Dеfendant-Appellant Efren Villegas-Hernandez (Villegas-Hernandez) contends that the district court erred in applying an eight-level sentence enhancement because his prior Texas conviction for assault is not a “crime of violence” as defined for this purpose by the United States Sentencing Guidelines. We agree. Accordingly, we VACATE his sentence and REMAND for resentencing.
FACTS AND PROCEEDINGS BELOW
On October 25, 2004, Border Patrol agents found Villegas-Hernandez in Cameron County, Texas and determined him to be a citizen of Mexico who had entered the United States illegally. Villegas-Hernan-dez had been deported from the United States on May 13, 2003, after pleading guilty to assault in Texas state court. 1
On February 23, 2005, Villegas-Hernan-dez pleaded guilty to violating 8 U.S.C. § 1326(a) and (b), 2 which proscribe knowingly and unlawfully being present in the *877 United States after having been “denied admission, excluded, deported, or removed” following certain convictions.
For violations within section 1326, sentencing guideline 2L1.2(b)(1)(C) provides for an eight-level enhancement if the violation follows a conviction for an “aggravated felony.” 3 Application Note 3(A) for guideline 2L1.2 states that “[f]or purposes of subsection (b)(1)(C), ‘aggravated felony’ has the meaning given that term in section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. § 1101(a)(43)).” 8 U.S.C. § 1101(a)(43) in its various subpar-agraphs lists multiple offenses that constitute an aggravated felony. The only one relevant to this appeal is subparagraph (F), which provides that an aggravated felony includes “a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year.” 4 18 U.S.C. § 16 provides:
“The term ‘crime of violence’ means—
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. § 16 (2000).
Citing guideline 2L1.2(b)(l)(C), the pre-sentence report (PSR) recommended adding eight levels to Villegas-Hernandez’s total offense level, based on categorizing Villegas-Hernandez’s Texas assault conviction as an aggravated felony. Villegas-Hernandez objected to this treatment of his assault conviction and further objected that 8 U.S.C. § 1326 was facially unconsti *878 tutional. After two sentencing hearings addressing Villegas-Hernandez’s concerns, the district court overruled his objections and adopted the PSR’s enhancement recommendation, rendеring Villegas-Hernan-dez’s guideline total offense level thirteen 5 and range for imprisonment eighteen to twenty-four months.
On June 23, 2005, the district court sentenced Villegas-Hernandez to twenty-one months of imprisonment and three years of supervised release.
DISCUSSION
I.
Villegas-Hernandez, in his timely appeal, argues that the district court erred in treating his Texas assault conviction as an “aggravated felony” under U.S.S.G. § 2L1.2(b)(l)(C) because the Texas assault offense for which he was convicted is not a “crime of violence” as defined by 18 U.S.C. § 16, and therefore is not an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(F). Subsections 16(a) and 16(b) offer alternative definitions for crime of violence. Thus, the propriety of Villegas-Hernan-dez’s sentence enhancement turns on whether his Texas conviction for assault meets either the definition of crime of violence in subsection 16(a) or the definition in subsection 16(b). We discuss each of these provisions in turn.
A 18 U.S.C. § 16(a)
The Texas assault conviction constitutes a crime of violence under subsection 16(a) if it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” When deciding whether a prior conviction is a crime of violence because it has as an element the use of force, we use the categorical аpproach established in
Taylor v. United States,
Villegas-Hernandez’s prior conviction was under Texas Penal Code § 22.01(a), which provides:
“A person commits an offense if the person: '
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person’s spouse;
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person’s spouse; or
(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.” Tex. Pen.CodeAnn. § 22.01(a) (Vernon 2003).
