United States Court of Appeals Fifth Circuit 

## FILED
January 8, 2004

Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________
No. 02-20116

__________________________

UNITED STATES OF AMERICA, Plaintiff - Appellee,

versus

ENRIQUE VARGAS-DURAN,

Defendant - Appellant.

___________________________________________________ Appeal from the United States District Court For the Southern District of Texas

___________________________________________________

Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT, and PRADO, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

This appeal contemplates the application of a sentence enhancement to a defendant’s sentence

for being unlawfully present in the United States in violation of 8 U.S.C. § 1326 (2000). The PreSentencing Report (“PSR”) recommended that a sixteen-level enhancement be added to a base

offense level of eight because Enrique Varga s-Duran (“Vargas-Duran”) previously had been

co nvicted of intoxication assault under Texas law. Vargas-Duran objected to the enhancement
, arguing it was improper because intoxication assault was not a crime of violence under § 2L1.2 of1 The 1999 amendment to this statute is of no moment to this appeal.

t he U.S. Sentencing Guidelines Manual (“U.S.S.G.”). The district court agreed with the PSR’s

recommendatio n and enhanced Vargas-Duran’s sentence. On appeal, a majority of a panel of this

Court affirmed the district court, holding that intoxication assault required the use of force, and, as

such, met the U.S.S.G. definition of a crime of violence.

This Court now examines and clarifies the law with respect to sentencing enhancements which

require “as an element the use, attempted use, or threatened use of physical force against the person

of another.” U.S.S.G. § 2L1.2, Application Note 1(B)(ii)(I) (2001). We hold that the “use” of force

requires that a defendant intentionally avail himself of that force. We further hold that the intentional

use of force must be an element of the predicat e o ffense if the predicate offense is to enhance a

defendant’s sentence. Because the intentional use of force is not an element of the crime of Texas

intoxication assault, we VACATE Vargas-Duran’s sentence and REMAND his case for resentencing

in accordance with this opinion.

I. FACTS AND PROCEEDINGS

In 1996, Vargas-Duran, a citizen of Mexico, was convicted of intoxication assault in Texas

state court. Under the Texas statute, a person was guilty of intoxication assault when that person,

“by accident or mistake, while operating an aircraft, watercraft or motor vehicle in a public place

while intoxicated, by reason of that intoxication causes serious bodily injury to another.” T E X

. P ENAL

C ODE A NN

. § 49.07 (1994). 1 Following his conviction and sentence, Vargas-Duran was deported

from Hidalgo, Texas to Mexico.

On June 24, 2001, Vargas-Duran was again found in Texas. He pleaded guilty to being2 Section 1326, title 8, states in pertinent part: (a) In general Subject to subsection (b) of this section, any alien who – (1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter (2) enters, attem

pt s to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory
, the Attorney General has expressly consented to such alien’s reapplying for adm

ission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he

was not required to obtain such advance consent under this chapter or any prior Act, shall be fined under title 18, or imprison ed not m ore than 2 y ears, or both. (b) Criminal penalties for reentry of certain removed aliens
Notwithstand ing subsection (a) of this section, in the case of any alien described in such subsection –

. . . (2) whose removal was subsequent to a conviction for commission of

an aggra vat ed felony, such alien shall be fined under such title, imprisoned not more than 20 years, or both[.]

3 unlawfully present in the United States in violation of 8 U.S.C. § 1326(a) and (b)(2). 2 A PSR was
prepared using the 2001 version of the Federal Sentencing Guidelines. The base level of VargasDuran’s offense was eight; the PSR recommended a sixteen-level enhancement pursuant to U.S.S.G.

§ 2L1.2. Section 2L1.2(b)(1)(A)(ii) provides for a sixt een-level enhancement if “the defendant

previously was depo rt ed, or unlawfully remained in the United States, after . . . a conviction for a

felony that is a

. . . crime of violence.” The Application Notes define “crime of violence” either as

one of a list of enumerated offenses or as “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.”

U.S.S.G. Application Note 1(B)(ii)(I). The PSR recommended that Vargas-Duran’s 1996 conviction4

for intoxication assault be considered a crime of violence for purposes of enhancing his sentence.

The district court agreed with the PSR. In adopting the PSR’s recommendation, the district

court sentenced Vargas-Duran to a sixty-four month term of imprisonment and a three-year term of

supervised release. Vargas-Duran timely appealed.

On January 16, 2003, a majority of a panel of this Court affirmed the enhancement of VargasDuran’s sentence. U

nited States v. Vargas-Duran
, 319 F.3d 194, 199 (5th Cir. 2003), vacated and

reh’g granted by 336 F.3d 418 (5th Cir. 2003). As a preliminary matter, the panel majority observed

that because intoxication assault is not one of the enumerated offenses under § 2L1.2, VargasDuran’s sentence could only be enhanced if the crime of intoxication assault had “as an element the

use, attempted use, or threatened use of physical force against the person of another.” 319 F.3d at

196 (citations omitted). Next, the majority reiterated the rule that this Court “need not discuss the

facts underlying Vargas-Duran’s prior conviction, since we ‘look only to the fact of conviction and

the statutory definition of the prior offense ’ t o determine whether a prior conviction qualifies as a

predicate offense for sentencing enhancement purposes.” Id. (citations omitted).

Because intoxication assault requires that an intox icat ed offender “cause[] serious bodily

injury to another,” the majority concluded that the crime has as an element the use of force. 319 F.3d

at 196. Observing that neither Vargas-Duran nor any Texas decision gave an example of an instance

in which a defendant was convicted o f intoxication assault w ithout using physical force against a

person, the majority concluded that causing serious bodily injury “qualifie[d]” as using force. I d. at

196-97.

Vargas-Duran’s pr imary contention was that “use of force” implied the intentional use of

force. Relying on this Co urt’s decision in U nited States v. Chapa-Garza
, 243 F.3d 921 (5th Cir.3 Chapa-Garza was decided under 18 U.S.C. § 16(b), a predecessor of § 2L1.2 (the

guideline at issue in the present appeal). Chapa-Garza’s sentence was enhanced by the district court because it determined that DWI was an aggravated felony. An aggravated felony was, in turn, defined as, among other things, a crime of violence. Section 16(b) of Title 18 provided that a crime of violence was “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 .” Cf. § 2L1.2 (2000) (defining a crime of violence as “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”).

5 2001), in which we held that the sentence of a defendant wi t h a prior conviction for driving while

intoxicated ( “DWI”) could not be enhanced as a crime of violence, Vargas-Duran argued that the

approach endorsed by Chapa-Garza similarly should apply to intoxication assault. 319 F.3d at 197.

The majority disagreed with Vargas-Duran’s proposed use of Chap a -Garza on three grounds.

