262 F.3d 479 (5th Cir. 2001), 99-51199, United States v Chapa-Garza

Docket Nº99-51199, No. 00-50049, No. 00-50051, No. 00-50107, No. 00-50239
Citation262 F.3d 479
Party NameUNITED STATES OF AMERICA, Plaintiff - Appellee, v. MOISES CHAPA-GARZA, also known as Moises Garza, also known as Moises Garza Chapa, also known as Moises G Chapa, also known as Moises Chapa, Defendant - Appellant UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JULIAN RICARDO GOYTIA-CAMPOS, also known as Julian Ricardo Goitia-Campos, Defendant -
Case DateAugust 20, 2001
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 479

262 F.3d 479 (5th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

MOISES CHAPA-GARZA, also known as Moises Garza, also known as Moises Garza Chapa, also known as

Moises G Chapa, also known as Moises Chapa, Defendant - Appellant

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

JULIAN RICARDO GOYTIA-CAMPOS, also known as Julian Ricardo Goitia-Campos, Defendant - Appellant

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

ALFONSO GUADALUPE PEREZ-VELAZQUEZ, also known as Erick Lee Defendant - Appellant

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

FRANCISCO JAVIER SALDANA-ROLDAN, Defendant - Appellant

UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

EPIFANIO IVARBO-MARTELL, also known as El Chino, Defendant - Appellant

No. 99-51199, No. 00-50049, No. 00-50051, No. 00-50107, No. 00-50239

IN THE UNITED STATES COURT OF Appeals, FOR THE FIFTH CIRCUIT

August 20, 2001

Appeals from the United States District Court for the Western District of Texas, San Antonio

ON PETITION FOR REHEARING EN BANC

(Opinion March 1, 2001, 5 Cir., 2001, 243 F.3d 921)

Before GOODWIN[*], GARWOOD, and JONES, Circuit Judges.

PER CURIAM:

Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is DENIED. The court having been polled at the request of one of the members of the

Page 480

court and a majority of the judges who are in regular active service not having voted in favor (FED. R. APP. P. and 5th Cir. R. 35), the Petition for Rehearing En Banc is DENIED.

Judge Stewart did not participate.


Notes:

[*] Circuit Judge of the Ninth Circuit, sitting by designation.

RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting from denial of rehearing en banc:

[1]

Last March, in United States v. Chapa-Garza, our court held in my view, erroneously that Texas felony DWI (at least three DWI convictions) is not a "crime of violence" within the meaning of 18 U.S.C. § 16(b) and, therefore, not an "aggravated felony" for sentence-enhancement purposes. 243 F.3d 921 (5th Cir. 2001). This being an issue of exceptional importance, I respectfully dissent from our court's refusal to consider this case en banc.

I.

Chapa-Garza began by distinguishing the definition of criminal violence in § 16(b), which applies to sentencing of aliens, from that found in U.S.S.G. § 4B1.2, which describes career offenders. Chapa-Garza, 243 F.3d at 925-26. Central to its holding was: the language of § 16(b) contemplates an intentional use of force; and such force is that used to effectuate the crime itself. Id. at 926-27 ("[W]e ... hold ... that a crime of violence as defined in 16(b) requires recklessness as regards the substantial likelihood that the offender will intentionally employ force against the person or property of another in order to effectuate the commission of the crime".).

I respectfully submit that Chapa-Garza reached the wrong result. In any event, the correct result is a close call. The gravity of the issue is enhanced greatly by the fact that, although the issue arose in this appeal in the context of sentencing, the same statutory definitions arise in the civil immigration context in determining whether an alien with a conviction for felony DWI is removable. Therefore, I dissent from the denial of rehearing en banc primarily because whether felony DWI is an "aggravated felony" is an issue of exceptional national importance, affecting hundreds if not thousands of aliens. See Fed. R. App. P. 35(a) (rehearing en banc may be ordered to secure uniformity in court's decisions or when proceeding involves question of exceptional importance). The attention this issue has recently received, the exacerbation of the circuit split since Chapa-Garza was rendered, and the action taken by the Board of Immigration Appeals (BIA) in response to Chapa-Garza highlight the importance of the issue.

Early this year, prior to Chapa-Garza, the Tenth Circuit held not unreasonable the BIA's conclusion that felony DWI is a crime of violence under § 16(b) and, therefore, an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). Tapia Garcia v. INS, 237 F.3d 1216 (10th Cir. 2001); cf. Camacho-Marroquin v. INS, 188 F.3d 649 (5th Cir. 1999) (felony DWI is "crime of violence" under § 16(b)), withdrawn, rehearing dismissed by 222 F.3d 1040 (5th Cir. 2000). Compare Le v. U.S. Att'y Gen., 196 F.3d 1352, 1354 (11th Cir. 1999) (holding conviction for causing serious bodily injury while driving under the influence is "crime of violence" within § 16(a) because one element of offense is actual use of physical force, and declining to address scope of § 16(b)).

