-1- REVISED MARCH 17, 2003

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 02-20697

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

VERSUS

JESUS RODRIGUEZ-RODRIGUEZ,

Defendant – Appellant.

Appeal from the United States District Court

for the Southern District of Texas, Houston Division

February 27, 2003

Before HIGGINBOTHAM, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM:

Jesus Rodriguez-Rodriguez (“Rodriguez”) appeals his sentence

for illegal reentry after deportation. The issue is whether the

Texas offenses of burglary of a building and unauthorized use of a

motor vehicle are crimes of violence under the 2001 version of

United States Sentencing Guidelines (“U.S.S.G.”) §

2L1.2(b)(1)(A)(ii), requiring the enhanced sentence imposed on1 United States v. Charles

, 301 F.3d 309, 312–13 (5th Cir. 2002)

(en banc).

2 Id. at 312.

-2- Rodriguez. We hold that they are not.

Rodriguez was deported from the United States in August 1995.

After being found i n a Texas prison on June 29, 2000, he pleaded

guilty to a one-count indictment charging him with illegal reentry

in violation of 8 U.S.C. § 1326(a) and (b)(2).

The presentence report chronicled Rodriguez’s criminal

history, including Texas convictions of burglary of a building in

1990 and unauthorized use of a motor vehicle (“UUMV”) in 1993.

Classifying those offenses as crimes o f violence, the probation

officer recommended a sixteen-level increase in Rodriguez ’s base

offense level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). Rodriguez

objected to t he increase, contending that burglary of a building

and UUMV were not crimes of violence for purposes of §

2L1.2(b)(1)(A)(ii) and that an ei ght-level increase for having

committed a prior aggravated felony applied instead. The district

court overruled the objection and sentenced Rodriguez to seventynine months’ imprisonment and three years ’ supervised release.

Rodriguez filed a timely notice of appeal.

We review this challenge to the district court’s application

of § 2L1.2 de novo

. 1 The guidelines’ commentary is given

controlling weight in our review if it is not plainly erroneous or

inconsistent with the guidelines. 23 See U.S.S.G. § 2L1.2(b)(1)(A)(ii) (Nov. 2001).

4 Id. § 2L1.2, comment. (n.1(B)(ii)).

5 See United States v. Rayo-Valdez

, 302 F.3d 314, 316 (5th Cir.

2002). Our cases recognize that burglary of a building and

burglary of a dwelling or habitation are distinct offenses. See,

e.g., United States v. Turner , 305 F.3d 349, 351 (5th Cir. 2002);

United States v. Albert Jackson

, 22 F.3d 583, 585 (5th Cir. 1994).

-3- The 2001 version of § 2L1.2, under which Rodriguez was

sentenced, provides for a sixteen-point increase in the base

offense level if the defendant previously was deported after a

conviction for a felony that is a crime of violence. 3 A ccording to

Application Note 1(B)(ii) of the commentary, “crime of violence”

(I) means an offense under federal, state, or local law

that has as an element the use, attempted use, or

threatened use of phy sical force against the person of

another; and

(II) includes murder, manslaughter, kidnapping,

aggravated assault, forcible sex offenses (including

sexual abuse of a minor), robbery, arson, extortion,

extortion a te extension of credit, and burglary of a

dwelling. 4

Because burglary of a building and UUMV are not among the offenses

enumerated in Application Note 1(B)(ii)(II), they are crimes of

violence only if they have as an element “the use, attempted use,

or threatened use of physical force against the person of

another.” 5 W e need not discuss the facts underlying Rodriguez’s

convictions, “since we look only to the fact of conviction and the

statutory definition of the prior offense to determine whether a

prior conviction qualifies as a predicate offense for sentencing6 United States v. Vargas-Duran , 319 F.3d 194, 196 (5th Cir.

2003) (internal quotation and citation omitted).

