IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60634

JOSE ANGEL SERNA-GUERRA

Petitioner

v.

MICHAEL B. MUKASEY, U.S. ATTORNEY GENERAL

Respondent

On Petition for Review from an Order 

of the Board of Immigration Appeals

ON PETITION FOR REHEARING EN BANC

(Opinion May 30, 2008, 5th Cir., 285 F. App’x 110)

Before JOLLY, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:

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 court and a majority of the

judges who are in regular active serve and not disqualified not having voted in

favor (Fed. R. App. P. and 5th Cir. R. 35), the Petition for Rehearing En Banc is

DENIED. 

United States Court of Appeals

Fifth Circuit

F I L E D

November 3, 2008

Charles R. Fulbruge III

Clerk
No. 07-60634

2

JAMES L. DENNIS, Circuit Judge, joined by KING, WIENER and PRADO,

Circuit Judges, dissenting from the denial of rehearing en banc:

Petitioner Jose Angel Serna-Guerra, a permanent resident alien, was

convicted twenty-two years ago of committing the Texas crime of unauthorized

use of a vehicle (“UUV”). He is now subject to removal because we have

categorized that offense as a “crime of violence.” See Brieva-Perez v. Gonzales,

482 F.3d 356 (5th Cir. 2007); United States v. Galvan-Rodriguez, 169 F.3d 217

(5th Cir. 1999). However, our continued classification of UUV as a crime of

violence directly conflicts with the Supreme Court’s decision in Leocal v.

Ashcroft, 543 U.S. 1 (2004). Moreover, the Tenth Circuit has concluded that our

decisions are contrary to Leocal and held that an indistinguishable offense under

Arizona law is not a crime of violence. See United States v. Sanchez-Garcia, 501

F.3d 1208 (10th Cir. 2007). By failing to rehear this case en banc, the court has

chosen not to correct this error in our jurisprudence and has unnecessarily

prolonged our disagreement with the Tenth Circuit. I therefore respectfully

dissent from the denial of rehearing en banc. 

The definition of “crime of violence” includes “any . . . 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.” 18 U.S.C. § 16(b). A person commits UUV under Texas

law “if he intentionally or knowingly operates another’s boat, airplane, or motorpropelled vehicle without the effective consent of the owner.” Tex. Pen. Code §

31.07(a). We first classified UUV as a crime of violence in Galvan-Rodriguez,

where despite noting that some instances of UUV present no risk of physical

force being used against persons or property, the panel summarily concluded

that “the unauthorized use of a vehicle. . . carries a substantial risk that the

vehicle might be broken into, ‘stripped,’ or vandalized, or that it might become

involved in an accident, resulting not only in damage to the vehicle and other
No. 07-60634

1 Galvan-Rodriguez was the subject to two subsequent decisions in this circuit, both

critical of its reasoning and holding. In United States v. Jackson, 220 F.3d 635 (5th Cir. 2000),

the panel considered whether UUV is a “crime of violence” under former Guidelines § 4B1.2(a),

which used a slightly different definition of the term than § 16(b) because the former did not

account for force against property. The majority, concluding that Galvan-Rodriguez was

decisive, admitted that “we are not unsympathetic to Jackson’s argument that [UUV] is not

what one might typically consider a ‘crime of violence,’ but we do not write on a clean slate.”

Id. at 639. Later, in United States v. Charles, 301 F.3d 309 (5th Cir. 2002) (en banc), the en

banc court overruled Jackson, holding that UUV was not a crime of violence under § 4B1.2(a).

We reasoned that although the perpetrator’s conduct may present a risk of injury to property,

i.e., the automobile, such conduct does not present a serious risk of physical injury to another

person as required by § 4B1.2(a). Id. at 314. The court declined to consider GalvanRodriguez’s in other contexts, such as § 16 cases. Nonetheless, Charles demonstrates our

court’s uneasiness with Galvan-Rodriguez, even pre-dating Leocal. 

3

property, but in personal injuries to innocent victims as well.” 169 F.3d at 219.

