United States v. Calderon-Pena

United States Court of Appeals
Fifth Circuit
F I L E D
July 17, 2003
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
_________________________
Before SMITH and BARKSDALE, Circuit
Judges, and DUPLANTIER,* District Judge.
JERRY E. SMITH, Circuit Judge:
Pedro Calderon-Pena was convicted of il-
legal reentry of a removed alien under
8 U.S.C. § 1326. He challenges his
conviction, arguing that the underlying
indictment was invalid because the prior
removal order violated his due process rights.
He also challenges his sentence, contending
that his prior conviction for endangering a
child was not a crime of violence under the
sentencing guidelines, or alternatively that the
use of the 2001 version of the guidelines
violated the ex post facto clause of the
Constitution. We affirm the conviction and
* District Judge of the Eastern District of
Louisiana, sitting by designation.

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sentence.
I.
In 1999, Calderon-Pena, a citizen of
Mexico, was convicted in Texas of two counts
of endangering a child and one count of felony
criminal mischief for using his car to strike
another car that contained his two children; he
was sentenced to fifteen months’
imprisonment. After his release, the
I m m ig r a t i o n a n d N a t u r a l i z a t i o n
Service (“INS”) initiated removal proceedings,
asserting that the child endangerment
convictions were “crimes of violence” as
defined by 18 U.S.C. § 16 and resulted in a
term of imprisonment of at least one year,
rendering them “aggravated felonies” under
8 U.S.C. § 1101(a)(43)(F). The immigration
judge (“IJ”) agreed and found Calderon-Pena
deportable on that basis. Calderon-Pena
neither appealed the removal order nor
pursued administrative remedies; he was
deported to Mexico in June 2000.
In January 2001, Calderon-Pena was found
in the United States. A federal grand jury in-
dicted him for entering the United States after
being deported subsequent to conviction for an
aggravated felony pursuant to 8 U.S.C.
§ 1326(a) and (b)(2). He moved to dismiss
the indictment, contending that it was invalid
because his removal order violated his right to
due process. Specifically, he asserted that he
was denied due process because the IJ
erroneously had found that the criminal offense
that served as the basis for his removal was an
aggravated felony and because the IJ had failed
to advise him of the availability of dis-
cretionary review.
The district court denied the motion. Cal-
deron-Pena waived his right to a jury; all rel-
evant facts were stipulated; and the district
court found him guilty as charged.
The presentence report (“PSR”) applied the
2001 version of the guidelines and assigned a
base o ffense level of 8, then added a sixteen-
level enhancement for being previously
deported following a conviction for a felony
crime of violence pursuant to U.S.S.G.
§ 2L1.2(b)(1)(A)(ii). After making a three-
point reduction for acceptance of
responsibility, the PSR calculated Calderon-
Pena’s offense level at 21.
Calderon-Pena objected to the calculation,
arguing that his child endangerment
convictions did not qualify as crimes of
violence, rendering the sixteen-level
enhancement improper. Alternatively, he
urged that the 2000 version of the guidelines
should have been applied, because an
amendment to § 2L1.2 that became effective
after the commission of the offense
impermissibly increased his punishment,
thereby violating the ex post facto clause of
the Constitution.
The district court reviewed the indictment
from the child endangerment convictions and
concluded that those convictions qualified Cal-
deron-Pena for the same sentencing
enhancements under either version of the
guidelines. It therefore overruled Calderon-
Pena’s objections, adopted the total offense
calculation of the PSR, and sentenced
Calderon-Pena to seventy mont hs’
imprisonment, a three-year term of supervised
release, and a $100 mandatory special
assessment.
II.
Calderon-Pena asserts that the IJ
incorrectly determined that his child
endangerment convictions were aggravated

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3
felonies, and consequently failed to inform him
of discretionary relief from deportation
available to those not being deported
subsequent to an aggravated felony. The
government contends the IJ’s failure to advise
Calderon-Pena of the availability of
discretionary relief did not violate his right to
due process, and therefore entry of the
removal order did not rise to the level of
fundamental unfairness. We review de novo a
constitutional challenge to an indictment.
United States v. Lopez-Vasquez, 227 F.3d 476,
481-82 (5th Cir. 2000).
