United States v. Miranda-Ortegon, 2012 U.S. App. LEXIS 2651

Ortegon pleaded guilty to one count of illegal reentry after deportation.
Guidelines § 2L1.2(b)(1)(A)(ii) imposes a sixteen-level increase if deported after conviction of a crime of violence.
Prior to deportation, Ortegon was convicted in Oklahoma of two counts of assault and battery—domestic abuse under OKLA. STAT. tit. 21, § 644C.
644C makes domestic abuse a crime when committed against a current or former spouse or child.
District court applied a sixteen-level crime-of-violence adjustment based on the 644C conviction, despite Ortegon’s objection that 644C is not a crime of violence.
Court ultimately held that the 644C offense is not a crime of violence and vacated the sentence, remanding for resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether 644C qualifies as a crime of violence	Ortegon	Ortegon	644C is not a crime of violence under § 2L1.2(b)(1)(A)(ii)
Effect of the crime-of-violence finding on the sentence	Ortegon	Ortegon	The 16-level increase was improperly applied; remand for resentencing
Use of defendant's conduct versus elements in determining crime of violence	Elements control; disjunctive elements permit limited review	Court may consider admission of violent conduct	Categorical approach governs; cannot base on actual conduct to classify 644C as a crime of violence

Calderon-Pena, 383 F.3d 254 (5th Cir. 2004) (defers to elements; permits modified categorical review when warranted)
Acuna-Cuadros, 385 F.3d 875 (5th Cir. 2004) (limited look beyond elements to disjunctive elements for category)
Flores-Gallo, 625 F.3d 819 (5th Cir. 2010) (defines 'crime of violence' under § 2L1.2 guidance about force)
Johnson v. United States, 130 S. Ct. 1265 (2010) (Florida felony battery not a violent felony under ACCA; limits force element interpretation)
Smith, 652 F.3d 1244 (10th Cir. 2011) (Oklahoma assault and battery not necessarily ‘force’ element for ACCA/Courts distinguish)