IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-51199

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MOISES CHAPA-GARZA, also known as

Moises Garza, also known as

Moises Garza Chapa, also known as

Moises G Chapa, also known as

Moises Chapa,

Defendant-Appellant.

No. 00-50049

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JULIAN RICARDO GOYTIA-CAMPOS,

also known as Julian Ricardo

Goitia-Campos,

Defendant-Appellant.2 No. 00-50051

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALFONSO GUADALUPE PEREZ-VELAZQUEZ,

also known as Erick Lee,

Defendant-Appellant.

No. 00-50107

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANCISCO JAVIER SALDANA-ROLDAN,

Defendant-Appellant.

No. 00-50239

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EPIFANIO IVARBO-MARTELL,

also known as El Chino,1 Circuit Judge of the Ninth Circuit, sitting by designation.

2 U.S.S.G. § 2L1.2 provides:

“§2L1.2 Unlawfully Entering or Remaining in the United States

(a) Base Offense Level: 8

(b) Specific Offense Characteristic

(1) If the defendant previously was deported after a

criminal conviction, or if the defendant unlawfully

remained in the United States following a removal order

issued after a criminal conviction, increase as follows

(if more than one applies, use the greater):

(A) If the conviction was for an aggravated felony,

3 Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Texas

March 1, 2001

Before GOODWIN 1 , GARWOOD and JONES, Circuit Judges.

GARWOOD, Circuit Judge:

Defen dants-appellants Moises Chapa-Garza, Julian Ricardo Goytia

Campos, Alfonso Guadalupe Perez Velazquez, Francisco Javier Saldana

Roldan and Epifanio Iv arbo-Martell appeal their sentences. We VACATE

their sentences and REMAND for resentencing.

Facts and Proceedings Below

All five of the defendants-appellants pleaded guilty to unlawfully

being in the United States after removal therefrom, in violation of 8

U.S.C. § 1326(a). For violating section 1326(a), U.S.S.G. § 2L1.2

provides for a base offense level of 8, with an increase of 16 offense

levels if removal from the United States was preceded by a conviction

for an “aggravated felony”. 2 Application Note 1 of guideline 2L1.2increase by 16 levels.

(B) If the conviction was for (i) any other felony, or

(ii) three or more misdemeanor crimes of violence

or misdemeanor controlled substance offenses,

increase by 4 levels.”

3 Application Note 1 provides:

“1. For purposes of this guideline—

. . . . ‘Aggravated felony,’ is defined at 8 U.S.C. § 1101(a)(43) without regard

to the date of conviction of the aggravated felony.”

4 8 U.S.C. § 1101(a)(43) provides, in relevant part:

“(43) The term ‘aggravated felony’ means—

. . . . (F) 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;”

5 T EX

. P ENAL C ODE A NN

. § 49.09 provides that after two convictions for

violating section 49.04, Driving While Intoxicated, subsequent

convictions are third degree felonies instead of Class B misdemeanors.

4 refers to 8 U.S.C. § 1101(a)(43) for the definition of “aggravated

felony”. 3 Section 1101(a)(43) lists several examples of offenses

considered aggravated felonies. One of these, contained in section

1101(a)(43)(F), 4 is a “crime of vi olence” as defined in 18 U.S.C. § 16.

18 U.S.C. § 16 provides:

“The term “crime of violence” means—

(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 perso n or property of another may be used in the

course of committing the offense.”

Over appellants’ objections, the district courts applied guideline

2L1.2's 16 level increase, finding that Texas felony DWI 5 was a crime of

violence as defined in 18 U.S.C. § 16(b). As a result, the sentence of5

each appellant was considerably higher than it otherwise would have

been. At the time these appeals were taken, the sole issue raised by

each defendant was whether Texas felony DWI is “an aggravated felony”

under U.S.S.G. § 2L1.2(b)(1)(A). Because the issues were identical, the

cases were consolidated for oral argument.