In certain situations, an alien prosecuted
under § 1326 may challenge the underlying re-
moval order. United States v. Mendoza-Lo-
pez, 481 U.S. 828, 839 (1987).
Our interpretation of Mendoza-Lopez
required an alien challenging a prior re-
moval to establish that (1) the removal
hearing was fundamentally unfair;
(2) the hearing effectively eliminated the
right of the alien to challenge the
hearing by means of judicial review of
the order; and (3) the procedural
deficiencies caused the alien actual
prejudice.
United States v. Lopez-Ortiz, 313 F.3d 225,
229 (5th Cir. 2002), cert. denied, 123 S. Ct.
922 (2003). To meet the prejudice prong, an
alien must demonstrate a reasonable likelihood
that, but for the errors complained of, he
would not have been deported. United States
v. Benitez-Villafuerte, 186 F.3d 651, 658-69
(5th Cir. 1999). These requirements were ef-
fectively codified in § 1326(d), which
provides:
In a criminal proceeding under this sec-
tion, an alien may not challenge the val-
idity of the deportation order described
in subsection (a)(1) or subsection (b) of
this section unless the alien
demonstrates that –
(1) the alien exhausted any ad-
ministrative remedies that may
have been available to seek re-
lief against the order;
( 2 ) t h e d e p o r t a t i o n
proceedings at which the order
was issued improperly
deprived the alien of the
opportunity for judicial review;
and
(3) the entry of the order was
fundamentally unfair.
Eligibility for discretionary relief from a re-
moval order is not “a liberty or property
interest warranting due process protection”;
thus, an IJ’s failure to explain eligibility “does
not rise to the level of fundamental
unfairness.” Lopez-Ortiz, 313 F.3d at 231.
Considering that the failure to advise an alien
of eligibility for discretionary relief is not a
liberty interest warranting due process protec-
tions, a violation of an agency regulation
requiring the IJ to inform the alien of eli-
gibility for discretionary relief does not rise to
the level of a due process violation, at least un-
der the circumstances presented here.
Calderon-Pena urges that Lopez-Ortiz is
not dispositive. Citing United States ex rel.
Accardi v. Shaughnessy, 347 U.S. 260, 267-
68 (1954), Calderon-Pena contends that he has
a due process interest in the INS’s following
its own regulations in adjudicating his removal,
which the IJ violated by failing to advise him
of the availability of discretionary relief. In

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4
Accardi, an alien attacked the validity of the
denial of his application for suspension of de-
portation, contending that certain conduct by
the Attorney General deprived him of the
rights guaranteed to him by the applicable im-
migration statute and regulations. Specifically,
the petitioner asserted that the Board of Im-
migration Appeals (“BIA”) had failed to exer-
cise its discretion in denying his application for
suspension of deportation, as it was required
to do under INS regulations; instead, it denied
the application because Accardi was included
on a confidential list of people the Attorney
General wanted deported. In considering
Accardi’s application for writ of habeas
corpus, the Court concluded that he had
sufficiently alleged a due process interest in
having the INS follow its own regulations, so
the Court remanded to the district court with
instruction to determine whether there had, in
fact, been a prejudgment and, if so, to order a
new administrative hearing. Id. at 268.
Calderon-Pena does not cite, nor have we
located, any cases applying Accardi in the
criminal context; all examples of relief granted
came either via direct appeal of an
administrative ruling or by writ of habeas
corpus.2 In civil proceedings, Accardi is
applied by ordering a new administrative
hearing, and therefore courts do not require a
showing of prejudice. Here, we are not
empowered to order, nor has Calderon-Pena
requested, a new deportation hearing; rather,
we may only dismiss the indictment for his
subsequent illegal reentry. This is not a
remedy contemplated by Accardi or its
progeny. Irrespective of whether Accardi
provided a basis for Calderon-Pena to
challenge his deportation in a civil proceeding,
it is improper to seek its application now in an
unrelated criminal proceeding.
Furthermore, the IJ did not, in fact, violate
the regulation at issue, which requires that the
IJ “shall inform the alien of his or her apparent
eligibility to apply for any of the benefits enu-
merated in this chapter and shall afford the
alien an opportunity to make application dur-
ing the hearing.” 8 C.F.R. § 1240.11(a)(2).
