Defendants-appellants Moises Chapa-Garza, Julian Ricardo Goytia Campos, Alfonso Guadalupe Perez Velazquez, Francisco Javier Saldana Roldan and Epifanio Ivarbo-Martell appeal their sentences. We VACATE their sentences and REMAND for resentencing.
Facts and Proceedings Below
All five of the defendants-appellants pleaded guilty to unlawfully being in the United States after removal therefrom, in violation of 8 U.S.C. § 1326(a). For violating section 1326(a), U.S.S.G. § 2L1.2 provides for a base offense level of 8, with an increase of 16 offense levels if removal from the United States was preceded by a conviction for an "aggravated felony".
Over appellants' objections, the district courts applied guideline 2L1.2's 16 level increase, finding that Texas felony DWI
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), was decided after the defendants-appellants filed their opening briefs. By a single supplemental brief, the defendants-appellants each raise the same Apprendi issue. 8 U.S.C. § 1326(a) provides that the maximum sentence shall be a fine and/or imprisonment up to two years. Section 1326(b)(2) increases the maximum penalty to a fine and/or imprisonment up to twenty years if the removal of the defendant was preceded by a conviction for an aggravated felony. The defendants-appellants'
Our disposition of these two legal issues will resolve all five appeals.
This Court reviews the district court's interpretation of the Sentencing Guidelines de novo and its application of the guidelines for clear error. United States v. Cho, 136 F.3d 982, 983 (5th Cir.1998). Defendants-appellants' sentences must be affirmed unless they were imposed in violation of law or were based upon an erroneous application of the Sentencing Guidelines. United States v. Velazquez-Overa, 100 F.3d 418 (5th Cir.1996).
18 U.S.C. § 16(b) is the only justification for the 16-level enhancement advanced by the government. Section 16(b) provides that a crime of violence is "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." The government correctly observes that the words "by its nature" require us to employ a categorical approach when determining whether an offense is a crime of violence. Velazquez-Overa, 100 F.3d at 420-21. This means that the particular facts of the defendant's prior conviction do not matter, e.g. whether the defendant actually did use force against the person or property of another to commit the offense. The proper inquiry is whether a particular defined offense, in the abstract, is a crime of violence under 18 U.S.C. § 16(b).
This is the second time a panel of this Court has been called upon to decide the question of whether felony DWI is a crime of violence as defined by 18 U.S.C. § 16(b). In Camacho-Marroquin v. Immigration and Naturalization Service, 188 F.3d 649 (5th Cir.1999), withdrawn 222 F.3d 1040 (5th Cir.2000), this Court held that felony DWI was a crime of violence. However, Camacho-Marroquin moved to withdraw his petition for rehearing en banc so that the Immigration and Naturalization Service could deport him in lieu of incarceration. As a result, the panel withdrew its opinion. Camacho-Marroquin had held that felony DWI was a crime of violence because of the substantial risk that drunk driving will result in an automobile accident. Camacho-Marroquin, 188 F.3d at 652. The government agrees with this approach and urges that anytime an offense involves a substantial risk of harm, even accidental harm, that offense is a crime of violence.
We disagree with the government's proposed construction of section 16(b) for three reasons: 1) it requires that section 16(b) be construed the same as U.S.S.G. § 4B1.2(a)(2), which now contains significantly broader language;
There are two possible constructions of the operative language of 18 U.S.C. § 16(b). The government urges that we interpret section 16(b) the same way the Seventh Circuit interpreted U.S.S.G. § 4B1.2(a)(2) in United States v. Rutherford, 54 F.3d 370 (7th Cir.1995).
We begin by comparing the text of guideline 4B1.2(a)(2) with that of section 16(b). Guideline 4B1.2(a)(2)'s "otherwise" clause contains broader language than does section 16(b). Guideline 4B1.2(a)(2) only requires that the offense involve conduct that poses a serious risk of physical injury to another person. It does not require, as section 16(b) does, that there be a substantial risk that the defendant will use physical force against another's person or property in the course of committing the offense. Guideline 4B1.2(a)(2)'s otherwise clause concerns only the risk of one particular effect (physical injury to another's person or property) of the defendant's conduct. Section 16(b) is focused on the defendant's conduct itself, as there is no requirement that there be a substantial risk that another's person or property will sustain injury, but only that there be a substantial risk that the defendant will use physical force against another's person or property in the course of committing the offense.
In United States v. DeSantiago-Gonzalez, 207 F.3d 261 (5th Cir.2000), this Court recognized the difference between section 16(b) and guideline 4B1.2(a)(2). DeSantiago-Gonzalez was applying, to misdemeanor DWI, the same guideline 4B1.2(a)(2) language that Rutherford applied to felony DWI.
DeSantiago-Gonzalez, 207 F.3d at 264.
Effective November 1, 1989, the definition of crime of violence under guideline 4B1.2(a)(2) was changed from a reference to section 16(b) to that which now appears. This change counsels against interpreting section 16(b) and guideline 4B1.2(a)(2) the same way.
