IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 98-51003

Summary Calendar

_______________

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

appeals the sixteen-level enhancement of his

sentence, arguing that his previous conviction

of first degree criminal trespass is not an

aggravated felony within the meaning of

U.S.S.G. § 2L1.2(b)(1)(A). We affirm.

I.

In March 1998, Delgado applied for

admission to the United States from Mexico,

presenting a resident alien card that did not

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

citizen of Mexico. Immigration records

showed that he had been removed from the

United States in November 1995 after having

been convicted in the United States of first

degree criminal trespass. 

Delgado was indicted for illegal re-entry

after deportation in violation of 8 U.S.C.

§ 1326. A notice informed him he would be
2

subject to enhanced penalties upon conviction

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

Under the 1997 version of the United

States Sentencing Commission Guidelines

Manual, the offense level for Delgado’sillegal

re-entry conviction was calculated under

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

(“PSR”) recommended that sixteen levels be

added to the 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 objected to the sixteen-level

enhancement, arguing that his conviction for

first degree criminal trespass did not rise to the

level of “aggravated felony.” The court

overruled his objection, stating “The fact

remains that he broke into the house and he

remained there with intent to commit theft or

other things . . . .” Delgado was then

sentenced to seventy months in prison

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 based

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 conviction 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” under § 1101(a)(43)(F). This subsection provides 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 the term 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 force against the person or

property of another, or

 

1 United States Sentencing Commission,

Guidelines Manual, § 2L1.2(b)(2) (Nov. 1998).

The commentary to § 2L1.2 was amended 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 appeal, the new amendments do not

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

announced in cases such as Galvan-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 that physical force against the person or property of another may be used

in the course of committing the offense.

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

As we held in United States v. VelazquezOvera, 100 F.3d 418, 421 (5th Cir. 1996), the

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

of violence without examining the underlying

facts surrounding the conviction. GalvanRodriguez, 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

strong probability that physical force will be

used in a criminal trespass offense, his prior

conviction cannot be considered a crime of

violence within the meaning 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 aggravated felony, he was harmed by the alleged

misapplication of the Guidelines.

We have not heretofore consideredwhether

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

however, this court has found that a burglary

of a vehicle,2a burglary of a non-residential

building,3and the unauthorized use of a motor

vehicle4 are crimes of violence under § 16(b),

and, therefore, aggravated felonies 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

in the course of committing the offense,”

§ 16(b), these crimes qualified as crimes of

violence for purposes of § 16(b). 

Delgado’s trespass conviction 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 if he enters any motor vehicle

with intent to steal anything of value.” COLO.

REV. STAT. ANN. § 18-4-502 (West 1991).

We must decide whether committing criminal

trespass, by its very nature, creates a substantialrisk that the perpetrator will use physical force against the person or property 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 the event, in this case

the application of physical force during the

commission of the crime, will occur.”

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 Cir. 1996), cert. denied, 519 U.S. 1083

(continued...)

(...continued)

(1997).

 

4 United States v. Rodriguez-Guzman, 56 F.3d

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

ing. Indeed, even when the perpetrator has

illegally entered a nonresidential building, we

have found a “substantial risk of physical

force” being used against the property of

another. Rodriguez-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., LA. REV. STAT. ANN. § 14:19 (West

1999) (providing that the use of force or violence

is justifiable to prevent a forcible offense or

trespass against property in a person’s lawful

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

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

law have concluded that “‘to allow men to make

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

(citation omitted); Castillo 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).