Jеsus Rodriguez-Rodriguez (“Rodriguez”) appeals his sentence for illegal reentry after deportation. The issue is whether the Texas offenses of burglary of a building and unauthorized use of a motor vehicle are crimes of violence under the 2001 version of United States Sentencing Guidelines (“U.S.S.G.”) § 2L1.2(b)(l)(A)(ii), requiring the enhanced sentence imposed on Rodriguez. We hold that they are not.
Rodriguez was deported from the Unitеd States in August 1995. After being found in a Texas prison on June 29, 2000, he pleaded guilty to a one-count indictment charging him with illegal reentry in violation of 8 U.S.C. § 1326(а) and (b)(2).
The presentence report chronicled Rodriguez’s criminal history, including Texas convictions of burglary of a building in 1990 and unauthorized usе of a motor vehicle (“UUMV”) in 1993. Classifying those offenses as crimes of violence, the probation officer recommended a sixtеen-level increase in Rodriguez’s base offense level pursuant to U.S.S.G. § 2L1.2(b)(l)(A)(ii). Rodriguez objected to the increase, contending that burglаry of a building and UUMV were not crimes of violence for purposes of § 2L1.2(b)(l)(A)(ii) and that an eight-level increase for having committed a рrior aggravated felony applied instead. The district court overruled the objection and sentenced Rodriguez to seventy-ninе months’ imprisonment and three years’ supervised release. Rodriguez filed a timely notice of appeal.
We review this challеnge to the district court’s application of § 2L1.2 de novo. 1 The guidelines’ commentary is given controlling weight in our review if it is not plainly erroneous оr inconsistent with the guidelines. 2
The 2001 version of § 2L1.2, under which Rodriguez was sentenced, provides for a sixteen-point increase in the base оffense level if the defendant previously was deported after a conviction for a felony that is a crime of violence. 3 According to Application Note l(B)(ii) of the commentary, “crime of violence”
(I) means 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; and
(II) includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including sexual abuse of а minor), robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. 4
Because burglary of a building and UUMV are not among the offenses enumerated in Application Note l(B)(ii)(II), they are crimes of violence only if they have as an element “the use, attempted use, or threatened use of physical force against the person of another.” 5 We need not discuss the *319 facts underlying Rodriguez’s convictions, “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.” 6
Under Texas lаw, a person commits burglary of a building if, without the effective consent of the owner, he:
(1) enters a ... building ... not then open to the public, with intent to commit a felony, theft, or an assault; or (2) remains concealed, with intent to commit a felony, theft, or an assault, in a building ...; or (3) enters a building ... and commits or attempts to commit a felony, theft, or an assault. 7
And a person commits UUMV “if he intentionally or knowingly operatеs another’s ... motor-propelled vehicle without the effective consent of the owner.” 8 Although violent confrontations may оccur in the course of each offense, neither requires the actual, attempted, or threatened use of physical forcе as a necessary element. 9 Therefore, Rodriguez’s prior convictions of those offenses do not support a sixteen-level crime-of-violence enhancement under § 2L1.2(b)(l)(A)(ii).
In summary, then, we hold that the Texas offenses, of burglary of a building and UUMV are not crimes of violence within the meaning of U.S.S.G. § 2L1.2(b)(l)(A)(ii) because neither offense is listed in Application Note l(B)(ii)(II) or has as an element the use, attempted use, or threatened use of physical force against the person of another. Accordingly, we vacate Rodriguеz’s sentence and remand the case for resentencing in the fight of this opinion. 10
VACATED AND REMANDED.
Notes
.
United States v. Charles,
. Id. at 312.
. See U.S.S.G. § 2L1.2(b)(l)(A)(ii) (Nov.2001).
. Id. § 2L1.2, comment. (n.l(B)(ii)).
.
See United States v. Rayo-Valdez,
.
United States v. Vargas-Duran,
. Texas Penal Code Ann. § 30.02(a) (West Supp.2003).
. Texas Penal Code Ann. § 31.07(a) (West 1994).
. We have held in cases applying language idеntical to the commentary accompanying § 2L1.2 that burglary of a building is not a crime of violence as a categorical matter because the state need not prove the use, attempted use, or threatened use of physical force agаinst the person of another to secure a conviction.
See Turner,
. As Rodriguez concеded in the district court, his Texas convictions trigger an eight-
*320
level aggravated-felony enhancement.
See
U.S.S.G. § 2L1.2(b)(1)(C). "For purposes of subsection (b)(1)(C), ‘aggravated felony' has the meaning given that tеrm in 8 U.S.C. § 1101(a)(43), without regard to the date of conviction of the aggravated felony.”
Id.
§ 2L1.2, comment, (n.2). Section 1101(a)(43) provides that "aggravated felony” means, among other things, "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(F). This court has held that both burglary of a building and UUMV are
per se
crimes of violence under 18 U.S.C. § 16(b).
See Rodriguez-Guzman,