*1 Before S MITH and B ARKSDALE , Circuit 8 U.S.C. § 1326. He challenges his
Judges, and D UPLANTIER , [*] District Judge. conviction, arguing that the underlying indictment was invalid because the prior J ERRY E. S MITH , Circuit Judge: removal order violated his due process rights.
He also challenges his sentence, contending Pedro Calderon-Pena was convicted of il- that his prior conviction for endangering a legal reentry of a removed alien under child was not a crime of violence under the
sentencing guidelines, or alternatively that the use of the 2001 version of the guidelines
[*] District Judge of the Eastern District of violated the ex post facto clause of the Louisiana, sitting by designation. Constitution. We affirm the conviction and *2 sentence. court found him guilty as charged.
I. The presentence report (“PSR”) applied the In 1999, Calderon-Pena, a citizen of 2001 version of the guidelines and assigned a Mexico, was convicted in Texas of two counts base o ffense level of 8, then added a sixteen- of endangering a child and one count of felony level enhancement for being previously criminal mischief for using his car to strike deported following a conviction for a felony another car that contained his two children; he crime of violence pursuant to U.S.S.G. was sentenced to fifteen months’ § 2L1.2(b)(1)(A)(ii). After making a three- imprisonment. After his release, the point reduction for acceptance of 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 responsibility, the PSR calculated Calderon- Service (“INS”) initiated removal proceedings, Pena’s offense level at 21.
asserting that the child endangerment
convictions were “crimes of violence” as Calderon-Pena objected to the calculation, defined by 18 U.S.C. § 16 and resulted in a arguing that his child endangerment term of imprisonment of at least one year, convictions did not qualify as crimes of rendering them “aggravated felonies” under violence, rendering the sixteen-level 8 U.S.C. § 1101(a)(43)(F). The immigration enhancement improper. Alternatively, he judge (“IJ”) agreed and found Calderon-Pena urged that the 2000 version of the guidelines deportable on that basis. Calderon-Pena should have been applied, because an neither appealed the removal order nor amendment to § 2L1.2 that became effective pursued administrative remedies; he was after the commission of the offense deported to Mexico in June 2000. impermissibly increased his punishment,
thereby violating the ex post facto clause of In January 2001, Calderon-Pena was found the Constitution.
in the United States. A federal grand jury in-
dicted him for entering the United States after The district court reviewed the indictment being deported subsequent to conviction for an from the child endangerment convictions and aggravated felony pursuant to 8 U.S.C. concluded that those convictions qualified Cal- § 1326(a) and (b)(2). He moved to dismiss deron-Pena for the same sentencing the indictment, contending that it was invalid enhancements under either version of the because his removal order violated his right to guidelines. It therefore overruled Calderon- due process. Specifically, he asserted that he Pena’s objections, adopted the total offense was denied due process because the IJ calculation of the PSR, and sentenced erroneously had found that the criminal offense Calderon-Pena to seventy mont hs’ that served as the basis for his removal was an imprisonment, a three-year term of supervised aggravated felony and because the IJ had failed release, and a $100 mandatory special to advise him of the availability of dis- assessment.
cretionary review.
II. The district court denied the motion. Cal- Calderon-Pena asserts that the IJ deron-Pena waived his right to a jury; all rel- incorrectly determined that his child evant facts were stipulated; and the district endangerment convictions were aggravated *3 felonies, and consequently failed to inform him idity of the deportation order described of discretionary relief from deportation in subsection (a)(1) or subsection (b) of available to those not being deported this section unless the alien subsequent to an aggravated felony. The demonstrates that – government contends the IJ’s failure to advise
Calderon-Pena of the availability of (1) the alien exhausted any ad- discretionary relief did not violate his right to ministrative remedies that may due process, and therefore entry of the have been available to seek re- removal order did not rise to the level of lief against the order; fundamental unfairness. We review de novo a
constitutional challenge to an indictment.
( 2 )
t h e d e p o r t a t i o n
United States v. Lopez-Vasquez
,
deprived the alien of the In certain situations, an alien prosecuted opportunity for judicial review; under § 1326 may challenge the underlying re- and
moval order. United States v. Mendoza-Lo-
pez
,
fundamentally unfair. Our interpretation of Mendoza-Lopez
required an alien challenging a prior re-
Eligibility for discretionary relief from a re-
moval to establish that (1) the removal
moval order is not “a liberty or property
hearing was fundamentally unfair;
interest warranting due process protection”;
(2) the hearing effectively eliminated the
thus, an IJ’s failure to explain eligibility “does
right of the alien to challenge the
not rise to the level of fundamental
hearing by means of judicial review of
unfairness.”
