## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 99-10734

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### C HRISTOPHER 

### R ODRIGUEZ 

### J ACKSON



### ,

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:

Christopher Jackson pleaded guilty to being

a convicted felon in possession of a firearm in

violatio n of 18 U.S.C. § 922(g)(1). He challenges the constitutionality of § 922(g)(1) and application of the sentencing g uidelines. We

affirm.

I.

Jackson contends that § 922(g)(1) is unconstitutional but recognizes that we have rejected

the same challenge in United States v. Kuban

, 94 F.3d 971 (5th Cir. 1996), and United States2

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 o ffense level was set at 24 on account of two prior state-court convictions that

the court deemed to be “crimes of violence,”

namely two convic t ions for unauthorized use

of a vehicle (“UUV”) under T EX

. P ENAL C ODE

§ 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 of the

guidelines de novo .” U

nited 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 i mprisonment 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 o f a dwelling, arson, or

extortion, involves use of explosives, or

otherwise involves conduct that pre sents

a serious potential risk of physical injury

to another.

Application note 1 states: “Crim e of violence” includes murder,

manslaughter, kidnapping, aggravated

assault, forcible sex offenses, rob b ery,

arson, extorti on, extorti onate extension

of credit, and bu r glary of a dwelling.

Other offenses are included as “crimes

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

element the use, attempted u s e, or

threatened use of physical force against

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

the count of which the defenda nt was

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

UUV requires t hat a person (1) intentionally or knowingly operate (2 ) another’s boat,

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

T EX

. P EN

. C ODE § 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 “cr ime o f 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 “crim

e o f 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.” S ee

(continued...)3

def i nition in § 16 differs in that it includes

force against property and uses slightly different language:

The term “crime of violence” means 

### SS

(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 betwee n t he § 16(b) residual

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

are that (1) § 16 in cludes force against property; (2) § 16 focuses o n a risk of physical

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

physical i njury; (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 subst antial risk that physical force against a person will be used, a serious potential risk of

physical injury may also exist.” U nited States

v. Kirk

, 111 F.3d 3 90, 394 (5th Ci r. 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 charge d) i n

the count of which the defendant was convicted

. . . by its nature

, presented a serious potential risk of physical injury to another” (emphas is added). The fourth difference, the use of

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

cases is persuasive authori ty for [§ 4B1.2

cases].” Kirk , 111 F.3d at 394.

B.

The parties dispute whethe r a court m ay

consider a defendant’s speci fic conduct in

making the § 4B1.2 “crime of violence” determination. In U

nited 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’s specific conduct:

[T]he Sentencing Commiss i on made

clear that only conduct “set forth in the

count o f which the defendant was convicted” may be considered in determining whether the offense is a crime of violence.

. . . [Secti on] 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 con duct. In

short, the Commission

has repudiated

. . . cases which held that a sentencing

cour t can look beyond the face of the

indictment in considering this issue.

We applied Fitzhugh in United States v.

Ruiz

, 18 0 F.3d 675 (5th Cir. 1999), in which

the defendant, who had pleaded guiltyto escape from the custody

o f a federal prison

camp, argued that the district court had erred

in concluding that his escape c onsti tuted a

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

U.S.S.G. § 4B1.2 (1988).4

“he simply walked away from a pr ison camp

wh ere 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 commenta ry to § 4B1.2 makes

“clear that only conduct ‘set forth in the

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

violence.” Under F itzhugh

, we are precluded fr o m looking to the underlying

facts of Ruiz’s convic t ion, as he

requests, bec ause the circumstances to

which Ruiz directs our attenti on are not

m ent ioned in the indictment. The

indictment charges that Ruiz “kno wingly

escap e[d] from custody of [a federal

prison camp]

. . . in whic h he was

lawfully confin ed.” . . . Every escape

scenario is a powder keg, which may . .

. explo de into violence and result in

physical injury.

Id . at 676-77.

Fitzhugh and Ruiz dictate that we may not,

as Jackson requests, consider the specific conduct u nderlying 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

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

“crime of vi o lence”). This rule avoids minit rials in which the government and t he

defendant would have t o “retry” past

convictions in the context of a s e ntencing

hear ing. 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 repor t , did not present the requisite

risk. Id

. at 585. According to F itzhugh / Ruiz

,

we should have considered first the categorical

issue, 3 then only whether the conduct

described in the charging instrument presented

the requisite risk.

In Kirk

, we again considere d t he 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]

com pelled to apply a categorical

approach in determining crimes of

violence. The Sentencing Guidelines,

however, do not require su ch a

categorical approach. S ee 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 p er 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 Although Fitzhugh and Ruiz 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 requisit e risk S S as 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 o f violence for

purposes of U.S.S.G. § 4B1.2, we may

conside r his specific conduct that

resulted in conviction [citi ng K irk and

Jackson ]. The underlying facts of Claiborne’s convi

cti on for attempted

unauthoriz ed entry are not set forth in

the briefs, but the presen t ence report

notes that he, accompanied by two men,

attempted to enter the inhabited

dwelling of a w o man living in New

Orleans.