First, the majo r ity distinguished Chapa-Garza by observing that Chapa-Garza did not purport to

interpret § 2L1.2. 3 319 F.3d at 197. As a second point of distinction, the majority pointed out that

the crime of felony DWI, which is committed when a defendant with two prior convictions begins

operating a vehicle while intoxicated, could be committed without the use of force. I d. at 198. As

a third point of distinction the majority emphasized that the felony DWI statute at issue in ChapaGarza was not analyzed under 18 U.S.C. § 16(a), the language of which is simila r to § 2L1.2,

Application Note 1(B)(ii)(I). I d. The majority characterized § 16(b), under which Chapa-Garza was

decided, as a “catch-all” provision, and opined that “ Chapa-Garza ’s analysis of § 16(b) would have

been entirely unnecessary had the crime of Texas felony DWI contained as an element the ‘use o f

force,’ as does the Texas crime of intoxicati o n assault at issue in this case.” I d. The majority

therefore concluded that “[i]n light of the plain language of the revised guideline and its commentary,”

no state of mind requirement should be implied in § 2L1.2. Id. at 199.6

The dissent from the panel majority’s ruling in Vargas-Duran argued that “use”, by its very

definition, requires intent. 319 F.3d at 201 (Clement, J., dissenting). Because intoxication assault

encompasses an act that takes place “by accident or mistake”, the dissent reasoned that intoxication

assault does not necessarily require the use, attempted use, or threatened use of force. Id. at 204.

Vargas-Duran t imely filed a petition for rehearing en banc on January 30, 2003. By court

order, rehearing en banc was granted on June 26, 2003, and the panel opinion was vacated. U nited

States v. Vargas-Duran , 336 F.3d 418 (5th Cir. 2003).

II. STANDARD OF REVIEW

Because the grant of en banc rehearing vacates the earlier panel decision, we review de novo

a district court’s legal conclusions or interpretations of the meaning of a guideline. U nited States v.
Griffin , 324 F.3d 330, 365 (5th Cir. 2003). We therefore review a challenge to the district court’s

application of § 2L1.2 de novo

. U nited States v. Rodriguez-Rodriguez
, 323 F.3d 317, 318 (5th Cir.

2003).

III. DISCUSSION

A. “Use of Force”

The first issu e before the Court is whether “the use, attempted use, or threatened use of

physical force against the person of another,” U.S.S.G. § 2L1.2, Application Note 1(B)(ii)(I), means

that the predicate offense requires that a defendant intentionally avail himself of that force. We hold

that it does.

It is an elementary rule of statutory construction that “the words of a statute will be given

their plain meaning absent ambiguity.” T exas Food Indus. Ass’n v. United States Dept. of Agric.
, 81

F .3d 578, 582 (5th Cir. 1996). Similarly, a statute should be construed such that no wo rd is left4 Lest this Court be accused of selectively defining “use” to comport with the result

reached in this case, we hasten to add that other dictionaries have similarly defined the term. According to The American Heritage Dictionary, “use” means “[t]o put into service or apply for a purpose; employ.” T HE A MERICAN H ERITAGE D ICTIONARY OF THE E NGLISH L ANGUAGE 1894 (4th ed. 2000). The verb form of “use” as stated in the Encarta World English Dictionary is defined as meaning “to employ something for some purpose or to put something into action or service,” while the noun form is defined as “the act of using something for a particular purpose.” E NCARTA W ORLD E NGLISH D ICTIONARY 1956 (1999). One Webster’s dictionary gives the primary definition of “use” as “the act or practice of employing something,” and a secondary definition as “to put into action or service: avail oneself of: employ.” W EBSTER ’ S N EW C OLLEGIATE D ICTIONARY 1279 (6th ed. 1979). Finally, “use” has been defined as “the act or practice of using something: employment,” or “to put into action or service.” W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY OF THE E NGLISH L ANGUAGE U NABRIDGED 2523 (1993).

7 without operative effect. T exaco Inc. v. Duhé
, 274 F.3d 911, 920 (5th Cir. 2001). We are bound

to follow each Sentencing Guideline; commentary is also authoritative if not plainly e rroneous or

inconsistent with the guidelines. U nited States v. Urias-Escobar
, 281 F.3d 165, 167 (5th Cir. 2002).

Guidelines, and thus their commentary, are subject to the ordinary rules of statutory construction.

United States v. Carbajal , 290 F.3d 277, 283 (5th Cir. 2002).

Because “use” is not defined by the Sentencing Guidelines, we first look to its plain meaning.

Beginning with the definition as commonly understood within the legal community, “use” means

“[t]he application or employment of something.” B L ACK ’ S L AW D ICTIONARY 1540 (7th ed. 1999).

In more broad-based English application, “use” is defined as “[t]he act of employing a thing for any

. . . purpose ; the fact, state, or condition of being so employed; utilization or employment for or with

some aim or purpose , application or conversion to some

. . . e nd .” 19 T H E O XFORD E NGLISH

D ICTIONARY 35 0 (2d ed. 1989) (emphasis added). 4 Similarly, another dictionary observes that

“SERVICE, ADVANTAGE, PROFIT, ACCOUNT, AVAIL, and USE have in common a sense of

a u seful o r valuable end, result, or purpose

. USE stresses the practicality of the end, result, or

purpose for which something is employed.” W E BSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY5 We recognize that a member of this Court in dissenting from our denial of en banc

rehearing in United States v. Chapa-Garza , 262 F.3d 479, 482 (5th Cir. 2001), used an earlier Webster’s dictionary synonym explication of “use” to buttress his claim that “without question, force may be used accidentally.” The dissent observed that “Webster’s list of synonyms specifies ‘USE is general and indicates any putting to service of a thing, usu. for an intended or fit purpose’. W

EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY OF THE E NGLISH L ANGUAGE U NABRIDGED (Merriam-Webster 1986). This suggests, of course, that a purpose is not always intended.” Id. at 482, n. 2. As the more recent edition of Webster’s Third New International Dictionary of the English Language Unabridged omits the “usually” adverbial restriction on purpose, we believe the clear weight of authority suggests that “use of force” requires that one intentionally avail himself of that force.

8 OF THE E NGLISH L ANGUAGE U NABRIDGED 2523 (1993) (emphasis added). 5 The overwhelming

majo rit y of authority on the plain meaning of “use” contemplates the application of something t o

achieve a purpose. Supplementing the word “force” in place of the indeterminate object “something”

in the aforementioned dictionary definition bears out this meaning: “use of force” means “the act of

employing force for any

. . . purpose,” or “to avail oneself of force.” B ecause we conclude that the

meaning of “use of force” is free of ambiguity, we therefore hold that the plain meaning of the word

“use” requires intent.

Our adopti on of the plain meaning of “use” is further supported b y the rule of statutory

interpretation that requires us, when possible, to give each word in a statute operative effect. This

rule of construction dictates that the word “use” must have an operative effect when left standing

alone, or when modified by either “attempted” or “threatened.” Both an attempt and a threat require

intent. S ee B LACK ’ S L AW D ICTIONARY 123, 1489 (7th ed. 1999) (defining “attempt” and “threat”).

