IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

m 99-10734

_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

CHRISTOPHER RODRIGUEZ JACKSON,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

_________________________

July 26, 2000

Before DAVIS, SMITH, and DENNIS,

Circuit Judges. 

JERRY E. SMITH, Circuit Judge:

ChristopherJacksonpleaded guiltyto being

a convicted felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). He challenges the constitutionality of § 922(g)(1) and

application of the sentencing guidelines. We

affirm.

I.

Jacksoncontendsthat § 922(g)(1)is unconstitutionalbut recognizesthat we have rejected

the same challenge in United States v. Kuban,

94 F.3d 971 (5thCir. 1996), and United States
2

v. Rawls, 85 F.3d 240 (5th Cir. 1996). Accordingly, this issue has no merit.

II.

A.

Pursuant to U.S.S.G. § 2K2.1(a)(2), Jackson’s base offense level was set at 24 on account oftwo prior state-court convictionsthat

the court deemed to be “crimes of violence,”

namely two convictions for unauthorized use

of a vehicle (“UUV”) under TEX.PENALCODE

§ 31.07. Jackson contends that the court erred

in classifying UUV as a “crime of violence” as

that term is defined in U.S.S.G. § 4B1.2.1

“We review a district court’s application ofthe

guidelines de novo.” United States v. DeSantiago-Gonzalez, 207 F.3d 261, 263 (5th Cir.

2000).

Section 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 SS

(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 potentialrisk of physical injury

to another.

Application note 1 states:

“Crime of violence” includes murder,

manslaughter, kidnapping, aggravated

assault, forcible sex offenses, robbery,

arson, extortion, extortionate extension

of credit, and burglary of a dwelling.

Other offenses are included as “crimes

of violence” if (A) that offense has as an

element the use, attempted use, or

threatened use of physical force against

the person of another, or (B) the conduct set forth (i.e., expressly charged) in

the count of which the defendant was

convicted involved use of explosives(including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another.

UUV requires that a person (1) intentionally or knowingly operate (2) another’s boat,

airplane, or motor-propelled vehicle (3) without the effective consent of the owner. See

TEX. PEN. CODE § 31.07. Because UUV does

not have as an element the use, attempted use,

or threatened use of physical force against the

person of another, § 4B1.2(a)(1) is not applicable. The first clause of subsection (a)(2) is

likewise inapplicable, because UUV is not the

burglary of a dwelling, arson, or extortion; and

UUV does not involve the use of explosives.

Therefore, UUV is a “crime of violence” as

that term is defined in § 4B1.2(a) only if UUV

“presents a serious potential risk of physical

injury to another.” The court applied this “residual clause” in sentencing Jackson.

Before determining whether that sentencing

is correct, we must consider 18 U.S.C. § 16,

which also defines “crime of violence.”2 The

1 Application Note 5 to U.S.S.G. § 2K2.1

explicitly incorporates the § 4B1.2 definition of

“crime of violence.”

2 At one time, § 4B1.2 incorporated the 18

U.S.C. § 16 definition of “crime of violence.” See

(continued...)
3

definition in § 16 differs in that it includes

force against property and uses slightly different language:

The term “crime of violence” meansSS

(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 person or property of another may be used

in the course of committing the offense.

The differences between the § 16(b) residual

clause and the § 4B1.2(a)(2) residual clause

are that (1) § 16 includes force against property; (2) § 16 focuses on a risk of physical

force, whereas § 4B1.2(a) focuses on a risk of

physical injury; (3) § 16 includes the phrase

“by its nature,” whereas § 4B1.2(a) uses the

phrase “involves conduct that;” and (4) § 16

requires a “substantial risk,” whereas

§ 4B1.2(a) requires a “serious potential risk.”

The first of these differences is significant:

Section 16 explicitly includes risk to property,

whereas § 4B1.2(a) includes only risk to persons. The second difference is less important,

because “in situations in which there is a substantial risk that physical force against a person will be used, a serious potential risk of

physical injury may also exist.” United States

v. Kirk, 111 F.3d 390, 394 (5th Cir. 1997).

The third difference is significant, but is tempered by application note 1 to § 4B1.2, which

restates the residual clause to require that “the

conduct set forth (i.e., expressly charged) in

the count of which the defendant was convicted . . . by its nature, presented a serious potential risk of physical injury to another” (emphasis added). The fourth difference, the use of

“substantial” instead of “serious,” is immaterial: “[T]he definitions are substantially similar. Therefore, the reasoning employed in § 16

cases is persuasive authority for [§ 4B1.2

cases].” Kirk, 111 F.3d at 394.

B.

