U.S. v. Vargas-Duran

Decision Date16 January 2003
Docket NumberNo. 02-20116.,02-20116.
Citation319 F.3d 194
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Enrique VARGAS-DURAN, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

David Hill Peck (argued), James Lee Turner, Asst. U.S. Atty., Houston, TX, for Plaintiff-Appellee.

Roland E. Dahlin, II, Fed. Pub. Defender, Timothy William Crooks, Asst. Fed. Pub. Defender (argued), Houston, TX, for Defendant-Appellant.

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

Before EMILIO M. GARZA and CLEMENT, Circuit Judges, and HUDSPETH*, District Judge.

EMILIO M. GARZA, Circuit Judge:

Enrique Vargas-Duran appeals the district court's determination that his Texas conviction for intoxication assault was a "crime of violence" for purposes of the 16-level sentencing enhancement under § 2L1.2(b)(1)(A)(ii) of the 2001 version of the United States Sentencing Guidelines. Vargas-Duran contends that, in light of our decision in United States v. Chapa-Garza, 243 F.3d 921 (5th Cir.2001), his prior conviction for intoxication assault is not a "crime of violence" under § 2L1.2(b)(1)(A)(ii) because it does not have as an element the intentional use of force against a person.1 We disagree.

Vargas-Duran, a citizen of Mexico, was discovered in the United States after being arrested for driving while intoxicated. He had previously been deported following Texas felony convictions for burglary of a vehicle and intoxication assault. Vargas-Duran pled guilty to being unlawfully present in the United States in violation of 8 U.S.C. § 1326(a) and (b)(2). At sentencing, he objected to the categorization of his 1996 intoxication assault conviction as a "crime of violence" for the purposes of the 16-level enhancement under § 2L1.2(b)(1)(A)(ii) of the 2001 version of the Sentencing Guidelines. The district court overruled the objection and sentenced him to sixty-four months of imprisonment and three years of supervised release.

We follow both the Sentencing Guidelines and their 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)). In addition, we give the Sentencing Guidelines' commentary controlling weight unless it is plainly erroneous or inconsistent with the guidelines themselves. 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. United States v. Charles, 301 F.3d 309, 312-13 (5th Cir.2002) (en banc).

Under the 2001 version of § 2L1.2, a prior offense qualifies as a "crime of violence" for purposes of the 16-level sentencing enhancement if it is either "an offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another" or an offense enumerated in Application Note 1(B)(ii)(II). U.S. SENTENCING GUIDELINES MANUAL ("U.S.S.G."), § 2L1.2, cmt. n. 1(B)(ii); see United States v. Rayo-Valdez, 302 F.3d 314, 316 (5th Cir.2002) ("The language of § 2L1.2 says that `crime of violence' means that which is in subparagraph I, and includes that which is in subparagraph II.").2 Because intoxication assault is not one of the offenses enumerated in Application Note 1(B)(ii)(II), it is a "crime of violence" under § 2L1.2(b)(1)(A)(ii) only if it "has as an element the use, attempted use, or threatened use of physical force against the person of another." Rayo-Valdez, 302 F.3d at 316. We need not discuss the facts underlying Vargas-Duran's prior conviction, since we "look only to the fact of conviction and the statutory definition of the prior offense" to determine whether a prior conviction qualifies as a predicate offense for sentencing enhancement purposes. Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). "Congress did not intend sentencing hearings to become retrials of the underlying conduct involved in the defendant's prior federal or state convictions." United States v. Velazquez-Overa, 100 F.3d 418, 421 (5th Cir.1996).

Because the Texas offense of intoxication assault requires proof that an intoxicated offender "cause[] serious bodily injury to another," TEX. PENAL CODE ANN. § 49.07 (Vernon 1994),3 we conclude that it has as an element the use of force against the person of another. Clearly, the requirement that the offender "cause[] serious bodily injury" encompasses a requirement that the offender use force to cause that injury. Vargas-Duran has not demonstrated that an offender could be convicted under § 49.07 for causing "serious bodily injury" without actually using physical force against a person. We have not found any Texas decision in which an offender caused serious bodily injury without using force. In Gonzalez v. Texas, 2000 WL 1721159 (Tex.App.Houston [14th Dist.] Oct. 12, 2000, no pet.), the only decision cited by Vargas-Duran in support of his argument, the Texas Court of Appeals affirmed the defendant's conviction for intoxication assault where he drove his vehicle into a parked car, which in turn struck a child standing nearby. Id. at *1. Contrary to Vargas-Duran's contention, the defendant in Gonzalez clearly used force, albeit indirectly, against the person of another. Because causing "serious bodily injury" qualifies as using force, we conclude that intoxication assault as defined by the 1994 version of § 49.07 is a crime of violence for purposes of the 16-level enhancement under Application Note 1(B)(ii)(I) to the 2001 version of § 2L1.2.4

Vargas-Duran contends that, because his prior conviction does not have as an element the intentional use of physical force, it is not a "crime of violence" for purposes of § 2L1.2(b)(1)(A)(ii). In support of his position, Vargas-Duran relies on our decision in United States v. Chapa-Garza, 243 F.3d 921 (5th Cir.2001), in which we applied a categorical approach and held that a Texas felony conviction for driving while intoxicated (DWI) was not a "crime of violence" under 18 U.S.C. § 16(b) because the offense did not involve "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 offense." 243 F.3d at 927.

