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United States Court of Appeals
Fifth Circuit
F I L E D
In the
July 17, 2003
United States Court of Appeals
Charles R. Fulbruge III
for the Fifth Circuit
Clerk
_______________
m 02-20331
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
PEDRO CALDERON-PENA,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
Before SMITH and BARKSDALE, Circuit
8 U.S.C. § 1326. He challenges his
Judges, and DUPLANTIER,* District Judge.
conviction, arguing that the underlying
indictment was invalid because the prior
JERRY E. SMITH, 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

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 months'
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
2

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, 227 F.3d 476,
proceedings at which the order
481-82 (5th Cir. 2000).
was issued improperly
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, 481 U.S. 828, 839 (1987).
(3) the entry of the order was
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, 313 F.3d 225,
requiring the IJ to inform the alien of eli-
229 (5th Cir. 2002), cert. denied, 123 S. Ct.
gibility for discretionary relief does not rise to
922 (2003). To meet the prejudice prong, an
the level of a due process violation, at least un-
alien must demonstrate a reasonable likelihood
der the circumstances presented here.
that, but for the errors complained of, he
would not have been deported. United States
Calderon-Pena urges that Lopez-Ortiz is
v. Benitez-Villafuerte, 186 F.3d 651, 658-69
not dispositive. Citing United States ex rel.
(5th Cir. 1999). These requirements were ef-
Accardi v. Shaughnessy, 347 U.S. 260, 267-
fectively codified in § 1326(d), which
68 (1954), Calderon-Pena contends that he has
provides:
a due process interest in the INS's following
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
3

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
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-
dence in a criminal case where INS and FBI agents
3 Under Calderon-Pena's reasoning, many, if
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.
4

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, 302 F.3d 314, 318 (5th
avenues. Because he failed to exhaust his ad-
Cir.), cert. denied, 123 S. Ct. 694 (2002), that
ministrative remedies, he cannot successfully
the "§ 2L1.2 definition has eliminated the pos-
challenge the validity of the removal order.
sibility that a non-enumerated crime risking
The district court did not err in denying the
use of physical force could qualify as a `crime
motion to dismiss the indictment.
of violence' . . ." This determination appears
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, 182 F.3d 361,
crime to fit the definition.
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, 536 U.S. 913 (2002).
analyzed the crime at issue independently un-
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, 323 F.3d 317, 318-19
5

(5th Cir. 2003) (per curiam).
qualifies as a predicate offense for sentencing
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." TEX. PENAL CODE § 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, TEX. PENAL CODE § 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
4
subject to this and other rules of statutory con-
Id. (quoting United States v. Vargas-Duran,
struction and interpretation. Rayo-Valdez, 302
319 F.3d 194, 196 (5th Cir. 2003), vacated for re-
hearing en banc, 2003 U.S. App. LEXIS 13232
F.3d at 319 (citing TRW and United States v.
(5th Cir. June 26, 2003). Though Rodri-
Vickers, 891 F.2d 86, 88 (5th Cir. 1989)). We
guez-Rodriguez cited Vargus-Duran for this hold-
do not interpret § 2L1.2 as requiring that both
ing, the original source of much of the quotation is
the first and second subparagraphs be satisfied.
Taylor v. United States, 495 U.S. 575, 602 (1990)
(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
violence because it does not have as an
convicted for injury to a child provides in relevant
element the use, attempted use, or threatened
part:
use of physical force against the person or

property of another. In Rodriguez-Rodriguez,
(a) A person commits an offense if he in-
323 F.3d at 318-19, we endorsed a categorical
tentionally, knowingly, recklessly, or with
criminal negligence, by act or intentionally,
approach to applying the § 2L1.2 definition.
knowingly, or recklessly by omission, caus-
Under this analysis, "[w]e need not discuss the
es to a child, elderly individual, or disabled
facts underlying" the conviction, but instead
individual: (1) serious bodily injury;
should "`look only to the fact of conviction
(2) serious mental deficiency, impairment,
and the statutory definition of the prior offense
or injury; or (3) bodily injury.
to determine whether a prior conviction
TEX. PENAL CODE § 22.04(a).
6

