United States v. Charles

period of the limitations the extension America, UNITED STATES of Appellants to refile those

would allow Plaintiff-Appellee, of the claims actions should arbitration coverage to valid de- ultimately give rise they avoid this risk fenses.47 Yet could Joseph CHARLES, Clifton complying with the clear altogether by Defendant-Appellant. request their plan, terms of the and so self-defeating. By very the toll- No. 01-10113. provision modify would section 8.21’s ing Appeals, United States Court of litigation commence requirement Fifth Circuit. plan’s effective date. days within 180 of the Therefore, bankruptcy properly court July 1127(b) pro- determined that U.S.C. granting

hibited it from the extension. Appellants’ proposed agree-

Because the parties’ rights,

ment would alter the obli-

gations, expectations plan, under the bankruptcy court’s denial of the motion

was correct as a matter of law.

IV. CONCLUSION reasons, foregoing

For the we affirm the judgment affirming

district court’s

bankruptcy court’s denial of the “Motion

for Order Aid of Consummation of Plan Approval

and for of Settlement of Plumb-

ing Company Oil Claims Shell Corporation.”

Hoechst Celanese

AFFIRMED. day period; they evidentiaiy hearing bankrupt- limitations have not men- 47. At the Hanthorn, court, cy George gener- the former longer-running period. tioned a state-law It Eljer al counsel of U.S. Brass and who struc- timely CNA therefore follows that Shell and behalf, agreement proposed tured the on their Jersey filed the New and Texas actions be- tolling admitted in the absence of the they days cause did so within 180 provision, could not be the lawsuits refiled date. effective peri- violating 180-day without limitations od. Larson, Atty.,

Nancy E. Asst. U.S. Fort Worth, TX, Snipes, Michael Reuss Asst. Meac- Atty. (argued), Eugene U.S. Chad ham, Dallas, TX, Plaintiff-Appellee. Westfall, George (argued), Andrew Platt Cutrer, Worth, TX, Fort for De- Platt & fendant-Appellant. JOLLY, KING, Judge,

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

E. GRADY Circuit banc in granted rehearing en determine sentencing appeal order to a crime whether theft of a motor vehicle is of violence under United States (“U.S.S.G.”) 4B1.2(a)(2), re- Guideline imposed on quiring the enhanced sentence simple hold that automobile Charles. We there- theft is not a crime of violence. We and RE- fore VACATE Charles’ sentence re-sentencing. MAND for I defendant, Charles, Joseph The Clifton possession of a pled guilty this case felon, in violation of 18 U.S.C. firearm as five, Earlier, July history category criminal the dis- 922(g)(1).1 court to 51 of one count of trict sentenced Charles months’ been convicted had Charles imprisonment, three-year super- term of question there- vehicle theft. motor release, mandatory special vised and a as- appropri- of sentence is is what kind fore timely sessment of Charles filed a firearm conviction $100. ate for the instant appeal automo- notice of of his sentence. previous conviction for light of his bile theft. court, panel considering A of this itself Jackson, by bound affirmed. See United involving pos- the unlawful

For offenses (5th Charles, 2K2.1(a)(6) States v. 275 F.3d 468 Cir. firearm, § of a U.S.S.G. session 2001). A majority judges of active then 14 if offense level of the provides a base to hear en banc. voted the case “prohibited person,” a defendant is (5th Charles, v. 284 F.3d 567 However, States Cir. case, a felon. 2K2.1(a)(4) 2002). for an increased provides § if level of 20 the defendant

