U.S. v. Charles

• Decision Date: 31 July 2002
• Docket Number: No. 01-10113.,01-10113.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph Clifton CHARLES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

301 F.3d 309

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Clifton CHARLES, Defendant-Appellant.

No. 01-10113.

United States Court of Appeals, Fifth Circuit.

July 31, 2002.

Nancy E. Larson, Asst. U.S. Atty., Fort Worth, TX, Michael Reuss Snipes, Asst. U.S. Atty. (argued), Chad Eugene Meacham, Dallas, TX, for Plaintiff-Appellee.

George Andrew Platt (argued), Westfall, Platt & Cutrer, Fort Worth, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas.

Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER, DENNIS and CLEMENT, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

We granted rehearing en banc in this sentencing appeal in order to determine whether theft of a motor vehicle is a crime of violence under United States Sentencing Guideline ("U.S.S.G.") § 4B1.2(a)(2), requiring the enhanced sentence imposed on Charles. We hold that simple automobile theft is not a crime of violence. We therefore VACATE Charles' sentence and REMAND for re-sentencing.

I

The defendant, Joseph Clifton Charles, pled guilty in this case to possession of a firearm as a felon, in violation of 18 U.S.C § 922(g)(1).¹ Earlier, in July 1997, Charles had been convicted of one count of motor vehicle theft. The question therefore is what kind of sentence is appropriate for the instant firearm conviction in the light of his previous conviction for automobile theft.

For offenses involving the unlawful possession of a firearm, U.S.S.G. § 2K2.1(a)(6) provides a base offense level of 14 if the defendant is a "prohibited person," in this case, a felon. However, U.S.S.G. § 2K2.1(a)(4) provides for an increased base offense level of 20 if the defendant had one prior felony conviction of a "crime of violence," as defined in § 4B1.2(a). The district court determined that theft of a vehicle is a crime of violence under § 4B1.2(a)(2), basing its conclusion on a determination that the controlling precedent was United States v. Jackson, 220 F.3d 635, 639 (5th Cir.2000). There we held that unauthorized use of a motor vehicle is indeed a crime of violence under § 4B1.2(a)(2). Thus, in sentencing Charles, the district court began with a base offense level of 20 and reduced the offense level by 3 for acceptance of responsibility, to level 17. Based on Charles' criminal history category of five, the district court sentenced Charles to 51 months' imprisonment, a three-year term of supervised release, and a mandatory special assessment of $100. Charles filed a timely notice of appeal of his sentence.

A panel of this court, considering itself bound by Jackson, affirmed. See United States v. Charles, 275 F.3d 468 (5th Cir. 2001). A majority of active judges then voted to hear the case en banc. United States v. Charles, 284 F.3d 567 (5th Cir. 2002).

II

The outcome of this appeal depends on whether simple motor vehicle theft is a crime of violence under U.S.S.G. § 4B1.2(a)(2). We should note at the outset, however, that this question has been confused because of the differing definitions of "crime of violence" that appear in 18 U.S.C. § 16 ("the statute") and the definition promulgated under § 4B1.2(a) of the sentencing guidelines, which applies specifically to firearms offenses.² While § 16(a) and § 4B1.2(a)(1) are virtually identical, § 16(b) and § 4B1.2(a)(2) are clearly different.³ Section 16(b) applies to the use of force against person and property, whereas § 4B1.2(a)(2) only applies to conduct that presents a serious potential risk of physical injury to another person.⁴ Other differences include: § 16(b) focuses on a risk of physical force, whereas § 4B1.2(a)(2) focuses on a risk of physical injury; § 16(b) requires a "substantial risk," whereas § 4B1.2(a) requires a "serious potential risk"; and § 16(b) focuses on the "nature" of the felony, whereas § 4B1.2(a)(2) focuses on "conduct." See Jackson, 220 F.3d at 637; United States v. Chapa-Garza, 243 F.3d 921, 925-26 (5th Cir.2001).