“[W]here two previous holdings or lines of

precedent conflict, the earlier opinion controls

and is the binding precedent.” B illiot v. Puckett

, 135 F.3d 311, 316 (5th Cir.), c ert. denied

, 525 U.S. 966 (1998) (internal quotati on marks

omitted). F itzhugh 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 ris k” as requiring “a

strong probability that the event . . . wi l l

occur,” we stated that

[j]ust as burglary of a vehicle involves a

substantial risk that p ro perty might be damaged or destroy ed i n the

commissi on of the offense, the

unauthorized use of a vehicle likewise

carries a substantial risk that the vehicle

might be brok en into, “stripped,” or

vandalized, or that it might become

involved in an accide n t, resulting not

only in damage to the vehicle and other

property

, but in personal injuries to

innocent vict ims as well. It is true that

. . . t he unauthorized use of a vehicle

will not always result in physical force to

persons or property

, as , for example,

when a child tak e s 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 oper at es a vehicle

without consent, a st ro ng 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

da mage to the vehicle and other

property

.

Id . at 219-20.

Galvan-Rodriguez h ol

ds 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. S ee DeSantiago-Gonzalez

, 207 F.3d at 264. Pursuant to

this authority, we conclude that UUV’s risk 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. S ee

Claiborne , 132 F.3d at 256.6

as a categorical matter, a crim e of violence

under § 4B1.2(a)’s residual clause. 5

Whil e G alvan-Rodriguez in part considered

the risks to property from UUV 

### SS namely that

a vehicle may be stripped, vandalized, or damaged in a collision 

### SS

our language that there is

a “s ubst antial risk that the vehicle . . . might

become involved in an accident” and tha t

“there i s 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. S e e GalvanRodriguez , 169 F.3d at 219. We are not unsympathetic to Jackson’s argument that UUV

is not what one migh t t ypically consider a

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

clean slate, and our p recedent dictates that

UUV’s risks are sufficient t o satisfy the

§ 4B1.2 definition.

AFFIRMED.

ENDRECORD

5 Because we decide the issue as a cat egorical

matter, w e 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 cou nt of which the defendant was convicted

(continued...) DENNIS, Circuit Judge, dissenting:

As the majority opinion observes, the Texas offense of unauthorized use of a vehicle “requires that

a person (1) intent io nally o r knowingly operate (2) another’s boat, airplane, or motor-propelled

vehicle (3) without the effective consent of the owner.” T EX

. P ENAL C ODE A NN

. § 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 physical force 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 o ffense 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.” I d.

In United States v. Fitzhugh

, 954 F.2d 253 (5 th 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.” I d. at 254. As this court in F itzhugh 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 offen ses 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.” 6 I d. at 255. Accordingly, “[t]he sentencing court sho uld co nsider6 (...continued)

involved use of explosives (including any explosive material or destructi ve 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 no t any other

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

its f ootnote 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 trum ps

subsequent conflicting panel opinions. S ee Maj.Op. at p. 5 (quoting Billio t v. Puckett

, 135 F.3d 311,

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

A pplying U.S.S.G. § 4B1.2(a), as explained by F itzhugh

, 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 (5 th Cir. 2000) or United States

v. Galvan-Rodriguez

, 169 F.3d 217 (5 th Cir.), cert. denied

, 120 S. Ct. 100 (1999) is in conflict with

United States v. Fitzhugh

, 954 F.2d 253, 254 (5 th 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 G alvan

, a n 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 mo t o r vehicle. The sole issue on appeal in G alvan was whether unauthorized use of a m otor

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

, 169 F.3d at 219 (emphasis added). G alvan

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

potential risk of physical injury to another,” but applied U.S.S.G. §2L1.2 which refers to the broader

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

prese nt case because the court in G alvan determined that “when an illegal alien operates a vehicle

wit hout consent, a strong probability exists that the alien may try to evade the authorities by

precipitating a high-speed car chase[.]” G alvan

, 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 probatio n o fficer 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 potential risk of physical injury to another.” The court noted t hat the

fact that “drunk driving is inherently dangerous, is ‘well known and well documented.’” D eSantiago

,10

207 F.3d at 264 (citing United States v. Rutherford

, 54 F.3d 370, 376 (7 t h Cir.), cert. denied

, 516

U.S. 924 (1995)). On the other hand, it is not “well kno wn 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) as interpreted by Fitzhugh provides the 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 them as such in determining Jackson’s sentence.

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

resentencing.