Lopez-Ortiz
, 313 F.3d at 231.
the order; and (3) the procedural
Considering that the failure to advise an alien
deficiencies caused the alien actual
of eligibility for discretionary relief is not a
prejudice.
liberty interest warranting due process protec-
tions,
a violation of an agency regulation
United States v. Lopez-Ortiz
,
would not have been deported.
United States
Calderon-Pena urges that
Lopez-Ortiz
is
v. Benitez-Villafuerte
,
its own regulations in adjudicating his removal, In a criminal proceeding under this sec- which the IJ violated by failing to advise him tion, an alien may not challenge the val- of the availability of discretionary relief. In *4 Accardi , an alien attacked the validity of the empowered to order, nor has Calderon-Pena denial of his application for suspension of de- requested, a new deportation hearing; rather, portation, contending that certain conduct by we may only dismiss the indictment for his the Attorney General deprived him of the subsequent illegal reentry. This is not a rights guaranteed to him by the applicable im- remedy contemplated by Accardi or its migration statute and regulations. Specifically, progeny. Irrespective of whether Accardi the petitioner asserted that the Board of Im- provided a basis for Calderon-Pena to migration Appeals (“BIA”) had failed to exer- challenge his deportation in a civil proceeding, cise its discretion in denying his application for it is improper to seek its application now in an suspension of deportation, as it was required unrelated criminal proceeding.
to do under INS regulations; instead, it denied
the application because Accardi was included Furthermore, the IJ did not, in fact, violate on a confidential list of people the Attorney the regulation at issue, which requires that the General wanted deported. In considering IJ “shall inform the alien of his or her apparent Accardi’s application for writ of habeas eligibility to apply for any of the benefits enu- corpus, the Court concluded that he had merated in this chapter and shall afford the sufficiently alleged a due process interest in alien an opportunity to make application dur- having the INS follow its own regulations, so ing the hearing.” 8 C.F.R. § 1240.11(a)(2). the Court remanded to the district court with Calderon-Pena’s allegation that the IJ failed to instruction to determine whether there had, in follow this regulation is predicated on his ini- fact, been a prejudgment and, if so, to order a tial allegation that the IJ’s aggravated felony new administrative hearing. Id. at 268. determination was erroneous, because
discretionary relief is unavailable to aggravated Calderon-Pena does not cite, nor have we felons.
located, any cases applying Accardi in the
criminal context; all examples of relief granted Given the IJ’s legal determination that the came either via direct appeal of an basis of deportation was an aggravated felony, administrative ruling or by writ of habeas Calderon-Pena’s eligibility for discretionary corpus. [2] In civil proceedings, Accardi is relief was not apparent. Assuming that he applied by ordering a new administrative should have been eligible for discretionary re- hearing, and therefore courts do not require a lief but was not informed, this was caused by showing of prejudice. Here, we are not an erroneous legal finding, not a failure to fol-
low regulations. [3] *5 in error, and that his hearing was unfair, even defendant previously was deported or these showings would not allow him to escape unlawfully remained in the United States, after the requirements of § 1326(d); specifically, he . . . a conviction for a felony that is . . . a crime still must exhaust “any administrative remedies of violence,” the offense level should be that may have been available to seek relief increased by sixteen levels. U.S.S.G. § 2L1.2- against the order.” § 1326(d)(1). He had the (b)(1)(A)(ii) (2001). The application notes de- opportunity to seek administrative review via fine crime of violence, in relevant part, as “an the BIA and judicial review. He does not offense under federal state, or local law that allege that the IJ failed to advise him of these has as an element the use, attempted use, or rights, and he concedes that he sought no ad- threatened use of physical force against the ministrative review and waived his right to ju- person of another[.]” Id . at comment. (n.1(B)- dicial review. (ii)(I)) (2001) (hereinafter, “the § 2L1.2
definition”).
The IJ’s failure to advise Calderon-Pena of
available discretionary relief does not excuse
We first address the statement in
United
his failure to seek relief by the other available
States v. Rayo-Valdez
,
to have been predicated on the fact that the
III.
