United States v. Pedro Calderon-Pena

JERRY E. SMITH, Circuit Judge,

joined by RHESA HAWKINS BARKSDALE, Circuit Judge,

dissenting:

I.

I respectfully dissent from the well-intentioned position taken by a majority of the judges. My disagreement is in regard not only to the result the majority reaches, but also to the manner in which this court is handling its sentencing guideline jurisprudence.

*268 The majority’s result is intuitively absurd. It holds that a defendant who intentionally rammed his car into a vehicle that he knew contained his young children was not guilty of a “crime of violence.” We are, of course, bound by the various definitions and explanations set forth in the applicable statutes and sentencing guidelines, from which we must discern the will of the drafters. Congress could, if it wanted to, define an ax murder as not a “crime of violence,” and we would be bound to adhere to that definition.

Here, however, as I will explain, there is an easy path to reaching the correct answer in this case, which is that Calderon-Pena’s crime is indeed a “crime of violence.” There is, admittedly, a colorable argument to the contrary, and Judge De-Moss has ably articulated that explanation for the majority. But that does not justify the fact that the court has even taken this case en banc, when the panel had already carefully reconciled its result with our recent en banc decision in United States v. Vargas-Duran, 356 F.3d 598 (5th Cir.2004) (en banc), and had issued s supplemental opinion on rehearing setting forth that explanation.

Some may view it as silly that a court of appeals takes sentencing guideline cases en banc at all. I do not go that far, for indeed there are times when conflicting caselaw needs to be reconciled. This is not one of them.

The en banc court is not, and should not be, primarily a court of error. The decision to take a case en banc is a prudential one that should be based on a host of factors, including, among others, the importance of an issue, the expenditure of judicial resources, whether the issue creates a problem beyond the confines of the case at hand, and the degree to which the panel’s result is perceived by some not only as wrong, but as so wrong that it effects a grave injustice or disrupts the court’s jurisprudence in a significant way.

Even if, arguendo, the majority were correct in its result, the case does not satisfy the other criteria for en banc review. By taking this case en banc, the majority has created more questions than it has solved and has muddled our guidelines jurisprudence unnecessarily. Given, however, that the case is now presented for decision by the en banc court, and that the majority has reached a demonstrably erroneous result, I will explain the flaws in its reasoning.

II.

As I approach the merits of the case, I first note my agreement with the majority’s handling of the “elements” of an offense. The government urges that when recitations of particular violent actions are added to an indictment, the proof of those actions becomes “elements” of the offense for purposes of enhancement under the sentencing guidelines. Such an approach would undermine Taylor v. United States, 495 U.S. 575 , 110 S.Ct. 2143 , 109 L.Ed.2d 607 (1990); as the majority notes, “the analysis of the statute would be superfluous” under the government’s theory. The “elements” of an offense are those enumerated in the statute of conviction, and no others.

I also agree with the majority’s acceptance of the notion that a court may refer to charging papers to determine of which elements of an offense a defendant was convicted. See Taylor, at 578, 110 S.Ct. 2143 ; United States v. Landeros-Gonzales, 262 F.3d 424, 426 (5th Cir.2001). The “paring down” of statutes by reference to the charging papers has been ap *269 plied by other circuits, including the First, 1 Seventh, 2 Eighth, 3 Tenth, 4 and especially the Ninth. 5

I depart from the majority’s reasoning only at a later point. The pared-down statute of conviction provides: “A person commits an offense if he intentionally ... by act ... engages in conduct that places a child younger than 15 years in imminent danger of ... bodily injury.” This sufficiently describes the “attempted use of physical force” in satisfaction of the relevant crime of violence statute. U.S.S.G. § 2L1.2, application note 1(B)(ii)(I). In a nutshell, because the pared-down child endangerment statute requires that a defendant have intentionally created an imminent danger of bodily injury to another, he intended to use physical force on that person, even if that force was of a subtle and indirect nature. 6 The majority is mistaken in concluding otherwise.

A.

The majority states in conclusional fashion, “Clearly, the pared-down statute can be successfully prosecuted without proof of attempted use of force. One can knowing *270 ly endanger without trying to make any bodily contact with the victim’s person and without trying to inflict bodily injury on the person.” The majority emphasizes elsewhere that the statute can be violated without an attempt to cause “physical contact.”

It a matter suitable for debate whether the child endangerment statute may be satisfied without a perpetrator’s “trying to inflict bodily injury” on a victim. Before addressing that issue, however, I must note that the majority goes too far in its mention of “bodily contact.”

