U.S. v. Vargas-Duran

• Decision Date: 08 January 2004
• Docket Number: No. 02-20116.,02-20116.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Enrique VARGAS-DURAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

356 F.3d 598

UNITED STATES of America, Plaintiff-Appellee, v. Enrique VARGAS-DURAN, Defendant-Appellant.

No. 02-20116.

United States Court of Appeals, Fifth Circuit.

January 8, 2004.

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

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

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

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

EDITH BROWN CLEMENT, Circuit Judge:

This appeal contemplates the application of a sentence enhancement to a defendant's sentence for being unlawfully present in the United States in violation of 8 U.S.C. § 1326 (2000). The Pre-Sentencing Report ("PSR") recommended that a sixteen-level enhancement be added to a base offense level of eight because Enrique Vargas-Duran ("Vargas-Duran") previously had been convicted of intoxication assault under Texas law. Vargas-Duran objected to the enhancement, arguing it was improper because intoxication assault was not a crime of violence under § 2L1.2 of the U.S. Sentencing Guidelines Manual ("U.S.S.G."). The district court agreed with the PSR's recommendation and enhanced Vargas-Duran's sentence. On appeal, a majority of a panel of this Court affirmed the district court, holding that intoxication assault required the use of force, and, as such, met the U.S.S.G. definition of a crime of violence.

This Court now examines and clarifies the law with respect to sentencing enhancements which require "as an element the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. § 2L1.2, Application Note 1(B)(ii)(I) (2001). We hold that the "use" of force requires that a defendant intentionally avail himself of that force. We further hold that the intentional use of force must be an element of the predicate offense if the predicate offense is to enhance a defendant's sentence. Because the intentional use of force is not an element of the crime of Texas intoxication assault, we VACATE Vargas-Duran's sentence and REMAND his case for resentencing in accordance with this opinion.

I. FACTS AND PROCEEDINGS

In 1996, Vargas-Duran, a citizen of Mexico, was convicted of intoxication assault in Texas state court. Under the Texas statute, a person was guilty of intoxication assault when that person, "by accident or mistake, while operating an aircraft, watercraft or motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another." TEX. PENAL CODE ANN. § 49.07 (1994).¹ Following his conviction and sentence, Vargas-Duran was deported from Hidalgo, Texas to Mexico.

On June 24, 2001, Vargas-Duran was again found in Texas. He pleaded guilty to being unlawfully present in the United States in violation of 8 U.S.C. § 1326(a) and (b)(2).² A PSR was prepared using the 2001 version of the Federal Sentencing Guidelines. The base level of Vargas-Duran's offense was eight; the PSR recommended a sixteen-level enhancement pursuant to U.S.S.G. § 2L1.2. Section 2L1.2(b)(1)(A)(ii) provides for a sixteen-level enhancement if "the defendant previously was deported, or unlawfully remained in the United States, after ... a conviction for a felony that is a ... crime of violence." The Application Notes define "crime of violence" either as one of a list of enumerated offenses or as "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." U.S.S.G. Application Note 1(B)(ii)(I). The PSR recommended that Vargas-Duran's 1996 conviction for intoxication assault be considered a crime of violence for purposes of enhancing his sentence.

The district court agreed with the PSR. In adopting the PSR's recommendation, the district court sentenced Vargas-Duran to a sixty-four month term of imprisonment and a three-year term of supervised release. Vargas-Duran timely appealed.

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 because intoxication assault is not one of the enumerated offenses under § 2L1.2, Vargas-Duran's sentence could only be enhanced if the crime of intoxication assault had "as an element the use, attempted use, or threatened use of physical force against the person of another." 319 F.3d at 196 (citations omitted). Next, the majority reiterated the rule that this Court "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." Id. (citations omitted).

Because intoxication assault requires that an intoxicated offender "cause[] serious bodily injury to another," the majority concluded that the crime has as an element the use of force. 319 F.3d at 196. Observing that neither Vargas-Duran nor any Texas decision gave an example of an instance in which a defendant was convicted of intoxication assault without using physical force against a person, the majority concluded that causing serious bodily injury "qualifie[d]" as using force. Id. at 196-97.

