UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 94-60379

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE RODRIGUEZ-GUZMAN, a/k/a

ARTURO NEGRETE-LOPEZ,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

( June 6, 1995 )

Before POLITZ, Chief Judge, EMILIO M. GARZA and STEWART, Circuit

Judges.

POLITZ, Chief Judge:

Jose Rodriguez-Guzman appeals the district court's 16 point

increase in his base offense level computation under § 2L1.2 of the

United States Sentencing Guidelines. Finding no error, we affirm.

Background

In June of 1990, police in Dallas County, Texas arrested

Rodriguez while he was removing property from a nonresidential
 

1Tex. Penal Code Ann. §30.02 (West 1994).

 

2Tex. Penal Code Ann. §30.04 (pre-1994

amendment)(classifying burglary of a vehicle as a third degree

felony). This provision has been amended to classify burglary of

a vehicle as a Class A misdemeanor. Tex. Penal Code Ann. §30.04

(West 1994).

2

building. Rodriguez pled guilty to felony burglary1 and was

sentenced to five years probation and a $500 fine. He was then

deported by the Immigration and Naturalization Service.

Rodriguez reentered the United States without authorization

and, on October 1, 1991, was arrested for breaking into an

unoccupied pickup truck and removing $445 worth of property.

Rodriguez again pled guilty to felony burglary.2 This time he was

sentenced to five years imprisonment. His probation for the 1990

burglary was revoked and he was sentenced thereon to a concurrent

five year term of imprisonment.

Rodriguez was released from prison on October 4, 1993. One

week later the INS ordered his deportation. He was deported

through Laredo, Texas on the morning of October 13; at 11:00 pm

that very evening the Border Patrol apprehended Rodriguez on a

north bound freight train near Encinal, Texas.

Rodriguez pled guilty to one count of illegal reentry into the

United States in violation of 8 U.S.C. § 1326(b). The district

court calculated the sentencing range using a base offense level of

8, increased 16 levels under U.S.S.G. § 2L1.2(b)(2) for his prior

deportation after conviction for an aggravated felony, and

decreased 3 levels for acceptance of responsibility. This

guidelines calculation resulted in a sentencing range of 70 to 87
 

3United States v. Martinez, 954 F.2d 1050 (5th Cir. 1992).

 

4U.S.S.G. §2L1.2(b)(2) (1994). 

3

months. Rodriguez objected to the offense level computation,

contending that his prior convictions for burglary were not

aggravated felonies and that the increase should have been limited

to four levels under § 2L1.2(b)(1). That objection was rejected

and Rodriguez was sentenced to 70 months imprisonment followed by

3 years of supervised release. He timely appealed his sentence.

Analysis

Rodriguez first contends that the district court erred as a

matter of law when it determined that his prior convictions for

burglary were aggravated felonies justifying a 16 level increase

under § 2L1.2(b)(2). He maintains that neither the burglary of a

nonresidential structure nor the burglary of a vehicle is an

aggravated felony as that term is defined in the sentencing

guidelines, and that the increase of his offense level should

therefore have been limited to the four level adjustment set forth

in § 2L1.2(b)(1). 

We review this challenge to the district court's application

of the sentencing guidelines de novo, accepting the trial court's

factual findings unless clearly erroneous.3 Section 2L1.2(b)(2)

provides for a 16 point increase in the base offense level "[i]f

the defendant previously was deported after a conviction for an

aggravated felony."4 Application Note 7 to § 2L1.2 defines

"aggravated felony" in part as "any crime of violence (as defined
 

5Id. cmt. n. 7.

 

618 U.S.C. §16(a)&(b) (1988). 

 

7See Clark v. State, 667 S.W.2d 906 (Tex. Ct. App.

1984)(building); Richardson v. State, 888 S.W.2d 822 (Tex. Crim.

App. 1994)(vehicle). 

4

in 18 U.S.C. § 16, not including a purely political offense) for

which the term of imprisonment imposed (regardless of any

suspension of such imprisonment) is at least five years."5 Under

18 U.S.C. § 16 a "crime of violence" includes:

(a) an offense that has as an element the use, attempted

use, or threatened use of physical force against the

person or property of another, or

(b) 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 offense6 (emphasis added).

To obtain a conviction under the two pertinent 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.7 Therefore, neither of Rodriguez's burglary convictions

is a crime of violence as defined in subsection (a) of 18 U.S.C §

16. Subsection (b), however, provides a broader definition of a

crime of violence, extending it to felony offenses involving a

substantial risk that physical force may be used against the

property of another. A plain reading of subsection (b) mandates

the conclusion that the district court did not err in ruling that

a burglary of a nonresidential building or of a vehicle falls

within the definition.

By its very terms, subsection (b) requires only a substantial
 

8We perforce interpret "force" to mean more than the mere

asportation of some property of the victim. The clear import of

defining a "crime of violence" is that "force" as used in the

definition is synonymous with destructive or violent force. 