Both Villegas-Hernandez and the government agree that 22.01(a)(1) of the Texas Penal Code, a Class A misdemeanor, constitutes the relevant assault definition in this case. To convict under 22.01(a)(1), the government must prove that the defendant “intentionally, knowingly, or recklessly eause[d] bodily injury to another .... ” The government contends that 22.01(a)(l)’s requirement that a defendant cause bodily *879 injury incorporates a requirement to show the intentional use of force, such that Ville-gas-Hernandez’s prior assault conviction satisfies 16(a)’s definition of crime of violence. We disagree for the following reasons.
First, as we have previously explained in relation to 16(b), the term “force” has a specific meaning and, when “used in the statutory definition of a ‘crime of violence,’ is ‘synonymous with destructive or violent force.’ ”
United States v. Landeros-Gon-zales,
Second, under 16(a)’s clear language, use of force must be “an element” of the offense, another term for which we have previously delineated a specific meaning:
“In our current legal terminology, an element is ‘[a] constituent part of a claim that must be proved for the claim to succeed.’ Blаck’s Law Dictionary 538 (7th ed. 1999).... If any set of facts would support a conviction without proof of that component, then the component most decidedly is not an element — implicit or explicit — of the crime.” United States v. Vargas-Duran,356 F.3d 598 , 605 (5th Cir.2004) (en banc).
Thus, an assault offense under section 22.01(a)(1) satisfies subsection 16(a)’s definition of a crime of violence only if a conviction for that offense could not be sustained without proof of the use of “destructive or violent” force.
The bodily injury required by section 22.01(a)(1) is “physical pain, illness, or any impairment of physical condition.” Tex. Pen.Code Ann. § 1.07(a)(8). Such injury could result from any of a number of acts, without use of “destructive or violent force”, making available to the victim a poisoned drink while reassuring him the drink is safe, or telling the victim he can safely back his car out while knowing an approaching car driven by an independently acting third party will hit the victim. To convict a defendant under any of these scenarios, the government would not need to show the defendant used physical force against the person or property of another. Thus, use of force is not an element of assault under section 22.01(a)(1), and the assault offense does not fit subsection 16(a)’s definition for crime of violence. 6
*880
This court had previously held that an assault offense undеr section 22.01(a)(1) “has, as an element, the use ... of physical force” under 18 U.S.C. § 921(a)(33)(A)(ii) so as to meet that section’s definition of “misdemeanor crime of domestic violence” and thus constitute a predicate offense for purposes of 18 U.S.C. § 922(g)(9).
See United States v. Shelton,
“There is ... a difference between a defendant’s causation of an injury and the defendant’s use of force. Consequently, Vargas-Duran’s use of force was simply not a fact necessary to support his conviction for intoxication assault.” Vargas-Duran,356 F.3d 598 , 606 (5th Cir.2004).
Moreover, in
Vargas-Duran
the
en banc
court,
id.
at 605 n. 10, specifically cited with approval, as supporting its “ruling on the ‘element requirement’ of’ section 2L1.2(b)(l)(A)(ii), note l(B)(ii)(I), the Second Circuit’s decision in
Chrzanoski v.
