-1- United States Court of Appeals

Fifth Circuit



## FILED

October 15, 2004

Charles R. Fulbruge III

Clerk 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

Before HIGGINBOTHAM, GARZA, and DENNIS, Circuit Judges.

PER CURIAM:

In response to the Government’s petition, a panel rehearing is

granted. After further reflection and review, we have determined

that the original opinion should be vacated, and the following

opinion substituted in its place.

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

for illegal reentry after deportation. The issue is whether the

district court correctly enhanced Rodriguez’s sentence based on a

determination that two prior c rimes of which Rodriguez had been1 See Sentencing Hearing Tr. at pg. 9, ¶¶ 1-5.

-2- convicted were “crimes of vio lence” under the 2001 version of

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

2L1.2(b)(1)(A)(ii). We conclude that, under the Texas laws in

effect at the time of Rodriguez’s commission of burglary of a

building and unauthorized use of a motor vehicle, the state

criminal statutes violated were not “crimes of violence” for the

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

Consequently, Rodriguez’s sentence must be set aside because it is

excessive and unauthorized.

Rodriguez was deported from the United States in August 1995.

After being found in 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 pre-sentence report, which was adopted in its entirety by

the district court as the factual basis for the court’s sentencing

decision, 1 chronicled Rodriguez’s criminal history, including his

Texas convictions of burg lary of a building in 1990 and

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

those offenses as “crimes of violence,” the probation officer

recommended a sixteen-level i ncrease in Rodriguez’s base offense

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

objected to the increase, contending that burglar y of a building2 United States v. Charles

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

(en banc).

3 Id. at 312.

4 See U.S.S.G. § 2L1.2(b)(1)(A)(ii) (Nov. 2001).

-3- and UUMV were not crimes of violence for purposes of §

2L1.2(b)(1)(A)(ii). Conceding that both of these offenses would

qualify as “aggravated felonies” under § 2L1.2(b)(1)(C), Rodriguez

contended th at an eight-level increase should have been applied

instead. The district court overruled the objection and, using a

sixteen-level increase in Rodriguez’s base offense level, sentenced

Rodriguez to seventy-nine months of imprisonment and three years of

supervised release. Rodriguez filed a timely notice of appeal.

We review this challenge to the district court’s application

of § 2L1.2 de novo

. 2 The guidelines’ commentary is given

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

inconsistent with the guidelines. 3

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

sentenced, provides for a sixteen-poi nt increase in the base

offense level if the defendant previously was deported after a

conviction for a felony that is a crime of violence. 4 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 physical force against the person of

another; and5 Id. § 2L1.2, cmt. (n.1(B)(ii)).

6 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).

7 See T EX

. P ENAL C ODE A NN . § 30.02 (1990).

-4- (II) includes murder, manslaughter, kidnapping,

aggravated assault, forcible sex offenses (including

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

extortionate extension of credit , and burglary of a

dwelling. 5

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

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

crimes of violence only if the statutory definitions have as an

element “the use, attempted use, or threatened use of physical

force against the person of another.” 6 Rodriguez was convicted of

burg lary of a building on November 8, 1990. Although the record

does not explicitly state when the crime underlying his 1990

conviction was committed, it contains facts that conclusively

demonstrate that the burglary statute violated was the 1974

version. The 1974 Texas burglary statute, which contains the

burglary of a building provision, was not altered before 1993. 7 We

are certain that Rodriguez did not commit the offense prior to

1974, because the record shows that he was born in 1963 and would

have been only 11 years old in 1974. The record indicates that8 Because the district court did not explicitly state when

Rodriguez committed burglary of a building or which version of the

statute applied, the dissent would remand this case to the district

court for additional fact-finding. But the district court is not

required t o make a “catechismic regurgitation of each fact

determined.” See United States v. Carreon

, 11 F.3d 1225, 1231 (5th

Cir. 1994)(citing United States v. Sherbak , 950 F.2d 1095, 1099

(5th Cir. 1992); United States v. Lghodaro

, 967 F.2d 1028, 1030

(5th Cir. 1992)). Rather, the district court can make explicit and

implicit findings of fact by adopting the pre-sentence report. S ee

id. And, we need not remand for additional factual findings so

long as the basis for the district court’s sentencing decision is

sufficiently clear even if implicit. See id. (citing United States

v. Hooker , 942 F.2d 878, 881 (5th Cir. 1991)). Here, the district

court, by adopting the pre-sentence report, explicitly found as

fact that Rodriguez: (1)was born on February 5, 1963; (2) was

convicted of burglary of a building on November 8, 1990; and (3)

had no juvenile record when it adopted the pre-sentence report as

the factual basis for sentenci ng. Implicit in these factual

findings is that Rodriguez must have commit ted the crime between

1974 and 1990, and therefore he was convicted under the burglary

statute in effect during that period. Because the 1974 version of

the burglary statute was unchanged during that time p eriod, the

district court had to implicitly find that the 1974 version

controlled. And because the district court could not have

reasonably made any other finding, a remand is unnecessary.