 

9Cf. U.S.S.G. §4B1.2(1)(limiting crimes of violence to those

crimes involving the use or risk of use of physical force against

persons).

 

10Rodriguez was first arrested and convicted for burglary

after officers found him removing property from a building which

he had entered by breaking open a glass front door. Rodriguez was

arrested and convicted on a second count of burglary after

officers witnessed him smashing the window of a truck to steal

property therein.

5

risk that physical force may be used during the commission of the

crime. A substantial risk that an event may occur does not mean

that it must occur in every instance; rather, a substantial risk

requires only a strong probability that the event, in this case the

application of physical force during the commission of the crime,

will occur.8 Under subsection (b), that application of physical

force can be to either a person or property. Thus, unlike some

other provisions of the sentencing guidelines,9 the scope of a

crime of violence under § 2L1.2 is not limited to crimes involving

a substantial risk of harm to persons alone.

As the facts surrounding Rodriguez's burglary convictions

amply demonstrate, the burglary of a nonresidential building or of

a vehicle often involves the application of destructive physical

force to the property of another.10 We perceive no error in the

district court's recognition of this risk or its conclusion that

these types of burglaries fall within the definition of a crime of
 

11United States v. Maul-Valverde, 10 F.3d 544, 545 n. 1 (8th

Cir. 1993)(noting that under §16, "all burglaries are aggravated

felonies."); United States v. Frias-Trujillo, 9 F.3d 875 (10th

Cir. 1993).

 

12See United States v. Jackson, 22 F.3d 583 (5th Cir.

1994)(interpreting U.S.S.G. §2K2.1).

 

13United States v. Harris, 25 F.3d 1275, 1279 (5th

Cir.)("[T]he meaning of the statute must, in the first instance,

be sought in the language in which the act is framed, and if that

is plain, . . . the sole function of the courts is to enforce it

according to its terms.") (quoting Meredith v. Time Ins. Co., 980

F.2d 352, 356 (5th Cir. 1993)), cert. denied, 115 S.Ct. 458

(1994).

 

14We are aware of this court's prior observation in dicta

that "the burglary of a building does not always constitute a

crime of violence, and thus the sentencing court may need to

examine the facts underlying the conviction." United States v.

Guadardo, 40 F.3d 102, 105 (5th Cir. 1994)(holding that burglary

of a residence is a crime of violence per se). Now that we are

obliged to face the issue squarely, we see no reason to require

6

violence found in § 16(b).11

Rodriguez insists that despite the language of § 16(b), we

should treat burglaries of nonresidential property differently than

burglaries of dwellings where the risk of physical harm to humans

is greater. He contends that we have recognized this distinction

in other cases and should do so again here.12 We must, however,

decline Rodriguez's invitation to impose a distinction not apparent

in the text of § 16(b).13 His suggested approach effectively would

read out of § 16(b) that portion of the statute extending the

definition of a crime of violence to those crimes which involve a

substantial risk of the application of force to the property of

another. We conclude, therefore, that the felony burglaries of a

nonresidential building and of a vehicle under the Texas Penal Code

are crimes of violence as defined in 18 U.S.C. § 16(b)14 and thus
the district court to undertake a fact-specific inquiry into each

conviction. If a crime by its nature presents a substantial risk

that force will be used against the property of another, then it

falls within the ambit of §16(b) whether such force was actually

used in the crime. See United States v. Flores, 875 F.2d 1110,

1113 (5th Cir. 1989) (commenting on the terms of §16 that "[a]ny

burglary might be covered under this language."); Frias-Trujillo,

9 F.3d at 877 ("There is no indication that Congress intended

'that a particular crime might sometimes count towards

enhancement and sometimes not, depending on the facts of the

case.'") (quoting Taylor v. United States, 495 U.S. 575, 601

(1990)). 

 

15United States v. Calverly, 37 F.3d 160 (5th Cir. 1994)(en

banc), cert. denied, 119 S.Ct. 1266 (1995).

 

16See Id.

7

aggravated felonies justifying a 16 level increase under §

2L1.2(b)(2).

Rodriguez finally contends that the district court erred in

failing to recognize the Texas Legislature's recent

reclassification of burglary of a vehicle from a felony to a Class

A misdemeanor. He maintains that the district court should have

applied this change retroactively, thus viewing as a misdemeanor

his 1991 felony conviction for the burglary of the pickup truck. 

Rodriguez did not raise this issue before the district court

and we therefore may review it only for plain error.15 Assuming,

purely arguendo, that the district court erred in failing to apply

the new statute retroactively, Rodriguez has not demonstrated

sufficient prejudice to support a finding of plain error.16 Today's

disposition concludes that the 1990 burglary conviction

independently supports the 16 point increase in the offense level.

The sentence is AFFIRMED.