*881
Ashcroft,
Chrzanoski’s analysis of the ways in which the Connecticut third degree assault statute could be violated without the defendant’s use of force are likewise fully applicable to Tex. Pen.Code § 22.01(a)(1), viz:
“Given the elements of section 53a-61(a)(1) under Connecticut law, it seems an individual could be convicted of intentional assault in the third degree for injury caused not by physical force, but by guile, deception, or even deliberate omission .... Moreover, human experience suggests numerous examples of intentionally causing physical injury without the use of force, such as a doctor who deliberately withholds vital medicine from a sick patient. In sum, while there are undoubtedly many ways in which force could be used to commit third degree assault under Connecticut law, the plain language of the statute does not make usе of force an explicit or implicit element of the crime. Rather, its language is broad enough to cover myriad other schemes, not involving force, whereby physical injury can be caused intentionally.” Id.,327 F.3d at 195-96 . 11
*882
In
United States v. Calderon-Pena,
Because the en banc opinion in Vargas-Duran comes after Shelton, which is itself a panel opinion, and because of Shelton’s heavy reliance on the panel opinion in Vargas-Duran which was later reversed en banc, we feel compelled to decide whether Tеx. PemCode § 22.01(a)(1) “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” within the meaning of section 16(a) on the basis of the principles set down in Vargas-Duran and CcMeron-Pena rather than in reliance on Shelton. On this basis we conclude that although section 22.01(a)(1) requires that the defendant “intentionally, knowingly, or recklessly cause[s] bodily injury to another,” that section may be violated by the defendant so causing such injury by means other than the actual, attempted, or threatened “use of physical force against the person of another,” and hence does not have such use of force as an element and does not fall within section 16(a). 12
In addition to its reliance on Shelton, the government leans heavily on the district court’s finding of family violence and the conduct underlying Villegas-Hernandez’s conviction to support its claim that the prior assault conviction is a crime of violence under subsection 16(a). The government quotes the information charging Vil-legas-Hernandez:
“[0]n or about the 9TH day of OCTOBER, A.D.2000, and before the making and filing of this Information, in Cameron County, Texas, EFREN HERNANDEZ VILLEGAS, the Defendant, did then and there unlawfully, intentionally, knowingly, or recklessly cause bodily injury to another, namely, ADRIANA HERNANDEZ, a family member, by HITTING ADRIANA HERNANDEZ WITH DEFENDANT’S HAND AND/OR KICKING ADRIANA HERNANDEZ WITH DEFENDANT’S FOOT.”
In his plea colloquy, Villegas-Hernandez admitted hitting his wife, although he neither denied nor admitted kicking her.
Undеr the categorical approach described above, however, conduct underly *883 ing an offense may not be employed to meet the definition of crime of violence under subsection 16(a). Accordingly, the government may not rely for this purpose on facts alleged in an indictment or information. This court clarified this matter in United States v. Calderon-Pena, where we considered whether the Texas child endangerment offense included use of force as an element:
“Although the actual conduct described in the indictments could be construed to involve the use of physical force against the person of another, that is irrelevant fоr purposes of this case. The inquiry under paragraph (I) looks to the elements of the crime, not to the defendant’s actual conduct in committing it. This rule springs directly from the language of the ‘crime of violence’ definition itself, which states that a ‘crime of violence’ is an offense that ‘has as an element’ the use of force.”383 F.3d at 257 .
We further noted that “under Texas law, the manner and means, even when required to be charged in the indictment, does not constitute an element of the offense.” Id. at 258. Rather, inclusion of manner and means serves to satisfy due process concerns related to adequately notifying defendants. Id. Thus, if statutory language is wholly result-oriented, as herе, an offense is not a crime of violence under subsection 16(a) simply because an indictment or information describes force being used in a particular commission of that offense. 13 We do not say here that an indictment is always off-limits; a charging instrument may appropriately be referenced in order to determine which of several statutorily specified or referenced methods of committing an offense (or statutory subdivisions containing different offense definitions or elements) are involved in a given case. See id. at 258.
B. 18 U.S.C. § 16(b)
Subsection 16(b) defines crime of violence as “any other offense that is a felony and that, by its nature, involvеs a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. § 16(b). Subsection 16(b) expressly pertains only to felonies. Therefore, Villegas-Hernandez’s assault conviction is a crime of violence as that term is defined by 16(b) only if it constitutes a felony. Because the offense de *884 scribed in Texas Penal Code § 22.01(a)(1) cannot be classified as a felony under either state or federal law, we hold that Villegas-Hernandez’s prior conviction does not satisfy 16(b)’s definition for crime of violence. 14
Texas law specifically categorizes an assault under § 22.01(a)(1) as a Class A misdemeanor, which may be punished by imprisоnment for not more than one year. See Tex. Pen.Code Ann. § 22.01(b) (Vernon 2008) (classifying assault under section 22.01(a)(1) as a Class A misdemeanor); id. § 12.21 (Class A misdemeanors are punishable by up to one year in prison). Federal law, in turn, makes clear that the lowest class of felony within the federal system must be punishable by more than one year. 18 U.S.C. § 3559(a)(5) (2000) (defining a Class E felony). As such, neither Texas nor federal law permits us to categorize Villegas-Hernandez’s assault conviction as a felony.
