2 en-
hancement, which subsection of a statute a de-
fendant violated, we vacate and remand for
supplementation of the record.6 Accordingly,
(...continued)
qualify, however. United States v. Alvarado-Her-
nandez, 465 F.3d 188, 190 (5th Cir. 2006).
3 This prong is satisfied if the defendant
(i) causes serious bodily injury or attempts to
cause the death of the victim or another person
in the course of the same criminal episode;
(ii) by acts or words places the victim in fear
that death, serious bodily injury, or kidnapping
will be imminently inflicted on any person;
(iii) by acts or words occurring in the presence
of the victim threatens to cause the death, seri-
ous bodily injury, or kidnapping of any person;
(iv) uses or exhibits a deadly weapon in the
course of the same criminal episode;
(v) acts in concert with another who engages in
conduct described by Subdivision (1) directed
toward the same victim and occurring during
the course of the same criminal episode; or
(vi) administers or provides flunitrazepam, oth-
erwise known as rohypnol, gamma hydroxybu-
tyrate, or ketamine to the victim of the offense
with the intent of facilitating the commission of
the offense.
TEX. PENAL CODE § 22.021(a)(2)(A).
4 “Attempt to commit an aggravated offense” is
defined as when “an element that aggravates the
offense accompanies the attempt.” TEX. PENAL
CODE § 15.01(b). “Attempt” is defined as when a
(continued...)
4(...continued)
person “with specific intent to commit an offense
. . . does an act amounting to more than mere pre-
paration that tends but fails to effect the commis-
sion of the offense intended.” Id. § 15.01(a).
5 Garza-Lopez, 410 F.3d at 274 (“[U]nder
Shepard, a district court is not permitted to rely on
a PSR’s characterization of a defendant’s prior of-
fense for enhancement purposes.”); see also United
States v. Ochoa-Cruz, 442 F.3d 865, 867 (5th Cir.
2006).
6 See United States v. Gonzalez-Chavez, 432
F.3d 334, 338 (5th Cir. 2005) (“Where we cannot
identify with legal certainty under which portion of
a statute a defendant was convicted, we cannot de-
termine whether a crime of violence enhancement
was proper. In such a case, we remand to the dis-
(continued...)

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the judgment of sentence is VACATED and
REMANDED for development of the record
and resentencing.
6(...continued)
trict court for supplementation of the record and
re-sentencing.”) (citing Bonilla-Mungia, 422 F.3d
at 321).

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