Chapa-Garza

• Decision Date: 01 March 2001
• Docket Number: GOYTIA-CAMPOS,IVARBO-MARTELL,00-50107 and 00-50239,No. 99-51199,D,CHAPA-GARZA,PEREZ-VELAZQUEZ,00-50051,00-50049,SALDANA-ROLDA,99-51199
• Citation: 243 F.3d 921
• Parties: (5th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MOISES, 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, also known as Julian Ricardo Goitia-Campos, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALFONSO GUADALUPE, also known as Erick Lee, Defendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. FRANCISCO JAVIERefendant-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EPIFANIO, also known as El Chino, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 921

243 F.3d 921 (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, 00-50049, 00-50051, 00-50107 and 00-50239

IN THE UNITED STATES COURT OF APPEALS, FIFTH CIRCUIT

March 1, 2001

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

Before GOODWIN¹, GARWOOD and JONES, Circuit Judges.

GARWOOD, Circuit Judge:

Defendants-appellants Moises Chapa-Garza, Julian Ricardo Goytia Campos, Alfonso Guadalupe Perez Velazquez, Francisco Javier Saldana Roldan and Epifanio Ivarbo-Martell appeal their sentences. We VACATE their sentences and REMAND for resentencing.

Facts and Proceedings Below

All five of the defendants-appellants pleaded guilty to unlawfully being in the United States after removal therefrom, in violation of 8 U.S.C. 1326(a). For violating section 1326(a), U.S.S.G. 2L1.2 provides for a base offense level of 8, with an increase of 16 offense levels if removal from the United States was preceded by a conviction for an "aggravated felony".² Application Note 1 of guideline 2L1.2 refers to 8 U.S.C. 1101(a)(43) for the definition of "aggravated felony".³ Section 1101(a)(43) lists several examples of offenses considered aggravated felonies. One of these, contained in section 1101(a)(43)(F),⁴ is a "crime of violence" as defined in 18 U.S.C. 16. 18 U.S.C. 16 provides:

"The term "crime of violence" means--

(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."

Over appellants' objections, the district courts applied guideline 2L1.2's 16 level increase, finding that Texas felony DWI⁵ was a crime of violence as defined in 18 U.S.C. 16(b). As a result, the sentence of each appellant was considerably higher than it otherwise would have been. At the time these appeals were taken, the sole issue raised by each defendant was whether Texas felony DWI is "an aggravated felony" under U.S.S.G. 2L1.2(b)(1)(A). Because the issues were identical, the cases were consolidated for oral argument.

Apprendi v. New Jersey, 120 S.Ct. 2348 (2000), was decided after the defendants-appellants filed their opening briefs. By a single supplemental brief, the defendants-appellants each raise the same Apprendi issue. 8 U.S.C. 1326(a) provides that the maximum sentence shall be a fine and/or imprisonment up to two years. Section 1326(b)(2) increases the maximum penalty to a fine and/or imprisonment up to twenty years if the removal of the defendant was preceded by a conviction for an aggravated felony. The defendants-appellants' sentences ranged from 41 to 57 months, all well above the section 1326(a) maximum. Defendants-appellants argue that, under Apprendi, the statutory maximum cannot be increased from two to twenty years unless the fact that triggers the higher maximum sentence of section 1326(b)(2), a prior aggravated felony conviction, is alleged in the indictment. Defendants-appellants concede that their argument is foreclosed by Almendarez-Torres v. United States, 118 S.Ct. 1219 (1998), and raise the issue in this Court only to preserve the possibility of review by the United States Supreme Court.

Our disposition of these two legal issues will resolve all five appeals.

Discussion

I.

This Court reviews the district court's interpretation of the Sentencing Guidelines de novo and its application of the guidelines for clear error. United States v. Cho, 136 F.3d 982, 983 (5th Cir. 1998). Defendants-appellants' sentences must be affirmed unless they were imposed in violation of law or were based upon an erroneous application of the Sentencing Guidelines. United States v. Velazquez-Overa, 100 F.3d 418 (5th Cir. 1996).