The government argues that, while the default federal definition of a felony is, as noted above, an offense punishable by more than one year, in this case, assault under 22.01(a)(1) is a felony under federal law because 8 U.S.C. § 1101(a)(43)(F) defines aggravated felony for the purposes of guideline 2L1.2(b)(l)(C) as “a crime of violence (as defined in section 16 of Title 18 ...) for which the term of imprisonment [is] at least one year.” We find this argument unpersuasive.
8 U.S.C. § 1101(a)(43)(F)’s definition of “aggravated felony” has two requirements: First, that the offense meet either of section 16’s alternative definitions of crime of violence; and second, that the offense’s imprisonment term is at least one year. The government’s argument conflates the second requirement with the separate requirements of section 16 itself, which must be independently satisfied.
An offense can meet 16(a)’s definition— and therefore constitute an “aggravated felony” under 1101(a)(43)(F) — regardless of whether it is considered a felony under state or federal law. This is consistent with this court’s decision in
United States v. Urias-Escobar,
If an offensе does not meet the requirements of 16(a), however, then it must satisfy 16(b). In 16(b), whether the offense is a felony under state or federal law matters. This is separate from section 1101(a)(43)(F)’s second requirement of at least a one-year imprisonment term.
Because assault under Texas Penal Code § 22.01(a)(1) cannot be described as a felony under either Texas or federal law, we do not address whether subsection 16(b)’s requirement that an offense be a felony looks to federal or state law definitions of felony. Accordingly, this case is distinguishable from
Francis v. Reno,
C. Prejudicial Error
Villegas-Hernandez’s prior conviction was not a felony under either state or federal law, and it therefore may not be considered a “crime of violence” as defined in subsection 16(b). Nor does his assault conviction constitute a crime of violence under subsection 16(a), because 22.01(a)(1) does not include use of force as an element. Consequently, Villegas-Hernan-dez’s prior conviction was not an “aggravated felony” under guideline 2L1.2(b)(l)(C), and it was error to apply an eight-level enhancement under that guideline. Villegas-Hernandez preserved this error by objecting at trial.
Without the improper eight-level enhancement, Villegas-Hernandez would have had a total offense level of six, 15 which combined with a criminal history category III, would have led to a two to eight month guideline sentence range. See U.S.S.G. Ch. 5, Pt. A, Sentencing Table. This suffices to show prejudicial error.
Under
United States v. Booker,
II.
Villegas-Hernandez also challenges the constitutionality of the “felony” and “aggravated felony” sentencing provisions of 8 U.S.C. § 1326(b)(1) and (2). He argues that statutory provisions 8 U.S.C. § 1326(b)(1) and (2) are unconstitutional under
Apprendi v. New Jersey,
CONCLUSION
We VACATE the defendant-appellant’s sentence and REMAND for resentencing.
VACATED and REMANDED.
Notes
. On February 15, 2001, Villegas-Hernandez pleaded guilty to the offense of assault before the County Court at Law No. 3 of Cameron County, Texas. For this offense, he was sentenced to 12 months’ confinement suspended for 18 months.
. Section 1326, "Reentry of removed aliens,” states in pertinent part:
"(a) In general
Subject to subsection (b) of this section, any alien who—
(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter
(2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien's reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act,
shall be fined under Title 18, or imprisoned not more than 2 years, or both.