Were we to interpret “use of force” inconsistent ly with its pl ain meaning – t hat is, as capable of

being performed without intent – we would effectively nullify the state of mind required by

“attempted use” and “threatened use.” For how could one intentionally attempt to unintentionally

use force, or intentionally threaten to u nint ent io nally use force? The force, so to speak, of this6 There is a Circuit split on the issue of whether “use of force” in the context of Sentencing

Guidelines requires intent. See United States v. Lucio-Lucio , No. CR-02-1403WPJ, 2003 WL 22436260, at *3 (10th Cir. Oct. 28, 2003) (ruling that the “use of force” contemplated by § 16(b) “carries a connotation of at least some degree of intent”); Bazan-Reyes v. INS , 256 F.3d 600, 609, 611 (7th Cir. 2001) (holding that “use of force” as contemplated by § 16(a) and § 16(b) requires intentional use). But see United States v. Gonzales-Lopez , 335 F.3d 793, 799 (8th Cir. 2003) (holding that “the definition of crime of violence contained in § 2L1.2(b)(1) does not contain a volitional element”); United States v. Bonilla-Montenegro , 331 F3.d 1047, 1051 (9th Cir. 2003) (finding that designation of an offense as a crime of violence does not require the intentional use of force; recklessness will suffice).

9 rhetorical question only bolsters our belief that “use” requires intent.

Our adopti on of the plain meaning of the word “use” is supported by our caselaw as well. 6

In United States v. Chapa-Garza
, 243 F.3d 921 (5th Cir. 2001), we held that the crime of felony

DWI under Texas law was not a crime of violence, be cause “[ i ] ntentional force against another’s

person or property is virtually never employed to co mmit this offense.” I d. at 927. At issue in

Chapa-Garza was whether felony DWI fit within the 18 U.S.C. § 16(b) definit ion of crime of

violence as an 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.”

Id. at 924 (citations omitted) (emphasis added). We first declined to read § 16(b) in the same way

in which we read U.S.S.G. § 4B1.2(a)(2). I d. at 926. Although we hinged that decision on § 16(b)’s

emphasis on the use of force during the commission of the of fense, an equally valid basis for

distinction is the fact that § 4B1.2(a)(2) does not mention either “use” or “force.” Id. at 925. We

went on to avow that “[t]h e criterion that the defendant use physical force against the person or

pro perty of another is most reasonably read to refer to intentional conduct, not an accident al,

unintended event.” I

d. at 926. Relying in part on the Third Circuit’s elucidation of “use of force”

in United States v. Parson
, 955 F.2d 858 (3rd Cir. 1992), we concluded that the dictionary definitions7 Injury to a child is committed when a person “intentionally, knowingly, recklessly, or with

criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual: (1) serious bodily injury; (2) serious mental deficiency, impairment, or injury; or (3) bodily injury.” T EX

. P ENAL C ODE A NN . § 22.04(a) (2002).

10 of “use” indicate that the word “refers to volitional, purposeful
, not accident al, employ ment of

whatever is being ‘used’.” 243 F.3d at 926.

Nothing in our opinion in Chapa-Garza encouraged a reading restricting our plain-meaning

analysis of the word “use” to the context of only § 16(b). Section 16(b)’s dictate that “physical force

. . . may be used” does not differ substantially from § 2L1.2's “use of force” requirement. The

distinction we made between the application of force against the body of another does not necessarily

mean that the use of that force was intentional.

Indeed, an example given in Chapa-Garza is not unlike the crime of intoxication assault. In

the example posited, we believed that force was not intentionally used. We observed that

[w]hile the victim of a drunk driver may sustain physical injury from physical force being applied to his body as a result of collision with the drunk driver’s errant automobile, it is clea r 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.

243 F.3d at 927. The distinction we made then between force applied against the body of another

and force intentionally used against the body of another is one we uphold here.

Our ruling today is also consistent with the resu lt we reached i n U nited States v. GraciaCantu
, 302 F.3d 308 (5th Cir. 2002). Gracia-Cantu’s sentence was enhanced for a prior Texas felony

conviction for injury to a child, 7 which the PSR claimed constituted a crime of violence. 302 F.3d

at 311. On appeal, it was persuasively argued by Gracia-C a ntu and eventually conceded by the

Government that § 16(a) was inapplicable to Gracia-Cantu’s predicate offense because “the statutory8 This interpretation also comports with our assessment, infra , that not only must force be

used intentionally, but such use must also be “an element” of the predicate offense.

9 The panel explicitly ruled that “[b]ecause the Texas crime of intoxication assault has as an element

the use of force against the person of another, we conclude that the district court did not err in imposing the 16-level enhancement.” Vargas-Duran , 319 F.3d 194, 199 (5th Cir. 2003) (emphasis added).

11 definition of the offense does not explicitly require the application of force as an element.” I d. at 312.

Although we did not further address § 16(a) because of this concession, we now observe that this

interpretation of § 16(a) is consistent with our view that “use of force” requires intent. 8

B. “An Element”

Because the panel held that the use of fo rce was an element of the offense of intoxication

assault, we turn now to address whether the intentional use o f fo rce is an element of the crime of

intoxication assault. We hold that it is not.

As we have earlier noted, § 2L1.2 allows enhancement when the statute has “as an element

the use, attempted use, or threatened use of force.” U.S.S.G. § 2L1.2, Application Note 1(B)(ii)(I)

(2001) (emphasis added). Thus, Vargas-Duran’s sentence enhancement depends not only upon the

meaning of the word “use”, but also upon whether the predicate offense has the use of force as an

element of the crime. 9 In our current legal terminology, an element is “[a] constituent part of a claim

t hat must be proved for the claim to succeed.” B L ACK ’ S L AW D ICTIONARY 538 (7th ed. 1999).

Thus, in order for § 2L1.2 to apply, the intentional use of force must be “a constituent part of a claim

that must be proved for the claim to succeed.” S ee United States v. Williams
, 343 F.3d 423, 432 (5th

Cir. 2003) (observing that “[t]raditionally, an ‘offense’ was defined by its ‘elements,’ i.e., facts

necessary to support a conviction for the offense”). If any set of facts would support a conviction

without proof of that component, then the component most decidedly is not an element

– implicit or10 Our ruling on the “element” requirement of this Sentencing Guideline is consistent with

that of the Second Circuit in Chrzanoski v. Ashcroft , 327 F.3d 188 (2d Cir. 2003). In Chrzanoski , the Government argued that, while the state statute in question did not expressly identify “the use, attempted use, or threatened use” of physical force as an element, it was implicit in the statute’s requirement that physical injury be caused. Id. at 193. The Second Circuit rejected the Government’s argument and concluded that there was a difference between the use of force and the causation of injury. Id. at 194. We agree.

12 explicit

– of the crime. More specifically, in the case of Vargas-Duran, intentional use of force would

have to be an element of the crime of intoxication assault

– that is to say that no conviction would

be upheld absent proof that the defendant intentionally used force against the person of another. But

a requirement that a defendant intentionally use force is simply not an element that needs to be proved

under Texas law.

The Texas crime of intoxication assault requires that a prosecutor prove that the defendant

(1) by accident or mistake, (2) while operating a motor vehicle in a public place while intoxicated,

(3) by reason of that intoxication causes serious bodily injury to another. T EX

. P ENAL C ODE A NN

.
§ 49.07 (1994). T exas courts have held that the very words “by accident or mistake” plainly dispense

with any mens rea requirement. S tidman v. State
, 981 S. W.2d 227, 230 (Tex. App. 1998).