7 T EXAS P ENAL C ODE A NN . § 30.02(a) (West Supp. 2003).

8 T EXAS P ENAL C ODE A NN . § 31.07(a) (West 1994).

9 We have held in cases applying langu age identical to t he

commentary accompanying § 2L1.2 that burglary of a building is not

a crime of violence as a categorical matter because the state need

not prove the use, attempted use, or threatened use of physical

force against the person of another to s ecure a conviction. S ee

Turner

, 305 F.3d at 351(“The statutory elements of burglary of a

building do not make it a per se crime of violence, because they do

not necessarily involve use of physical force against the person of

another.” ); see also United States v. Rodriguez-Guzman

, 56 F.3d

18, 20 (5th Cir. 1995) (“To ob tain a conviction under the . . .

Texas burglary sta tutes, the state need not prove the use,

attempted use, or threatened use of physical force against the

person . . . of another.”). Thus, our categorical approach means

that Rodriguez is not eligible for a crime-of-violence enhancement

under § 2L1.2(b)(1)(A)(ii) even if his conviction was premised on

his entry of a building without the effective consent of the owner

-4- enhancement purposes.” 6

Under Texas law, a person commits burglary of a building if,

without the effective consent of the owner, he:

(1) enters a . . . building . . . not then open to the

public, with intent to commit a felony, theft, or an

assault; or (2) remains concealed, with intent to commit

a felony, theft, or an assault, in a building

. . . ; or

(3) enters a building

. . . and commits or attempts to

commit a felony, theft, or an assault. 7

And a person commits UUMV “if he intentionally or knowingly

o perates another’s

. . . motor-propelled vehicle witho ut the

effective consent of the owner.” 8 Although violent confrontations

may occur in the course of each offense, neither requires the

actual, attempted, or threatened use of physical force as a

necessary element. 9 Therefore, Rodriguez’s prior convictions ofand commission of an assault or other violent felony therein. This

is so because a sentencing court may not consider the conduct

underlying a prior conviction when applying § 2L1.2(b)(1)(A)(ii).

See U.S.S.G. § 2L1.2, comment. (n.1(B)(ii)); Vargas-Duran

, 319 F.3d

at 196; see also Rayo-Valdez

, 302 F.3d at 318 (recognizing that

“the § 2L1.2 definition has eliminated the possibility that a nonenumerated crime risking use of physical force could qualify as a

‘crime of violence’”).

10 As Rodriguez conc eded in the district court, his Texas

convictions trigger an eight-level aggravated-felony enhancement.

See U.S.S.G. § 2L1.2(b)(1)(C). “For purposes of subsection

(b)(1)(C), ‘aggravated felony’ has the meaning given that term in

8 U.S.C. § 1101(a)(43), without regard to the date of conviction of

the aggravated felony.” I d. § 2L1.2, comment. (n.2). Section

1101(a)(4 3) provides that “aggravated felony” means, among other

things, “a crime of violence (as defined in section 16 of Title 18,

but not including a purely political offense) for which the term of

imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F).

This court has held that both burglary of a building and UUMV are

per se crimes of violence under 18 U.S.C. § 16(b). S ee RodriguezGuzman

, 56 F.3d at 21 (burglary of a building); U nited States v.

Galvan-Rodriguez

, 169 F.3d 217, 219 (5th Cir. 1999) (UUMV). Thus,

Rodriguez’s crimes do not qualify for § 2L1.2’s crime-of-violence

enhancement, but they are “crimes of violence” for purposes of §

2L1.2’s aggravated-felony e nhancement. The confusion created by

having multiple definitions of the term “crime of violence” in the

Unite d States Code and the Sentencing Guidelines has not escaped

this court’s notice. See United States v. Charles , 301 F.3d 309,

315–16 (5th Cir. 2002) (en banc) (DeMoss, J., sp ecially

-5- those off enses do not support a sixteen-level crime-of-violence

enhancement under § 2L1.2(b)(1)(A)(ii).

In summary, then, we hold that the Texas offenses of burglary

of a building and UUMV are not crimes of violence within the

meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii) because neither offense is

listed in Application Note 1(B)(ii)(II) or has as an element the

use, attempted use, or threatened use of physical force against the

person of another. Accordingly, we vacate Rodriguez’s sentence and

remand the case for resentencing in the light of this opinion. 10concurring).

-6- VACATED AND REMANDED.