## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 98-51003

Summary Calendar

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### UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS



### GILBERTO DELGADO-ENRIQUEZ,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________

September 10, 1999

Before SMITH, BARKSDALE, and

PARKER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Gilbert Delgado-Enriquez (“Delgado”)

pleaded guilty to illegal re-entry as a deported

alien in violation of 8 U.S.C. § 1326. He

ap p eals the sixteen-level enhancement of his

sentence, arguing that his previous conviction

of first degre e criminal trespass is not an

ag gravated felony within the meaning of

U.S.S.G. § 2L1.2(b)(1)(A). We affirm. I.

In Marc h 1998, Delgado applied for

admission to the United States fr om Mexico,

presenting a res ident alien card that did not

belong to him. He admitted to using his brother’s documents and that he was a nativ e and

citizen of Mexico. Immigration records

showed that he ha d been removed from the

United States in November 1995 after having

been convic t ed in the United States of first

degree criminal trespass.

Delgado wa s indicted for illegal re-entry

after dep o rtati on in violation of 8 U.S.C.

§ 1326. A notice informed him he would be2

subject to enhanced penalties upon conviction

because of his previous conviction. He pleaded guilty in August 1998.

Under the 1997 vers i on of the United

States Sentencing Commission Guidelines

Manual, the offense level for Delgado’s illegal

re-entry conviction

was calculated under

U.S.S.G. § 2L1.2. The pre-sentence report

(“ PSR”) recommended that sixteen levels be

added t o t he base offense level of 8 because

the conviction of first degree criminal trespass

is an aggravated felony within the meaning of

U.S.S.G. § 2L1

. 2(b)(1)(A). The PSR also

recommended, however, that the court reduce

the offense level by three for acceptance of

responsibility under U.S.S.G. § 3E1.1.

Delgado o bjected to the sixteen-level

enhancem ent , arguing that his conviction for

first degree criminal trespass did not rise to the

level o f “aggravated felony.” The court

overruled his objection, stating “The fact

remains that he broke into t he house and he

remained there with intent to commit theft or

other things

. . . .” Delgado was then

sentenced to seventy months in pris o n

followed by three years of supervised release.

II.

A.

A sentence must be affirmed unless it was

imposed in violation of the law or was bas e d

on an erroneous application of the sentencing

guidelines. United States v. GalvanRodriguez

, 169 F.3d 217, 218 (5th Cir. 1999),

petition for cert. filed (May 20, 1999)

(No. 98- 9509). We review a challenge to an

interpretation of the Guidelines de novo

. Id.

B.

Under § 2L1.2, a defendant who is found guilty of unlawfully entering the United States

after being previously deported on the basis of

a criminal co nviction may receive a sixteenlevel enhancement if the previous conviction

was an aggravated felony. 1 The term

“aggravated felony ” is defined at 8 U.S.C.

§ 1101(a)(43). U.S.S.G. § 2L1.2, comment.

n.1.

The government asserts that Delgado’s offense should be construed as a “crime of violence” un der § 1101(a)(43)(F). This subsection provi des t hat a “crime of violence” is

an aggravated felony when it meets the

definition found in 18 U.S.C. § 16 for nonpolitical offenses for which t he t erm of imprisonment is more than one year. Section 16

defines a crime of violence as:

(a) an offense that has as an element the

use, attempted use, or threatened use of

physical fo rce against the person or

property of another, or

1 United Stat es Sentencing Commission,

Guidelines Ma n ua l, § 2L1.2(b)(2) (Nov. 1998).

The commentary to § 2L1.2 was ame nded on

November 1, 1997, to delete application notes 6-7.

See U.S.S.G. Manual, Appendix C, amend. 562

(Nov. 1997). As a result, the definition of

“aggravated felony” in the guidelines conforms to

the amended definition of the same term in the

Illegal Immigration and Immigrant Responsibility

Act, Pub. L. 104-208, 110 Stat. 3009, which is

still found at 8 U.S.C. § 1101(a) (43). Delgado

was sentenced after the new amendments became

effective on November 1, 1997, so we rely on the

amended definition of aggravated felony. For purposes of this appe a l, the new amendments do not

change th e analysis of § 2L1.2(b) that we

announced in cases such as Galv an-Rodriguez,

because we rely on portions of § 1101(a)(43) that

have not been changed.3

(b) any other offense that is a felony and

that, by its nature

, involves a substantial

risk t hat physical force against the person or property of another may be used

in the course of committing the offense.