I accept that it is possible “knowingly [to] endanger” a person without trying to make any “bodily contact” or “physical contact” with him. For instance, a person’s body may be imminently endangered by poison left for him to consume, without the would-be poisoner’s intending to achieve “bodily contact” with his victim. But I cannot credit the suggestion that a perpetrator’s making “bodily contact” with a victim is a requirement for the “physical use of force,” or accordingly that a perpetrator’s attempt to make “bodily contact” with a victim is a requirement for the “attempted use of physical force.”

Rather, the “use of physical force” and “attempted use of physical force” under the crime-of-violence guideline should extend to cover those applications of force that are subtle or indirect, rather than only those embracing “bodily contact.” This is a matter of common sense.

If a someone lures a poor swimmer into waters with a strong undertow in order that he drown, or tricks a victim into walking toward a high precipice so that he might fall, it is a poor excuse for the perpetrator to say, “Well, at least I didn’t attempt to use physical force against my victim. I was only trying to kill or maim him!” To the contrary, the perpetrator has at least attempted to make use of physical force against the person of the target, either through the action of water to cause asphyxiation or by impact of earth on flesh and bone. However remote these forces may be in time or distance from the defendant, they were still directed to work according to his will, as surely as was a swung fist or a fired bullet.

This interpretation also is logical, given the sort of criminal statutes that might be considered “crimes of violence.” Numerous statutes covering crimes that most would naturally think to involve the “use” or “attempted use” of force may be satisfied by subtle and indirect force. Most would agree, for example, that an intentional battery statute requiring the actual injury of the victim describes the “use of physical force.” As well, it should be uncontroversial that formulations of assault requiring an intent to injury of a victim should be considered to involve the attempted use of force.

But batteries and assaults punishable under such statutes can involve uses or attempted uses of physical force that are subtle or indirect. For example, a person may be indicted and convicted for Texas assault if he “intentionally ... causes bodily injury to another, including the person’s spouse.” Tex. Penal Code ANN. § 22.01(a)(1) (Vernon 2003). The bodily injury need not result from a violent physical contact between the defendant and the victims; subtle or indirect means would do, whether by tricking a person into consuming poison, or luring him to walk off a cliff.

Likewise, the crime of murder in many states may be satisfied by subtle and indirect uses of force. A person may be indicted and convicted for Texas murder, for example, if he “intentionally or knowingly causes the death of an individual.” Tex. Penal Code Ann. § 19.02 (b)(1) (Vernon *271 2003). Again, the defendant need never lay a finger on his victim. Though murder is, quite fortunately, enumerated as a crime of violence under the second prong of the relevant violence definition, it would be absurd to believe that murder would not involve the “use of physical force.” See U.S.S.G. § 2L1.2, application note l(B)(ii)(II).

Additionally, although murder is enumerated as a “crime of violence,” attempted murder is not. Attempted murder may be undertaken by other than attempts to cause “bodily” or “physical” contact, yet no court reasonably would hold that attempted murder is a crime that does not involve the “attempted use of physical force against the person of another.”

Accordingly, the majority’s insistence on “bodily contact” is serious error. Physical forces, whether subtle and indirect, are physical forces nonetheless.

B.

As for the majority’s holding that one can knowingly create an imminent danger of another’s physical injury without “trying to inflict bodily injury on the person,” I disagree. I also take issue with the majority’s related conclusion: “Creating a risk of injury, even when done knowingly or intentionally, is clearly not the same as using or attempting to use physical force against the person of another.” This latter statement might contain some truth, because people may not actually expect those harms that flow from de minimis risks they choose to create, but the majority ignores that the statute of conviction required not simply a “risk of injury,” but an “imminent danger of bodily injury” 7 (emphasis added).

An attempt is “the act or an instance at making an effort to accomplish something” Blaok’s Law DICTIONARY 123 (7th ed.1999). Thus, for example, an attempted crime is “an overt act that is done with the intent to commit a crime.” Id. An attempted use of physical force, accordingly, is an overt act done with intent to use physical force. The pared down child endangerment offense requires just such an attempt.

It is axiomatic that people intend the likely results of their actions; after all, intention is “the willingness to bring about something planned or foreseen.” Id. at 814. Therefore, when a person knowingly undertakes actions in order to create a “imminent danger ... of bodily injury,” he also demonstrates a willingness to bring about the foreseeable result of his actions — that is, his use of physical force against the person of another to cause bodily injury.

