U.S. v. De Santiago-Gonzalez, SANTIAGO-GONZALE

Citation207 F.3d 261
Decision Date20 March 2000
Docket NumberNo. 99-50517,SANTIAGO-GONZALE,D,99-50517
Parties(5th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MIGUEL DEefendant-Appellant
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Appeal from the United States District Court for the Western District of Texas

Before JOLLY and DeMOSS, Circuit Judges, and DOWD*, District Judge.

DeMOSS, Circuit Judge:

Miguel DeSantiago-Gonzalez ("DeSantiago") appeals from the sentence imposed by the district court after he pleaded guilty to attempting to unlawfully reenter the United States after deportation in violation of 8 U.S.C. § 1326.

BACKGROUND

The facts of this case are quite simple and are undisputed. Miguel DeSantiago was deported from the United States in January, 1999. He attempted to reenter the United States at the Paso del Norte port of entry in El Paso, Texas on February 14, 1999, and he pleaded guilty to illegal reentry by a deported alien in violation of 8 U.S.C. § 1326. Prior to his original deportation, DeSantiago had thrice been convicted in New Mexico of the misdemeanor offense of driving while intoxicated ("DWI"), and according to the pre-sentence report ("PSR"), for each conviction, he had been given jail time.1

In the PSR, the probation officer recommended that DeSantiago's base offense level be increased by four levels, pursuant to U.S.S.G. § 2L1.2(b)(1)(B), because he had previously been convicted of three misdemeanor crimes of violence. DeSantiago objected to the PSR, claiming that the misdemeanor DWI violations were not "crimes of violence." The district court overruled his objections, stating that drunk driving creates a serious risk of physical injury to another and therefore, is a crime of violence making DeSantiago eligible for the § 2L1.2(b)(1)(B) enhancement. The district court sentenced DeSantiago to a 20-month term of imprisonment, followed by a one-year term of supervised release, and DeSantiago has timely appealed.

DISCUSSION

DeSantiago's only issue on appeal is whether the district court erred by enhancing his sentence four levels under § 2L1.2 because he had been thrice convicted of misdemeanor crimes of violence. We review a district court's application of the guidelines de novo, and its findings of fact for clear error. See United States v. Hornsby, 88 F.3d 336, 338 (5th Cir. 1996); see also United States v. Reyna-Espinosa, 117 F.3d 826, 828 (5th Cir. 1997).

The applicable guidelines offense section for DeSantiago's conviction under 8 U.S.C. § 1326, provides as follows:

2L1.2. Unlawfully Entering or Remaining in the United States

(a) Base Offense Level: 8

(b) Specific Offense Characteristic

(1) If the defendant previously was deported after a criminal conviction, or if the defendant unlawfully remained in the United States following a removal order issued after a criminal conviction, increase as follows (if more than one applies, use the greater):

(A) If the conviction was for an aggravated felony, increase by 16 levels.

(B) If the conviction was for (i) any other felony, or (ii) three or more misdemeanor crimes of violence or misdemeanor controlled substance offenses, increase by 4 levels.

U.S.S.G. § 2L1.2.

According to application note 1 to this guideline section, the term "crime of violence" is defined according to the provisions of U.S.S.G. § 4B1.2, and for purposes of § 2L1.2(b)(1)(B), the term includes offenses punishable by imprisonment for a term of one year or less. The applicable definition of a "crime of violence" for the purposes of DeSantiago's sentence is thus found at § 4B1.2(a), which provides as follows:

(a)The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, 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, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2. The application notes to § 4B1.2 go on to further narrow the definition of a "crime of violence":

1. 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 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.

U.S.S.G. § 4B1.2, application note 1.

Based upon the foregoing, the central issue in this case becomes, does the misdemeanor offense of driving while intoxicated implicate § 4B1.2 because such an offense, by its very nature, "involves conduct that presents a serious potential risk of physical injury to another"?

We have held that a "substantial risk" requires only a strong probability of occurrence, not certainty. See United States v. Rodriguez-Guzman, 56 F.3d 18, 20 (5th Cir. 1995). We have also held that the term "by its nature" dictates a categorical approach to determining whether particular conduct is a crime of violence under 18 U.S.C. § 16(b), that is, a crime is either violent by its nature or not -- the circumstances of a particular case do not control the determination of whether the crime is violent "by its nature." See United States v. Valazquez-Overa, 10 F.3d 418, 420 (5th Cir. 1996).

The district court relied on the reasoning of a Seventh Circuit case, United States v. Rutherford, 54 F.3d 370 (7th Cir. 1995), for its holding that the very nature of the act of driving while intoxicated involves "a serious risk of physical injury." Id. at 376. DeSantiago argues that the district court's reliance on Rutherford is...

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24 cases
  • U.S. v. Begay, 05-2253.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • December 12, 2006
    ...see United States v. Sperberg, 432 F.3d 706 (7th Cir.2005) (felony DWI is a violent felony under the ACCA), United States v. DeSantiago-Gonzalez, 207 F.3d 261, 264 (5th Cir.2000) (DUI is a crime of violence under USSG § 4B1.2(a)(2)); United States v. Veach, 455 F.3d 628 (6th Cir. 2006) (sam......
  • Huanga v. Decker
    • United States
    • U.S. District Court — Southern District of New York
    • April 19, 2022
    ..."[T]he very nature of the crime of [drunk driving] presents a serious risk of physical injury to others." United States v. DeSantiago-Gonzalez, 207 F.3d 261, 264 (5th Cir. 2000) (punctuation omitted). It takes "a grisly toll on the Nation's roads, claiming thousands of lives, injuring many ......
  • U.S. v. McCall
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • March 15, 2006
    ...involves" provision in § 924(e)(2)(B)(ii). Accord United States v. Moore, 420 F.3d 1218 (10th Cir. 2005); United States v. DeSantiago-Gonzalez, 207 F.3d 261 (5th Cir. 2000). Having reached this general conclusion, we must next examine the specific elements of McCall's felony DWI convictions......
  • State ex rel. Appleby v. Recht
    • United States
    • West Virginia Supreme Court
    • December 4, 2002
    ...Intoxicated] presents a `serious risk of physical injury' to others, and makes DWI a crime of violence." United States v. DeSantiago-Gonzalez, 207 F.3d 261, 264 (5th Cir.2000) (citation omitted). Furthermore, a "reckless indifference to the value of human life may be every bit as shocking t......
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2 books & journal articles
  • Post-trial
    • United States
    • James Publishing Practical Law Books Defending Drinking Drivers - Volume One
    • March 31, 2022
    ...distinguished between the operative language of 18 U.S.C. §16(b) and U.S.S.G. §4B1.2(a)(2). In United States v. DeSantiago-Gonzalez , 207 F.3d 261 (5th Cir. 2000), the court noted the difference between the section and the Guideline. The DeSantiago-Gonzalez case had applied to misdemeanor D......
  • Sentencing
    • United States
    • Georgetown Law Journal No. 110-Annual Review, August 2022
    • August 1, 2022
    ...Shelby, 939 F.3d 975, 978-79 (9th Cir. 2019) (third-degree robbery not crime of violence); (6) DUI, compare U.S. v. DeSantiago-Gonzalez, 207 F.3d 261, 264 (5th Cir. 2000) (felony DUI is crime of violence), U.S. v. Veach, 455 F.3d 628, 637 (6th Cir. 2006) (same), U.S. v. Rutherford, 54 F.3d ......

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