9 See T EX

. P ENAL C ODE A NN . § 30.02 (Vernon 1974).

-5- Rodriguez had no juvenile record and no arrests prior to 1984.

Therefore, Rodriguez must have committed the offense that led to

his 1990 conviction of burglary of a building sometime between 1974

and 1990. Thus, we will apply the 1974 version of the Texas

burglary of a building statute in determining whether Rodriguez’s

offense is a crime of violence for the purpose of sentence

enhancement under § 2L1.2(b)(1)(A)(ii). 8

Under the applicable Texas law, 9 a person commits burglary of10 Id.

11 T EXAS P ENAL C ODE A NN . § 31.07(a) (Vernon 1992).

12 United States v. Vargas-Duran , 356 F.3d 598 (5th Cir. 2004).

13 Id. at 605 & 606 (internal citations omitted); see also United

States v. Calderon-Pena , 2004 U.S. App. LEXIS 18036 at *14-15

(2004)(en banc)(holding that the offense of child endangerment was

not a “crime of violence” under §2L1.2 because child endangerment

did not “have the use, attempted use, or threatened use of physical

force against the person of another as a required

element.”)(emphasis added).

-6- 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 or theft; or (2)

remains conce aled, with intent to commit a felony or

theft, in a building . . . ; or (3) enters a building .

. . and commits or attempts to commit a felony or

theft. 10

Rodriguez was convicted of UUMV in 1993 and the record shows

that he committed that offense the same day that he was arrested in

1992. A person committed UUMV in 1992 “if he intentionally or

knowingly operate[d] another’s

. . . motor-propelled v ehicle

without the effective consent of the owner.” 11

In United States v. Va rgas-Duran

, 12 this court, sitting en

banc, held that for a non-enumerated offense to “have as an

element” the use, attempted use , or threatened use, of physical

force necessary for a sentence enhancement under §2L1.2, the fact

of physical force must be a fact that is necessary for the

prosecution to secure a convict ion. 1 3 We then held that because14 See Vargas-Duran , 356 F.3d at 604-05.

15 See Gracia-Cantu ,302 F.3d at 311-312 (citing T E X

. P ENAL C ODE

A NN . § 22.04(a))(emphasis added).

16 Gracia-Cantu ,302 F.3d at 311-312.

-7- the Texas offense of intoxication assau lt could be committed

without a defendant’s intentional use of physical force against the

person of another, it was not a “crime of violence” under §2L1.2.

This court specifically noted that its crime of violence analysis

with regard to determining whether an offen se included as an

element the use of physical force as an element necessary to

support a sente nce enhancement under §2L1.2 in V argas-Duran was

consistent with the analytical approach adopted in United States v.

Gracia-Cantu

. 14 In Gracia-Cantu

, this court determined that the

Texas offense of felony injury to a child, which could be committed

by an intentional, knowing, reckless, or criminally negligent act

or omission, 15 did not have as an element the use of physical force

necessary to constitute a crime of violence because the statute did

not “ require that the perpetrator actually use, or threaten to use

physical force against a child.” 16

Similar to the crime definition statutes in Vargas-Duran and

Gracia-Cantu

, neither the definition of burglary of a building nor

that of UUMV requires proof of use, attempted use, or threatened

use of physical force in order to convict. For instance, a Texas17 See T EX

. P ENAL C ODE A NN . §30.02.

18 See T EXAS P ENAL C ODE A NN . §31.07(a).

19 See 356 F.3d at 605.

20 See 302 F.3d 311-312.

21 Our holding as it regards this generic burglary statute that

punishes the “nonconsensual entry into a building w ith intent to

commit a crime”, see Silva , 957 F.2d at 162, corresponds with our

conclusion in United States v. Rodriguez-Guzman

. See 56 F.3d 18,

20 (5th Cir.1995) ("To obtain a conviction under the.

. .Texas

burglary statutes, the state need not prove the use, attempted use,

or threatened use of physical force against the person.

. .of

another."). In addition, several of our sister circuits have come

to the same conclusion when making “crime of violence”

determinations under §2L1.2 of the guidelines. S ee, e.g.