The parties dispute whether a court may

consider a defendant’s specific conduct in

making the § 4B1.2 “crime of violence” determination. In United States v. Fitzhugh, 954

F.2d 253, 254 (5th Cir. 1992), we held that

§ 4B1.2 does not allow a court to look beyond

the charging instrument to the defendant’sspecific conduct:

[T]he Sentencing Commission made

clear that only conduct “set forth in the

count of which the defendant was convicted” may be considered in determining whether the offense is a crime of violence. . . . [Section] 4B1.2 does not

intend to define “crime of violence” by

reference to conduct underlying the offense when the defendant is not charged

and convicted of such conduct. In

short, the Commission has repudiated

. . . cases which held that a sentencing

court can look beyond the face of the

indictment in considering this issue.

We applied Fitzhugh in United States v.

Ruiz, 180 F.3d 675 (5th Cir. 1999), in which

the defendant, who had pleaded guilty to escape from the custody of a federal prison

camp, argued that the district court had erred

in concluding that his escape constituted a

“crime of violence” under § 4B1.2, because 2

(...continued)

U.S.S.G. § 4B1.2 (1988). 
4

“he simply walked away from a prison camp

where no physical barriers prevented the escape and no guards were armed.” Id. at 676.

We responded:

In United States v. Fitzhugh, we held

that the commentary to § 4B1.2 makes

“clear that only conduct ‘set forth in the

count of which the defendant was convicted’ may be considered in determining whether [an] offense is a crime of

violence.” Under Fitzhugh, we are precluded from looking to the underlying

facts of Ruiz’s conviction, as he

requests, because the circumstances to

which Ruiz directs our attention are not

mentioned in the indictment. The

indictment chargesthatRuiz “knowingly

escape[d] from custody of [a federal

prison camp] . . . in which he was

lawfully confined.” . . . Every escape

scenario is a powder keg, which may . .

. explode into violence and result in

physical injury.

Id. at 676-77. 

Fitzhugh and Ruiz dictate that we may not,

asJackson requests, consider the specific conduct underlying his UUV convictions unless

that conduct were included in the charging instrument for those offenses. See also DeSantiago-Gonzalez, 207 F.3d at 261 (holding that

the misdemeanor offense of driving while intoxicated is, as a categorical matter, a § 4B1.2

“crime of violence”). This rule avoids minitrials in which the government and the

defendant would have to “retry” past

convictions in the context of a sentencing

hearing. Unfortunately, panels of this court,

beginning with United States v. Jackson, 22

F.3d 583 (5th Cir. 1994), appear to have

overlooked Fitzhugh.

In Jackson, we held that the burglary of a

building is not a “crime of violence” within the

meaning of § 4B1.2 because it does not always

present the requisite risk, and the specific conduct of the defendant, as described in the presentence report, did not present the requisite

risk. Id. at 585. According to Fitzhugh/Ruiz,

we should have considered first the categorical

issue,3then only whether the conduct

described in the charging instrument presented

the requisite risk.

In Kirk, we again considered the specific

conduct of a defendant in a § 4B1.2 analysis,

and we justified such consideration in a

footnote.

[U]nder 18 U.S.C. § 16, we [are]

compelled to apply a categorical

approach in determining crimes of

violence. The Sentencing Guidelines,

however, do not require such a

categorical approach. See Jackson, 22

F.3d at 585. Because we determine that

the specific conduct Kirk was convicted

of was a crime of violence we decline to

rule on whether a violation of [the

applicable statute] could be per se a

crime of violence under Sentencing

Guideline section 4B1.2.

Kirk, 111 F.3d at 395 n.8 (internal citation

omitted). In United States v. Claiborne, 132

3 AlthoughFitzhugh andRuiz direct that a court

look to the charging instrument, that is unnecessary

if, as a categorical matter, the statutory elements of

a crime always present the requisite riskSSas a

matter of law, those elements are contained in the

charging instrument.
5

F.3d 253, 256 n.3 (5th Cir. 1998), we again

followed Jackson, this time in dictum:

4

In determining whether a defendant

committed a crime of violence for

purposes of U.S.S.G. § 4B1.2, we may

consider his specific conduct that

resulted in conviction [citing Kirk and

Jackson]. The underlying facts of Claiborne’s conviction for attempted

unauthorized entry are not set forth in

the briefs, but the presentence report

notesthat he, accompanied by two men,

attempted to enter the inhabited

dwelling of a woman living in New

Orleans.

“[W]here two previous holdings or lines of

precedent conflict, the earlier opinion controls

and isthe binding precedent.” Billiot v. Puckett, 135 F.3d 311, 316 (5th Cir.), cert. denied,

525 U.S. 966 (1998) (internalquotation marks

omitted). Fitzhugh predates Jackson, and

therefore Fitzhugh is the law of this circuit.