§ 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 ) is
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
not apply. It also argues that in Gracia-Cantu
6
the charging documents were not presented to
The guidelines contain or make reference to
the court, and therefore we could look only to
several definitions of "crime of violence" that vary
the statute. Here, it suggests, we have the
from one another in significant ways, and we must
be careful in relying on prior cases applying a
charging documents and that Calderon-Pena's
given definition of that term, to ensure that the
offenses, as charged, qualify as crimes of
provision considered in the precedent case is the
violence. Reviewing our precedent, including
same or sufficiently similar to that currently con-
Rodriguez-Rodriguez and Gracia-Cantu, we
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, 495 U.S. at 599-602, which it argues al-
two provisions meant that "what qualifies as a
lows a court to look at the indictment where
crime of violence under one does not necessarily
the conduct there shown demonstrates that the
qualify under the other"). Title 18 U.S.C. §16(a)
defendant, in committing a crime, met the de-
defines crime of violence as "an offense that has as
finition in the sentencing enhancement. In
an element the use, attempted use, or threatened
Taylor, the Court addressed "whether a
use of physical force against the person or property
of another[.]" Sufficient similarity exists to
sentencing court in applying [18 U.S.C.]
consider precedent interpreting and applying
§ 924(e) must look only to the statutory
§ 16(a) when interpreting the § 2L1.2 definition.
7

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 elements of generic burglary." Id. at 602.
The same language appears inSSindeed, was
derived fromSSTaylor. In United States v.
For example, in a State whose burglary
Allen, 282 F.3d 339, 343 (5th Cir. 2002), we
statutes include entry of an automobile
read Taylor
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.
8

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, 325 F.3d at 560-61.
even with the unnecessary elements removed.
This reading is in apparent tension with the
In United States v. Shelton, 325 F.3d 553
original sweep of Gracia-Cantu.7 If we are
(5th Cir. 2003), however, we took a narrow
not convinced that Shelton adequately
reading of Gracia-Cantu. There, we
distinguishes the broad language of Gracia-
considered whether misdemeanor assault has
Cantu, we are bound to follow Gracia-Cantu.8
"as an element, the use or attempted use of
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 . . .
7
intentionally, knowingly, or recklessly causes
Further, Shelton relied heavily on the now-
vacated Vargas-Duran's narrowing of Gracia-
bodily injury to another, including the person's
Cantu. See Shelton, 325 F.3d at 559-61 (citing
spouse. . . ." Referring to the above-quoted
Vargas-Duran).
passage in Gracia-Cantu, we stated that
8 See United States v. Miro, 29 F.3d 194, 199
[i]n Gracia-Cantu, the government did
n.4 (5th Cir. 1994) ("When faced with conflicting
panel opinions, the earlier controls our decision.").
9

the date a defendant is sentenced apply "unless
We need not reach the question, however:
the court determines that `use of the
We addressed whether § 22.01(a) had "as an
Guidelines Manual in effect on the date that
element the use, attempted use, or threatened
the defendant is sentenced would violate the ex
use of physical force against the person of an-
post facto clause of the United States
other" more than ten years before Shelton and
Constitution,' in which case the court should
found that it did. United States v. Martinez,
use the version of the guidelines in effect on
962 F.2d 1161, 1168-69 (5th Cir. 1992)
the date that the offense of conviction was
(considering the definition of "violent felony"
committed." United States v. Domino, 62
at § 924(e)(2)(B)(i)). Therefore, even if
F.3d 716, 719-720 (5th Cir. 1995) (quoting
Gracia-Cantu contradicts the holding of
U.S.S.G. §1B1.11). Because the court
Shelton, both are controlled by Martinez. We
sentenced Calderon-Pena after the effective
therefore accept Shelton's holding that
date of the 2001 guidelines, those guidelines
Gracia-Cantu's "results-oriented" language is
should be used unless doing so results in a
applicable only to crimes that can be
harsher sentence than would be given under
committed by omission. Because reference to
the 2000 guidelines.
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, 325 F.3d at 561. Though child
enhancement. The 2001 version, however,
endangerment requires no bodily injury, it does
provides only an eight-level enhancement if the
require that the perpetrator cause someone to
predicate offense is an aggravated felony,
be placed in imminent danger of bodily injury.
§ 2L1.2(b)(1)(C) (2001), whereas the 2000
Shelton's reasoning, by extension, would
version provides a sixteen-level enhancement,
require either attempted use or actual use of
§ 2L1.2(b)(1)(A) (2000). The only other en-
force to create the danger. Calderon-Pena's
hancement under either version is the
child endangerment convictions therefore
enhancement for "any other felony," which un-
have as an element at least the attempted use
der both versions results in a four-level
of physical force, if not the use o f physical
enhancement. See § 2L1.2(b)(1)(B) (2000);
force itself. Accordingly, his predicate offens-
§ 2L1.2(b)(1)(D) (2001).
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
10

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.
11