Following Chapa-Garza, three circuits have addressed the mens rea requirement

of § 16(b), exacerbating the circuit-split. The Second Circuit held a felony DWI conviction under New York law does not constitute a crime of violence under § 16(b) for removal purposes. Dalton v. Ashcroft, No. 00-4123, 257 F.3d 200 (2d Cir. 20 July 2001); but see id. at *7 (Walker, C.J., dissenting) (New York felony DWI is crime of violence within § 16(b)). The Seventh Circuit, relying on Chapa-Garza, held DWI is not a crime of violence under § 16(b) for removal purposes because it does not involve the intentional use of force. Bazan-Reyes v. INS, No. 99-3861, 256 F.3d 600 (7th Cir. 5 July 2001). The Ninth Circuit held a reckless mens rea is sufficient to constitute a crime of violence under § 16(b), and, therefore, involuntary manslaughter is a "crime of violence". Park v. INS, 252 F.3d 1018 (9th Cir. 2001). Yet even more recently, the Ninth Circuit has held that, although § 16(b) encompasses both intentional and reckless conduct, because California DWI can be committed by mere negligence, it is not a crime of violence within § 16(b). United States v. Trinidad-Aquino, No. 00-10013, 259 F.3d 1140(9th Cir. 8 Aug. 2001); but see id. at *6-7 (Kozinski, J., dissenting) (majority's conclusion is contrary to law of circuit and common sense).

Moreover, Chapa-Garza stands in the way of the uniform implementation of our country's immigration laws. Recently, in the light of Chapa-Garza and United States v. Hernandez-Avalos, 251 F.3d 505 (5th Cir. 2001), discussed infra, the BIA decided to no longer remove from the Fifth Circuit those convicted of felony DWI. In re Olivares, 23 I&N Dec. 148 (BIA 2001).

II.

A.

Chapa-Garza interprets § 16(b) erroneously. This is in large part due to its failure to consider the underlying law of Texas concerning what constitutes felony DWI in that State.

1.

In reaching the wrong result, Chapa-Garza noted the differences between the language of § 16(b), defining a crime of violence for purposes of sentencing under U.S.S.G. § 2L1.2 for unlawful entry, and U.S.S.G. § 4B1.2, defining a career offender. The difference, however, does not necessarily lead to distinct results in their application.

Section 16(b) defines a crime of violence as

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.

(Emphasis added.) Section 4B1.2 defines a crime of violence as, inter alia,

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ... 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.

(Emphasis added.)

Chapa-Garza contrasts § 4B1.2(a)(2)'s reference to a risk of injury to § 16(b)'s mention of a risk of force. Chapa-Garza, 243 F.3d at 925. This distinction is immaterial, because it merely distinguishes the cause from the effect. An injury would only result from the use of force (be the application of force intentional, reckless, unintentional), and the use of force could

result in injury. But see Dalton, 257 F.3d 200, 206 (distinguishing "risk of injury" and risk of the "use of physical force", reasoning "[t]here are many crimes that involve a substantial risk of injury but do not involve the use of force").

In my view, Chapa-Garza, in parsing the language of § 16, overlooks the common-sense understanding of that language. But see, e.g., Bazan-Reyes, 256 F.3d 600, (comparing language of § 16(b) and § 4B1.2(1)). Of course, principles of statutory interpretation counsel reading the statute as a whole, so that each word has meaning. The opinion is correct that "by its nature" requires looking at the offense categorically. Chapa-Garza, 243 F.3d at 924. But, the language "substantial risk" suggests a state of mind of recklessness and cuts against interpreting the language as referring to intentional conduct, because it connotes something that may occur accidentally, not something that is necessary to effectuate the offense.

Chapa-Garza, however, looked to a dictionary definition of "use" to conclude that § 16(b) refers to intentional conduct. Id. at 926. Such a definition belies the common-sense usage of the word in § 16(b). It is true that "use" may more often refer to the intentional, rather than the accidental, use of force; but, without question, force may be used accidentally.

[2] Although many precedent assume "use" refers to an intentional act, our court has interpreted § 16(b) to include both accidental and intentional uses of force. See United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir.), cert. denied, 528 U.S. 837 (1999) (concluding one reason unauthorized use of vehicle is "crime of violence" under § 16(b) is risk...

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