The panel elaborated: 

[T]here is a strong probability that the inexperienced or

untrustworthy driver who has no pride in ownership in the vehicle

will be involved in or will cause a traffic accident or expose the car

to stripping or vandalism. In fact, when an illegal alien operates a

vehicle without consent, a strong probability exists that the alien

may try to evade the authorities by precipitating a high-speed car

chase and thereby risking the lives of others, not to mention

significant damage to the vehicle and other property.

Id. at 219-20. Thus, the panel concluded that UUV is a “crime of violence”

because physical force might result from the commission of the offense – not

because the elements of the offense naturally involve a substantial risk that

physical force will be used against persons or property.1

Galvan-Rodriguez’s reasoning and holding are untenable after the

Supreme Court’s decision in Leocal v. Ashcroft, 543 U.S. 1 (2004). In Leocal, the

Court held that driving under the influence of alcohol does not constitute a crime

of violence under § 16. Id. at 11-13. The Court reasoned that § 16(a) “most

naturally suggests a higher degree of intent than negligent or merely accidental

conduct” and concluded that § 16(b) “does not . . . encompass all negligent

misconduct, such as the negligent operation of a vehicle. It simply covers
No. 07-60634

2For example,Texas courtshave convicteddefendantsunder the statute for suchthings

as operating a vehicle beyond the time allotted by the vehicle’s owner, see Coleman v. Texas,

No. 11-06-00155-CR, 2008 WL 97051 (Tex. App. Jan. 10, 2008); Wilborn v. Texas, No. 12-06-

4

offenses that naturally involve a person acting in disregard of the risk that

physical force might be used against another in committing an offense.” Id. at

9-10. Thus, “[t]he reckless disregard in § 16 relates not to the general conduct

or to the possibility that harm will result from a person’s conduct, but to the risk

that the use of physical force against another might be required in committing

a crime.” Id. The Court emphasized that “[t]he risk that an accident may occur

when an individual drives while intoxicated is simply not the same thing as the

risk that the individual may ‘use’ physical force against another in committing

the DUI offense.” Id. at 10 n.7. Because the DUI offense did not, by its nature,

pose a substantial risk that the perpetrator would use physical force in its

commission (as opposed to the possible results of committing the crime), the

court found that DUI offense at issue was not a “crime of violence.” Id. at 10 n.7

& 11.

Leocal repudiated the reasoning in Galvan-Rodriguez for finding UUV a

crime of violence, namely our conclusion that conduct that might occur as a

result of using a vehicle without authority poses a “substantial risk” of physical

force. Instead, Leocal requires consideration of whether the commission of the

offense “naturally involve[s]” a substantial risk of harm, that is, whether the

offense involves a “reckless disregard . . . to the risk that the use of physical force

against another might be required in committing a crime.” Leocal, 543 U.S. at

10. The Texas UUV offense does not, by its elements, entail a reckless disregard

to the risk that physical force might be required to commit the crime. Indeed,

the offense criminalizes a broad range of conduct, such as joyriding or violating

a rental agreement, that does not present any risk of physical force being used

against persons or property.2It is also difficult see how the facially innocuous
No. 07-60634

00258-CR, 2007WL2381376 (Tex. App. Aug. 22, 2007); Bradford v. Texas, No. 07-02-0237-CR,

2003 WL 21501968 (Tex. App. Jul. 1, 2003); exchanging money and tickets with an employee

at a car rental company to use vehicles without an authorized rental agreement, see Roy v.

Texas, 161 S.W.3d 30 (Tex. App. 2004); taking another’s keys and using the vehicle without

permission, see Johnson v. Texas, No. 05-92-00385-CR, 1994 WL 279803 (5th Cir. Jun. 23,

1994); and obtaining possession of a vehicle under false pretenses, see Nance v. Texas, 647

S.W.2d 660 (Tex. App. 1983) (although the court reversed the conviction based on a separate

evidentiary issue, it concluded that the evidence was sufficient to support the UUMV

conviction); none of which present any risk of physical force being used. 