§ 2L1.2 definition uses “and” to connect the
Calderon-Pena argues that the district court
first subparagraph, describing crime of
improperly increased his sentence by treating
violence as having “as an element the use,
his child endangerment convictions as crimes
attempted use, or threatened use of physical
of violence, or in the alternative that the use of
force . . .,” and the second paragraph, listing
the 2001 version of the guidelines, rather than
specific crimes, such as murder and
the 2000 version, increased his sentence and
manslaughter. This contrasts with U.S.S.G.
therefore violated the
ex post facto
clause.
§ 4B1.2, which use the conjunction “or.” The
The district court’s
interpretation or
word “and” was read to imply that both the
application of the guidelines is reviewed
de
first and second part had to be satisfied for a
novo
.
United States v. Huerta
,
364 (5th Cir. 1999). We follow both the
guidelines and their accompanying policy
This determination was “not relevant” to
statements and give
the commentary
the holding,
id
., so it is
dictum
, and we are not
controlling weight unless it is plainly erroneous
bound by it.
Krim v. Banctexas Group
, 99
or inconsistent with the guidelines.
See United
F.3d 775, 779 (5th Cir. 1996). At least one
States v. Urias-Escobar
, 281 F.3d 165, 167
panel of this court ignored the statement and
(5th Cir),
cert. denied
,
der each subparagraph before determining it
A.
was not a crime of violence.
See United States
The 2001 guidelines require that “[i]f the
v. Rodriguez-Rodriguez
,
enhancement purposes.’” [4] Although § 4B1.2 uses the phrase “or is ” to
link the two subparagraphs, the § 2L1.2 The Texas child endangerment statute pro- definition uses the phrase “and includes .” As vides that “A person commits an offense if he we read the § 2L1.2 definition, the second intentionally, knowingly, recklessly, or with subparagraph adds to, but does not limit , the criminal negligence, by act or omission, first. Further, because Rayo-Valdez held, 302 engages in conduct that places a child younger F.3d at 319, that all the crimes listed in the than 15 years in imminent danger of death, second subparagraph are crimes of violence, bodily injury, or physical or mental irrespective of whether they appear to satisfy impairment.” T EX . P ENAL C ODE § 22.041(c). the elements test, its reading renders the first In United States v. Gracia-Cantu , 302 F.3d subparagraph unnecessary. 308, 311 (5th Cir. 2002), we decided that a
similar statute, T EX . P ENAL C ODE § 22.04(a), [5] “It is a cardinal principle of statutory did not give rise to a crime of violence construction that a statute ought, upon the enhancement under 18 U.S.C. § 16. With whole, to be so construed that, if it can be regard to § 16(a), which is similar to the 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
struction and interpretation.
Rayo-Valdez,
302
subject to this and other rules of statutory con-
and
Vickers
do not interpret § 2L1.2 as requiring that both
,
(interpreting the crime of violence definition at 18 B. U.S.C. § 924(e)).
Calderon-Pena urges that child endangerment cannot qualify as a crime of [5] The statute under which Gracia-Cantu was convicted for injury to a child provides in relevant violence because it does not have as an part: element the use, attempted use, or threatened
use of physical force against the person or
(a) A person commits an offense if he in-
property of another. In
Rodriguez-Rodriguez
,
tentionally, knowingly, recklessly, or with
to determine whether a prior conviction
T EX . P ENAL C ODE § 22.04(a). *7 § 2L1.2 definition, [6] Gracia-Cantu states that not consider the issue further. the defendant
Id . at 311-12 (emphasis added and citations persuasively argues that his prior offense omitted).
does not constitute a crime of violence
under 18 U.S.C. § 16(a) because section The salient difference between § 22.04(a) 22.04(a) of the Texas Penal Code, the and § 22.041(c) is that in the latter, the statute criminalizing injury to a child, perpetrator places a child “in imminent does not require that the perpetrator danger” of injury, death, etc., whereas in § actually use, attempt to use, or threaten 22.04(a) the conduct actually results in the to use physical force against a child. injury, death, etc., of the child. Because the R a t h e r , s e c t i o n 2 2 . 0 4 ( a ) i s conduct prohibited in § 22.04(a) is identical to results-oriented in that the culpable or, if anything, more serious than, that mental state must relate to the result of prohibited in § 22.041(c), Gracia-Cantu a defendant’s conduct rather than to the appears persuasive.
