United States Court of Appeals

Fifth Circuit



## FILED

November 4, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-20395

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WALTER JOEL VALENZUELA,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:

Walter Joel Valenzuela pleaded guilty to illegal reentry

after deportation. The presentence report recommended a 16-level

increase in Valenzuela’s base offense level under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii) due to his prior Florida convictions for DUI/

manslaughter and DUI/bodily injury. Valenzuela objected, arguing

that his prior convictions were not crimes of violence under the

guidelines. The district court, based on the panel decision in

United States v. Vargas-Duran

, 319 F.3d 194 (5th Cir. 2003)

( Vargas-Duran I ) , overruled his objection and sentenced him to 87

months of imprisonment and three years of supervised release. He2

timely appealed. Informed by the subsequent en banc decision in

United States v. Vargas-Duran

, 356 F.3d 598 (5th Cir. 2004)

( Vargas-Duran II ), and by an even more recent decision of this

court, United States v. Domin guez-Ochoa , ___ F.3d ___, No.

03-41260, 2004 WL 2101986 (5th Cir. Sept. 22, 2004), we vacate the

sentence and remand for resentencing.

Valenzuela contends that his offenses were not “crimes of

violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii) because, as defined

by Florida law, they neither (a) require the intentional use of

force, nor (b) qualify as an enumerated offense under the

Guidelines’ definition of a “crime of violence” found in U.S.S.G.

§ 2L1.2, cmt. n. 1(B)(ii)(II) (2002). This court’s en banc

decision in Vargas-Dura n II settles the first contention in

Valenzuela’s favor in this circui t. Applying the “categorical

approach” of Vargas-Duran II and its successor en banc case, United

States v. Calderon-Peña

, 383 F.3d 254 (5th Cir. 2004), we must

conclude that the Florida DUI/b odily injury and DUI/manslaughter

statutes under which Valenzuela was convicted do not require the

intentional use of force. S ee F LA

. S TAT

. § 316.193(3)( C )(2) and (3).

Subsect ion (c)(2) provides that if a defendant drives under the

influence of alcohol and causes “serious bodily injury” to another,

he is guilty of a third-degree felony. Subsection (c)(3)

criminalizes as DUI/manslaughter, a second-degree felony, a drunken

defen dant’s causing the death of another person. No mens rea of

intent is required under these provisions. The Eleventh Circuit3

has, it is true, held that the subsection (c)(2) offense is a crime

of violence under 18 U.S. C. § 16(a), s ee Le v. United States

Attorney General

, 196 F.3d 1352 (11th Cir. 1999), but we are bound

by Vargas-Duran II and Calderon-Peña

. Moreover, the Eleventh

Circuit’s interpretation will be reviewed by the Supreme Court in

Leocal v. Ashcroft , No. 03-583, argued Oct. 12, 2004. See Leocal

v. Ashcroft

, 124 S. Ct. 1405 (2004) (granting certiorari to the

unreported Eleventh Circuit decision).

Valenzuela’s convictions also fail to qualify as

enumerated, generic manslaughter offenses for purposes of § 2L1.2.

This court’s recent decision in Dominguez-Ochoa so held in regard

to a substant ially similar Texas statute criminalizing negligent

manslaughter. See 2004 WL 2101986, at *8.

Only if the Supreme Court affirms the Eleventh Circuit in

Leocal in such a way as to undermine this court’s authorities would

Valenzuela’s sentence be upheld. The prudent course is for this

court to act upon our currently established precedents and allow

the government, or the district court on remand, to take the next

step.

VACATED and REMANDED for resentencing.