Therefore, all that need be proved for a conv ict io n is an intoxicated driver’s o peration of a m otor

vehicle in a public place that results in a serious bodily injury to another. No mens rea need be

established for prosecution. 10

Further, the fact that the statute requires that serious bodily injury result from the operati on

of a m otor vehicle by an intoxicated person does not mean that the statute requires that the defendant

have used the force that caused the injury. All that the statute requires is that a bodily injury occur

and that the injury was causally linked to the conduct of the defendant. No facts beyond these need

be established in order for a conviction to lie.13

Looking only at the fact of Vargas-Duran’s convictio n and t he statutory definition of

intoxication assault, it is clear that the intentional use of force against the person of another is not a

necessary component of the offense. The prosecution of Vargas-Duran for the predicate offense in

no way rested on proof of any mens rea , much less i nt ent . There is also a difference between a

defendant’s causation of an injury and the defendant’s use of force. Consequently, Vargas-Duran’s

use of force was simply not a fact necessary to support his conviction for intoxicati on assaul t.

Because the use of force is not an element of the offense of intoxication assault, Vargas-Duran’s

sentence was improperly enhanced.

IV. CONCLUSION

For the foregoing reasons, the enhanced sentence applied by the district court is VACATED,

and we REMAND this case for resentencing in accordance with this opinion.11 There is confusion among the circuit courts regarding the mens rea requirements for

“use of force.” Compare United States v. Gonzalez-Lopez , 335 F.3d 793, 798-99 (8th Cir. 2003) (holding that “crime of violence” under the 2001 version of U.S.S.G. § 2L1.2 contains no volitional element); Park v. I.N.S. , 252 F.3d 1018, 1021-23 (9th Cir. 2001) (holding that a crime of violence under § 16(a) and (b) does not require specific intent); Tapia-Garcia v. I.N.S. , 237 F.3d 1216, 1222-23 (10th Cir. 2001) (similar holding); United States v. Santana-Garcia , 211 F.3d 1271, No. 98-2235, 2000 WL 491510, at *2-3 (6th Cir. Apr. 18, 2000) (unpublished) (similar holding); Le v. U.S. Attorney Gen. , 196 F.3d 1352, 1354 (11th Cir. 1999) (similar holding); w ith Bazan-Reyes v. INS , 256 F.3d 600, 608-12 (7th Cir. 2001) (relying on definition of “use” as an intentional act to hold that state crimes of DWI and homicide by intoxicated use of a vehicle were not “crimes of violence” under 18 U.S.C. § 16(b)) ; Dalton v. Ashcroft
, 257 F.3d 200, 206-08 (2d Cir. 2001) (holding that “use” is an intentional act); United States v. Parson , 955 F.2d 858, 866 (3d Cir. 1992) (similar holding).

14 EMILIO M. GARZA, Circuit Judge, joined by BARKSDALE, Circuit Judge, dissenting:

The court’s opinion holds that “use” within the context of U.S. S ENTENCING G UIDELINES

M ANUAL § 2L1.2 (2001) means “intentional use.” 11 This holding is inconsistent with the plain

language of the sentencing guidelines, and it leads to unsound results for other guidelines where

the Sentencing Commission actually includes mens rea elements modifying the term “use.”

Further, this holding ignores the Sentencing Commission’s recent revision of U.S.S.G. § 2L1.2,

and is inconsistent with the rationale of United States v. Chapa-Garza , 243 F.3d 921 (5th Cir.

2001). Absent this Court’s addition of the mens rea element of intent to the verb “use,” it is clear

that the Texas intoxication assault statute is a crime of violence for purposes of U.S.S.G. § 2L1.2.

Accordingly, I respectfully dissent.

The 2001 version of U.S.S.G. § 2L1.2, under which Vargas-Duran was sentenced,

provides a 16-level sentence enhancement to a base offense level of 8 “[i]f the defendant

previously was deported, or unlawfully remained in the United States, after )) (A) a conviction for

a felony that is . . . (ii) a crime of violence. . . .” U.S.S.G. § 2L1.2(b)(1)(A)(ii). Application Note

1 of the guideline defines “crime of violence” for purposes of § 2L1.2(b)(1) as “an offense under12 The complete text of the 2001 version of § 2L1.2's crime of violence definition for

purposes of subsection (b)(1) is:

“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; and

(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. U.S.S.G. § 2L1.2 cmt n.1(B)(ii) (2001).

15 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. . . .” U.S.S.G. § 2L1.2, cmt. n.1(B)(ii)(I) (2001). 12

Despite the plain language of the § 2L1.2 crime of violence definition, the court’s opinion

inserts the word “intentional” before the word “use.” There is no mens rea language with respect

to the “use of force” element in the § 2L1.2 definition. Cf. United States v. Gonzalez-Lopez , 335

F.3d 793, 798 (8th Cir. 2003) (“[T]he text of the [§ 2L1.2] definition mentions only the actus reas

[sic] and is silent as to the mens rea )) or intent element.”). Although there is a presumption that

criminal statutes include an element of mental culpability, and strict liability crimes are disfavored,

see, e.g. , Staples v. United States , 511 U.S. 600, 606, 114 S. Ct. 1793, 128 L. Ed. 2d 608

(1994), the “use of force” requirement in § 2L1.2 is part of a strict liability 16-level sentencing

enhancement and not part of a strict liability criminal statute

. See United States v. Singleton , 946

F.2d 23, 26 (5th Cir. 1991) (“Singleton was not convicted of a strict liability crime but instead

was subject to a strict liability sentencing enhancement .”) (emphasis in original). Even though

criminal intent is a required part of the crime constituting the defendant’s underlying conviction,

criminal intent is not necessarily a consideration for the district court in the sentencing phase. Id

.13 See also U.S.S.G. § 2L2.1(b)(3) (“If the defendant knew
, believed
, or had reason to

believe that a passport or visa was to be used to facilitate the commission of a felony offense . . .”) (emphasis added); U.S.S.G. § 2K1.3(b)(2) (“If the offense involved any explosive material that the defendant knew

or had reason to believe was stolen . . .”) (emphasis added); U.S.S.G. § 2K1.3(b)(3) (“If the defendant used or possessed . . . any explosive material with know ledge
, intent , or reason to believe that it would be used or possessed in connection with another felony offense . . .”) (emphasis added); U.S.S.G. § 2K1.3(c)(1) (“If defendant . . . possessed or transferred any explosive material with know ledge or intent that it would be used

or possessed in connection with another offense . . .”) (emphasis added); U.S.S.G. § 2K1.4(a)(1) (“[I]f the offense (A) created a substantial risk of death or serious bodily injury to any person . . ., and that risk was created know ingly . . .”) (emphasis added); U.S.S.G. § 2K1.4(c)(1) (“If . . . the offense

was intended

to cause death or serious bodily injury . . .”) (emphasis added); U.S.S.G. § 2K1.5(b)(1) (“If the offense was committed w illfully and w ithout regard for the safety of human life , or with reckless disregard for the safety of human life . . .”) (emphasis added); U.S.S.G. § 2K1.5(a)(3) (“If . . . he acted with mere negligence . . .”) (emphasis added).

16 at 26-27. Thus, whether the district court must consider the mens rea of the defendant’s

underlying conviction depends upon the language of the sentencing guidelines.