conduct itself. The government
concedes that, because the statutory The government urges that though under definition of the offense does not Rodriguez-Rodriguez we may not look at the explicitly require the application of force specific facts underlying the conviction, we as an element , 18 U.S.C. § 16(a) does should look to the indictment where a statute not apply to Gracia-Cantu’s offense of contains disjunctive elements. The injury to a child. Accordingly, we need government distinguishes Gracia-Cantu because there it was conceded that § 16(a) did several definitions of “crime of violence” that vary from one another in significant ways, and we must [6] The guidelines contain or make reference to the charging documents were not presented to not apply. It also argues that in Gracia-Cantu the court, and therefore we could look only to the statute. Here, it suggests, we have the charging documents and that Calderon-Pena’s be careful in relying on prior cases applying a offenses, as charged, qualify as crimes of given definition of that term, to ensure that the violence. Reviewing our precedent, including provision considered in the precedent case is the Rodriguez-Rodriguez and Gracia-Cantu , we same or sufficiently similar to that currently con- sidered. See United States v. Charles , 301 F.3d find no case in which we have expressly en- 309, 312 (5th Cir. 2002) (en banc) (overruling dorsed or rejected that argument. cases that “conflated the § 16(b) and [U.S.S.G.]
§ 4B1.2(a)(2) definitions of crime of violence”
The government claims support from
Tay-
because relevant differences in the language of the
lor
,
definitions of the prior offenses, or whether the of Taylor discusses only § 924(e)(2)(B)(ii). court may consider other evidence concerning We find no reason, however, why it would the defendant’s prior crimes.” Id . at 600. The not apply to § 924(e)(2)(B)(i) as well. In dis- Court considered § 924(e)(2)(B)(i), which cussing the categorical approach, the Court defines a “violent felony” in terms of its stated that “the phrase ‘is burglary’ in § 924- “elements” in a manner similar to the § 2L1.2 (e)(2)(B)(ii) most likely refers to the elements definition, and under § 924(e)(2)(B)(i), which of the statute of conviction , not to the facts of applies, inter alia , if the crime “is burglary.” each defendant’s conduct.” Id . at 600-01 (em- Id . phasis added). It understood looking to the
indictment or jury instructions to be consistent The Court held that “§ 924(e) mandates a with a categorical approach. It follows that it formal categorical approach, looking only to would be acceptable to do so when applying the statutory definitions of the prior offenses, § 924(e)(2)(B)(i), and by extension the simi- and not to the particular facts underlying those larly-worded § 2L1.2 definition. convictions.” Id . It allowed, however, that a
sentencing court may “go beyond the mere This is not inconsistent with Rodri- fact of conviction in a narrow range of cases guez-Rodriguez ’s admonishment not to where a jury was actually required to find all consider the facts underlying the conviction. The same language appears in SS indeed, was the elements of generic burglary.” Id . at 602.
derived from SS
Taylor
. In
United States v.