Apprendi v. New Jersey

, 120 S.Ct. 2348 (2000), was decided after

the defendants-appellants filed their opening briefs. By a single

supplemental brief, the defendants-appellants each raise the same

Apprendi issue. 8 U.S.C. § 1326(a) provides that the maximum sentence

shall be a fine and/or imprisonment up to two years. Section 1326(b)(2)

increases the maximum penalty to a fine and/or imprisonment up to twenty

years if the removal of the defendant was preceded by a conviction for

an aggravated felony. The defendants-appellants’ sentences ranged from

41 to 57 months, all well above the section 1326(a) maximum.

Defendants-appellants argue that, under Apprendi , the statutory maximum

cannot be increased from two to twenty years unless the fact that

triggers the higher maximum sentence of section 1326(b)(2), a prior

aggravated felony conviction, is alleged in the indictment. Defendantsappellants concede that their argument is foreclosed by AlmendarezTorres v. United Sta tes , 118 S.Ct. 1219 (1998), and raise the issue in

this Court only to preserve the possibility of review by the United

States Supreme Court.

Our disposition of these two legal issues will resolve all five

appeals.6 Discussion

I.

This Court reviews the district court’s interpretation of the

Sentencing Guidelines de novo and its application of the guidelines for

clear error. U

nited States v. Cho

, 136 F.3d 982, 983 (5th Cir. 1998).

Defendants-appellants’ sentences must be affirmed unless they were

imposed in violation of law or were based upon an erroneous application

of the Sentencing Guidelines. U nited States v. Velazquez-Overa

, 100

F.3d 418 (5th Cir. 1996).

18 U.S.C. § 16(b) is the only justification for the 16-level

enhancement advanced by the government. Section 16(b) provides that a

crime of violence is “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 offense.” The government correctly observes that the words “by its

nature” require us to employ a categorical approach when determining

whether an offense is a crime of violence. V elazquez-Overa

, 100 F.3d

at 420-21. This means that the particular facts of the defendant’s

prior conviction do not matter, e.g. whether the defendant actually did

use force against the person or property of another to commit the

offense. The proper inquiry is whether a particular defined offense,

in the abstract, is a crime of violence under 18 U.S.C. § 16(b).

This is the second time a panel of this Court has been called upon

to decide the question of whether felony DWI is a crime of violence as6 Prior to the No vember 1, 1989, change, guideline 4B1.2, like the

current version of guideline 2L1.2 (via 8 U.S.C. § 1101(a)(43)(F)),

referred to 18 U.S.C. § 16 for the definition of “crime of violence”.

7 defined by 1 8 U.S.C. § 16(b). In Camacho-Marroquin v. Immigration and

Naturalization Service , 188 F.3d 649 (5th Cir. 1999), withdrawn 222 F.3d

1040 (5th Cir. 2000), this Court held that felony DWI was a crime of

violence. However, Camacho-Marroquin moved to withdraw his petition for

rehearing en banc so that the Immigration and Naturalization Service

could deport him in lieu of incarceration. As a result, the panel

withdrew its opinion. C amacho-Marroquin had held that felony DWI was

a crime of violence because of the substantial risk that drunk driving

will result in an automobile accident. Camacho-Marroquin , 188 F.3d at

652. The government agrees with this approach and urges that anytime

an offense involves a substantial risk of harm, even accidental harm,

that offense is a crime of violence.

We disagree with the government’s proposed construction of section

16(b) for three reasons: 1) it requires that section 16(b) be construed

the same as U.S.S.G. § 4B1.2(a)(2), which now contains significantly

broader language; 6 2) “substantial risk that physical force . . . may be

used” contemplates only reckless disregard for the probability that

intentional force may be employed ; and 3) the physical force described

in section 16(b) is that “used in the course of committing the offense”,

not that force that could result from the offense having been committed.

A.

There are two possible constructions of the operative language of7 U.S.S.G. § 4B1.2(a) provides:

“The term ‘crime of violence’ means any offense under federal or state

law, punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of

physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of

explosives, or otherwise involves conduct that presents a serious

potential risk of physical injury to another.”

