UNITED STATES OF AMERICA, Plaintiff - Appellee, versus ENRIQUE VARGAS-DURAN, Defendant - Appellant.
No. 02-20116
United States Court of Appeals, Fifth Circuit
January 8, 2004
Appeal from the United States District Court For the Southern
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
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.
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.”
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
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.
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
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 being so employed; utilization or employment for or with some aim or purpose, application or conversion to some . . . end.” 19 THE OXFORD ENGLISH DICTIONARY 350 (2d ed. 1989) (emphasis added).4 Similarly, another dictionary observes
OF THE ENGLISH LANGUAGE UNABRIDGED 2523 (1993) (emphasis added).5 The overwhelming majority of authority on the plain meaning of “use” contemplates the application of something to achieve a purpose. Supplementing the word “force” in place of the indeterminate object “something” in the aforementioned dictionary definition bears out this meaning: “use of force” means “the act of employing force for any . . . purpose,” or “to avail oneself of force.” Because we conclude that the meaning of “use of force” is free of ambiguity, we therefore hold that the plain meaning of the word “use” requires intent.
Our adoption of the plain meaning of “use” is further supported by the rule of statutory interpretation that requires us, when possible, to give each word in a statute operative effect. This rule of construction dictates that the word “use” must have an operative effect when left standing alone, or when modified by either “attempted” or “threatened.” Both an attempt and a threat require intent. See BLACK’S LAW DICTIONARY 123, 1489 (7th ed. 1999) (defining “attempt” and “threat”). Were we to interpret “use of force” inconsistently with its plain meaning — that is, as capable of being performed without intent — we would effectively nullify the state of mind required by “attempted use” and “threatened use.” For how could one intentionally attempt to unintentionally use force, or intentionally threaten to unintentionally use force? The force, so to speak, of this
rhetorical question only bolsters our belief that “use” requires intent.
Our adoption of the plain meaning of the word “use” is supported by our caselaw as well.6 In United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001), we held that the crime of felony DWI under Texas law was not a crime of violence, because “[i]ntentional force against another’s person or property is virtually never employed to commit this offense.” Id. at 927. At issue in Chapa-Garza was whether felony DWI fit within the
of “use” indicate that the word “refers to volitional, purposeful, not accidental, employment of whatever is being ‘used’.” 243 F.3d at 926.
Nothing in our opinion in Chapa-Garza encouraged a reading restricting our plain-meaning analysis of the word “use” to the context of only
Indeed, an example given in Chapa-Garza is not unlike the crime of intoxication assault. In the example posited, we believed that force was not intentionally used. We observed that
[w]hile the victim of a drunk driver may sustain physical injury from physical force being applied to his body as a result of collision with the drunk driver’s errant automobile, it is clear that such force has not been intentionally “used” against the other person by the drunk driver at all, much less in order to perpetrate any crime, including the crime of felony DWI.
243 F.3d at 927. The distinction we made then between force applied against the body of another and force intentionally used against the body of another is one we uphold here.
Our ruling today is also consistent with the result we reached in United States v. Gracia-Cantu, 302 F.3d 308 (5th Cir. 2002). Gracia-Cantu’s sentence was enhanced for a prior Texas felony conviction for injury to a child,7 which the PSR claimed constituted a crime of violence. 302 F.3d at 311.
definition of the offense does not explicitly require the application of force as an element.” Id. at 312. Although we did not further address
B. “An Element”
Because the panel held that the use of force was an element of the offense of intoxication assault, we turn now to address whether the intentional use of force is an element of the crime of intoxication assault. We hold that it is not.
As we have earlier noted, § 2L1.2 allows enhancement when the statute has “as an element the use, attempted use, or threatened use of force.” U.S.S.G. § 2L1.2, Application Note 1(B)(ii)(I) (2001) (emphasis added). Thus, Vargas-Duran’s sentence enhancement depends not only upon the meaning of the word “use”, but also upon whether the predicate offense has the use of force as an element of the crime.9 In our current legal terminology, an element is “[a] constituent part of a claim that must be proved for the claim to succeed.” BLACK’S LAW DICTIONARY 538 (7th ed. 1999). Thus, in order for § 2L1.2 to apply, the intentional use of force must be “a constituent part of a claim that must be proved for the claim to succeed.” See United States v. Williams, 343 F.3d 423, 432 (5th Cir. 2003) (observing that “[t]raditionally, an ‘offense’ was defined by its ‘elements,’ i.e., facts necessary to support a conviction for the offense”). If any set of facts would support a conviction without proof of that component, then the component most decidedly is not an element — implicit or
explicit — of the crime. More specifically, in the case of Vargas-Duran, intentional use of force would have to be an element of the crime of intoxication assault — that is to say that no conviction would be upheld absent proof that the defendant intentionally used force against the person of another. But a requirement that a defendant intentionally use force is simply not an element that needs to be proved under Texas law.
