IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 97-50901

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RODRIGO GALVAN-RODRIGUEZ,

Defendant-Appellant.

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Appeal from the United States District Court

for the Western District of Texas

___________________________________________________ March 4, 1999

Before HIGGINBOTHAM, JONES, and WIENER, Circuit Judges.

PER CURIAM:

The sole issue in this appeal is whether, by its nature, the

offense of unauthorized use of a motor vehicle qualifies as a crime

of violence under 18 U.S.C. § 16. Defendant-Appellant Rodrigo

Galvan-Rodruiguez (“Galvan”) challenges the district court’s

holding that his prior conviction for unauthorized use of a motor

vehicle is a crime of violence, and therefore an “aggravated

felony,” for purposes of enhancing his sentence for illegal entry

and ree ntry into the United States by 16 levels pursuant to §

2L1.2(b)(2) of the United States Sentencing Guidelines (“U.S.S.G.”

or “the Guidelines”). Concluding that unauthorized use of a motor

vehicle is a crime of violence, thereby justifying a 16 level2

enhancement, we affirm Galvan’s sentence.

I

.

FACTS AND PROCEEDING

Defendant-Appellant Galvan was charged with illegal entry into

the United States and reentry following deportation, in violation

of 8 U.S.C. §§ 1325 and 1326, respectively. Galvan entered pleas

of guilty, and a presentence report (PSR) followed. Pursuant to

U.S.S.G. § 2L1.2, the guideline app lied to defendants who are

convicted of unlawfully entering, reentering, or remaining in the

United States, the probation officer recommended that Galvan’s base

offense level of eight be increased by 16 levels, to 24, because he

had been deported following conviction of an aggravated felony, to

wit: unauthorized use of a motor vehicle. Additionally, Galvan was

afforded a three level decrease for acceptance of responsibility,

producing an offense level of 21.

Galvan objected to the PSR, contending that unauthorized use

of a motor vehicle was not an aggravated felony warranting a 16

level enhancement. The district court overruled his objection.

Based on Galvan’s offense level of 21 and a criminal history

category of V, the appropriate range of imprisonment was 70 to 87

months. Acting on its own, however, the district court departed

downwardly by two levels, to 19, and sentenced Galvan to 60 months

of imprisonment. Galvan timely appealed.1 United States v. Velazquez-Overa , 100 F.3d 418, 419 (5 th

Cir. 1996), cert. denied , 117 S. Ct. 1283 (1997).

2 Id. at 420.

3 United States Sentencing Commission, Guidelines Manual , §

2L1.2(b)(2) (Nov. 1996).

4 U.S.S.G. § 2L1.2, comment n.7. Galvan was sentenced to

five years deferred adjudication for his conviction of

3 II

ANALYSIS

Galvan argues that the district court erred by assessing the

16 level aggravated felony enhance ment under U.S.S.G. §

2L1.2(b)(2). He insists that unauthorized use of a motor vehicle

is not a crime of violence as defined by 18 U.S.C. § 16.

An appellant’s sentence must be affirmed unless it was imposed

in violation of the law or was based on an erroneous application of

the sentencing guidelines. 1 We review a challenge to the district

court’s interpretation of the Guidelines de novo. 2

According to U.S.S.G. § 2L1.2, when a defendant has been

deported and unlawfully reenters the United States, h is offense

l evel will be increased by 16 levels if he had been previously

convicted of an “aggravated felony.” 3 Application note seven

following § 2L1.2 defines “aggravated felony” as “any crime of

violence (as defined in 18 U.S.C. § 16, not including a purely

political offense) for which the term of imprisonment imposed

(regardless of any suspension of such imprisonment) is at least

five years.” 4 A “crime of violence” is:unauthorized use of a motor vehicle.

5 18 U.S.C. § 16 (1994) (emphasis added).

6 Velazquez-Overa , 100 F.3d at 421 (“A sentencing court need

only consider the fact that [the defendant] was convicted and the

inherent nature of the offense.”).

7 Id. at 419.

8 United States v. Guadardo , 40 F.3d 102, 103-04 (5 th Cir.

1994).

9 United States v. Ramos-Garcia , 95 F.3d 369, 371 (5 th Cir.

1996), cert. denied , 117 S. Ct. 351 (1997); United States v.

Rodriguez-Guzman , 56 F.3d 18, 20 (5 th Cir. 1995).

4 (a) an offense that has as an element the use, attempted

use, or th reatened 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. 5

The phrase “by its nature” in subsection (b) requires courts to

employ a categorical approach —— without examining the underlying

facts surrounding the conviction

—— in determining whether an

offense constitutes a crime of violence. 6

On three separate occasions, we have examined specific

offenses under the rubric of subsection (b) —— applicable to

offenses that involve a substantial risk that physical force may

en sue. We have held that indecency with a child, 7 burglary of a

habitation, 8 and burglary of a nonresidential structure or vehicle 9

each involve a substantial probability that physical force on the

person or proper ty will occur, thereby warranting a 16 level10 Rodriguez-Guzman , 56 F.3d at 20 (emphasis added).

5 sentence enhancement under § 2L1.2(b)(2). Whether the offense of

unauthorized use of a motor vehicle qualifies as a crime of

violence, however, is a res nova issue in this circuit. Concluding

that the risks of physical force being exerte d during the

commission of the burglary of a vehicle are substantially similar

to the risks of such force occurring while operating a vehicle

without the owner’s consent, we hold that the offense of

unauthorized use of motor vehicle is a crime of violence within the

intendment of 18 U.S.C. § 16.

We have recognized that when analyzing the operative phrase

“substantial risk,” 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

ph ysical force during the commission of the crime, will occur.” 1 0

The elements of burglary of a vehicle are analogous to the elements

of unauthorized use of a motor vehicle except that the additional

element, “intent to commit a felony or theft,” is needed to sustain

a burglar y conviction. Just as burglary of a vehicle involves a

substantial risk that property might be damaged or destroyed in the

commission of the offense, the unauthorized use of a vehicle

likewise carri es a substantial risk that the vehicle might be

broken into, “stripped,” or va ndalized, or that it might become

involved in an accident, resulting not only in damage to the11 See e.g.

, Coleman v. State , 802 S.W.2d 394, 395 (Tx. Ct.

App. 1990) (conviction for unauthorized use of a motor vehicle

supported by evidence of shattered glass from driver’s side

window and ignition wires ripped out of steering column).

6 vehicle and other property, but in personal injuries to innocent

victims as well. 11

It is true that, as argued by Galvan, the unauthorized use of

a vehicle will not always result in physical force to persons or

property, as, for example, when a child takes the family car

“joyriding” witho ut 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

d amage to the vehicle and other property. As we perceive these

risks to be substantial, Galvan’s offense qualifies as a crime of

violence and thus warrants a 16 level sentence enhancement.

III

CONCLUSION

For the aforementioned reasons, we hold that the unauthorized

use of a motor vehicle, by its nature, qualifies as a crime of

violence under 18 U.S.C. § 16. Accordingly, the district court7

properly assessed the 16 level aggravated felony enhancement under

§ 2L1.2(b)(2). The judgment of the district court is therefore, in

all respects,

AFFIRMED.