In Rutherford

, the Seventh Circuit held that drunk driving was a crime of violence under guideline 4B1.2(a)(2) because it is “a reckless

act that often results in injury.” R utherford

, 54 F.3d at 376-77.

Rutherford’s prior conviction was not for simple felony DWI, but for

first degree assault. In Alabama (the jurisdiction of Rutherford’s

prior conviction), a person commits the offense of first degree assault

if, while driving under the influence of alcohol or drugs, he causes

bodily injury to another with a motor vehicle. Rutherford analyzed this

prior conviction as though it were merely for DWI. Id. at 376.

8 18 U.S.C. § 16(b). The government urges that we interpret section 16(b)

the same way the Seventh Circuit interpreted U.S.S.G. § 4B1.2(a)(2) in

United States v. Rutherford

, 54 F.3d 370 (7th Cir. 1995). 7 Under the

guideline 4B1.2(a) (2) standard, any offense that involves “pure

recklessness,” i.e. a conscious disregard of a substantial risk of

injury to others, is a crime of violence. The alternative reading is

that section 16(b) ap plies only when the nature of the offense is such

that there is a substantial likelihood that the perpetrator will

intentionally

employ physical force against another’s person or property

in the commission thereof. The latter approach requires recklessness

as regards a substantial risk that intentional force will be utilized

by the defendant to effectuate commission of the offense.

We begin by comparing the text of guideline 4B1.2(a)(2) with that

of section 16(b). Guideline 4B1.2(a)(2)’s “otherwise” clause contains

broader language than does section 16(b). Guideline 4B1.2(a)(2) only8 Desantiago-Gonzalez

, like the present case, involved an

enhanc ement under guideline 2L1.2. However, guideline 2L1.2 contains

two offense level increase options. The first is a 16 level increase

for an aggrav ated felony. This is the increase applied to the

defendants-appellants. The second is a four level increase if the

defendant has a prior record that includes any other felony or three or

more misdemeanor crimes of violence or misdemeanor controlled substance

offenses. This was the enhancement at issue in D esantiago-Gonzales

. For purposes of the four level enhancement only, Application Note 1,

Clause 4 of guideline 2L1.2 expressly references guideline 4B1.2 for the

definition of a crime of violence.

9 requires that the offense involve conduct that poses a serious risk of

physical injury to another person. It does not require, as section

16(b) does, that there be a substantial risk that the defendant will use

physical force against another’s person or property in the course of

committing the offense . Guideline 4B1.2(a)(2)’s otherwise clause

concerns only the risk of one particular effect (physical injury to

another’s person or property) of the defendant’s conduct. Section 16(b)

is focused on the defendant’s conduct itself , as there is no requirement

that there be a substantial risk that another’s person or property will

sustain injury, but only that there be a substantial risk that the

defendant will use physical force against another’s person or property

in the course of committing the offense

.

In United States v. DeSantiago-Gonzalez

, 207 F.3d 261 (5th Cir.

2000), this Court recognized the difference between section 16(b) and

guideline 4B1.2(a)(2). DeSantiago-Gonzalez was applying, to misdemeanor

DWI, the same guideline 4B1.2(a)(2) language that Rutherford applied to

felony DWI. 8 More importantly, notwithstanding that DeSantiago-Gonzalez10

was decided before C a macho-Marroquin was withdrawn, Camacho-Marroquin

was not given

“controlling effect because it was a deportation case wherein

the applicable definition of ‘crime of violence’ was found

at 18 U.S.C. § 16, which defines the term ‘crime of violence’

in language similar to but not identical with the definition

which controls the sentencing issue presented in this appeal

found at U.S.S.G. § 4B1.2(a).”

DeSantiago-Gonzalez , 207 F.3d at 264.

Effective November 1, 1989, the definition of crime of violence

under guideline 4B1.2(a)(2) was changed from a reference to section

16(b) to that which now appears. This change counsels a gainst

interpreting section 16(b) and guideline 4B1.2(a)(2) the same way.

