This appeal concerns whether a conviction for assault two (drugging a victim) under Colorado law is a crime of violence under United States Sentencing Guidelines § 2L1.2(b)(l)(A)(ii). We hold that it is not. As we understand the meaning of physical force, the elements of the offense do not *1192 require the use, attempted use, or threatened use of physical force. We therefore reverse the district court’s sentence and remand for resentencing.
I. BACKGROUND
Miguel Rodriguez-Enriquez pleaded guilty in the United States District Court for the District of New Mexico to one count of illegal reentry of a deported alien previously convicted of an aggravated felony. See 8 U.S.C. § 1326(a)(1), (a)(2), (b)(2). Under the Guidelines the base offense level for illegal reentry is 8. See USSG § 2L1.2(a). Mr. Rodriguez-Enri-quez received a 16-level enhancement under USSG § 2L1.2(b)(l)(A)(ii) after the district court ruled, over his objection, that he had previously been convicted of a crime of violence. The prior conviction was for assault two (drugging a victim) in Colorado. See Colo.Rev.Stat. Ann. § 18-3-203(l)(e) (2001). Mr. Rodriguez-Enri-quez’s offense level was adjusted downward three levels to 21, because he accepted responsibility for his crime. See USSG § 3E1.1.
Mr. Rodriguez-Enriquez did not challenge his criminal-history score of 10, which placed him in criminal-history category V. See USSG § 4A1.1; id. at § 5A. His Guidelines sentencing range was 70 to 87 months’ imprisonment. See USSG § 5A. He was sentenced to 70 months’ imprisonment and 2 years’ unsupervised release. On appeal he renews his argument that assault two (drugging a victim) is not a crime of violence.
II. ANALYSIS
We review de novo the district court’s determination that a conviction is for a crime of violence.
See United States v. Perez-Vargas,
murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, statutory rape, sexual abuse of a minor, robbery, arson, extortion, extortionate extension of credit, burglary of a dwelling, or any offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another.
Id. cmt. n. l(B)(iii). Mr. Rodriguez-Enri-quez was not convicted of any of the enumerated offenses. Therefore, his prior offense was a crime of violence only if it had “as an element the use, attempted use, or threatened use of physical force against the person of another.” Id.
Because the Guidelines refer to the
elements
of the offense, we ordinarily “ ‘look[ ] only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.’ ”
Perez-Vargas,
*1193
The government contends that the question has been largely answered for us by a Colorado state court.
State v. Allaire,
Even if we were to agree that drugging involves the use of
force,
we must still decide what is added by the adjective
physical.
It might relate to the consequences of the force, as in the term
deadly force,
which describes force that can cause death; or it might relate to how the force is generated. The published appellate opinions stating that poisoning involves the use of physical force appear to have selected the first alternative. They focus on the consequences of poisoning and find these consequences every bit as damaging as the consequences of being beaten or shot. For example, a Fifth Circuit panel in
United States v. Calderon-Pena, 357
F.3d 518, 520 (5th Cir.2004), which concerned whether a conviction for child endangerment was a crime of violence under USSG § 2L1.2, wrote: “Where there is a bodily injury, there is some sort of accompanying use of force — whether obviously, through use of an automobile as a weapon (as in this case), or through more subtle means, such as, for example, poison, or even subjecting a victim to disease.” Similarly, a Second Circuit panel in
Vargas-Sarmiento v. United States Dep’t of Justice,
[W]hen the perpetrator poisons food that she intends her spouse to eat, she engages in no mere passive act or reckless omission. Rather, she intentionally avails herself of the physical force exerted by poison on a human body deliberately to kill her husband. First, she affirmatively exercises “power” over the contents of her husband’s food to transform it into an agent of forcible destruction. Then she avails herself of that force to asphyxiate her husband (or otherwise destroy his vital bodily functions). That the wife may not herself administer the poison, that she may employ deceit to prompt her spouse’s unwitting ingestion, and that she may not be present when the poison forcibly kills do not alter the § 16(b) conclusion. The fact remains that she deliberately set in motion a chain of events specifically intended to use the force of poison to kill her husband.