Perhaps the obvious should be stated first: Chapa-Garza did not apply the current version of § 2L1.2. Section 2L1.2 was substantially revised after we decided Chapa-Garza, and the definition of "crime of violence" at issue in Chapa-Garza is not the same as the definition at issue here. See United States v. Caicedo-Cuero, 312 F.3d 697, 709-11 (5th Cir.2002) (discussing the 2001 amendments to § 2L1.2's definition of "crime of violence"). Section 16(b), from which Chapa-Garza gleaned a state of mind requirement, 243 F.3d at 925-27, no longer applies for purposes of the 16-level enhancement.5

Second, unlike intoxication assault, Texas felony DWI does not have as an element the use of force. "The crime of Texas felony DWI is committed when the defendant, after two prior DWI convictions, begins operating a vehicle while intoxicated." Chapa-Garza, 243 F.3d at 927. Third, Chapa-Garza did not analyze the Texas felony DWI statute under § 16(a), the language of which is similar to Application Note 1(B)(ii)(I). Compare 18 U.S.C. § 16(a) (covering any "offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another") with U.S.S.G., § 2L1.2, cmt. n. 1(B)(ii) (covering any "offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another"). The analysis in Chapa-Garza was instead based on the catch-all language of § 16(b), which applies to "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." 18 U.S.C. § 16(b). In fact, Chapa-Garza noted that "18 U.S.C. § 16(b) is the only justification for the 16-level enhancement advanced by the government." 243 F.3d at 924 (emphasis added). Chapa-Garza's analysis of § 16(b) would have been entirely unnecessary had the crime of Texas felony DWI contained as an element the "use of force," as does the Texas crime of intoxication assault at issue in this case.

We do not agree that Chapa-Garza's interpretation of § 16(b)'s language applies in this context. As discussed above, unlike Texas felony DWI, intoxication assault has as an element the use of force, and therefore, unlike Chapa-Garza, we are not confined to analyzing whether this offense is a "crime of violence" under the catch-all language of § 16(b). We question whether Chapa-Garza would have read a state of mind requirement into the revised definition of "crime of violence" under Application Note 1(B)(ii) to the 2001 version of § 2L1.2.6

In light of the plain language of the revised guideline and its commentary, we decline to extend Chapa-Garza's state of mind requirement. Nothing in the amended version of § 2L1.2 or its commentary indicates that the use of force must be intentional for a prior offense to qualify as a "crime of violence" for purposes of the 16-level enhancement. We must assume that the Sentencing Commission was aware of our holding in Chapa-Garza when it amended § 2L1.2 and would have explicitly incorporated a state of mind requirement had it intended to do so. It did not.7 Absent explicit direction, we will not read a state of mind requirement into the guideline. See United States v. Fry, 51 F.3d 543, 546 (5th Cir.1995) (holding that, where "the language of section 2K2.1(a)(3) makes no reference to the...

To continue reading

Request your trial
18 cases
  • U.S. v. Vargas-Duran
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • January 8, 2004
    ...On January 16, 2003, a majority of a panel of this Court affirmed the enhancement of Vargas-Duran's sentence. United States v. Vargas-Duran, 319 F.3d 194, 199 (5th Cir.2003), vacated and reh'g granted by 336 F.3d 418 (5th Cir.2003). As a preliminary matter, the panel majority observed that ......
  • U.S. v. Calderon-Pena
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • July 17, 2003
    ...often will cause an IJ to not apply regulations that he otherwise would have invoked. 4. Id. (quoting United States v. Vargas-Duran, 319 F.3d 194, 196 (5th Cir.2003), vacated for rehearing en banc, 2003 U.S.App. LEXIS 13232 (5th Cir. June 26, 2003)). Though Rodriguez-Rodriguez cited Vargas-......
  • U.S. v. Villegas-Hernandez
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • October 31, 2006
    ...as an element the use of physical force"). In Shelton, a panel of this court relied largely on the panel opinion in United States v. Vargas-Duran, 319 F.3d 194 (5th Cir.2003). Shelton, 325 F.3d at 558, 561.7 The Vargas-Duran panel had concluded that Texas's intoxication assault offense, Tex......
  • U.S. v. Shelton
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • March 18, 2003
    ...a Texas conviction for intoxication assault qualified as a "crime of violence" for sentence enhancement purposes. United States v. Vargas-Duran, 319 F.3d 194 (5th Cir. 2003). In that case, the appellant argued that his prior conviction did not constitute a "crime of violence" under U.S.S.G.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT