Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is DENIED. The court having been polled at the request of one of the members of the
Judge Stewart did not participate.
RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting from denial of rehearing en banc:
Last March, in United States v. Chapa-Garza, our court held — in my view, erroneously — that Texas felony DWI (at least three DWI convictions) is not a "crime of violence" within the meaning of 18 U.S.C. § 16(b) and, therefore, not an "aggravated felony" for sentence-enhancement purposes. 243 F.3d 921 (5th Cir.2001). This being an issue of exceptional importance, I respectfully dissent from our court's refusal to consider this case en banc.
Chapa-Garza began by distinguishing the definition of criminal violence in § 16(b), which applies to sentencing of aliens, from that found in U.S.S.G. § 4B1.2, which describes career offenders. Chapa-Garza, 243 F.3d at 925-26. Central to its holding was: the language of § 16(b) contemplates an intentional use of force; and such force is that used to effectuate the crime itself. Id. at 926-27 ("[W]e . . . hold . . . that a crime of violence as defined in 16(b) requires recklessness as regards the substantial likelihood that the offender will intentionally employ force against the person or property of another in order to effectuate the commission of the crime".).
I respectfully submit that Chapa-Garza reached the wrong result. In any event, the correct result is a close call. The gravity of the issue is enhanced greatly by the fact that, although the issue arose in this appeal in the context of sentencing, the same statutory definitions arise in the civil immigration context in determining whether an alien with a conviction for felony DWI is removable. Therefore, I dissent from the denial of rehearing en banc primarily because whether felony DWI is an "aggravated felony" is an issue of exceptional national importance, affecting hundreds if not thousands of aliens. See FED. R.App. P. 35(a) (rehearing en banc may be ordered to secure uniformity in court's decisions or when proceeding involves question of exceptional importance). The attention this issue has recently received, the exacerbation of the circuit split since Chapa-Garza was rendered, and the action taken by the Board of Immigration Appeals (BIA) in response to Chapa-Garza highlight the importance of the issue.
Early this year, prior to Chapa-Garza, the Tenth Circuit held not unreasonable the BIA's conclusion that felony DWI is a crime of violence under § 16(b) and, therefore, an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). Tapia Garcia v. INS, 237 F.3d 1216 (10th Cir.2001); cf. Camacho-Marroquin v. INS, 188 F.3d 649 (5th Cir.1999) (felony DWI is "crime of violence" under § 16(b)), withdrawn, rehearing dismissed by 222 F.3d 1040 (5th Cir. 2000). Compare Le v. U.S. Att'y Gen., 196 F.3d 1352, 1354 (11th Cir.1999) (holding conviction for causing serious bodily injury while driving under the influence is "crime of violence" within § 16(a) because one element of offense is actual use of physical force, and declining to address scope of § 16(b)).
Following Chapa-Garza, three circuits have addressed the mens rea requirement
Moreover, Chapa-Garza stands in the way of the uniform implementation of our country's immigration laws. Recently, in the light of Chapa-Garza and United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir.2001), discussed infra, the BIA decided to no longer remove from the Fifth Circuit those convicted of felony DWI. In re Olivares, 23 I&N Dec. 148 (BIA 2001).
Chapa-Garza interprets § 16(b) erroneously. This is in large part due to its failure to consider the underlying law of Texas concerning what constitutes felony DWI in that State.
In reaching the wrong result, Chapa-Garza noted the differences between the language of § 16(b), defining a crime of violence for purposes of sentencing under U.S.S.G. § 2L1.2 for unlawful entry, and U.S.S.G. § 4B1.2, defining a career offender. The difference, however, does not necessarily lead to distinct results in their application.
Section 16(b) defines a crime of violence as
(Emphasis added.) Section 4B1.2 defines a crime of violence as, inter alia,
Chapa-Garza contrasts § 4B1.2(a)(2)'s reference to a risk of injury to § 16(b)'s mention of a risk of force. Chapa-Garza, 243 F.3d at 925. This distinction is immaterial, because it merely distinguishes the cause from the effect. An injury would only result from the use of force (be the application of force intentional, reckless, unintentional), and the use of force could
In my view, Chapa-Garza, in parsing the language of § 16, overlooks the common-sense understanding of that language. But see, e.g., Bazan Reyes, 256 F.3d 600, 2001 WL 748157, at *5-10 (comparing language of § 16(b) and § 4B1.2(1)). Of course, principles of statutory interpretation counsel reading the statute as a whole, so that each word has meaning. The opinion is correct that "by its nature" requires looking at the offense categorically. Chapa-Garza, 243 F.3d at 924. But, the language "substantial risk" suggests a state of mind of recklessness and cuts against interpreting the language as referring to intentional conduct, because it connotes something that may occur accidentally, not something that is necessary to effectuate the offense.
Chapa-Garza, however, looked to a dictionary definition of "use" to conclude that § 16(b) refers to intentional conduct. Id. at 926. Such a definition belies the common-sense usage of the word in § 16(b). It is true that "use" may more often refer to the intentional, rather than the accidental, use of force; but, without question, force may be used accidentally.
The holding that § 16(b) requires "recklessness as regards the substantial likelihood that the offender will intentionally employ force", Chapa-Garza, 243 F.3d at 927 (emphasis added), is less than clear. "[I]ntentionally employ" is substituted for the statute's "use". How can a person be "reckless" regarding whether he will do something "intentionally"? In the continuum
An analogy to burglary of a dwelling (a "crime of violence" under § 4B1.2), as in United States v. Parson, 955 F.2d 858 (3d Cir.1992), quoted by Chapa-Garza, 243 F.3d at 926, is not helpful: the dangers to people and property from burglary of a dwelling arise from intentional acts, while in DWI they result from unintentional acts. In fact, Chapa-Garza quoted from Parson explaining that "a drunk driver risks causing severe injury to others on the road or in the car, but in most cases he or she does not intend to use force to harm others". Chapa-Garza, 243 F.3d at 926 (quoting Parson, 955 F.2d at 866). In one key way burglary of a dwelling and DWI are analogous: the actual use of force is neither an element of burglary nor of DWI. See United States v. Rodriguez-Guzman, 56 F.3d 18, 20 (5th Cir.1995) ("To obtain a conviction under ... Texas burglary statutes, the state need not prove the use, attempted use, or threatened use of physical force against the person or property of another.") (citing Clark v. State, 667 S.W.2d 906 (Tex.Ct.App.1984) (building); Richardson v. State, 888 S.W.2d 822 (Tex.Cr.App.1994) (vehicle)).
In addition, the conclusion that the offender must intentionally use force contravenes our court's practice "not [to] presume that a statutory crime requires specific intent in the absence of language to that effect". United States v. Myers, 104 F.3d 76, 81 (5th Cir.), cert. denied, 520 U.S. 1218, 117 S.Ct. 1709, 137 L.Ed.2d 834 (1997).
The Texas Penal Code provides: "A person commits an offense if the person is intoxicated while operating a motor vehicle in a public place." TEX. PENAL CODE § 49.04(a) (Supp.1999) (emphasis added). "If it is shown on the trial of an offense under Section 49.04 ... that the person has previously been convicted two times of an offense relating to the operating of a motor vehicle while intoxicated, ... the offense is a felony of the third degree." TEX. PENAL CODE § 49.09(b).
In an extremely important ruling, which appears to be at odds with the plain wording of the underlying Texas DWI statute ("while operating"), Chapa-Garza states that DWI is committed at the time the defendant begins driving. Chapa-Garza, 243 F.3d at 927. I respectfully submit that, especially pursuant to the intent and
Chapa-Garza cites no authority to support its ruling that DWI merely involves beginning operation of the vehicle. Again, and as quoted supra, the phrase "while operating" is used in the Texas DWI statute. Along this line, Texas courts have defined "operating" as "exert[ing] personal effort upon [a] vehicle in a manner that shows intentional use of the vehicle for its intended purpose" and "affect[ing] the functioning of a vehicle in a manner that would enable the vehicle's use". Barton v. State, 882 S.W.2d 456, 459 (Tex.Ct.App. 1994). A driver exerts personal effort not only when he begins operation of the vehicle but also "while" he operates it.