Besides the aforementioned reasons to interpret section 16(b)

differently than guideline 4B1.2(a)(2), we believe that the “substantial

risk that physical force

. . . may be used” language in section 16(b)

refers only to those offenses in which there is a substantial likelihood

that the perpetrator will intentionally employ physical force. The

criterion that the defendant use physical force against the person or

property of another is most reasonably read to refer to intentional

conduct, not an accidental, unintended event. T HE A MERICAN H ERITAGE C OLLE G E

D ICTIONARY (3rd ed. 1997) defines the verb “use” as:

“1. To put into service or apply for a purpose; employ. 2.

To avail oneself of; practice: use caution

. 3. To conduct

oneself toward; treat or handle: used his colleagues well

. 4. To seek or achieve an end by means of; exploit: felt he

was being used . 5. To take or consume; partake of: She

rarely used alcohol .”

The four relevant definitions indicate that “use” refers to volitional,11

purposeful , not accidental, employment of whatever is being “used”. Our

understanding accords with the Third Circuit’s in United States v.

Parson

, 955 F.2d 858 (3rd Cir. 1992). Although P arson involved

interpretation of guideline 4B1.2(a)(2), the Third Circuit found it

necessary to discuss the history of the career offender guideline,

including a comparison of the pre November 1, 1989, language (which

referred to 18 U.S.C. § 16) and the current language:

“[T]he second branch of the definition in section 16 covered

only felo nies that ‘by nature, involve[] a substantial risk

that physical force

. . . may be used,’ whereas the revised

definition i n the current Guideline’s second prong [§

4B1.2(a)(2)] covers conduct that ‘presents a serious risk of

physical injury.’

At first blush, the difference in phrasing appears

trivial because most physical injury comes from the use of

physical force. But the distinction is significant. Use of

physical force is an intentional act, and therefore the first

prong of both definitions [ section 16(a) and guideline

4B1.2(a)(1)] requires specific intent to use force. As to

the second prong of the original definition, a defendant’s

commission of a crime that, by its nature, is likely to

require force similarly suggests a willingness to risk having

to commit a crime of specific intent. For example, a burglar

of a dwelling risks having to use force if the occupants are

home and hear the burglar. In such a case, the burglar has

a mens rea legally nearly as bad as a speci fic intent to use

force, for he or she recklessly risks having to commit a specific intent crime.

In contrast, under the second prong of the revised

definition, criminals whose actions merely risk causing

physical injur y may have a lower mens rea of ‘pure’

recklessness: they may lack an intent, desire or willingness

to use force or cause harm at all. For example, a parent who

leaves a young child unattended near a pool may risk serious

injury to the child, but the action does not involve an

intent to use force or otherwise harm the child. Similarly,

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 us e force to harm others. In this case, the crime

of reckless endangering necessarily involves a serious risk

of physical injury to another person, but not necessarily an12

intent to use force against other persons.”

Id. at 866. This passage explains not only the proper construction of

section 16(b), but also highlights the material difference in scope

between it and guideline 4B1.2(a)(2). Accordingly, we refuse to read

section 16(b) as we do guideline 4B1.2(a)(2), and hold, consonant with

the ordinary meaning of the word “use,” 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 a nother in order to effectuate the commission of

the offense.

B.

Another aspect of section 16(b) that bears upon the question of

whether felony DWI is a crime of violence is the requirement that the

physical force be applied “in the course of committing the offense”.

The meaning of these words is exemplified in this Court’s decision of

United States v. Velazquez-Overa

, 100 F.3d 418 (5th Cir. 1996). In

Velazquez-Overa , we held that the crime of indecency with a child

involving sexual contact was a crime of violence as defined in 18 U.S.C.

16(b) because it was likely that the perpetrator would find it necessary

to use physical force to “ensure the child’s compliance” and “perpetrate

the crime”. I d. at 422. V elazquez-Overa explicitly distinguished

guideline 4B1.2(a)(2) on this basis.