3 The essential elements of the Texas UUMV offense and the Arizona UUMT offense

are virtually identical. Compare Ariz. Rev. Stat. § 13-1803(A)(1) (prohibiting (1) knowingly

taking control, (2) without authorization, (3) of another person’smeans oftransportation), with

Tex. Pen. Code § 31.07 (prohibiting (1) the intentional or knowing operation, (2) without the

effective consent ofthe owner, (3), of another’s motor-propelled vehicle). Although the Arizona

statute has an additional phrase (“without intent to permanently deprive”) that does not

appear in the Texas statute, the phrase is not an affirmative element of the offense. See State

v. Kamai, 911 P.2d 626, 628 (Ariz. App. 1995). 

5

crime of UUV poses a greater risk of physical force than driving under the

influence. 

Our decision not to rehear this case also prolongs an unnecessary

disagreement with the Tenth Circuit, which correctly concluded in SanchezGarcia that an indistinguishable offense under Arizona law is not a crime of

violence. The defendant in Sanchez-Garcia had been convicted of UUMT, which

a person commits under Arizona law “‘if, withoutintent permanently to deprive,

the person . . . [k]nowingly takes unauthorized control over another person’s

means of transportation.” Sanchez-Garcia, 501 F.3d at 1209 (quoting Ariz. Rev.

Stat. § 13-1803(A)(1) (alterations in original)).3 The Tenth Circuit observed that

“[l]ike any offense involving the unauthorized taking of property, itis clear there

is some chance that destructive or violent force might be employed in the

commission of UUMT when a person initially takes unauthorized control over

a means of transportation.” 501 F.3d at 1213. But the Tenth Circuit concluded

that such risks are not “substantial” because UUMT “encompasses a broad range

of conduct that does not present any risk of such force being used” such as

driving a rental vehicle past the expiration of the rental agreement, borrowing
No. 07-60634

4

In Brieva-Perez v. Gonzales, 482 F.3d 356 (5th Cir. 2007), the panel attempted to

reconcile Galvan-Rodriguez with Leocal. The panel concluded that an offense can be a crime

of violence under Leocal even in the absence of an element requiring intentional use of force

because “Leocal requires [only] that the nature of the offense involves a substantial risk of the

intentionaluse offorce.” 482F.3dat 360-61. Apparently relying on Galvan-Rodriguez’s finding

that UUV naturally involves such a substantial risk, the panel held that Leocal is therefore

consistent with Galvan-Rodriguez. Id. at 361. However, as discussed above and as the Tenth

Circuit recognized,the reasoning inGalvan-Rodriguez -- which relied on the possible incidental

effects of committing the crime -- conflicts with Leocal’s holding that a crime is “violent” only

if the risk is inherent in the commission of the crime itself. The petitioner in Brieva did not

petition the Supreme Court for a writ of certiorari. 

6

a car that he or she knows is stolen, or taking another’s keys and going joyriding.

Id. The Tenth Circuit considered but rejected our decision in Galvan-Rodriguez,

finding that it relied on unsupported conjecture and conflicts with Leocal. Id. at

1214.4

We are bound by the Supreme Court’s decisions and therefore have an

obligation to correct panel rulings that conflict with its instructions. See Rivers

v. Roadway Express, Inc., 511 U.S. 298, 312 (1994); Thurston Motor Lines, Inc.

v. Jordan K. Rand, Ltd., 460 U.S. 533 (1983). There is also an overarching

interest in maintaining the uniformity of federal immigration laws and

consistency in their enforcement. Bustamante-Barrera v. Gonzales, 447 F.3d

388, 399 (5th Cir. 2006); Renteria-Gonzalez v. INS, 322 F.3d 804, 814 (5th Cir.

2002). Rehearing this case would serve those purposes, yet the majority of the

court has chosen to allow our erroneous classification of UUV as a crime of

violence to continue. Accordingly, I dissent from the denial of rehearing en banc.