And a Ninth Circuit panel, deciding whether a threat to poison with anthrax was a threat to use physical force (under 18 U.S.C. § 16(a)), said the following in
United States v. De La Fuente,
Anthrax is a physical substance that causes injury to the human body.... The injury and pain caused by anthrax infection may not always be immediately obvious to the person exposed, but the bacteria’s physical effect on the body is no less violently forceful than the effect of a kick or blow.
We disagree with this view of the meaning of
physical
in this context, as have other panels in the same circuits that produced these opinions. In the Fifth Circuit, the panel opinion in
Calderon-Pena
(which, in any case, did not specifically address the meaning of physical) was re
*1194
versed by the en banc court, which said nothing about poison.
See United States v. Calderon-Pena,
We reject the view that the word
physical
relates to the effect of the force, because if the word has that meaning, it adds nothing to the Guidelines definition of crime of violence. We hesitate to interpret a Guidelines provision so as to render a word superfluous.
See United States v. Burner,
Thus, the adjective physical must refer to the mechanism by which the force is imparted to the “person of another.” One possibility is that the adjective physical before the word force is being used to distinguish the described force from a force generated by emotion, psychology, religion, or rhetoric (as in “force of argument”). But that seems highly unlikely. Again, the relevant language is “use of physical force against the person of another.” USSG § 2L1.2 cmt. n. l(B)(iii). Rhetorical force and the like are used on the mind of another, not the body. The locution “use of emotional force against the person of another” is so peculiar that we are confident that the word physical was not included as a modifier of force for the purpose of eliminating from consideration crimes committed through the use of religious arguments or similar persuasion.
In what circumstances, • then, are we likely to think of the force as being generated by physical means? When someone is struck by a fist, a bat, or a projectile, we have no difficulty in characterizing the force against the person as physical. In those instances the force on the victim is generated mechanically. Kinetic energy from the fist, bat, or projectile is transferred to the body of the victim. Although the matter is far from certain, the absence of colorable alternative meanings for physical suggests that it is the presence of this mechanical impact that defines when force is physical. In contrast, the effect of poison on the body is achieved by chemical action, not by mechanical impact.
Our precedents have not directly addressed the issue before us. But
Perez-Vargas,
Because the conclusion in Perez-Vargas — namely, that a third-degree assault could be committed without the use, attempted use, or threatened use of physical force — required only one such example of third-degree assault, it was unnecessary for us to provide three. We might therefore label as dictum the assertion that any one particular offense did not involve the use of physical force. But it was necessary to have at least one example of such an offense, and all three stand on equal footing. Accordingly, we view the inclusion of each of the three as an alternative holding. Each example is entitled to respect.
The example in Perez-Vargas most pertinent to the case before us is “intentionally exposing someone to hazardous chemicals.” Id. As suggested by the defendant in that case, we look to “the means by which the injury occurs (the use of physical force),” not “the result of defendant’s conduct, i.e., bodily injury.” Id. at 1285 (emphasis omitted). Apparently focusing on the means employed, we decided that intentionally exposing someone to hazardous chemicals does not constitute the use of physical force. We should not read too much into the examples recited by Perez-Vargas. After all, the opinion provided no specific explanation why each of the three examples did not constitute the use of physical force. Nevertheless, we think that the hazardous-chemical example captures the point that we have made above: injury effected by chemical action on the body (as in poisoning or exposure to hazardous chemicals) should not be described as caused by physical force.
Turning to the statute at issue in this case, Colo.Rev.Stat. Ann. § 18-3-203(l)(e), it criminalizes harm caused by the nonconsensual administration of “a drug, substance, or preparation.” The harm is caused by chemical action on the victim’s body. Although there is no doubt that one could use physical force to drug someone, as by forcing a drink down the victim’s throat, drugging by surreptitious means does not involve the use of physical force. Therefore, we hold that assault two (drugging a victim) is not a crime of violence under § 2L1.2(b)(l)(A)(ii).
Finally, we note the limited impact of our holding in this case. The error in this case was only in computing the Guidelines sentencing range. But that range does not necessarily determine a defendant’s sentence. A sentencing judge may, for proper reasons, depart from the Guidelines range; and under
Gall v. United States,
- U.S.-,
*1196 III. CONCLUSION
We REVERSE the district court’s sentence and REMAND for resentencing.
Judge McWILLIAMS dissents.