United States v. Calderon-Pena

United States Court of Appeals
Fifth Circuit
F I L E D
January 14, 2004
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 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
_________________________
ON PETITION FOR REHEARING
(Opinion July 17, 2003, 339 F.3d 320)
Before SMITH and BARKSDALE, Circuit
Judges, and DUPLANTIER,* District Judge.
PER CURIAM:
In his petition for rehearing en banc, defen-
dant Pedro Calderon-Pena suggests that this
court’s en banc rehearing in United States v.
Vargas-Duran, 319 F.3d 194 (5th Cir.), vacat-
ed for rehearing en banc, 336 F.3d 418 (5th
Cir. 2003), might compel a different result in
this case. Specifically, Calderon-Pena posited,
before Vargas-Duran was heard en banc, that
that case “may resolve the central question at
issue here, namely, whether an element of
causing (or, in this case, risking) bodily injury
* District Judge of the Eastern District of Loui-
siana, sitting by designation.

-- 1 of 3 --

2
is tantamount to an element of using or at-
tempting to use force.”
The en banc court has now decided Vargas-
Duran, and it plainly has no affect on the result
we have reached in this case. See United
States v. Vargas-Duran, No. 02-20116, 2004
U.S. App. LEXIS 180 (5th Cir. Jan. 8, 2004).
Though Vargas-Duran requires a showing of
intent with respect to the “use” or attempted
“use” of force in an underlying offense,1
Calderon-Pena’s offenses, as charged, remain
“crimes of violence” under U.S.S.G.
§ 2L1.2(b)(1)(A)(ii), application note 1(B)-
(ii)(I) (2001).
As described in our opinion, 339 F.3d at
329, the indictment states, in part, that Cal-
deron-Pena “intentionally . . . engaged in
conduct that placed [his two children] in im-
minent danger of bodily injury . . . by striking
a motor vehicle occupied by [the children]
with [Calderon-Pena’s] motor vehicle.” We
concluded, id. at 330, that “Calderon-Pena’s
child endangerment convictions . . . have as an
element at least the attempted use of physical
force, if not the use of physical force itself.”2
Even if Vargas-Duran is now read to preclude
the conclusion that Calderon-Pena was con-
victed of the “use” of physical force, it is cer-
tain that his conviction is based on its “at-
tempted use.”
In considering Calderon-Pena’s prior con-
viction, we addressed the Texas child endan-
germent statute as “pared down” by informa-
tion in his indictment. Id. at 328-29; see Unit-
ed States v. Taylor, 495 U.S. 575, 599-601
(1990). In United States v. Allen, 282 F.3d
339, 343 (5th Cir. 2002), we read Taylor “. . .
as allowing the sentencing court to consider
only the statutory definition of the offense, the
charging paper and jury instructions” (empha-
sis added). Accordingly, under Allen and Tay-
lor, we look to the indictment for the limited
purpose of determining which of a series of
disjunctive elements a conviction satisfies.3
At the time of Calderon-Pena’s prior con-
viction, the Texas child endangerment statute
provided that a “person commits an offense if
he intentionally, knowingly, recklessly, or with
criminal negligence, by act or omission, en-
gages in conduct that places a child younger
than 15 years in imminent danger of death,
bodily injury, or mental impairment.” TEX.
PENAL CODE § 22.04 (1999). Because the
1 “Both an attempt and a threat require intent.”
Vargas-Duran, 2004 U.S. App. LEXIS 180, at
*13 (citing BLACK’S LAW DICTIONARY 123, 1489
(7th ed. 1999)).
2 Vargas-Duran, id. at *19, confirms that
Ҥ 2L1.2 allows enhancement when the statute has
‘as an element the use, attempted use, or threatened
use of force’” (citing § 2L1.2, application note
1(B)(ii)(I)).
3 See Calderon-Pena, 339 F.3d at 329; see also
United States v. Landeros-Gonzales, 262 F.3d
424, 426 (5th Cir. 2001) (holding that the various
subsections of a comprehensive statute should be
treated as separate offenses, and the indictment
should be examined to determine the applicable
subsection); United States v. Valladares, 304 F.3d
1300, 1303 (8th Cir. 2002) (“[W]hen the statutory
definition of a predicate offense encompasses
conduct that may or may not be included in the ap-
plicable guideline, the sentencing court may look to
the underlying charging papers and jury in-
structions to determine the elements of the crime of
which the defendant was convicted.”); United
States v. Smith, 171 F.3d 617, 619-21 (8th Cir.
1999); United States v. Damon, 127 F.3d 139,
142-43 (1st Cir. 1997). The en banc opinion in
Vargas-Duran does nothing to undermine this
approach.