Calderon-Pena’s allegation that the IJ failed to
follow this regulation is predicated on his ini-
tial allegation that the IJ’s aggravated felony
determination was erroneous, because
discretionary relief is unavailable to aggravated
felons.
Given the IJ’s legal determination that the
basis of deportation was an aggravated felony,
Calderon-Pena’s eligibility for discretionary
relief was not apparent. Assuming that he
should have been eligible for discretionary re-
lief but was not informed, this was caused by
an erroneous legal finding, not a failure to fol-
low regulations.3
Finally, even were we to accept Calderon-
Pena’s claim that this case is distinguishable
from Lopez-Ortiz, that the determination was
2 Conversely, in United States v. Bricsoe, 69 F.
Supp. 2d 738, 747 (D. V.I. 1999), aff’d, 234 F.3d
1266 (3rd Cir. 2000) (table), the district court “de-
cline[d] [defendant’s] invitation to extend to crim-
inal prosecutions a doctrine developed for admin-
istrative proceedings” and refused to suppress evi-
dence in a criminal case where INS and FBI agents
violated agency regulations requiring them to
comply with the Vienna Convention by advising a
detained foreign national that he had a right to
contact his country’s consul.
3 Under Calderon-Pena’s reasoning, many, if
not most, errors of law by an IJ could be converted
into Accardi claims, because a given legal
determination often will cause an IJ to not apply
regulations that he otherwise would have invoked.

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5
in error, and that his hearing was unfair, even
these showings would not allow him to escape
the requirements of § 1326(d); specifically, he
still must exhaust “any administrative remedies
that may have been available to seek relief
against the order.” § 1326(d)(1). He had the
opportunity to seek administrative review via
the BIA and judicial review. He does not
allege that the IJ failed to advise him of these
rights, and he concedes that he sought no ad-
ministrative review and waived his right to ju-
dicial review.
The IJ’s failure to advise Calderon-Pena of
available discretionary relief does not excuse
his failure to seek relief by the other available
avenues. Because he failed to exhaust his ad-
ministrative remedies, he cannot successfully
challenge the validity of the removal order.
The district court did not err in denying the
motion to dismiss the indictment.
III.
Calderon-Pena argues that the district court
improperly increased his sentence by treating
his child endangerment convictions as crimes
of violence, or in the alternative that the use of
the 2001 version of the guidelines, rather than
the 2000 version, increased his sentence and
therefore violated the ex post facto clause.
The district court’s interpretation or
application of the guidelines is reviewed de
novo. United States v. Huerta, 182 F.3d 361,
364 (5th Cir. 1999). We follow both the
guidelines and their accompanying policy
statements and give the commentary
controlling weight unless it is plainly erroneous
or inconsistent with the guidelines. See United
States v. Urias-Escobar, 281 F.3d 165, 167
(5th Cir), cert. denied, 536 U.S. 913 (2002).
A.
The 2001 guidelines require that “[i]f the
defendant previously was deported or
unlawfully remained in the United States, after
. . . a conviction for a felony that is . . . a crime
of violence,” the offense level should be
increased by sixteen levels. U.S.S.G. § 2L1.2-
(b)(1)(A)(ii) (2001). The application notes de-
fine crime of violence, in relevant part, as “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[.]” Id. at comment. (n.1(B)-
(ii)(I)) (2001) (hereinafter, “the § 2L1.2
definition”).
We first address the statement in United
States v. Rayo-Valdez, 302 F.3d 314, 318 (5th
Cir.), cert. denied, 123 S. Ct. 694 (2002), that
the Ҥ 2L1.2 definition has eliminated the pos-
sibility that a non-enumerated crime risking
use of physical force could qualify as a ‘crime
of violence’ . . .” This determination appears
to have been predicated on the fact that the
§ 2L1.2 definition uses “and” to connect the
first subparagraph, describing crime of
violence as having “as an element the use,
attempted use, or threatened use of physical
force . . .,” and the second paragraph, listing
specific crimes, such as murder and
manslaughter. This contrasts with U.S.S.G.
§ 4B1.2, which use the conjunction “or.” The
word “and” was read to imply that both the
first and second part had to be satisfied for a
crime to fit the definition.