18 U.S.C. § 16 (1994) (emphasis added).

As we held i n U

nited States v. VelazquezOvera

, 100 F.3d 418, 421 (5th Cir. 1996), the

phrase “by its nature” requi res courts to determine whether an offense constitutes a crime

of violence without examining the underlying

facts surrounding the convic tion. G alvanRodriguez , 169 F.3d at 219. This categorical

approach requires courts “only to consider the

fact that [the defendant] was convicted and the

inherent nature of the offense.” Id.

C.

Delgado contends that because there is no

st ro ng probability that physical force will be

used in a cri m inal trespass offense, his prior

conviction cannot be considere d a crime of

violence within the mea ning of 18 U.S.C.

§ 16(b) . He points out because his guideline

range would have been 21 to 27 months without the sixteen-level enhancement for ag gravated felony, he was harmed by t he alleged

misapplication of the Guidelines.

We have not heretofore considered whether

crimi n al trespass qualifies as a crime of violence for purposes of § 16. In previous cases,

however, this court has found that a burglary

o f a vehicle, 2 a burglary of a non-residenti a l

building, 3 and the unauthorized use of a m otor vehicle 4 are crimes of violence under § 16(b),

and, therefore, aggravated felonie s under

§ 2L1.2. In all of these cases, we found that

because the criminal act at issue created a

“substantial risk that physical force will be

used against the person or property of another

i n t he course of committing the offense, ”

§ 16(b), these crimes qualified as crimes o f

violence for purposes of § 16(b).

Delgado’s trespass convic t ion was under

Colorado law, under which a “person commits

the crime of first degree criminal trespass if he

knowingly and unlawfully enters or remains in

a dwelling or i f he enters any motor vehicle

with intent to steal anything of value.” C O LO

. R EV

. S TAT

. A NN

. § 18-4-502 ( W est 1991).

We must decide whether committing criminal

trespass, by its very nature, c reates a substantial risk that the perpetrator will use physical force against the person or propert y of

another.” When analyzing the phrase “substantial risk,” we have stated that it is not

necessary that the risk “must occur in every

instance; rather a substantial risk requires a

strong probability that t he event, in this case

the application of

physical force during the

commission of the crime, will occu r.”

Rodriguez-Guzman , 56 F.3d at 20.

The court did not err when it found that the

act of criminal trespass, which specifically requires entering or remaining in the dwelling of

another, is a crime of violence under § 16(b).

Entering or remaining in a dwelling of another

creates a substantial risk that physical force

will be used against the residents in the dwell-

2 Galvan-Rodriguez , 169 F.3d at 219.

3 United States v. Ramos-Garcia

, 95 F.3d 369,

371 (5th C ir. 1996), c ert. denied

, 519 U.S. 1083

(continued...) (...continued)

(1997).

4 United States v. Rodriguez-Guzman

, 56 F.3d

18, 20 (5th Cir. 1995).4

in g. Indeed, even when the perpetrator has

i llegally entered a nonresidential building, we

have found a “substantial risk of physical

forc e” being used against the p roperty of

another. R odriguez-Guzman

, 56 F.3d at 11.

Therefore, we conclude that criminal trespass

is a crime of violence within the meaning of

§ 16(b) and an aggravated felony for purposes

of § 2L1.2(b)(1)(A). 5

AFFIRMED.

5 There is also some indication that trespass has

been considered a crime that may invoke violence.

See

, e.g.

, L A

. R EV

. S TAT

. A NN

. § 14:19 (West

1999) (providing that the us e of force or violence

i s justifiable to prevent a forcible offense or

trespass against pro perty in a person’s lawful

possession); Bell v. Maryland , 378 U.S. 226, 328

n.15 (1964) (noting that historians of early English

l a w have concluded that “‘to allow men to make

forcible entries on land . . . is to invite violence’”)

(citation omi tted); C astillo v. First City Bancorporation, Inc.

, 43 F.3d 953 (5th Cir. 1994) (noting

in civil context that common law actions in civil

trespass involved some

violence, although the

amount might be minimal).