Computer crimes, bank robbery, or other federal offenses, Darren Chaker discusses presentence reports and how used in federal court. Courts cannot consider facts in the presentence report in determining whether a conviction is a crime of violence. E.g., United States v. Martinez-Vega, 471 F.3d 559, 561-62 (5th Cir. 2006). Instead, courts must consider “adequate judicial record evidence,” including but not limited to, the charging instrument, jury instructions, the judge’s “formal rulings of law and findings of fact,” and a statement of the factual basis for the charge, as shown by the plea colloquy transcript, written
plea agreement, or “record of comparable findings of fact adopted by the defendant upon entering the plea.” Shepard v. United States, 544 U.S. 13, 20-21 (2005); see United States v. Castillo-Morales, 507 F.3d 873, 876 (5th Cir. 2007) (reviewing Shepard-approved documents to determine whether a conviction was the enumerated offense of burglary of a dwelling).
The court can also consider “any explicit factual finding by the trial judge to which the defendant
assented.” Shepard, 544 U.S. at 16;Castillo-Morales, 507 F.3d at 876 n.3(noting that Shepard-approved documents for a crimeof-violence determination include  “explicit factual findings by the district court to which the defendant assented upon entering the plea, or some comparable judicial record of this information”). In addition, facts alleged in the indictment can be used to determine which statutory subsection is implicated. See United States v. Calderon-Pena, 383 F.3d 254, 257-58 (5th Cir. 2004) (en banc).
In determining whether an offense is an enumerated crime of violence under section 2L1.2, this court applies a “common sense approach,” which defines an offense according to its “ordinary, contemporary, common meaning.” United States v. Mungia-Portillo, 484 F.3d 813, 816 (5 Cir. 2007) (applying the common sense approach to th the enumerated offense of aggravated assault); United States v. Mendoza-Sanchez, 456 F.3d 479, 481-82 (5th Cir. 2006) (applying the common sense approach to the enumerated offense of burglary of a dwelling); see also United States v. Izaguirre-Flores, 405 F.3d 270, 273-75 (5th Cir. 2005) (applying the common sense approach to the enumerated offense of sexual abuse of a minor). Last, the common sense approach looks to the Model Penal Code, Professor LaFave’s treatise, and dictionaries. Mungia-Portillo, 484 F.3d at 816 & n.3 (declining to exhaustively survey all state codes), however most crimes don’t correlate with using common sense.
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