“The guidelines drafters have been explicit when they wished to import a mens rea

requirement.” Singleton , 946 F.2d at 25. The crime of violence definition under U.S.S.G. §

2L1.2 contains no mens rea language. In contrast, the other section within subpart 2L1 of the

sentencing guidelines does include mens rea language. See U.S.S.G. § 2L1.1(b)(5) (“If the offense

involved intentionally or recklessly creating a substantial risk of death or serious bodily injury to

another person . . . .”) (emphasis added). 13 Previously, this Court has refused to read a mens rea

requirement into a sentencing guideline absent explicit direction to do so. See United States v.

Fry , 51 F.3d 543, 546 (5th Cir. 1995) (holding that, where “the language of section 2K2.1(a)(3)

makes no reference to the defendant’s mental state, . . . [t]he section is plain on its face and

should not . . . be read to imply a scienter requirement.”); Singleton , 946 F.2d at 25 (“Because

statutory sections are to be construed as coherent wholes, the precision of the drafters in including

mens rea in neighboring sections indicates that the reason that [§2K2.1] does not use the word14 The court’s opinion claims “we would effectively nullify the state of mind required by

‘attempted use’ and ‘threatened use’” in the § 2L1.2 crime of violence definition by not reading a mens rea requirement into the meaning of the term use because “attempt and threat require intent.” An “attempted use” or “threatened use” of force is a discrete action and by definition is not the “use” of force. As the definitions cited in the court’s opinion indicate, “intent” is specifically included in the terms “attempt” and “threat.” See B LACK ’ S L AW D ICTIONARY 127 (defining attempt as “[a]n intent to commit a crime couple with an act taken toward committing the offense”) (emphasis added); B LACK ’ S L AW D ICTIONARY 1480 (defining threat as “a communicated intent to inflict physical or other harm on any person or property”) (emphasis added). Intent, however, is not specifically included in the verb “use” itself. The absence of a mens rea associated with the “use of force” does not mean force cannot be used intentionally, rather it means that force can be used negligently, recklessly, or intentionally. See, e.g.
, T EX

. P ENAL C ODE A NN . § 49.07(a)(1) (Vernon 1994) (defining Texas intoxication assault as the situation where a defendant "by accident or mistake . . . while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to

17 “knowingly” is that the drafters did not wish such a requirement to apply.”); cf. United States v.

Myers , 104 F.3d 76, 81 (5th Cir. 1997) (“As a straightforward matter of textual interpretation, we

will not presume that a statutory crime requires specific intent in the absence of language to that

effect.”). The fact that the guideline drafters specifically used mens rea language in § 2L1.1 and

not in § 2L1.2 indicates they did not intend the term “intentional” to be included before “use” for

purposes of § 2L1.2.

Furthermore, interpreting “use” to mean “intentional use” in every sentencing guideline, in

accordance with the court’s opinion, leads to curious results. For example, applying the reasoning

of the court’s opinion to U.S.S.G. § 2K1.3(b)(3) and inserting the mens rea element “intentional”

before the verb “use” would change § 2K1.3(b)(3) to: “If the defendant [intentionally] used or

possessed . . . any explosive material with knowledge, intent, or reason to believe that it would be

[intentionally] used or possessed in connection with another felony offense . . . .” Thus, the

court’s opinion makes the mens rea language purposely included by the Sentencing Commission in

this guideline superfluous, 14 and departs from clear precedent governing statutory construction.another.’)

18

See United States v. Menasche , 348 U.S. 528, 538-39, 75 S. Ct. 513, 99 L. Ed. 615 (1955) (“It is

our duty to give effect, if possible, to every clause and word of a statute.”) (internal citations

omitted); United States v. Marek , 198 F.3d 532, 536 (5th Cir. 1999) (“A statute should be

interpreted so as to give each provision significance.”) (citing United States v. Nordic Village, Inc.
,
503 U.S. 30, 36, 112 S. Ct. 1011, 117 L. Ed. 2d 181 (1992)); see also 2A S UTHERLAND

S TATUTORY C ONSTRUCTION § 46.06 (6th ed. 2000) (“A statute should be construed so that effect

is given to all its provisions, so that no part would be inoperative or superfluous.”).

To justify its holding that “use” means “intentional use,” the court’s opinion cites to

various dictionary definitions. However, by exclusively relying on dictionary definitions, the

court’s opinion ignores the Sentencing Commission’s understanding of the term “use” as

demonstrated by other guidelines, and disregards clear Supreme Court precedent requiring that the

meaning of a statutory provision must be determined within the context of the whole act and not in

isolation. See U.S. Nat’l Bank of Oregon v. Indep. Ins. Agents of Am., Inc ., 508 U.S. 439, 455,

113 S.Ct. 2173, 124 L. Ed. 2d 402 (1993) (“Over and over we have stressed that ‘in expounding a

statute, we must not be guided by a single sentence or member of a sentence, but look to the

provisions of the whole law, and to its object and policy.’”) (quoting United States v. Heirs of

Boisdore , 49 U.S. (8 How.) 113, 122, 12 L. Ed. 1009 (1849)). I do not dispute that dictionaries

are useful tools that assist this court in determining the plain meaning of ambiguous terms.

However, before deciding that a term is ambiguous and turning to outside sources we must

consider whether other provisions within a particular statute lend clarity to that term. See, e.g.
,
King v. St. Vincent’s Hosp. , 502 U.S. 215, 221, 112 S. Ct. 570, 116 L. Ed. 2d 578 (1991) (“[T]he19

meaning of statutory language, plain or not, depends on context.”) (internal citations omitted); K

Mart Corp

. v. Cartier Inc. , 486 U.S. 281, 291, 108 S. Ct. 1811, 100 L.Ed. 2d 313 (1988) (“In

ascertaining the plain meaning of the statute, the court must look to the particular statutory

language at issue, as well as the language and design of the statute as a whole.”).

The meaning of a term should be determined by considering its context within the whole

statute in which the term appears. This is a more appropriate indication of what the drafters of

that statute understood a particular term to mean than is an outside dictionary definition. This is

especially true in the case of the Sentencing Guidelines because the Commission has extensive

expertise in this area, promulgates the guidelines in an effort to implement a cohesive policy, and

constantly revises the guidelines in an effort to maintain internal consistency. As the preceding

discussion indicates, there is no ambiguity surrounding the term “use” when the Sentencing

Guidelines are considered as a whole. It is clear that the Sentencing Commission does not

understand the verb “use” to inherently include any mens rea element. Thus this Court should not

impose a mens rea element upon that verb when the Sentencing Commission has declined to

explicitly do so.

In addition to misapplying fundamental principles of statutory construction, the reliance by

the court’s opinion upon Chapa-Garza is misguided. First, Chapa-Garza held that “use” means

“intentional use” within the context of the 2000 version of U.S.S.G. § 2L1.2's definition of a crime

of violence, not under the revised 2001 version of this guideline. Chapa-Garza , 243 F.3d at 923.