Nevertheless, in the past we have used § 16(b) cases to interpret § 4B1.2(a)(2) cases, and vice-versa. For example, in Jackson, in which we held that unauthorized use of a vehicle ("UUV") is a crime of violence under § 4B1.2(a)(2), we noted that "[w]e are not unsympathetic to Jackson's argument that UUV is not what one might typically consider a `crime of violence,' [but] we do not write on a clean slate...." Jackson, 220 F.3d at 639. We looked for guidance to United States v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir.), cert. denied, 528 U.S. 837, 120 S.Ct. 100, 145 L.Ed.2d 85 (1999), an immigration case, in which we held that UUV is a crime of violence under § 16. Other cases in this circuit, however, have made clear that § 16 and § 4B1.2(a) are different, and that what qualifies as a crime of violence under one does not necessarily qualify under the other.⁵ To the extent that our prior cases have conflated the § 16(b) and § 4B1.2(a)(2) definitions of "crime of violence," they are overruled.

We therefore hold that sentences involving possession of a firearm by a felon,⁶ which also involve a prior conviction for an alleged "crime of violence," are to have the "crime of violence" determination made only in accordance with the definition in § 4B1.2(a) and its accompanying commentary.

III

In determining whether simple motor vehicle theft is a crime of violence under § 4B1.2(a)(2), we are bound to follow each sentencing guideline and accompanying policy statements. See United States v. Urias-Escobar, 281 F.3d 165, 167 (5th Cir.2002) (citing Mistretta v. United States, 488 U.S. 361, 391, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) and Williams v. United States, 503 U.S. 193, 199-201, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992)). Further, the guidelines' commentary is given controlling weight if it is not plainly erroneous or inconsistent with the guidelines. See id. (citing Stinson v. United States, 508 U.S. 36, 42-45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993)). We review the district court's interpretation and application of the Sentencing Guidelines de novo. See United States v. Deavours, 219 F.3d 400, 402 (5th Cir.2000).

As noted previously, U.S.S.G. § 2K2.1 sets forth base offense levels for crimes involving the unlawful possession of a fire-arm, and applies an enhanced base offense level of 20 if the defendant has a previous felony conviction for a "crime of violence." U.S.S.G. § 2K2.1(a)(4)(A). Application Note 5 to § 2K2.1 refers to § 4B1.2(a) and its Application Note 1 for the definition of "crime of violence." Section 4B1.2(a) defines "crime of violence" as:

[A]ny 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(a) (2000). Application Note 1 to this section ("Application Note 1") states:

"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.

We must decide whether simple motor vehicle theft, under Texas law, falls under this definition, that is, whether, by its nature, it "involves conduct that presents a serious potential risk of physical injury to another." In Texas, theft is defined as "unlawfully appropriat[ing] property with intent to deprive the owner of property." Tex. Pen.Code § 31.03(a). "Appropriation of property is unlawful if: (1) it is without the owner's effective consent; (2) the property is stolen and the actor appropriates the property knowing it was stolen by another; or (3) property in the custody of any law enforcement agency was explicitly represented by any law enforcement agent to the actor as being stolen and the actor appropriates the property believing it was stolen by another." Tex. Penal Code § 31.03(b). Charles' indictment from his motor vehicle theft offense charges that he:

[did] unlawfully appropriate, by acquiring or otherwise exercising control over property, to-wit, an automobile, of the value of $1500 or more, and less than $20,000, with intent to deprive the owner [] of the property ... [and did] intentionally operate one motor-propelled vehicle, to-wit, an automobile, knowing that he did not have the effective consent of the owner....⁷

In United States v. Fitzhugh, 954 F.2d 253 (5th Cir.1992), we held that, in determining whether an offense is a crime of violence under § 4B1.2 or § 4B1.1, we can consider only "conduct `set forth in the count of which defendant was convicted,'" and not the other facts of the case. Id. at 254 (citation omitted). This principle is confirmed by Application Note 1 to § 4B1.2 which states that "[o]ther offenses are included as `crimes of violence' if ... the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted ... by its nature, presented a serious potential risk of physical injury to another." Based on the language in § 4B1.2(a)(2) and in Application Note 1, we hold that a crime is a crime of violence under § 4B1.2(a)(2) only if, from the face of the indictment, the crime charged or the conduct charged presents a serious potential risk of injury to a person. Injury...