C.

In United States v. Galvan-Rodriguez, 169

F.3d 217 (5th Cir.), cert. denied, 120 S. Ct.

100 (1999), an immigration case, we held that

UUV is a crime of violence under 18 U.S.C.

§ 16. Applying a categorical approach, and

defining “substantial risk” as requiring “a

strong probability that the event . . . will

occur,” we stated that

[j]ust as burglary of a vehicle involves a

substantial risk that property might be

damaged or destroy ed 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 accident, resulting not

only in damage to the vehicle and other

property, but in personal injuries to

innocent victims as well. It is true that

. . . the unauthorized use of a vehicle

will not alwaysresult in physicalforce to

persons or property, as, for example,

when a child takes the family car

“joyriding” 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 involved in or will

cause a traffic accident or expose the car

to stripping or vandalism. In fact, when

an illegal alien operates a vehicle

without consent, a strong probability

exists that the alien may try to evade the

authorities by precipitating a high-speed

car chase and thereby risking the lives of

others, not to mention significant

damage to the vehicle and other

property.

Id. at 219-20.

Galvan-Rodriguez holds that UUV’s risk to

persons and property is sufficiently high to

constitute a § 16 crime of violence. We have

also held that the misdemeanor crime of

driving while intoxicated (“DWI”) constitutes

a § 4B1.2(a)(2) crime of violence. See DeSantiago-Gonzalez, 207 F.3d at 264. Pursuant to

this authority, we conclude that UUV’srisk to

persons is likewise sufficient to render UUV,

4 The consideration of specific conduct was

dictum, because we concluded that the crime at

issue, attempted unauthorized entry of an inhabited

dwelling, always presents the requisite risk. See

Claiborne, 132 F.3d at 256.
6

as a categorical matter, a crime of violence

under § 4B1.2(a)’s residual clause.5

While Galvan-Rodriguezinpart considered

the risks to property from UUVSSnamely that

a vehicle may be stripped, vandalized, or damaged in a collisionSSour language that there is

a “substantial risk that the vehicle . . . might

become involved in an accident” and that

“there is a strong probability that the . . .

[UUV] driver . . . will be involved in or will

cause a traffic accident” indicates a sufficiently

high risk of personal injuries. See GalvanRodriguez, 169 F.3d at 219. We are not unsympathetic to Jackson’s argument that UUV

is not what one might typically consider a

“crime of violence,” but we do not write on a

clean slate, and our precedent dictates that

UUV’s risks are sufficient to satisfy the

§ 4B1.2 definition.

AFFIRMED.

ENDRECORD 

5 Because we decide the issue as a categorical

matter, we need not consult the charging

instruments for Jackson’s UUV convictions.
6

 U.S.S.G. §4B1.2(a), Commentary, Application Note 1, in pertinent part, provides:

For purposes of this guideline– . . .”Crime of Violence” includes murder, manslaughter, kidnapping,

aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and

burglary of a dwelling. Other offenses are included as “crimes of violence” if (A) that offense has as

an element the use, attempted use, or threatened use of physical force against the person of another, or

(B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted

(continued...)

DENNIS, Circuit Judge, dissenting:

Asthe majorityopinion observes, the Texas offense of unauthorized use of a vehicle “requiresthat

a person (1) intentionally or knowingly operate (2) another’s boat, airplane, or motor-propelled

vehicle (3) without the effective consent of the owner.” TEX. PENAL CODE ANN. § 31.07. I agree

with the majority that the Texas crime is not an offense that “(1) has as an element the use, attempted

use, or threatened use of physicalforce against the person of another, or (2) is burglary of a dwelling,

arson, or extortion, [or] involves use of explosives[.]” U.S.S.G. §4B1.2(a). I cannot agree with the

majority, however, that the Texas offense of unauthorized use of a vehicle is a state crime that

“otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id.

In United States v. Fitzhugh, 954 F.2d 253 (5th Cir. 1992), cert. denied, 510 U.S. 895 (1993), this

court held that by amending U.S.S.G. §4B1.2 on November 1, 1989, the Sentencing Commission

made clear that only conduct “set forth in the count of which the defendant was convicted” may be

considered in determining whether the offense is a crime of violence. Section “4B1.2 does not intend

to define ‘crime of violence’ by reference to conduct underlying the offense when the defendant is

not charged and convicted of such conduct.” Id. at 254. As this court in Fitzhugh noted, “[t]his

interpretation is further supported by the 1991 amendments to the commentary to §4B1.2[,]” which

“now states that the term ‘crime of violence’ includes offenses where ‘the conduct set forth, (i.e.

expressly charged) in the count of which the defendant was convicted’ poses a substantial risk of

physical injury to another.”6Id. at 255. Accordingly, “[t]he sentencing court should consider
6

(...continued)

involved use of explosives (including any explosive material or destructive device) or, by its nature,

presented a serious potential risk of physical injury to another.