Unlike the 2001 version of § 2L1.2, the 2000 version did not contain its own guideline-specific

definition of a crime of violence. Instead, the 2000 definition was found, through a series of crossreferences, in 18 U.S.C. § 16. The only portion of the definition considered in Chapa-Garza was15 Section 16 and § 2L1.2 are two of the eight versions of a “crime of violence” definition

in the United States Code and in the United States Sentencing Guidelines. See United States v. Charles , 301 F.3d 309, 316 (5th Cir. 2002) ( en banc ) (DeMoss J. concurring). These crime of violence definitions usually have a similar two part structure. Like § 16 and § 2L1.2, the first part usually contains some version of the “use, attempted use, or threatened use of [ ] force” language with slight modifications. The second part differs among the definitions, modifying the first part in varying ways. Some of “these definitions are closed-ended and self-contained; and others of these definitions have catch-all clauses which invite speculation.” Id. Guideline 2L1.2 is an example of the category of definitions where the second part is closed-ended while § 16(b) is an example of a second part containing a catch-all clause inviting speculation. Accordingly, the purpose of the “use of force” language in the first part of the § 2L1.2 definition is different from the language in the second part of 18 U.S.C.§ 16. Relying upon Chapa-Garza in this case ignores the purpose served by the separate components of a crime of violence definition. Although the confusion caused by these various definitions is regrettable, “blame for this state of disarray falls squarely on the shoulders of Congress . . . and on the Sentencing Commission,” and“[i]t is not the task of the Judicial Branch to say which of these varying definitions the Congress intended to be controlling; nor is it the task of the Judicial Branch to make specific what Congress has failed to specify.” Charles , 301 F.3d at 316.

20 18 U.S.C. § 16(b). See Chapa-Garza , 243 F.3d at 924. Section 16(b) provides that in addition to

the offenses described in § 16(a), this crime of violence definition also includes offenses where

there was a “substantial risk that physical force . . . may be used.” 18 U.S.C. § 16(b). Based upon

this language, Chapa-Garza held that a crime of violence occurred when there is “a substantial

likelihood that the perpetrator will intentionally employ physical force.” Chapa-Garza , 243 F.3d at

926. The § 16(b) “substantial risk that physical force . . . may be used” language is different from

the “use . . . of physical force” language found in the 2001 § 2L1.2 crime of violence definition.

Furthermore, the purposes served by these two clauses, as demonstrated by the statutory structure

of their respective definitions, are not comparable. 15 Thus, our past interpretation of 18 U.S.C. §

16(b) in Chapa-Garza should not control our interpretation of the “use of force” language from

the first part of the 2001 crime of violence definition in this case.16 Based upon the rationale of Chapa-Garza , it is even more appropriate to distinguish the

2001 § 2L1.2 crime of violence definition from the 18 U.S.C. § 16 crime of violence definition because there are more significant differences between these definitions than between those considered in Chapa-Garza itself. Specifically, the language of U.S.S.G. § 4B1.2(a), which Chapa-Garza distinguished, is closer to that of 18 U.S.C. § 16 than 18 U.S.C. § 16 is to the language of the crime of violence definition in the 2001 version of U.S.S.G. § 2L1.2. See U.S.S.G. § 2L1.2, cmt. n.1(B)(ii)(II). But see U.S.S.G. § 4B1.2(a)(2) (including within the definition, in addition to the listed crimes, other crimes which “present[] a serious risk of physical injury”); 18 U.S.C. § 16(b) (including within the definition additional crimes involving a “substantial risk that physical force . . . may be used,” and not listing any specific offenses).

21 Second, under the rationale of Chapa-Garza , the nature of the 2001 revision of § 2L1.2

counsels against relying upon previous interpretations of 18 U.S.C. § 16 in this case. Cf. ChapaGarza , 243 F.3d at 926. In Chapa-Garza we refused to interpret the crime of violence definition

in 18 U.S.C. § 16(b) consistently with previous interpretations of the U.S.S.G. § 4B1.2(a) crime of

violence definition. Chapa-Garza , 243 F.3d at 926. We held that comparison was inappropriate

because the Sentencing Commission had previously changed the U.S.S.G. § 4B1.2(a) crime of

violence definition from a cross reference to 18 U.S.C. § 16 to a self-contained definition. ChapaGarza , 243 F.3d at 926. Yet, the court’s opinion in this case ignores the Sentencing Commission’s

choice to replace a cross reference to § 16 with a self-contained crime of violence definition in §

2L1.2. It found no significant difference between the two guidelines, thus going against the

rationale expressed in Chapa-Garza

. 16

Third, reliance upon Chapa-Garza for the proposition that “use” means “intentional use”

disregards the impact of the revised structure of § 2L1.2. In the Sentencing Commission’s effort

to create a more graduated sentence enhancement system under U.S.S.G. § 2L1.2, the

Commission included four separate enhancement levels in the 2001 version of the guideline rather

than the two separate enhancement levels contained in the 2000 version. See U.S.S.G. App. C,22

amend. 632; see also United States v. Caicedo-Cuero , 312 F.3d 697, 709-11 (5th Cir. 2002)

(discussing the 2001 amendments to § 2L1.2's definition of “crime of violence” and the impact of

having multiple definitions of the same term within the same guideline). The aggravated felony

definition of 8 U.S.C. § 1101(a)(43), and its cross reference to the 18 U.S.C. § 16 crime of

violence definition, included in the 2000 version of § 2L1.2 were retained, but the Commission

reduced the sentencing enhancement for an aggravated felony from 16 levels to 8 levels. U.S.S.G.

§ 2L1.2(b)(1)(C), cmt. n.2 (2001). As previously discussed, this crime of violence definition was

the one Chapa-Garza interpreted. The Commission then added new definitions for those crimes

serious enough to merit a 16-level enhancement, including the crime of violence definition at issue

in this case. It is clear that the Commission intended these definitions to have different meanings

because it drafted a new crime of violence definition, retained the prior aggravated felony

definition, and assigned different sentence enhancements to each definition. Thus, the court’s

opinion counteracts the Commission’s efforts by relying on the Chapa-Garza definition of use,

which interprets a statutory definition that the revised structure of the guidelines indicates does not

have the same meaning as the crime of violence definition in this case.

Without a mens rea element inappropriately added to the term “use” in U.S.S.G. § 2L1.2, it

becomes clear that Vargas-Duran’s underlying conviction for felony intoxication assault is a “crime

of violence” for purposes of the 16-level enhancement in § 2L1.2(b)(1)(A). Intoxication assault

punishes a defendant if “by accident or mistake . . . while operating a motor vehicle in a public place

while intoxicated, by reason of that intoxication causes serious bodily injury to another.” T EX

.

P ENAL C ODE A NN

. § 49.07(a)(1) (Vernon 1994). “Serious bodily injury” is defined as “injury that

creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss17 “Alcohol-involved crashes resulted in 16,792 fatalities, 513,000 nonfatal injuries, and

$50.9 billion in economic costs in 2000, accounting for 22 percent of all crash costs.” Lawrence J. Blincoe et. al., National Highway Traffic Safety Administration, The Economic Impact of Motor Vehicle Crashes 2000 at 2 (2002) at http://www.nhtsa.dot.gov/people/economic/EconImpact2000/EconomicImpact.pdf (last visited Nov. 21, 2003). Furthermore, in Texas 1,745 of the 3,725 traffic fatalities were alcohol related in the year 2002. National Highway Traffic Safety Administration, 2002 Annual Assessment of

23 or impairment of the function of any bodily member or organ.” T EX

. P ENAL C ODE A NN

. § 49.07(b)

(Vernon 1994).