(b) Criminal penalties for reentry of certain removed aliens
Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection—
(1) whose removal was subsequent to a conviction for commission of three or more misdemeanors involving drugs, crimes against the person, or both, or a felony (other than an aggravated felony), such alien shall be fined under Title 18, imprisoned not more than 10 years, or both;
(2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such Title, imprisoned not more than 20 years, or both;
(3) who has been excluded from the United States pursuant to section 1225(c) of this title because the alien was excludable under section 1182(a)(3)(B) of this title or who has been removed from the United States pursuant to the provisions of sub-chapter V of this chapter, and who thereafter, without the permission of the Attorney General, enters the United States, or attempts to do so, shall be fined under *877 Title 18 and imprisoned for a period of 10 years, which sentence shall not run concurrently with any other sentence, or
(4) who was removed from the United States pursuant to section 1231(a)(4)(B) of this title who thereafter, without the permission of the Attorney General, enters, attempts to enter, or is at any time found in, the United States (unless the Attorney General has expressly consented to such alien’s reentry) shall be fined under Title 18, imprisoned for not more than 10 years, or both.
For the purposes of this subsection, the term 'removal' includes any agreement in which an alien stipulates to removal during (or not during) a criminal trial under either Federal or State law.” 8 U.S.C. § 1326 (2000).
. U.S.S.G. § 2L1.2, "Unlawfully Entering or Remaining in the United States,” states:
"(a) Base Offense Level: 8 (b) Specific Offense Characteristic
(1) Apply the Greatest:
If the defendant previously was deported, or unlawfully remained in the United States, after^—
(A) a conviction for a felony that is (i) a drug trafficking offense for which the sentence imposed exceeded 13 months; (ii) a crime of violence; (iii) a firearms offense; (iv) a child pornography offense; (v) a national security or terrorism offense; (vi) a human trafficking offense; or (vii) an alien smuggling offense, increase by 16 levels;
(B) a conviction for a felony drug trafficking offense for which the sentence imposed was 13 months or less, increase by 12 levels;
(C) a conviction for an aggravated felony, increase by 8 levels;
(D) a conviction for any other felony, increase by 4 levels; or
(E) three or more convictions for misdemeanors that are crimes of violence or drug trafficking offenses, increase by 4 levels.” U.S.S.G. § 2L1.2 (2004).
. Under 8 U.S.C. § 1101(a)(48)(B) "any suspension of the imposition or execution of” the confinement or sentence, in whole or in part, is disregarded in determining whether the at least one year requirement is met.
. The offense level of thirteen was calculated as follows: The base offense level is eight. U.S.S.G. § 2L1.2(a). Eight levels were added as a result of categorizing Villegas-Hernandez’s prior conviction as an aggravated felony, resulting in an adjusted offense level of sixteen. See U.S.S.G. § 2L1.2(b)(l)(C). Two levels were subtracted for the defendant-appellant’s acceptance of responsibility, per U.S.S.G. § 3El.l(a). On the government’s motion, Villegas-Hernandеz’s offense level was decreased by one additional level, pursuant to U.S.S.G. § 3El.l(b), leaving Villegas-Hernandez with a total offense level of thirteen.
. We recognize that our understanding of the term "use of force” as it appears in subsection 16(a) assigns that term a definition less expansive, and less directly connected to the defendant, than perhaps it arguably could be. See, for example, the following from one of the dissenting opinions in
United States v. Calderon-Pena,
"[T]he 'use of physical force' and 'attempted use of physical force' under the crime-of-violence guideline should extend to cover those applications of fоrce that are subtle or indirect ....
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 ... the perpetrator has at least attempt-
ed to make use of physical force ..., 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.
... [Bjatteries and assaults punishable under ... statutes can involve uses оr 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 *880 person into consuming poison, or luring him to walk off a cliff .... ” United States v. Calderon-Pena,383 F.3d 254 , 270 (5th Cir.2004) (per curiam).