This makes sense. When a person intends to create an imminent danger of injury by such obvious means as ramming his car into someone else’s, or less direct means such as by luring that person to an ocean undertow or placing deadly poison in his drink, he is actually attempting to control, and thus intentionally “use,” physical force against that person, whether in the form of collision with a fast-moving automobile, water suffocating lungs, or cyanide disrupting metabolism.

*272 Accordingly, Calderon was convicted of a “crime of violence” as described in § 2L1.2. Because his statute of conviction required him intentionally to have exposed a person to a physical forces either created by him or made subject to his will, it described the “attempted use of physical force” against the person of another.

Thus, I respectfully dissent.

. See, e.g., U.S. v. Shepard, 348 F.3d 308 , 312—13 (1st Cir.2003) (recognizing that Taylor allows that courts may look at the charging papers and jury instructions to identify the crime of conviction; noting that the First Circuit has approved "resort to pre-sentence reports but only to determine the character of the criminal offense for which the criminal was convicted (not whether violence was or was not used on the particular occasion) ... where that determination cannot be made from the statutory language itself or from the charging documents” and those documents are reliable).

. See, e.g., Flores v. Ashcroft, 350 F.3d 666, 670 (7th Cir.2003) (opining that "when one state-law offense may be committed in multiple ways, and federal law draws a distinction, it is necessary to look behind the statutory definition,” and allowing examination of charging papers to determine the elements of a crime of which a defendant was convicted); United States v. Howze, 343 F.3d 919 (7th Cir.2003) (same).

. See, e.g., United States v. Menteer, 350 F.3d 767, 770-71 (8th Cir.2003) (allowing district court to look to presentence report’s characterization of defendant's conduct, where defendant failed to object to PSR’s factual characterization of his conduct); United States v. Valladares, 304 F.3d 1300, 1303 (8th Cir.2002) (stating that "when the statutory definition of a predicate offense encompasses conduct that may or may not be included in the applicable guideline, the sentencing court may look to the underlying charging papers and jury instructions to determine the elements of the crime which the defendant was convicted” (citation omitted)).

. See, e.g., U.S. v. Venegas-Ornelas, 348 F.3d 1273, 1275 (10th Cir.2003) ("Although we may not consider the particular facts surrounding the conviction, if the statute reaches different types of conduct, we may look to the charging paper and judgment of conviction in order to ‘determine if the actual offense the defendant was convicted of qualifies as a crime of violence’ ”) (citing Sareang Ye v. INS, 214 F.3d 1128, 1133 (9th Cir.2000)).

. See, e.g., United States v. De La Fuente, 353 F.3d 766, 770 (9th Cir.2003) (holding that if a "statute reaches both conduct that would constitute a crime of violence and conduct that would not, we turn to a modified categorical approach, which allows us to examine documentation or judicially noticeable facts that clearly establish that the defendant’s actual offense qualifies as a crime of violence” (citing United States v. Sandoval-Venegas, 292 F.3d 1101, 1106 (9th Cir.2002) (same)); United States v. Hernandez-Valdovinos, 352 F.3d 1243, 1247-48 (9th Cir.2003); United States v. Wenner, 351 F.3d 969, 972 (9th Cir.2003); Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1154 , (9th Cir.2003); United States v. Melton, 344 F.3d 1021, 1024 (9th Cir.2003); United States v. Casarez-Bravo, 181 F.3d 1074 , 1077 n. 1 (9th Cir.1999)).

. See United States v. Vargas-Duran, 356 F.3d 598, 606 (5th Cir.2004) (en banc) (concluding that the crime of violence inquiry is limited to "[ljooking only at the fact of [the defendant's] conviction and the statutory definition”)

. Thus, the majority's reference to holdings in the Second Circuit to the effect that ‘ '[tjhere are many crimes that involve a substantial risk of injury but to not involve the use of force” is inapt. See Dalton v. Ashcroft, 257 F.3d 200, 207 (2nd Cir.2001). Likewise, this court's effort in United States v. Chapa-Garza, 243 F.3d 921, 925 (5th Cir.2001), to contrast conduct involving "a serious risk of physical injury” with conduct that presents “a substantial risk that the defendant will use physical force against another’s person” is of little help here. See id. The Chapa-Garza court analyzed a different crime of violence guideline, and particularly a prong involving the creation of "substantial risk” of injury, rather than the "attempted use” formulation at stake here.