base offense II “crime felony conviction of a prior had one 4B1.2(a). violence,” appeal depends § The outcome of this on of as defined simple a whether motor vehicle theft is a determined that theft of district court crime of violence under U.S.S.G. a crime of violence under vehicle is 4B1.2(a)(2). 4B1.2(a)(2), §a should note at the out- § its conclusion on We basing set, however, prece- question that this has been controlling that the determination Jackson, differing confused the defini- because of dent was United States (5th Cir.2000). appear of “crime of violence” that There we tions F.3d (“the statute”) § and the unauthorized use of a motor vehi- 18 U.S.C. held that 4B1.2(a) § of promulgated a crime of violence under definition cle is indeed 4B1.2(a)(2). Thus, applies which sentencing sentencing guidelines, § the Charles, offenses.2 began specifically court with a to firearms While the district 16(a) 4B1.2(a)(l) virtually § § are 20 and reduced the and base offense level of 4B1.2(a)(2) 16(b) identical, § § and are by acceptance respon- 3 for of offense level 16(b) applies clearly different.3 Section sibility, to level 17. Based on Charles’ property may used in the 922(g)(1) makes it unlawful for a or of another be 1. Section committing the offense. person a course of who has been convicted of crime contrast, 1.2(a) § 4B defines "crime of vio- by imprisonment punishable for a term ex- lence” as: ceeding year possess a or one firearm in law, [A]ny under federal or state offense affecting interstate commerce. Title 18 924(a)(2) punishable by imprisonment penalty for a term ex- provides § for a of U.S.C. ceeding year, that— one up years for this offense. In October to ten use, (1) attempted felony has as an element the pled guilty to the Charles had use, physical threatened use of force unlawfully carrying weapon or offense of on another, against person of or premises, and was sentenced to two licensed arson, (2) burglary dwelling, ex- of a or years' imprisonment. tortion, explosives, or oth- involves use presents a erwise involves conduct that "crime of violence” as: 2. Section 16 defines potential physical injury to (a) an offense that has as an element another. use, use, attempted or threatened use of 3.Although general application § un- against person proper- 16 has physical force another, Comprehensive Crime Control Act of ty der the (b) Congress created the Sentenc- any felony and in which other offense that is promul- ing it to involves a substantial Commission and authorized sentencing guidelines, States v. against person gate see United physical force risk person proper necessarily qualify under the oth- against force and does the use of 1.2(a)(2) only applies § prior 4B that our cases ty, whereas er.5 To extent 16(b) presents a serious conduct that have conflated person.4 to another physical risk “crime vio- definitions of 16(b) include: focuses Other differences lence,” they are overruled. force, whereas physical

on a risk of therefore hold that sentences a risk of focuses on possession of a firearm a felo involving 16(b) a “substantial injury; requires n,6 prior involve a conviction which also 4B1.2(a) risk,” requires a “seri whereas violence,” are to alleged for an “crime of 16(b) risk”; focuses on ous have the “crime of violence” determination felony, whereas the “nature” of only made in accordance with the defini § “conduct.” focuses on See 1.2(a) Jackson, 637; § accompanying v. tion in 4B and its 220 F.3d at United States (5th 921, Chapa-Garza, commentary. 243 F.3d 925-26 Cir.2001).