18 U.S.C. 16(b) is the only justification for the 16-level enhancement advanced by the government. Section 16(b) provides that a crime of violence is "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 government correctly observes that the words "by its nature" require us to employ a categorical approach when determining whether an offense is a crime of violence. Velazquez-Overa, 100 F.3d at 420-21. This means that the particular facts of the defendant's prior conviction do not matter, e.g. whether the defendant actually did use force against the person or property of another to commit the offense. The proper inquiry is whether a particular defined offense, in the abstract, is a crime of violence under 18 U.S.C. 16(b).

This is the second time a panel of this Court has been called upon to decide the question of whether felony DWI is a crime of violence as defined by 18 U.S.C. 16(b). In Camacho-Marroquin v. Immigration and Naturalization Service, 188 F.3d 649 (5th Cir. 1999), withdrawn 222 F.3d 1040 (5th Cir. 2000), this Court held that felony DWI was a crime of violence. However, Camacho-Marroquin moved to withdraw his petition for rehearing en banc so that the Immigration and Naturalization Service could deport him in lieu of incarceration. As a result, the panel withdrew its opinion. Camacho-Marroquin had held that felony DWI was a crime of violence because of the substantial risk that drunk driving will result in an automobile accident. Camacho-Marroquin, 188 F.3d at 652. The government agrees with this approach and urges that anytime an offense involves a substantial risk of harm, even accidental harm, that offense is a crime of violence.

We disagree with the government's proposed construction of section 16(b) for three reasons: 1) it requires that section 16(b) be construed the same as U.S.S.G. 4B1.2(a)(2), which now contains significantly broader language;⁶ 2) "substantial risk that physical force . . . may be used" contemplates only reckless disregard for the probability that intentional force may be employed; and 3) the physical force described in section 16(b) is that "used in the course of committing the offense", not that force that could result from the offense having been committed.

A.

There are two possible constructions of the operative language of 18 U.S.C. 16(b). The government urges that we interpret section 16(b) the same way the Seventh Circuit interpreted U.S.S.G. 4B1.2(a)(2) in United States v. Rutherford, 54 F.3d 370 (7th Cir. 1995).⁷ Under the guideline 4B1.2(a)(2) standard, any offense that involves "pure recklessness," i.e. a conscious disregard of a substantial risk of injury to others, is a crime of violence. The alternative reading is that section 16(b) applies only when the nature of the offense is such that there is a substantial likelihood that the perpetrator will intentionally employ physical force against another's person or property in the commission thereof. The latter approach requires recklessness as regards a substantial risk that intentional force will be utilized by the defendant to effectuate commission of the offense.

We begin by comparing the text of guideline 4B1.2(a)(2) with that of section 16(b). Guideline 4B1.2(a)(2)'s "otherwise" clause contains broader language than does section 16(b). Guideline 4B1.2(a)(2) only requires that the offense involve conduct that poses a serious risk of physical injury to another person. It does not require, as section 16(b) does, that there be a substantial risk that the defendant will use physical force against another's person or property in the course of committing the offense. Guideline 4B1.2(a)(2)'s otherwise clause concerns only the risk of one particular effect (physical injury to another's person or property) of the defendant's conduct. Section 16(b) is focused on the defendant's conduct itself, as there is no requirement that there be a substantial risk that another's person or property will sustain injury, but only that there be a substantial risk that the defendant will use physical force against another's person or property in the course of committing the offense.

In United States v. DeSantiago-Gonzalez, 207 F.3d 261 (5th Cir. 2000), this Court recognized the difference between section 16(b) and guideline 4B1.2(a)(2). DeSantiago-Gonzalez was applying, to misdemeanor DWI, the same guideline 4B1.2(a)(2) language that Rutherford applied to felony DWI.⁸ More importantly, notwithstanding that DeSantiago-Gonzalez was decided before Camacho-Marroquin was withdrawn, Camacho-Marroquin was not given

"controlling effect because it was a deportation case wherein the applicable definition of 'crime of violence' was found at 18 U.S.C. 16, which defines the term 'crime of violence' in language similar to but not identical with the definition which controls the sentencing issue presented in this appeal found at U.S.S.G. 4B1.2(a)."

DeSantiago-Gonzalez, 207 F.3d at 264.

Effective November 1, 1989, the definition of crime of violence under guideline 4B1.2(a)(2) was changed from a reference to section 16(b) to that which now appears. This change counsels against interpreting section 16(b) and guideline 4B1.2(a)(2) the same way.

Besides the aforementioned reasons to interpret section 16(...