We conclude that such an expansive view of "use of force” for purposes of § 16(a), which the government does not argue for here, was at least implicitly rejected by the en banc court in Calderon-Pena in its construction of the definition of "crime of violence” provided (in language almost identical to that of § (16)(a)) in paragraph (I) of comment n. l(B)(ii) to § 2L1.2 of the 2001 Guidelines. See Calderon-Pena at 256, 257, 259-60.
. See Shelton at 558 ("Applying the analysis of Vargas-Duran to the case at bar, it appears that the 'bodily injury' element of Shelton's predicate [§ 22.01(a)(1)] offense would also encompass a requirement that Shelton used force to cause the injury”), and at 561 (relying on Vargas-Duran's "rejecting argument that a defendant could be convicted of Texas offense of intoxicated assault for causing serious bodily injury without using physical force;” and, also relying on "our analogous reasoning in Vargas-Duran” to "hold that because Shelton's predicate offense of misdemeanor assault requires bodily injury it includes as an element the use of physical force”).
The
Vargas-Duran
panel opinion is the only sentencing guidelines (or § 16) case, and also the only Fifth Circuit case, on which
Shelton
relies to support its holding.
Shelton
does rely on the decisions in
United States v. Nason,
. Section 49.07 of the Texas Penal Code, at the time of the defendant's conviction in
Vargas-Duran,
stated that "a defendant is guilty of a third degree felony if he or she 'by accident or mistake,' while operating an aircraft, watercraft, or motor vehicle in a public place while intoxicated, by reason of that intoxication cause[d] serious bodily injury to another.”
Vargas-Duran,
. With respect to whether use of force is an element of the offense there appears to be no material difference between the “physical injury" provision of the Connecticut statute (defined “as 'impairment of physical condition or pain’ Conn. Gen.Stat. § 53-3(3)”; Chrzanoski at 193) and the "bodily injury” provision of the Texas statute, which Tex. Pen.Code § 1.07(8) defines as meaning “physical pain, illness, or any impairment of physical condition.”
.
See Vargas-Duran,
“In Chrzanoski, the Government argued that, while the state statute in question did not expressly identify ‘the use, attempted use, or threatened use’ of physical force as an element, it was implicit in the statute’s requirement, that physical injury be caused. Id. at 193. The Second Circuit rejected the Government’s argument and concluded that there was a difference between the use of force and the causatiоn of injury. Id. at 194. We agree. ” (emphasis added).
.We also observe that
Chrzanoski
specifically did "not find ... persuasive” in the present context the
Nason
and
Smith
cases by the First and Eighth Circuits on which
Shelton
relied (see note 7
supra). See Chrzanoski,
.
See also, e.g., United States v. Perez-Vargas,
. The government’s reliance on the state trial court having stated "I will make an affirmative finding of family violence” is misplaced. That finding, as the government recоgnizes, was obviously made pursuant to Tex.Code Crim. P. art. 42.013 (first enacted in 1993) which provides that: “in the trial of an offense under Title 5 [which includes § 22.01], Penal Code, if the court determines that the offense involved family violence, as defined by Section 71.004, Family Code, the court shall make an affirmative finding of that fact ...” Clearly this provision of the Texas Code of Criminal
Procedure
does not add any
element
to any of the offenses denounced in the
Penal Code.
The Penal Code does provide, in § 22.01(b)(2), that if the victim of an offense under § 22.01(a) is a family member, and if the defendant has previously been convicted of any offense under Chapter 22 (or various other chapters) of the Penal Code in which the victim was a family member, then the § 22.01 offense is a third degree felony. As the court said in
State v. Eakins,
Moreover, Section 71.004(1) of the Family Code, to which Article 42.013 refers, speaks of conduct intended to "result in physical harm, bodily injury, assault, or sexual assault” (emphasis added) and not to the means used — whether physical force against the person or other means — to produce such a result.
. Whether it would do so were it a felony we need not and do not address.
. The base level of eight, less two levels for Villegas-Hernandez's acceptance of responsibility.