Nevertheless, in past the we have used Ill 16(b) § interpret § cases to determining simple whether cases, example, in and vice-versa. For motor vehicle theft is a crime of violence Jackson, in that unautho which we held 4B1.2(a)(2), § under we are bound to fol (“UUV”) rized use of a vehicle is a crime of sentencing guideline low each and accom 4B1.2(a)(2), § that violence under we noted panying policy statements. See United unsympathetic are not to Jackson’s “[w]e Urias-Escobar, 165, v. 281 F.3d 167 States that argument might UUV is not what one Cir.2002) (5th (citing Mistretta v. United violence,’ typically consider a ‘crime of ” States, 361, 391, 647, 488 109 S.Ct. U.S. we do not write on a clean slate.... [but] (1989) 102 L.Ed.2d 714 and Williams v. Jackson, 220 at F.3d 639. We looked for States, 193, 199-201, 112 United 503 U.S. guidance to United States v. Galvan-Rod (1992)). 1112, 117 L.Ed.2d Fur S.Ct. 341 (5th Cir.), 217 cert. de riguez, 169 F.3d ther, commentary given guidelines’ the nied, 837, 100, 528 U.S. 120 S.Ct. 145 controlling weight plainly if it is not erro (1999), case, immigration L.Ed.2d 85 an guidelines. with neous or inconsistent the which we held that UUV is a crime of States, (citing v. See id. Stinson § violence under 16. Other cases in this 36, 42-45, 1913, circuit, however, 508 U.S. 113 S.Ct. 123 § that have made clear 16 1.2(a) (1993)). different, L.Ed.2d review the § and 4B are and that what 598 dis application qualifies interpretation as crime of violence under one trict court’s and Cir.1992) 858, Parson, Parson, (c (3d § 864 violence” from that in 16. See 955 F.2d 955 iti 98-225, ng S.Rep. Cong., F.2d at 866. No. 98th 1st Sess. (1983), 3486), in 1984 U.S.C.C.A.N. 16(a) § 4. This difference is also true of and although Sentencing and Commission has 1.2(a)(1). § 4B promulgated a different definition of “crime 4B1.2(a), violence” under no one this See, e.g., Chapa-Garza, 5. v. United States appeal has raised the issue of whether the (5th Cir.2001). F.3d 925-26 Sentencing authority has the Commission depart Consequently 2K2.1, from 16. this is not applicable U.S.S.G. to the un- See Nevertheless, an issue in this we case. should receipt, possession, transportation lawful ammunition, observe that Third Circuit has concluded prohibited and of firearms or pow involving that the Commission has firearms or ammuni- transactions adopt a er to different definition of "crime of tion. physical injury de novo. See risk of Sentencing Guidelines Deavours, 219 F.3d to another. Cir.2000). (5th simple We must decide whether § 2K2.1 previously, As noted U.S.S.G. theft, law, motor vehicle under Texas falls offense levels crimes sets forth base definition, is, whether, possession of a fire- involving the unlawful pres its it “involves conduct that arm, offense applies an enhanced base ents a serious previous if the defendant has a level of 20 Texas, injury to another.” In theft is de a “crime of violence.” felony conviction for “unlawfully appropriating] prop fined as 2K2.1(a)(4)(A). Application erty deprive with intent to owner 4B1.2(a) 2K2.1 refers to Note 5 31.03(a). property.” Tex. Pen.Code Application Note 1 for the definition of “Appropriation property is unlawful if: 4B1.2(a) violence.” de- “crime of Section (1) it is without the owner’s effective con “crime of violence” as: fines (2) sent; property is stolen and the law, federal or state [A]ny property offense under appropriates knowing actor it (3) for a term punishable by imprisonment another; property was stolen year, one that— exceeding custody any law enforcement agency explicitly represented by any was law en (1) use, attempted an element the has as agent being forcement to the actor as sto use, physical threatened use of force or appropriates proper len and the actor another, person of or against ty believing by it was stolen another.” (2) arson, dwelling, of a or burglary is 31.03(b). in Tex. Penal Code Charles’ extortion, explosives, use of or involves dictment from his motor vehicle theft of presents conduct that otherwise involves charges fense that he: potential physical injury of a serious risk unlawfully by acquir- to another. appropriate, [did] ing exercising or otherwise control over 1.2(a) (2000). Application 4B to-wit, automobile, an of the property, Note (“Application 1 to this section Note more, value of or and less than $1500 1”) states: $20,000, the owner deprive with intent to murder, of violence” includes “Crime property ... inten- ] [and did] of the [ aggravated manslaughter, kidnapping, motor-propelled ve- tionally operate one offenses, assault, robbery, forcible sex automobile, hicle, to-wit, knowing an arson, extortion, extortionate extension that he did not have the effective con- credit, dwelling. a burglary of and of 7 sent of the owner.... are included as “crimes Other offenses (A) Fitzhugh, an 954 F.2d 253 if that offense has as of violence” (5th use, Cir.1992), in use, determining we held attempted or element a crime of violence force whether an offense is against threatened use of (B) 4B1.1, another, § 4B1.2 or we can consider the conduct under person of (i.e., in the count of expressly charged) only in the “conduct ‘set forth set forth ” convicted,’ was and not the defendant was con- which defendant count of which (includ- 254 facts of the case. Id. at explosives involved the other victed use (citation omitted). con- principle This ing any explosive material or destructive device) 4B1.2, or, nature, by Application a firmed Note to presented its supplement indict- Simultaneously opinion, we record with Charles' with this the motion of the United States to ment. GRANT (5th denied, Cir.), in- cert. 528 U.S. offenses are “[o]ther which states (1999) if ... violence’ the S.Ct. 145 L.Ed.2d 85 its as ‘crimes of cluded (i.e., cases. expressly charged) property aspects and to forth conduct set judgment, VA therefore REVERSE the defendant was in the count of which sentence, and REMAND this presented CATE the ... convicted re-sentencing light of this physical injury to case for opinion. language on the another.” Based Application and in Note REVERSED, and RE- VACATED a crime of that a crime is violence