Also, Chapa-Garza construed § 16(b)'s phrase "in the course of committing the offense" to refer to the force necessary to effectuate the offense. Chapa-Garza, 243 F.3d at 927. A more common-sense understanding would be that the phrase also encompasses the force used while effectuating the offense (i.e., while driving). Such an interpretation is particularly reasonable in the context of drunk driving: First, as mentioned, a DWI offense continues as long as the person is operating the vehicle; the risk that physical force will be used against the person or property of another while the offense is being committed is obvious. Second, it can be reasonably inferred from the nature of the offense of drunk driving that the offender could foresee the potential use of force during the commission of the crime, even if not necessary to effectuate the crime itself. Third, as mentioned, the primary reason DWI has been criminalized is to protect others and their property from damage perpetrated by the drunk driver.
Finally, even if legislative history may suggest that DWI does not automatically fall within the category of a crime of violence, it must be remembered that the DWI at issue is felony DWI. The seriousness of the crime and of the risk of violence is obvious in that, as noted supra, a DWI felony conviction in Texas is at least the third DWI offense committed by the defendant. TEX. PENAL CODE § 49.09(b). It goes without saying that someone who has been arrested at least three times for driving while intoxicated presents a real and great risk. See Dalton, 257 F.3d 200, 209 (Walker, C.J., dissenting) ("[T]hat the offense [of felony DWI in New York] requires two prior drunk driving convictions increases the attendant risk."). In other words, while it may be that not every DWI is a crime of violence under § 16(b) (an issue not at hand), a felony DWI certainly is.
Even assuming the Chapa-Garza is correct, it is a very close call. For example, the Government is correct in asserting that, although it is dictum, our court in Galvan-Rodriguez made it clear that one of the reasons the unauthorized use of a vehicle is a "crime of violence" under § 16(b) is the risk that physical force may accidentally be used during the operation of the vehicle, not solely because physical force may be applied intentionally to obtain access to the vehicle. 169 F.3d at 219. Although this dictum in itself does not create disuniformity in the law, it indicates
In addition, and as noted, the same statutory definitions arise in determining whether an alien convicted for felony DWI is removable. The removal of aliens convicted of "aggravated felonies" is provided for by 8 U.S.C. § 1227(a)(2)(A)(iii); that section refers to the definition of "aggravated felony" in 8 U.S.C. § 1101(a)(43), the same section referenced by the guideline at issue for the case at hand, U.S.S.G. § 2L1.2. Section 1101(a)(43)(F) in turn references the definition of "crime of violence" found in 18 U.S.C. § 16. In Texas alone, the INS has removed thousands of aliens convicted of felony DWI and approximately 500 such cases are pending before the Board.
As noted, both the Seventh and Second Circuits have vacated removal orders by holding a felony DWI is not a crime of violence within § 16(b). Dalton, 257 F.3d 200; Bazan Reyes, 256 F.3d 600. Our precedent would likely require us to do the same, extending our interpretation of § 16(b) to apply to removal proceedings as well as to sentencing. In Hernandez-Avalos, our court found cases arising in the criminal context relevant to immigration and removal. 251 F.3d at 509. Hernandez-Avalos then stated:
Previously, the BIA had concluded that Texas felony DWI is a crime of violence under § 16(b) and therefore an aggravated felony under § 1101(a)(43)(F). See Matter of Puente-Salazar, Interim Dec. 3412 (BIA 1999). Recently, as noted, the BIA, recognizing the likelihood the interpretation of § 16(b) for purposes of sentencing would be extended in our circuit to removal proceedings as well, declined to apply Matter of Puente-Salazar to removal cases arising in our circuit. In re Olivares, 23 I&N Dec. 148 (relying on Hernandez-Avalos).
For these reasons, this case demands en banc review. I respectfully dissent from our court's refusing to do so.