-- 2 of 3 --

3
disjunctive elements describing the mental
state of the crime do not all require intention-
ality with respect to the creation of an immi-
nent danger of bodily injury, and therefore
with respect to the “use” or “attempted use” of
force, the statute ordinarily would not qualify
as a “crime of violence” under Vargas-Duran.
Calderon-Pena’s indictment, however,
shows that he was convicted of “intentionally”
engaging in the prescribed behavior. Accord-
ing, we have noted that “[w]e see that Cal-
deron-Pena was convicted of two counts of
‘intentionally . . . by act . . . engag[ing] in
conduct that place[d] a child younger than 15
years in imminent danger of . . . bodily
injury[.]” Calderon-Pena, 339 F.3d at 329.
In other words, Calderon-Pena was con-
victed of a crime with an intentional mental
state with respect to the creation of an immin-
ent danger of bodily injury. Where there is a
bodily injury, there is some sort of accompany-
ing use of forceSSwhether obviously, through
use of an automobile as a weapon (as in this
case), or through more subtle means, such as,
for example, poison, or even subjecting a vic-
tim to disease. Because Calderon-Pena was
aware of an imminent danger and undertook to
create it, he attempted to make “use” of the
force that would cause the injury.4
Consequently, he was convicted of a “crime of
violence” for purposes of the sentencing en-
hancement under § 2L1.2.
In undertaking a detailed analysis of the
intricate legal issues involved in this and simi-
lar sentencing guidelines appeals, we should be
mindful not to lose sight of the forest for the
trees. Calderon-Pena’s prior offense was, by
anyone’s common-sense definition, a “crime of
violence.” As described in the indictment, and
in the panel opinion, 339 F.3d at 329,
Calderon-Pena intentionally used his motor
vehicle to strike a vehicle occupied by his
young children, thereby placing them in im-
minent danger. We are confident that Con-
gress, if presented with these specific facts,
would agree that this crime fits the intended
definition of “crime of violence.” Fortunately,
that conclusion is consistent with the decision
we have made after parsing the applicable stat-
utes, guidelines, and caselaw.
Treating the petition for rehearing en banc
as a petition for panel rehearing,5 the petition
for panel rehearing is DENIED.
4 Because the child endangerment statute re-
quires only the creation of an “imminent danger” of
injury, it is arguable that the narrowed statute
applied to Calderon-Pena should not be said to sat-
isfy the “use” prong of the “crime of violence”
definition. Because no actual force must act upon
the victim, and a person may be put in “imminent
danger” without suffering harm, a defendant might
be convicted under circumstances in which no
actual force caused injury to the body of the victim.
Accordingly, it could be argued that no force was
(continued...)
4 (...continued)
“use[d].” See supra; see also Calderon-Pena, 339
F.3d at 330. We need not decide that question,
because we conclude that Calderon-Pena was
convicted of the attempted use of force.
5 See Internal Operating Procedure accompany-
ing 5TH CIR. R. 35 (“A petition for rehearing en
banc is treated as a petition for rehearing by the
panel if no petition is filed.”)

-- 3 of 3 --