we hold MANDED. if, only from the face indictment, charged the crime BARKSDALE, HAWKINS RHESA charged presents poten- a serious conduct Judge, with whom EDITH H. Circuit person. Injury tial risk of CLEMENT, Judges, Circuit JONES result, but it another need not be certain join, concurring part dissenting indictment that the must be clear from the part: specifically or the conduct crime itself theory probabilities is at bottom posed this serious risk. charged nothing but common sense reduced to indictment, it the face Charles’ From calculus. that his conduct commit- cannot be said presented poten- a serious ting the offense LaPlace, Oeuvres, Pierre de vol. Simon physical injury tial to another. His risk VII, Analytique Théorie des Probabilitiés injury to presented prop- conduct a risk of [1812-1820], (emphasis introduction add However, is, erty, that the automobile. ed). suggestion no in the indictment there is key applying sense is to Common the stealing in the car that Charles’ conduct portion the “otherwise involves conduct” of presented potential physi- a serious risk of 4Bl.l(a)(2). line, Along that I simply He injury person. cal to another following concur in the standard set the (the property auto- exercised control over majority: mobile) the and drove it without owner’s 4B1.2(a)(2) language Based in on consent. Application and in we hold [its] Note Application by requiring Note that that a crime is a crime violence under of “by [their] other crimes must nature” if, only from face of present physi- risk a “serious of indictment, charged the crime or the another,” categori- cal for a injury to calls charged presents po- conduct a serious exclusion of crimes cal inclusion or and/or injury person. Inju- tential risk to a Simple vehicle theft does conduct. motor ry to another need not be a certain not, nature, It present its this risk. result, but it must be clear from under therefore is not crime of violence indictment that the crime or the itself 4B1.2(a)(2). specifically charged posed conduct this potential risk. senous IV added). explained, Maj. at I Opn. (emphasis For the reasons we have thus dissent, however, holding respectfully our in v. must from we overrule (5th Cir.2000). Jackson, holding controlling 220 F.3d 635 its standard, Further, in holding we limit our Charles’ conduct does not consti- Galvan-Rodriguez, 169 F.3d 217 tute a crime of violence. States 1.2(a)(2)— injury: person(s) § 4B chance” of to the from phrase in operative stolen, [by might the vehicle involves conduct whom is who “othenvise vehicle; poten- app. presents n. otherwise be or near the and to 1] (emphasis another” injury persons vicinity to in the of the automobile tial risk added) contains, probabil- purposes of operated for when it is under the attendant — word ities, unusual use of the escape a somewhat urgency stress to the thief and to course, under- “potential” vehicle, is Of resulting quite likely “serious”. with the “risk”, as “chance”. “possible”; as driving stood and the serious risk of a dangerous English Dictio- someone not in a vehi- hitting collision or The New Oxford SHORTER nary (1993). But, what does extra, greater, cle. Add to this the even the mix? “serious” add to possible injury to “significant chance” if, theft, another at or near the time of the modify “injury”, as does not “Serious” later, driving (operating) the thief or even See, e.g., U.S.S.G. bodily injury”. “serious pursued by police, vehicle the stolen l(i) (2001). Instead, it app. § 1B1.1 n. and, highspeed espe- at most especially poten- “serious “potential risk”: modifies if, result, thief cially fleeing as and/or employed, “serious” tial risk”. As so police stopping stop for pursuing are not amount, degree significant means “of signs lights. or red at It Id. worthy of consideration”. another is injury mean that does not short, that, for common sense tells us bottom, § calls At