Besides the aforementioned reasons to interpret section 16(b) differently than guideline 4B1.2(a)(2), we believe that the "substantial risk that physical force ... may be used" language in section 16(b) refers only to those offenses in which there is a substantial likelihood that the perpetrator will intentionally employ physical force. The criterion that the defendant use physical force against the person or property of another is most reasonably read to refer to intentional conduct, not an accidental, unintended event. THE AMERICAN HERITAGE COLLEGE DICTIONARY (3rd ed.1997) defines the verb "use" as:
The four relevant definitions indicate that "use" refers to volitional, purposeful, not accidental, employment of whatever is being "used". Our understanding accords with the Third Circuit's in United States v. Parson, 955 F.2d 858 (3rd Cir.1992). Although Parson involved interpretation of guideline 4B1.2(a)(2), the Third Circuit found it necessary to discuss the history of the career offender guideline, including a comparison of the pre November 1, 1989, language (which referred to 18 U.S.C. § 16) and the current language:
Id. at 866. This passage explains not only the proper construction of section 16(b), but also highlights the material difference
Another aspect of section 16(b) that bears upon the question of whether felony DWI is a crime of violence is the requirement that the physical force be applied "in the course of committing the offense". The meaning of these words is exemplified in this Court's decision of United States v. Velazquez-Overa, 100 F.3d 418 (5th Cir.1996). In Velazquez-Overa, we held that the crime of indecency with a child involving sexual contact was a crime of violence as defined in 18 U.S.C. § 16(b) because it was likely that the perpetrator would find it necessary to use physical force to "ensure the child's compliance" and "perpetrate the crime". Id. at 422. Velazquez-Overa explicitly distinguished guideline 4B1.2(a)(2) on this basis.
Id. at 421 n. 4. That section 16(b) refers only to that physical force that may be used to perpetrate the offense is in harmony with its requirement that the offender intentionally use the force against the person or property of another.
We turn now to the ultimate question we are called upon to decide. While the victim of a drunk driver may sustain physical injury from physical force being applied to his body as a result of collision with the drunk driver's errant automobile, it is clear that such force has not been intentionally "used" against the other person by the drunk driver at all, much less in order to perpetrate any crime, including the crime of felony DWI. The crime of Texas felony DWI is committed when the defendant, after two prior DWI convictions, begins operating a vehicle while intoxicated. Intentional force against another's person or property is virtually never employed to commit this offense. Accordingly, we hold that felony DWI is not a crime of violence as defined by 18 U.S.C. § 16(b).
In so holding, we are mindful that one of our prior opinions contains dictum that is not inconsistent with the government's view that section 16(b) should be construed, as guideline 4B1.2 is, to embrace crimes of simple recklessness. In United States v. Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir.1999), this Court held that unauthorized use of another's motor vehicle, or joy riding, was a crime of violence as defined by section 16(b):
II. The Apprendi Issue
As the Apprendi issue was not raised below, we review only for plain error. As explained below, we are unable to find error in this respect, much less plain error.
Appellants recognize that the Supreme Court has held that the enhanced penalties contained in section 1326(b) were mere sentencing factors and not elements of a separate offense. See Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 1226, 140 L.Ed.2d 350 (1998). They point out that Justice Thomas, one of the five justices who joined in the Supreme Court's Almendarez-Torres opinion, may no longer support its holding. See Apprendi, 120 S.Ct. at 2379. But no matter how much in doubt the continuing viability of Almendarez-Torres may be, that decision is not overruled unless and until the United States Supreme Court says it is. State Oil v. Khan, 522 U.S. 3, 118 S.Ct. 275, 284, 139 L.Ed.2d 199 (1997). Until then, as conceded by the defendants-appellants, we are bound by Almendarez-Torres. Therefore, we reject defendants-appellants' argument that Apprendi prevents them from being sentenced to a term of imprisonment of more than two years.
We hold that because intentional force against the person or property of another is seldom, if ever, employed to commit the offense of felony DWI, such offense is not a crime of violence within the meaning of 18 U.S.C. § 16(b). Accordingly, we VACATE the defendants-appellants' sentences and REMAND for resentencing.
VACATED and REMANDED.
"§ 2L1.2 Unlawfully Entering or Remaining in the United States
In Rutherford, the Seventh Circuit held that drunk driving was a crime of violence under guideline 4B1.2(a)(2) because it is "a reckless act that often results in injury." Rutherford, 54 F.3d at 376-77. Rutherford's prior conviction was not for simple felony DWI, but for first degree assault. In Alabama (the jurisdiction of Rutherford's prior conviction), a person commits the offense of first degree assault if, while driving under the influence of alcohol or drugs, he causes bodily injury to another with a motor vehicle. Rutherford analyzed this prior conviction as though it were merely for DWI. Id. at 376.