Intoxication assault involves the use of force. As the Eighth Circuit recently recognized in

an automobile homicide case, “use of force” involves two components )) use and force. GonzalezLopez , 335 F.3d at 798-99. An automobile by its very nature embodies force. Id . (citing Omar v.

I.N.S. , 298 F.3d 710, 717 (8th Cir. 2002) ( “[A] vehicle can exert considerable physical force

because of its structure, weight and capacity for motion and velocity.”)). Furthermore, the drunk

driver is clearly using and employing the force embodied in the motor vehicle by operating it.

Gonzalez-Lopez , 335 F.3d at 799. Finally, the state intoxication assault statute ties the drunk

driver’s use together with the force of the automobile through its requirement that the “serious

bodily injury” result from the driver’s intoxication “while operating the motor vehicle.” T EX

.

P ENAL C ODE A NN

. § 49.07 (Vernon 1994). Cf. Gonzalez-Lopez , 335 F.3d at 799 (holding that a

statute’s requirement that a driver cause the death of another “ties the use of physical force [of the

automobile] with the requirement that the force be used against another person”).

The actions punished by the intoxication assault statute involve instances where the

defendant drove his car while drunk and hit a pedestrian, another vehicle, or a stationary object

causing serious bodily harm to another. In the hands of a drunk, a motor vehicle is as likely to

inflict physical force as a firearm. 17 There are no Texas state law cases where intoxication assaultMotor Vehicle Crashes 29, 50 (2002) athttp://www-nrd.nhtsa.dot.gov/pdf/nrd30/NCSA/Rpts/2003/Assess02BW.pdf (last visited Nov. 21, 2003). Firearm related fatalities accounted for 28,663 deaths nationwide in the year 2000. Center for Disease Control, Deaths: Final Data for 2000, 50 National Vital Statistics Reports No. 15 at tbl.18 (2002) at http://www.cdc.gov/nchs/data/nvsr/nvsr50/nvsr50_15.pdf (last visited Nov. 21, 2003). Of the 28,663 firearm related fatalities nationwide 1,972 occurred in the state of Texas. Bureau of Vital Statistics, Texas Department of Health, 2000 Annual Report tbl.18 at http://www.tdh.state.tx.us/bvs/stats00/ANNR_HTM/00t18.HTM (last visited Nov. 21, 2003).

18 Vargas-Duran’s conviction is the quintessential Texas intoxication assault case. VargasDuran was driving while intoxicated, struck a pedestrian who was attempting to cross the street, and fled the scene. Thus Vargas-Duran caused the precise harm the Texas intoxication assault statute seeks to avoid. By striking a pedestrian with a motor vehicle Vargas-Duran certainly used force to cause a serious bodily injury.

24 was prosecuted and actual force was not used to cause the injury. 18 Even Vargas-Duran admitted in

his briefs to this Court that he could not find any Texas intoxication assault case that did not involve

one of these scenarios. The most attenuated intoxication assault fact pattern actually prosecuted

was the situation where a drunk driver ran his car into a parked vehicle, and the parked vehicle then

struck a small child causing serious injuries. See Gonzalez v. Texas , No. 14-99-00853-CR, 2000

WL 1721159, at *1 (Tex.App. )) Houston [14th Dist.] Oct. 12, 2000, no pet.) (not designated for

publication). Clearly, even in this situation the defendant used force to cause physical harm. The

Texas intoxication assault statute punishes an intoxicated driver for causing serious bodily injury to

another by reason of their operation of a motor vehicle, thus the statute fulfills the “use of force”

requirement and is a crime of violence for purposes of the 16-level enhancement in U.S.S.G. §

2L1.2.

In summary, this court’s decision abrogates the Sentencing Commission’s authority,

properly delegated by Congress, to establish the mens rea required for each sentencing guideline.

The Sentencing Commission could have included the mens rea element of intent in U.S.S.G. §25

2L1.2, but the language of that guideline indicates that it did not choose to do so. Moreover, the

court’s decision contradicts the rationale of our prior cases interpreting the Sentencing Guidelines.

Accordingly, I respectfully DISSENT.DeMOSS, Circuit Judge, Specially concurring in part:

I agree with Judge Clement’s majority opinion that under the definition of “crime of

violence” in the 2001 version of U.S.S.G. §2L1.2 the predicate offense here in Vargas-Duran ( i.e.
,
intoxication assault under Tex. Pen. Code Ann. § 49.07) is not a “crime of violence” because:

A. That predicate offense is not specifically named in the Guideline definition;

and

B. That predicate offense does not have as an element “the use or attempted use

or threatened use of physical force against the person of another,” as Judge

Clement so clearly articulates in Part IIIB of her majority opinion.

I reach this conclusion because neither the word “use” nor the word “force” nor the word

“attempted” nor the word “threatened” appears anywhere in the text of the statute defining this

predicate offense; nor should these terms be read into that statute by inference.

However, I agree with Judge Garza’s dissent that we should not make this decision by

relying upon our prior holding in Chapa-Garza because:

A. That opinion was issued prior to the issuance of the new U.S.S.G. §2L1.2 in

2001; and27

B. This new definition of “crime of violence” does not have any cross-reference

to ei ther 8 U.S.C. § 1101 (a)(43)(F), nor to 18 U.S.C. § 16(a) or (b), nor to

U.S.S.G. §4B1.2, as did the version of §2L1.2 which was applicable at the

time Chapa-Garza

was decided.

I find myself in a straddle position, agreeing with the result of Judge Clement’s opinion, but

disagreeing with Part IIIA of her opinion in which she relies on Chapa-Garza to i nterpret the

language of Application Note 1(B)(ii)(I) as requiring an “intentional use of force.” Likewise, I

disagree with Judge Garza’s interpretation of Tex. Pen. Code Ann. § 49.07 as containing as an

element thereof the “use or threatened use or attempted use of physical force against the person of

another” so as to come within the language of Note 1(B)(ii)(I), but I agree with much of his dissent,

which reviews the history and purpose of the complete change made by the Sentencing Commission

in 2001 in the text of §2L1.2 and the importance of construing the definitions of “crime of violence”

and “aggravated felony” as set forth therein as new separate free standing definitions.

Given that the district courts of the Fifth Circuit handle more illegal alien cases than other

district courts (and our Circuit sees more appeals of these cases than any other Circuit) and given

that most of these illegal alien cases involve defendants with prior criminal convictions, I think it

would be appropriate, time-saving, and cost-effective to set forth for the benefit of the bench and

bar some ground rules and procedures for applying the new §2L1.2. Towards that end I make the

following suggestions:

Ground Rules for Interpretation28

1. The definitions in Application Note 1(B) of §2L1.2 are expressly limited to subsection

(b)(1) of that Guideline.

2. The definition of “crime of violence” in Application Note 1(B)(ii) was inserted by the

Sentencing Commission in 2001 and differs significantly from other definitions of “crime of

violence” in the criminal code and in the Guidelines. Therefore, any interpretation of this

definition in Vargas-Duran should not be derived from other statutes or guidelines where

other definitions of that term are used; and any interpretation here in Vargas-Duran is

applicable only to cases applying the §2L1.2 Guideline. Similarly, definitions of “crime of

violence” prior to the 2001 amendments to §2L1.2 are no longer applicable to sentencing

after November 1, 2001, under that Guideline.