probable. possible charged, the conduct combina- common sense. application for the another leading injury tions of factors fortiori, limitless. A I cannot Therefore, theft to con- are almost car Charles’ violence, charged how the conduct does have understand a crime of there must stitute in- with a “serious equate chance” of possible a “significant been it when, Surely, to another”. jury person to a as detailed indictment, respectfully I Accordingly, must Charles does. charged conduct his majority’s holding other- ... an automo- dissent from “unlawfully appropriated] intentionally operated] it”. wise. ... and bile added.) In the of this

(Emphasis light DeMOSS, Judge, specially Circuit conduct, contrary ma- to the charged concurring: view, at far more is stake jority’s apparent example, For be- “simple than car theft”. this fully holding I in the concur conduct included charged cause simple automobile theft is opinion that vehicle, the operating stolen Charles’ I separately of violence. write crime additional, dangerous on an theft took and extent of the confu- amplify the nature operation the unauthorized characteristic: to the ambiguities which exist as sion and vehicle. of violence” the term “crime meaning of (not only in a opinion addresses judicial this to mention which Common sense check notice) way. computerized A word “signif- limited us of the numerous informs “crime of violence” indicates that term chances” of to another possible icant in times the United States is used 108 play into when an automobile that come and in the United States by the thief. Code operated and then stolen similar, many of the instances such, In cir- Guidelines. infrequently, Not there is a cross- cumstances, this term is used such where we read or hear about From statutory definition. cir- reference to In these injuries, including deaths. frequent- the most standpoint, numerical cumstances, possible “significant there is a say to 18 Branch to which of ly varying used cross-reference is that U.S.C. these defi- majority opinion. § Congress as set forth nitions the intended to be con- instances, In the term is used with- some trolling; nor is it the task of the Judicial any to a definition and out cross-reference specific Congress Branch to make what impossible it is to deter- those instances specify. has failed to meaning mine the to be ascribed to the

term violence” as used therein. “crime of are, fact, eight

There different defini-

tions of the term “crime of violence” and the

United States Code

Sentencing Guidelines. These different can at following

definitions be located citations: 18 U.S.C. 18 U.S.C. Wayne JANECKA, Allen Petitioner- 924(e)(D)(3), 3156(a)(4), Fed. U.S.C. Appellant, 32(f)(2), 540A(c), R.Crim.P. 28 U.S.C. 13726(a)(1), 2L1.2, ap- U.S.C. (B)(ii) plication notes and U.S.S.G. COCKRELL, Director, Janie Texas De- 4B1.2(a). variety There are a of com- partment Justice, of Criminal Institu- definitions,

mon elements each of these Division, Respondent-Appellee. tional they but differing each have words and No. 01-21013. phrases. justification I can see no rational for a defined term such as “crime of vio- Appeals, States Court lence,” frequently which is used as as the Fifth Circuit. used, term “crime of violence” is to have many different I can meanings. see Aug. justification prior no rational for a convic- being categorized

tion aas “crime of vio-

lence” under one of these definitions but Finally,

not under another. I can see no justification

rational for some of these defi- being

nitions closed-ended and self-con-

tained; and others of these definitions specula-

have catch-all clauses which invite

tion differing depending upon results counsel,

who (prosecutor, proba- defense officer, judge)

tion is making the inter-

pretive provisions call which these catch-all view,

require. my ambigui- level of

ty generated by varying these definitions totally unacceptable justice in a criminal

system that claims to be based on due view,

process. my blame for this state disarray falls squarely on the shoulders Congress (specifically Judiciary

of the Senate)

Committees House and the

and on the Commission and its

staff. It is the task of the Judicial

Case Details

Case Name: United States v. Charles

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jul 31, 2002

Citation: 301 F.3d 309

Docket Number: 01-10113

Court Abbreviation: 5th Cir.