This determination was “not relevant” to
the holding, id., so it is dictum, and we are not
bound by it. Krim v. Banctexas Group, 99
F.3d 775, 779 (5th Cir. 1996). At least one
panel of this court ignored the statement and
analyzed the crime at issue independently un-
der each subparagraph before determining it
was not a crime of violence. See United States
v. Rodriguez-Rodriguez, 323 F.3d 317, 318-19

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6
(5th Cir. 2003) (per curiam).
Although § 4B1.2 uses the phrase “or is” to
link the two subparagraphs, the § 2L1.2
definition uses the phrase “and includes.” As
we read the § 2L1.2 definition, the second
subparagraph adds to, but does not limit, the
first. Further, because Rayo-Valdez held, 302
F.3d at 319, that all the crimes listed in the
second subparagraph are crimes of violence,
irrespective of whether they appear to satisfy
the elements test, its reading renders the first
subparagraph unnecessary.
“It is a cardinal principle of statutory
construction that a statute ought, upon the
whole, to be so construed that, if it can be
prevented, no clause, sentence, or word shall
be superfluous, void, or insignificant.” TRW,
Inc. v. Andrews, 534 U.S. 19, 31 (2001)
(internal quotation marks omitted). As we
noted in Rayo-Valdez, the guidelines are
subject to this and other rules of statutory con-
struction and interpretation. Rayo-Valdez, 302
F.3d at 319 (citing TRW and United States v.
Vickers, 891 F.2d 86, 88 (5th Cir. 1989)). We
do not interpret § 2L1.2 as requiring that both
the first and second subparagraphs be satisfied.
B.
Calderon-Pena urges that child
endangerment cannot qualify as a crime of
violence because it does not have as an
element the use, attempted use, or threatened
use of physical force against the person or
property of another. In Rodriguez-Rodriguez,
323 F.3d at 318-19, we endorsed a categorical
approach to applying the § 2L1.2 definition.
Under this analysis, “[w]e need not discuss the
facts underlying” the conviction, but instead
should “‘look only to the fact of conviction
and the statutory definition of the prior offense
to determine whether a prior conviction
qualifies as a predicate offense for sentencing
enhancement purposes.’”4
The Texas child endangerment statute pro-
vides 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. PENAL CODE § 22.041(c).
In United States v. Gracia-Cantu, 302 F.3d
308, 311 (5th Cir. 2002), we decided that a
similar statute, TEX. PENAL CODE § 22.04(a),5
did not give rise to a crime of violence
enhancement under 18 U.S.C. § 16. With
regard to § 16(a), which is similar to the
4 Id. (quoting United States v. Vargas-Duran,
319 F.3d 194, 196 (5th Cir. 2003), vacated for re-
hearing en banc, 2003 U.S. App. LEXIS 13232
(5th Cir. June 26, 2003). Though Rodri-
guez-Rodriguez cited Vargus-Duran for this hold-
ing, the original source of much of the quotation is
Taylor v. United States, 495 U.S. 575, 602 (1990)
(interpreting the crime of violence definition at 18
U.S.C. § 924(e)).
5 The statute under which Gracia-Cantu was
convicted for injury to a child provides in relevant
part:
(a) A person commits an offense if he in-
tentionally, knowingly, recklessly, or with
criminal negligence, by act or intentionally,
knowingly, or recklessly by omission, caus-
es to a child, elderly individual, or disabled
individual: (1) serious bodily injury;
(2) serious mental deficiency, impairment,
or injury; or (3) bodily injury.
TEX. PENAL CODE § 22.04(a).

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§ 2L1.2 definition,6 Gracia-Cantu states that
the defendant
persuasively argues that his prior offense
does not constitute a crime of violence
under 18 U.S.C. § 16(a) because section
22.04(a) of the Texas Penal Code, the
statute criminalizing injury to a child,
does not require that the perpetrator
actually use, attempt to use, or threaten
to use physical force against a child.
R a t h e r , s e c t i o n 2 2 . 0 4 ( a ) i s
results-oriented in that the culpable
mental state must relate to the result of
a defendant’s conduct rather than to the
conduct itself. The government
concedes that, because the statutory
definition of the offense does not
explicitly require the application of force
as an element, 18 U.S.C. § 16(a) does
not apply to Gracia-Cantu’s offense of
injury to a child. Accordingly, we need
not consider the issue further.