3. The new definition of “aggravated felony” in Application Note 2 of §2L1.2 is expressly

limited to subsection (b)(1)(C) of that Guideline; and therefore any interpretation of that

term here in Vargas-Duran should not be derived from other statutes or guidelines which

define that term differently; and any interpretations here in Vargas-Duran are applicable only

to cases applying §2L1.2. Likewise, prior definitions of the term “aggravated felony” under

prior versions of §2L1.2 are no longer controlling.

4. In adopting the new definitions of “crime of violence” and “aggravated felony” in the 2001

Guidelines, the Sentencing Commission clearly intended to change the type of predicate

offenses which would qualify as a “crime of violence.” Therefore, we should strictly29

construe the language used in the 2001 version of “crime of violence” particularly as defined

by (B)(ii)(I).

5. In comparing the language used in the new definition of “crime of violence” it should be

noted that:

A. Not all of the specifically named offenses in subpart (II) meet the definitional

test in subpart (I), which should lead to the conclusion that the specifically

named crimes take precedence over the definition; and

B. The definition in subpart (I) is identical to 18 U.S.C. § 16(a) except that it

omits the words “or property” after the word “person;” which leads to the

conclusion that a crime against property which is not specifically named in

subpart (II) cannot be a crime of violence under subpart (I).

C. The list of specifically named offenses in subpart (II) is the same as the list of

offenses which are crimes of violence under the definition in Application

Note §4B1.2, but none of the definitions in §2L1.2 include any of the other

definitions of a “crime of violence” which appear in §4B1.2, which focus on

“conduct that by its nature, presented a serious potential risk of physical

injury to another.” This difference clearly indicates that in determining what

constitutes a “crime of violence” under subpart (I) of §2L1.2, we should not30 consider 18 U.S.C. § 16(b) which focuses on conduct that “by its nature

involves a substantial risk that physical force may be used against another” or

§4B1.2 which focuses on “conduct that presents a serious potential risk of

physical injury to another.”

In view of the foregoing, I propose that we craft a clear and methodical approach for

determining sentencing enhancements under the current §2L1.2 for the benefit of the bench and bar.

In so doing, it is important to reemphasize that in rendering this proposal for construing the

provisions of §2L1.2, I am not suggesting that we attempt to arrive at a one-size-fits-all definition

of “crime of violence” that purports to apply to other guideline provisions which utilize the crime of

violence terminology. Rather, this is a provision-specific proposal that hopefully adds a little clarity

to a much muddled area of the law.

In determining the appropriate sentencing enhancement under §2L1.2, the Guidelines direct

courts to “apply the greatest” of the enhancement levels, beginning with the 16-level and ending

with the 4-level enhancement. Therefore, whenever the issue for enhancement involving a potential

“crime of violence” under §2L1.2 is raised, I would determine the appropriate enhancement level as

follows:

Step 1 : I would determine whether the predicate offense is one of the

specifically named offenses found in Application Note 1(B)(ii)(II), which includes

“murder, manslaughter, kidnaping, aggravated assault, forcible sex offenses

(including sexual abuse of a minor), robbery, arson, extortion, extortionate extension19 I recognize that there exists an intermediate 12-level enhancement for felony drug

trafficking offenses that carry a sentence exceeding 13 months; however, for the purposes of our inquiry in Vargas-Duran , I have not included this relatively straightforward enhancement in my discussion.

31 of credit, and burglary of a dwelling.” If the predicate offense at issue is one of

these listed offenses, a 16-level enhancement is appropriate and no further analysis is

required.

Step 2 : If the predicate offense is not a specifically named, per se “crime of

violence,” I would then refer to the general definition found in Application Note

1(B)(ii)(I), which defines “crime of violence” as “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.” In determining whether the predicate offense

falls under this guideline definition, I would look only to the text of the statutory

provision at issue to identify whether the requisite element is present. If the

statutory definition does not contain such an element, i.e. , the use, attempted use, or

threatened use of physical force against the person of another, then analysis under

the 16-level enhancement is complete, making appropriate an analysis of the

predicate offense under the 8-level “aggravated felony” definition. 19

Step 3 : To determine whether the predicate offense constitutes an

“aggravated offense” warranting an 8-level enhancement, the court should look to

the definition provided by 8 U.S.C. § 1101(a)(43), which retains and restores the32

analysis of 18 U.S.C. § 16(a) and (b). Under § 16(a) and (b), a predicate offense is

an “aggravated felony” if it either “has as an element the use, attempted use, or

threatened use of physical force against the person or property of another” or is a

felony 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.”

Step 4 : If the predicate offense is a felony conviction that does not meet the

definitional standard for “aggravated felony” as provided by § 1101(a)(43), the

offense automatically receives a 4-level enhancement pursuant to §2L1.2(b)(1)(D).

Step 5 : Finally, if the predicate offense is not a felony but rather an aggregate

of three or more misdemeanors deemed to be crimes of violence or drug trafficking

offenses, the defendant is subject to a 4-level enhancement.

Applying Step 1 of this proposed methodology to the facts in Vargas-Duran , it is clear that

intoxication assault is not one of the specifically named offenses found in Application Note

1(B)(ii)(II). Therefore, the focus of analysis is on Step 2 to determine whether the statute at issue

“has as an element the use, attempted use, or threatened use of physical force against the person of

another.” One is guilty of intoxication assault in Texas if he “by accident or mistake . . . while

operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes

serious bodily injury to another.” T EX

. P EN

. C ODE A NN . § 49.07(b). Nowhere in the text of that

statute does there exist an element contemplating the use, attempted use, or threatened use of33

physical force nor can such an element be read into the statute. The guidelines simply command us

to extend our analysis no further than the statutory elements. Therefore, intoxication assault cannot

be a “crime of violence” and a 16-level enhancement is improper.

I would next move on to Step 3 and analyze intoxication assault under the lens of an

“aggravated felony.” Application Note 2 refers us to § 16(a) and (b) where we must decide

whether intoxication assault fits within either statutory definition. Section 16(a) is a near identical

recitation of the general definition of “crime of violence” found in Application Note 1(B)(ii)(I). The

only meaningful difference is the inclusion of one’s property in the former. Therefore, as I have

already determined that intoxication assault does not involve using, attempting to use, or

threatening to use physical force against the person of another, we can similarly conclude that

intoxication assault does not contemplate the use of such force against the property of another.

Accordingly, I focus on § 16(b).

Section 16(b) applies if the predicate offense is a felony 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.” It seems clear to me that this broader definition, which includes

such terms as “substantial risk” and “may be used,” is sufficient to capture the nature of the conduct

in the intoxication assault statute. There is certainly a substantial risk that someone may suffer

serious bodily injury as a result of an intoxicated driver’s operation of a motor vehicle, whether or

not physical force is used in committing the offense. Therefore, because intoxication assault falls

under the definition of an “aggravated felony” as contemplated by the Sentencing Guidelines,

Vargas-Duran’s sentence is subject to an 8-level enhancement.34

Bottom line, I would vacate the 16-level enhancement imposed by the district court and

remand the case back with specific instructions to apply the 8-level enhancement in accordance with

the methodology set forth herein.