United States v. Heliodoro Cabrera, 478 F. App'x 204

Background

Hernandez appeals his 51-month sentence for illegal reentry after deportation and challenges the 16-level crime-of-violence enhancement.
The enhancement rests on whether Hernandez’s Texas conviction for attempted deadly conduct qualifies as a crime of violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii) and cmt. n.1(B)(iii).
The presentence report used the conviction to place Hernandez in a high offense level, yielding an advisory range of 51–63 months.
Indictment charged aggravated assault with a deadly weapon and deadly conduct; Hernandez pled guilty to attempted deadly conduct after the State reduced the charged offense.
Judgment, Judicial Confession, and Record of Judgment state Hernandez pleaded guilty to attempted deadly conduct, but none identify the specific subsection or facts supporting a § 2L1.2(b)(1) crime of violence.
The court applies narrowing rules (Taylor–Shepard) and concludes the indictment cannot establish the charged versus convicted crime; analysis follows Bonilla and Martinez-Vega distinctions, leading to vacatur and remand for resentencing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does attempted deadly conduct constitute a crime of violence?	Hernandez argues no because the record lacks a clear use-of-force element.	The Government contends the judgment may incorporate the indictment and justify the enhancement.	Not proven; record insufficient to prove a crime of violence; remand for resentencing.
May a district court narrow a conviction using charging documents or judgments?	Hernandez relies on documents showing attempted deadly conduct as the basis.	Government argues the Judgment or related documents reflect a conviction of a qualifying offense.	Narrowing requires Shepard-approved documents clearly tying to the actual conviction; here they do not.
Can the Indictment alone support the subset of the conviction for purposes of § 2L1.2(b)(1)?	Indictment’s second count may imply a related offense.	Indictment does not list the attempted deadly conduct as the conviction basis.	Indictment cannot establish the specific conviction; Bonilla controls.
Is the Government’s reliance on Judgment/Record of Judgment/ Judicial Confession proper given the record?	Judgment shows attempted deadly conduct; may support VA conviction.	Documents do not specify the subsection or underlying facts to qualify as a crime of violence.	Improper reliance; does not prove a crime of violence.
Should the judgment reflect the correct § 1326 basis (b)(1) rather than (b)(2)?	The conviction should be treated under § 1326(b)(1).	Record remains ambiguous; remand is appropriate to correct.	Yes; correct on remand.

Key Cases Cited

Bonilla v. United States, 524 F.3d 647 (5th Cir. 2008) (limits use of charging documents to narrow a conviction)
Martinez-Vega v. United States, 471 F.3d 559 (5th Cir. 2006) (plain-error analysis for narrowing judgments)
Taylor v. United States, 495 U.S. 575 (S. Ct. 1990) (narrowing/ Taylor–Shepard framework)
Shepard v. United States, 544 U.S. 13 (S. Ct. 2005) (definitive framework for using documents to prove underlying facts)
Turner v. United States, 349 F.3d 833 (5th Cir. 2003) (indictment alone cannot establish the nature of underlying conduct)
Neri-Hernandes v. United States, 504 F.3d 587 (5th Cir. 2007) (indictment facts cannot prove conviction when not stated)
Martinez-Vega v. United States, 471 F.3d 559 (5th Cir. 2006) (see above (repeated due to multiple references in opinion))
United States v. Sanchez, 667 F.3d 555 (5th Cir. 2012) (controls issues about narrowing and lesser included offenses)
Hernandez-Rodriguez v. United States, 467 F.3d 492 (5th Cir. 2006) (discusses use of dangerous elements under state statutes for VI conclusions)
Dixon v. United States, 265 F. App’x 383 (5th Cir. 2008) (unpublished; CPS narrowing under subsection (b)(2))
Alfaro v. United States, 408 F.3d 204 (5th Cir. 2005) (not a crime of violence where necessary force element is absent)