7

 Unlike U.S.S.G. §4B1.2(a) and its Commentary, 18 U.S.C. §16 defines “crime of violence” as including

“use of physical force against the . . . property of another” as well as against the person of another.

8

conduct expressly charged in the count of which the defendant was convicted, but not any other

conduct that might be associated with the offense.” Id. As the majority appears to acknowledge in

its footnote 2, U.S.S.G. §4B1.2 did not refer to the 18 U.S.C. § 16 definition of “crime of violence”

at the time of this court’s decision in Fitzhugh and does not now refer to that definition.7

I further agree with the majority that Fitzhugh is the law of this circuit and therefore trumps

subsequent conflicting panel opinions. See Maj.Op. at p. 5 (quoting Billiot v. Puckett, 135 F.3d 311,

316 (5th Cir.), cert. denied, 525 U.S. 966 (1998)).

Applying U.S.S.G. § 4B1.2(a), as explained by Fitzhugh, to the present case, I conclude that

Jackson’s Texas unauthorized use of vehicle offenses did not constitute “crimes of violence” under

that sentencing guideline. The conduct of which Jackson was expressly charged in connection with

the offenses did not pose a substantial risk of physical injury to another. The offenses as defined by

Texas law, viz., intentionally or knowingly operating another’s vehicle without the owner’s consent,

do not pose a substantial risk of physical injury to another.

If either United States v. DeSantiago-Gonzalez, 207 F.3d 261, 263 (5thCir. 2000) or United States

v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir.), cert. denied, 120 S. Ct. 100 (1999) is in conflict with

United States v. Fitzhugh, 954 F.2d 253, 254 (5th Cir. 1992), cert. denied, 510 U.S. 895 (1993), it

must yield to the previous holding and precedent in Fitzhugh.
9

In my view, DeSantiago and Galvan are legally and factually distinguishable from Fitzhugh and

the present case; and neither DeSantiago nor Galvan is controlling here. In Galvan, an alien was

charged with illegal entry into the United States and reentry following deportation in violation of 8

U.S.C. §§ 1325, 1326. Pursuant to U.S.S.G. §2L1.2, the probation officer recommended a 16 level

sentence enhancement because Galvan had been convicted of an aggravated felony: unauthorized use

of a motor vehicle. The sole issue on appeal in Galvan was whether unauthorized use of a motor

vehicle qualified as a crime of violence under 18 U.S.C. § 16, which includes any offense “that, by

its nature, involves a substantialrisk that physicalforce against the person or property of another may

be used in the course of committing the offense.” Galvan, 169 F.3d at 219 (emphasis added). Galvan

did not call for the application of U.S.S.G. §4B1.2(a), involving “conduct that presents a serious

potentialrisk of physical injury to another,” but applied U.S.S.G. §2L1.2 which refersto the broader

definition of crime of violence contained in 18 U.S.C. § 16. Galvan is also distinguishable from the

present case because the court in Galvan determined that “when an illegal alien operates a vehicle

without consent, a strong probability exists that the alien may try to evade the authorities by

precipitating a high-speed car chase[.]” Galvan, 169 F.3d at 220. Jackson was neither charged nor

convicted of illegal entry or unauthorized use of a vehicle as an illegal alien.

DeSantiago involved an alien who pleaded guilty to illegal reentry and who had three convictions

for driving while intoxicated (DWI). The probation officer recommended a four level sentence

enhancement because DeSantiago had committed three misdemeanor crimes of violence. Applying

U.S.S.G. §4B1.2(a), DeSantiago ruled that DWI was per se a crime of violence because it “involves

conduct that presents a serious potentialrisk of physical injury to another.” The court noted that the

fact that “drunk driving isinherently dangerous, is‘well known and well documented.’” DeSantiago,
10

207 F.3d at 264 (citing United States v. Rutherford, 54 F.3d 370, 376 (7th Cir.), cert. denied, 516

U.S. 924 (1995)). On the other hand, it is not “well known and well documented” that the

unauthorized use of a vehicle always by its very nature “presents a serious potential risk of physical

injury to another.”

In summary, U.S.S.G. §4B1.2(a) asinterpreted by Fitzhugh providesthe correct principles of law

applicable to the present case. A proper application of those principles leads to the conclusion that

Jackson’s unauthorized use of a vehicle under Texas law did not constitute a “crime of violence.”

Therefore, the sentencing court erred in considering themassuch in determining Jackson’ssentence.

Accordingly, Jackson’s sentence should be vacated and this case should be remanded for

resentencing.