, United

States v. Gomez-Hernandez

, 300 F.3d 974, 979 (8th Cir. 2002)(noting

-8- prosecutor could secure a burglary of a building conviction under

the 1974 statute by proving that a defendant entered into an

unoccupied office building without consent in an attempt to steal

office equipment. 17 Likewise, a Texas prosecutor could secure a

conviction under the UUMV statute by proving that a defendant took

his friend’s car up to the corner store without permission while

the friend was out of town. 18 Neither of these situations involve

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

another person. Therefore, the use of physical force cannot be a

necessary or required element of these offenses and, under VargasDuran 19 and Gracia-Cantu

, 20 neither of these offenses constitutes a

crime o f violence that would support a sixteen-level crime-ofviolence enhancement under § 2L1.2(b)(1)(A)(ii). 21that “generic” burglary has never had the use, attempted use, or

threaten ed use of physical force against the person of

another)(internal citation omitted); United States v. PereiraSalmeron

, 337 F.3d 1148, 1152 (9th Cir. 2003)(noting that even

burglary of a dwelling, which is specifically listed as a crime of

violence under the guideli nes, does not categorically have as an

element any touching or physical harm to the person of another);

Unit ed States v. Fuentes-Rivera , 323 F.3d 869, 871-72 (11th Cir.

2003) (noting that California’s first degree burglary statute,

which includes “intent to commit grand or petit larceny or any

felo ny ” as an element, did not have the use, attempted use, or

threatened use of physical force as an element)(emphasis added).

-9- In summary, we conclude that Rodriguez’s Texas offense of

burglary of a building committed between 1974 and 1990 and his UUMV

offense committed in 1992 are not crimes of violence within the

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

defined by state law is listed in Application Note 1(B)(ii)(II) or

has as an element the use, attempted use, or threaten ed use of

physical force against the person of another. Accordingly, we

vacate Rodriguez’s sentence and remand the case to the district

court for resentencing consistent with this opinion.

VACATED AND REMANDED.GARZA, Circuit Judge, concurring in part and dissenting in part:

I agree with the majority opinion’s conclusion that

unauthorized use of a motor vehicle does not constitute a “crime

of violence” for purposes of applying U.S.S.G. §

2L1.2(b)(1)(A)(ii). Nonetheless, for the reasons expressed in my

dissent in Vargas-Duran , I continue to believe that Vargas-Duran

was wrongly decided. See Vargas-Duran , 356 F.3d 598, 610-16 (5th

Cir. 2004) (en banc) (Garza, J. dissenting). Recognizing this en

banc precedent, I would remand for the district court to

ascertain which version of the Texas burglary statute applies,

which is unclear from the record before us, and apply §

2L1.2(b)(1)(A)(ii) accordingly.

The majority opinion decides Rodriguez was convicted of

burglary of a building under the 1974 version of the Texas

burglary statute. It notes, however, the record does not

explicitly say when the crime was committed or which version of

the Texas burglary statute applies. The majority determines that

the 1974 version of the statute applies because Rodriguez would

have been only 11 years old in 1974. I do not dispute this

logic. Nonetheless, determining the version of the Texas

burglary statute applicable to Rodriguez is a finding of fact.

It is the role of the trial court to make the findings of fact-11-

necessary to apply the sentencing guidelines. See U.S.S.G. §

1B1.1 et seq. (directing the trial court to make various factual

findings). The role of the appeals court is to review those

findings . See United States v. Myers , 198 F.3d 160, 163 (5th

Cir. 1999) (stating that this Court reviews a district court's

findings of fact under a clearly erroneous standard and its

application of the Guidelines to those findings de novo ).

Accordingly, this Court should remand, allowing the district

court to fulfill its function of finding the facts necessary to

apply the appropriate sentencing guidelines.

Even under the 1974 version, the district court must

ascertain whether Rodriguez committed burglary of a building

“with intent to commit a felony” which under the charging papers,

indictment or special issues could establish a “crime of

violence.” A sentencing court may go beyond the mere fact of

conviction and statutory definition to determine what was

actually required to find all the elements of a crime. See

Taylor v. United States , 495 U.S. 575, 602 (1990) (“For example,

in a State whose burglary statutes include entry of an automobile

as well as a building, if the indictment or information and jury

instructions show that the defendant was charged only with a

burglary of a building, and that the jury necessarily had to find

an entry of a building to convict, then the Government should be-12-

allowed to use the conviction for enhancement.”).

For the above reasons, I respectfully dissent.