“The definition of ‘crime of violence’ in the career offender

provisions differs somewhat from that in 18 U.S.C. § 16. The

tou chstone of ‘violence’ in the career offender provisions

is the risk that physical injury will result, rather than the13

risk that physical force may be used to carry out the

offense.”

Id. at 421 n.4. That section 16(b) refers only to that physical force

that may be used to perpetrate the offense is in harmony with its

requirement that the offender intentionally use the f orce against the

person or property of another.

C.

We turn now to the u ltimate question we are called upon to decide.

While the victim of a drunk driver may sustain physical injury from

physical for ce being applied to his body as a result of collision with

the drunk driver’s errant automobile, it is clear that such force has

not been intentionally “used” against the other person by the drunk

driver at all, much less in order to perpetrate any crime, including the

crime of felony DWI. The crime of Texas felony DWI is committed when

the defendant, after two prior DWI convictions, begins operating a

vehicle while intoxicated. Intentional force against another’s person

or property is virtually never empl oyed to commit this offense.

Accordingly, we hold that felony DWI is not a crime of violence as

defined by 18 U.S.C. § 16(b).

In so holding, we are mindful that one of our prior opinions

contains dictum that is not inconsistent with the government’s view that

section 16(b) should be construed, as guideline 4B1.2 is, to embrace

crimes of simple recklessness. In U nited State s v. Galvan-Rodriguez

,

169 F.3d 217, 219 (5th Cir. 1999), this Court held that unauthorized use

of another’s motor vehicle, or joy riding, was a crime of violence as14

defined by section 16(b):

“Just as burglary of a vehicle involves a substantial risk

that property might be damaged or destroyed in the commission

of the offense, the unauthorized use of a vehicle likewise

carries a substantial risk that the vehicle might be broken

into, ‘stripped,’ or vandalized, or that it might become

involved in an accid ent, resulting not only in damage to the

vehicle and other property, but in personal injuries to

innocent victims as well.

It is true that, as arg ued by Galvan, the unauthorized

use of a motor vehicle will not always result in physical

force to persons or property, as, for example, when a child

takes the family car ‘joyrid ing’ without parental consent;

however, there is a strong probability that the inexperienced

or untrustworthy driver who has no pride of ownership in the

vehicle will be i nvolved in or will cause a traffic accident

or expose the car to stripping or vandalism.” (footnote

omitted).

Galvan-Rodriguez did not require us to resolve the issue presented in

the present appeal. Our resolution thereof is completely compatible

with the holding in Galvan-Rodriguez , as it cannot be doubted that there

is a substantial risk that physical force will be used against a vehicle

in order to obtain the unauthorized access to it that is necessary for

the commission of the offense of joy riding.

II. The Apprendi Issue

As the Apprendi issue was not raised below, we review only for

plain error. As explained below, we are unable to find error in this

respect, much less plain error.

Appellants recognize that the Supreme Court has held that the

enhanced penalties contained in section 1326(b) were mere sentencing

factors and not elements of a separate offense. S ee Almen darez-Torres

v. United States

, 118 S.Ct. 1219, 1226 (1998). They point out that15

Justice Thomas, one of the five justices who joined in the Supreme

Court’s Almendarez-Torres opinion, may no longer support i ts holding.

See Apprendi

, 120 S.Ct. at 2379. But no matter how much in doubt the

continuing viability of Almendarez-Torres may be, that decisio n is not

overruled unless and until the United States Supreme Court says it is.

State Oil v. Kahn

, 118 S.Ct. 275, 284 (1997). Until then, as conceded

by the defendants-appe llants, we are bound by A lmendarez-Torres

.

Therefore, we reject defendants-appellants’ argument that Apprendi

prevents them from being sentenced to a term of imprisonment of more

than two years.

Conclusion

We hold that because intentional force against the person or

property of another is seldom, if ever, employed to commit the offense

of felony DWI, such offense is not a crime of violence within the

meaning of 18 U.S.C. § 16(b). Accordingly, we VACATE the defendantsappellants’ sentences and REMAND for resentencing.

VACATED and REMANDED