Vargas-Duran's primary contention was that "use of force" implied the intentional use of force. Relying on this Court's decision in United States v. Chapa-Garza, 243 F.3d 921 (5th Cir.2001), in which we held that the sentence of a defendant with a prior conviction for driving while intoxicated ("DWI") could not be enhanced as a crime of violence, Vargas-Duran argued that the approach endorsed by Chapa-Garza similarly should apply to intoxication assault. 319 F.3d at 197.

The majority disagreed with Vargas-Duran's proposed use of Chapa-Garza on three grounds. First, the majority distinguished Chapa-Garza by observing that Chapa-Garza did not purport to interpret § 2L1.2.³ 319 F.3d at 197. As a second point of distinction, the majority pointed out that the crime of felony DWI, which is committed when a defendant with two prior convictions begins operating a vehicle while intoxicated, could be committed without the use of force. Id. at 198. As a third point of distinction the majority emphasized that the felony DWI statute at issue in Chapa-Garza was not analyzed under 18 U.S.C. § 16(a), the language of which is similar to § 2L1.2, Application Note 1(B)(ii)(I). Id. The majority characterized § 16(b), under which Chapa-Garza was decided, as a "catch-all" provision, and opined that "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." Id. The majority therefore concluded that "[i]n light of the plain language of the revised guideline and its commentary," no state of mind requirement should be implied in § 2L1.2. Id. at 199.

The dissent from the panel majority's ruling in Vargas-Duran argued that "use", by its very definition, requires intent. 319 F.3d at 201 (Clement, J., dissenting). Because intoxication assault encompasses an act that takes place "by accident or mistake", the dissent reasoned that intoxication assault does not necessarily require the use, attempted use, or threatened use of force. Id. at 204.

Vargas-Duran timely filed a petition for rehearing en banc on January 30, 2003. By court order, rehearing en banc was granted on June 26, 2003, and the panel opinion was vacated. United States v. Vargas-Duran, 336 F.3d 418 (5th Cir. 2003).

II. STANDARD OF REVIEW

Because the grant of en banc rehearing vacates the earlier panel decision, we review de novo a district court's legal conclusions or interpretations of the meaning of a guideline. United States v. Griffin, 324 F.3d 330, 365 (5th Cir.2003). We therefore review a challenge to the district court's application of § 2L1.2 de novo. United States v. Rodriguez-Rodriguez, 323 F.3d 317, 318 (5th Cir.2003).

III. DISCUSSION

A. "Use of Force"

The first issue before the Court is whether "the use, attempted use, or threatened use of physical force against the person of another," U.S.S.G. § 2L1.2, Application Note 1(B)(ii)(I), means that the predicate offense requires that a defendant intentionally avail himself of that force. We hold that it does.

It is an elementary rule of statutory construction that "the words of a statute will be given their plain meaning absent ambiguity." Texas Food Indus. Ass'n v. United States Dept. of Agric., 81 F.3d 578, 582 (5th Cir.1996). Similarly, a statute should be construed such that no word is left without operative effect. Texaco Inc. v. Duhe, 274 F.3d 911, 920 (5th Cir.2001). We are bound to follow each Sentencing Guideline; commentary is also authoritative if not plainly erroneous or inconsistent with the guidelines. United States v. Urias-Escobar, 281 F.3d 165, 167 (5th Cir.2002). Guidelines, and thus their commentary, are subject to the ordinary rules of statutory construction. United States v. Carbajal, 290 F.3d 277, 283 (5th Cir.2002).

Because "use" is not defined by the Sentencing Guidelines, we first look to its plain meaning. Beginning with the definition as commonly understood within the legal community, "use" means "[t]he application or employment of something." BLACK'S LAW DICTIONARY 1540 (7th ed.1999). In more broad-based English application, "use" is defined as "[t]he act of employing a thing for any ... purpose; the fact, state, or condition of...