Id. at 311-12 (emphasis added and citations
omitted).
The salient difference between § 22.04(a)
and § 22.041(c) is that in the latter, the
perpetrator places a child “in imminent
danger” of injury, death, etc., whereas in §
22.04(a) the conduct actually results in the
injury, death, etc., of the child. Because the
conduct prohibited in § 22.04(a) is identical to
or, if anything, more serious than, that
prohibited in § 22.041(c), Gracia-Cantu
appears persuasive.
The government urges that though under
Rodriguez-Rodriguez we may not look at the
specific facts underlying the conviction, we
should look to the indictment where a statute
contains disjunctive elements. The
government distinguishes Gracia-Cantu
because there it was conceded that § 16(a) did
not apply. It also argues that in Gracia-Cantu
the charging documents were not presented to
the court, and therefore we could look only to
the statute. Here, it suggests, we have the
charging documents and that Calderon-Pena’s
offenses, as charged, qualify as crimes of
violence. Reviewing our precedent, including
Rodriguez-Rodriguez and Gracia-Cantu, we
find no case in which we have expressly en-
dorsed or rejected that argument.
The government claims support from Tay-
lor, 495 U.S. at 599-602, which it argues al-
lows a court to look at the indictment where
the conduct there shown demonstrates that the
defendant, in committing a crime, met the de-
finition in the sentencing enhancement. In
Taylor, the Court addressed “whether a
sentencing court in applying [18 U.S.C.]
§ 924(e) must look only to the statutory
6 The guidelines contain or make reference to
several definitions of “crime of violence” that vary
from one another in significant ways, and we must
be careful in relying on prior cases applying a
given definition of that term, to ensure that the
provision considered in the precedent case is the
same or sufficiently similar to that currently con-
sidered. See United States v. Charles, 301 F.3d
309, 312 (5th Cir. 2002) (en banc) (overruling
cases that “conflated the § 16(b) and [U.S.S.G.]
§ 4B1.2(a)(2) definitions of crime of violence”
because relevant differences in the language of the
two provisions meant that “what qualifies as a
crime of violence under one does not necessarily
qualify under the other”). Title 18 U.S.C. §16(a)
defines crime of violence as “an offense that has as
an element the use, attempted use, or threatened
use of physical force against the person or property
of another[.]” Sufficient similarity exists to
consider precedent interpreting and applying
§ 16(a) when interpreting the § 2L1.2 definition.

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8
definitions of the prior offenses, or whether the
court may consider other evidence concerning
the defendant’s prior crimes.” Id. at 600. The
Court considered § 924(e)(2)(B)(i), which
defines a “violent felony” in terms of its
“elements” in a manner similar to the § 2L1.2
definition, and under § 924(e)(2)(B)(i), which
applies, inter alia, if the crime “is burglary.”
Id.
The Court held that Ҥ 924(e) mandates a
formal categorical approach, looking only to
the statutory definitions of the prior offenses,
and not to the particular facts underlying those
convictions.” Id. It allowed, however, that a
sentencing court may “go beyond the mere
fact of conviction in a narrow range of cases
where a jury was actually required to find all
the elements of generic burglary.” Id. at 602.
For example, in a State whose burglary
statutes include 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. . . . We
therefore hold that an offense
constitutes “burglary” for purposes of a
§ 924(e) sentence enhancement if either
its statutory definition substantially cor-
responds to “generic” burglary, or the
charging paper and jury instructions ac-
tually required the jury to find all the el-
ements of generic burglary in order to
convict the defendant.
Id.
As Calderon-Pena points out, this portion
of Taylor discusses only § 924(e)(2)(B)(ii).
We find no reason, however, why it would
not apply to § 924(e)(2)(B)(i) as well. In dis-
cussing the categorical approach, the Court
stated that “the phrase ‘is burglary’ in § 924-
(e)(2)(B)(ii) most likely refers to the elements
of the statute of conviction, not to the facts of
each defendant’s conduct.” Id. at 600-01 (em-
phasis added). It understood looking to the
indictment or jury instructions to be consistent
with a categorical approach. It follows that it
would be acceptable to do so when applying
§ 924(e)(2)(B)(i), and by extension the simi-
larly-worded § 2L1.2 definition.
This is not inconsistent with Rodri-
guez-Rodriguez’s admonishment not to
consider the facts underlying the conviction.
The same language appears inSSindeed, was
derived fromSSTaylor. In United States v.
Allen, 282 F.3d 339, 343 (5th Cir. 2002), we
read Taylor
as allowing the sentencing court to con-
sider only the statutory definition of the
offense, the charging paper and jury in-
structions. Any different rule raises the
possibility of mini-trials to determine the
facts underlying a prior offense. Such
an “elaborat e factfinding process
regarding the defendant’s prior offens-
es,” is specifically barred by Taylor.
(Quoting Taylor, 495 U.S. at 601.) We
distinguish looking to the indictment to see
whether the facts there shown required force
from looking to the indictment to determine
which elements in a statute of conviction were
satisfied. We therefore conclude that a court
may look to the indictment and, if necessary,
the jury instructions, for the limited purpose of
determining which of a series of disjunctive
elements a defendant’s conviction satisfies.

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9
C.
The indictment states that Calderon-Pena
“unlawfully, intentionally and knowingly en-
gage[d] in conduct that placed [his two
children] in imminent danger of bodily injury,
namely by striking a motor vehicle occupied by
the [the children] with the Defendant’s motor
vehicle.” Applying this information to
§ 22.041(c), we see that Calderon-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 dan-
ger of . . . bodily injury[.]” We next must
confront whether this statute, as pared down,
has as an element the use, attempted use, or
threatened use of physical force against the
person of another.
Returning to Gracia-Cantu, we there stated
that § 22.04(a) failed the similar test in
§ 16(a), because the statute “is results-oriented
in that the culpable mental state must relate to
the result of a defendant’s conduct rather than
to the conduct itself.” Gracia-Cantu, 302
F.3d at 311-12. A broad reading of this
statement would seem to preclude the finding
of a crime of violence here under § 22.041(c),
even with the unnecessary elements removed.
In United States v. Shelton, 325 F.3d 553
(5th Cir. 2003), however, we took a narrow
reading of Gracia-Cantu. There, we
considered whether misdemeanor assault has
“as an element, the use or attempted use of
physical force” so as to satisfy 18 U.S.C.
§ 921(a)(33)(A). Under § 22.01(a)(1), “[a]
person commits an offense if the person . . .
intentionally, knowingly, or recklessly causes
bodily injury to another, including the person’s
spouse. . . .” Referring to the above-quoted
passage in Gracia-Cantu, we stated that
[i]n Gracia-Cantu, the government did
not raise the contention that the element
of bodily injury necessarily entailed the
use of physical force. Even had such ar-
gument been raised, because of the ma-
terial difference between the injury to a
child statute and the instant misdemean-
or assault statute, we do not believe it
would have made a difference in the
analysis or outcome of Gracia-Cantu.
More to the point, although both Shel-
ton and Gracia-Cantu’s predicate
convictions do contain the element of
bodily injury, the injury to a child statute
also proscribes acts of omission
perpetrated against a child, elderly
individual or disabled individual. By
including acts of omission, the injury to
a child statute encompasses conduct
that, unlike the instant case, does not
require the use of physical force by the
defendant. Thus, despite the broad “re-
sults-oriented” language, because Gra-
cia-Cantu involves a predicate offense
that is materially different from that at
issue, it is not controlling.
Shelton, 325 F.3d at 560-61.
This reading is in apparent tension with the
original sweep of Gracia-Cantu.7 If we are
not convinced that Shelton adequately
distinguishes the broad language of Gracia-
Cantu, we are bound to follow Gracia-Cantu.8
7 Further, Shelton relied heavily on the now-
vacated Vargas-Duran’s narrowing of Gracia-
Cantu. See Shelton, 325 F.3d at 559-61 (citing
Vargas-Duran).
8 See United States v. Miro, 29 F.3d 194, 199
n.4 (5th Cir. 1994) (“When faced with conflicting
panel opinions, the earlier controls our decision.”).

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10
We need not reach the question, however:
We addressed whether § 22.01(a) had “as an
element the use, attempted use, or threatened
use of physical force against the person of an-
other” more than ten years before Shelton and
found that it did. United States v. Martinez,
962 F.2d 1161, 1168-69 (5th Cir. 1992)
(considering the definition of “violent felony”
at § 924(e)(2)(B)(i)). Therefore, even if
Gracia-Cantu contradicts the holding of
Shelton, both are controlled by Martinez. We
therefore accept Shelton’s holding that
Gracia-Cantu’s “results-oriented” language is
applicable only to crimes that can be
committed by omission. Because reference to
the indictment that resulted in the underlying
convictions removes from consideration the
“omission” portion of § 22.041(c), the case at
bar is distinguishable from Gracia-Cantu.
Shelton holds that where a predicate
offense requires bodily injury, it necessarily in-
cludes, as an element, the use of physical
force. Shelton, 325 F.3d at 561. Though child
endangerment requires no bodily injury, it does
require that the perpetrator cause someone to
be placed in imminent danger of bodily injury.
Shelton’s reasoning, by extension, would
require either attempted use or actual use of
force to create the danger. Calderon-Pena’s
child endangerment convictions therefore
have as an element at least the attempted use
of physical force, if not the use o f physical
force itself. Accordingly, his predicate offens-
es satisfy the §2L1.2 definition of crime of vio-
lence and support the sentencing enhancement.
D.
We finally turn to Calderon Pena’s
contention that application of the 2001
Guidelines violates the ex post facto clause of
the Constitution. The guidelines in effect on
the date a defendant is sentenced apply “unless
the court determines that ‘use of the
Guidelines Manual in effect on the date that
the defendant is sentenced would violate the ex
post facto clause of the United States
Constitution,’ in which case the court should
use the version of the guidelines in effect on
the date that the offense of conviction was
committed.” United States v. Domino, 62
F.3d 716, 719-720 (5th Cir. 1995) (quoting
U.S.S.G. §1B1.11). Because the court
sentenced Calderon-Pena after the effective
date of the 2001 guidelines, those guidelines
should be used unless doing so results in a
harsher sentence than would be given under
the 2000 guidelines.
Both the 2000 and 2001 guidelines provide
a base offense level of 8. U.S.S.G. § 2L1.2(a)
(2000); § 2L1.2(a) (2001). The 2001 version
of § 2L1.2 provides a sixteen-level
enhancement if the predicate offense is a crime
of violence, § 2L1.2(b)(1)(A)(ii) (2001),
whereas the 2000 version has no such
enhancement. The 2001 version, however,
provides only an eight-level enhancement if the
predicate offense is an aggravated felony,
§ 2L1.2(b)(1)(C) (2001), whereas the 2000
version provides a sixteen-level enhancement,
§ 2L1.2(b)(1)(A) (2000). The only other en-
hancement under either version is the
enhancement for “any other felony,” which un-
der both versions results in a four-level
enhancement. See § 2L1.2(b)(1)(B) (2000);
§ 2L1.2(b)(1)(D) (2001).
Consequently, there would be an ex post
facto violation only if Calderon-Pena’s
endangerment of a child conviction qualifies as
a crime of violence under § 2L1.2(b)(1)(A)(ii)
(2001) but not as an aggravated felony under
§ 2L1.2(b)(1)(A) (2000). The 2000 guidelines
define “aggravated felony” by reference to

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8 U.S.C. § 1101(a)(43). Both parties appear
to agree that the only provision of this statue
that could be relevant is § 1101(a)(43)(F),
which includes as an aggravated felony a
“crime of violence,” defined by reference to 18
U.S.C. § 16.
For obvious reasons, then, Calderon-Pena’s
child endangerment convictions qualify as ag-
gravated felonies under the 2000 guidelines.
For our purposes, § 16(a) is identical to the
2001 guidelines § 2L1.2 definition of crime of
violence. Because his crime qualifies under
the § 2L1.2 definition, it also qualifies under
§ 16(a). Therefore, under both the 2000 and
2001 versions, Calderon-Pena would receive a
sixteen-level enhancement to his offense level
and would receive the same total offense level.
Because the relevant portions of the
sentencing tables for 2000 and 2001 are the
same, his sentencing range is identical under
either version. There is no ex post facto
problem.
The judgment of conviction and sentence is
AFFIRMED.

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