For example, in a State whose burglary
Allen
,
as well as a building, if the indictment or
information and jury instructions show as allowing the sentencing court to con- that the defendant was charged only sider only the statutory definition of the with a burglary of a building, and that offense, the charging paper and jury in- the jury necessarily had to find an entry structions. Any different rule raises the of a building to convict, then the possibility of mini-trials to determine the Government should be allowed to use facts underlying a prior offense. Such the conviction for enhancement. . . . We an “elaborat e factfinding process therefore hold that an offense regarding the defendant’s prior offens- constitutes “burglary” for purposes of a es,” is specifically barred by Taylor . § 924(e) sentence enhancement if either
its statutory definition substantially cor- (Quoting Taylor , 495 U.S. at 601.) We responds to “generic” burglary, or the distinguish looking to the indictment to see charging paper and jury instructions ac- whether the facts there shown required force tually required the jury to find all the el- from looking to the indictment to determine ements of generic burglary in order to which elements in a statute of conviction were convict the defendant. satisfied. We therefore conclude that a court may look to the indictment and, if necessary, Id . the jury instructions, for the limited purpose of
determining which of a series of disjunctive As Calderon-Pena points out, this portion elements a defendant’s conviction satisfies. *9 C. not raise the contention that the element The indictment states that Calderon-Pena of bodily injury necessarily entailed the “unlawfully, intentionally and knowingly en- use of physical force. Even had such ar- gage[d] in conduct that placed [his two gument been raised, because of the ma- children] in imminent danger of bodily injury, terial difference between the injury to a namely by striking a motor vehicle occupied by child statute and the instant misdemean- the [the children] with the Defendant’s motor or assault statute, we do not believe it vehicle.” Applying this information to would have made a difference in the § 22.041(c), we see that Calderon-Pena was analysis or outcome of Gracia-Cantu . convicted of two counts of “intentionally . . . More to the point, although both Shel- by act . . . engag[ing] in conduct that place[d] ton and Gracia-Cantu’s predicate a child younger than 15 years in imminent dan- convictions do contain the element of ger of . . . bodily injury[.]” We next must bodily injury, the injury to a child statute confront whether this statute, as pared down, also proscribes acts of omission has as an element the use, attempted use, or perpetrated against a child, elderly threatened use of physical force against the individual or disabled individual. By person of another. including acts of omission, the injury to
a child statute encompasses conduct Returning to Gracia-Cantu , we there stated that, unlike the instant case, does not that § 22.04(a) failed the similar test in require the use of physical force by the § 16(a), because the statute “is results-oriented defendant. Thus, despite the broad “re- in that the culpable mental state must relate to sults-oriented” language, because Gra- the result of a defendant’s conduct rather than cia-Cantu involves a predicate offense to the conduct itself.” Gracia-Cantu , 302 that is materially different from that at F.3d at 311-12. A broad reading of this issue, it is not controlling.
statement would seem to preclude the finding
of a crime of violence here under § 22.041(c),
Shelton
,
even with the unnecessary elements removed.
This reading is in apparent tension with the
United States v. Shelton
,
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 passage in Gracia-Cantu , we stated that spouse. . . .” Referring to the above-quoted Gracia- Cantu . See Shelton Vargas-Duran ’s narrowing of vacated ). Vargas-Duran , 325 F.3d at 559-61 (citing relied heavily on the now- [7] Further, Shelton
[8]
See United States v. Miro
,
the indictment that resulted in the underlying
convictions removes from consideration the Both the 2000 and 2001 guidelines provide “omission” portion of § 22.041(c), the case at a base offense level of 8. U.S.S.G. § 2L1.2(a) bar is distinguishable from Gracia-Cantu . (2000); § 2L1.2(a) (2001). The 2001 version
of § 2L1.2 provides a sixteen-level
Shelton
holds that where a predicate
enhancement if the predicate offense is a crime
offense requires bodily injury, it necessarily in-
of violence, § 2L1.2(b)(1)(A)(ii) (2001),
cludes, as an element, the use of physical
whereas the 2000 version has no such
force.
Shelton
,
es satisfy the §2L1.2 definition of crime of vio-
lence and support the sentencing enhancement. Consequently, there would be an ex post
facto violation only if Calderon-Pena’s D. endangerment of a child conviction qualifies as We finally turn to Calderon Pena’s a crime of violence under § 2L1.2(b)(1)(A)(ii) contention that application of the 2001 (2001) but not as an aggravated felony under Guidelines violates the ex post facto clause of § 2L1.2(b)(1)(A) (2000). The 2000 guidelines the Constitution. The guidelines in effect on define “aggravated felony” by reference to *11 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.
Notes
[2] Conversely, in United States v. Bricsoe , 69 F. Finally, even were we to accept Calderon- Supp. 2d 738, 747 (D. V.I. 1999), aff’d , 234 F.3d Pena’s claim that this case is distinguishable 1266 (3rd Cir. 2000) (table), the district court “de- from Lopez-Ortiz , that the determination was cline[d] [defendant’s] invitation to extend to crim- inal prosecutions a doctrine developed for admin- istrative proceedings” and refused to suppress evi-
[3] Under Calderon-Pena’s reasoning, many, if dence in a criminal case where INS and FBI agents violated agency regulations requiring them to not most, errors of law by an IJ could be converted comply with the Vienna Convention by advising a into Accardi claims, because a given legal detained foreign national that he had a right to determination often will cause an IJ to not apply contact his country’s consul. regulations that he otherwise would have invoked.