The Texas crime of intoxication assault requires that a prosecutor prove that the defendant (1) by accident or mistake, (2) while operating a motor vehicle in a public place while intoxicated, (3) by reason of that intoxication causes serious bodily injury to another.
Looking only at the fact of Vargas-Duran’s conviction and the statutory definition of intoxication assault, it is clear that the intentional use of force against the person of another is not a necessary component of the offense. The prosecution of Vargas-Duran for the predicate offense in no way rested on proof of any mens rea, much less intent. There is also a difference between a defendant’s causation of an injury and the defendant’s use of force. Consequently, Vargas-Duran’s use of force was simply not a fact necessary to support his conviction for intoxication assault. Because the use of force is not an element of the offense of intoxication assault, Vargas-Duran’s sentence was improperly enhanced.
IV. CONCLUSION
For the foregoing reasons, the enhanced sentence applied by the district court is VACATED, and we REMAND this case for resentencing in accordance with this opinion.
EMILIO M. GARZA, Circuit Judge, joined by BARKSDALE, Circuit Judge, dissenting:
The court’s opinion holds that “use” within the context of U.S. SENTENCING GUIDELINES MANUAL § 2L1.2 (2001) means “intentional use.”11 This holding is inconsistent with the plain language of the sentencing guidelines, and it leads to unsound results for other guidelines where the Sentencing Commission actually includes mens rea elements modifying the term “use.” Further, this holding ignores the Sentencing Commission’s recent revision of U.S.S.G. § 2L1.2, and is inconsistent with the rationale of United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001). Absent this Court’s addition of the mens rea element of intent to the verb “use,” it is clear that the Texas intoxication assault statute is a crime of violence for purposes of U.S.S.G. § 2L1.2. Accordingly, I respectfully dissent.
The 2001 version of U.S.S.G. § 2L1.2, under which Vargas-Duran was sentenced, provides a 16-level sentence enhancement to a base offense level of 8 “[i]f the defendant previously was deported, or unlawfully remained in the United States, after )(A) a conviction for a felony that is . . . (ii) a crime of violence. . . .” U.S.S.G. § 2L1.2(b)(1)(A)(ii). Application Note 1 of the guideline defines “crime of violence” for purposes of § 2L1.2(b)(1) 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. § 2L1.2, cmt. n.1(B)(ii)(I) (2001).12
Despite the plain language of the § 2L1.2 crime of violence definition, the court’s opinion inserts the word “intentional” before the word “use.” There is no mens rea language with respect to the “use of force” element in the § 2L1.2 definition. Cf. United States v. Gonzalez-Lopez, 335 F.3d 793, 798 (8th Cir. 2003) (“[T]he text of the [§ 2L1.2] definition mentions only the actus reas [sic] and is silent as to the mens rea )) or intent element.”). Although there is a presumption that criminal statutes include an element of mental culpability, and strict liability crimes are disfavored, see, e.g., Staples v. United States, 511 U.S. 600, 606, 114 S. Ct. 1793, 128 L. Ed. 2d 608 (1994), the “use of force” requirement in § 2L1.2 is part of a strict liability 16-level sentencing enhancement and not part of a strict liability criminal statute. See United States v. Singleton, 946 F.2d 23, 26 (5th Cir. 1991) (“Singleton was not convicted of a strict liability crime but instead was subject to a strict liability sentencing enhancement.”) (emphasis in original). Even though criminal intent is a required part of the crime constituting the defendant’s underlying conviction, criminal intent is not necessarily a consideration for the district court in the sentencing phase. Id.
at 26-27. Thus, whether the district court must consider the mens rea of the defendant’s underlying conviction depends upon the language of the sentencing guidelines.
“The guidelines drafters have been explicit when they wished to import a mens rea requirement.” Singleton, 946 F.2d at 25. The crime of violence definition under U.S.S.G. § 2L1.2 contains no mens rea language. In contrast, the other section within subpart 2L1 of the sentencing guidelines does include mens rea language. See U.S.S.G. § 2L1.1(b)(5) (“If the offense involved intentionally or recklessly creating a substantial risk of death or serious bodily injury to another person . . . .”) (emphasis added).13 Previously, this Court has refused to read a mens rea requirement into a sentencing guideline absent explicit direction to do so. 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 defendant’s mental state, . . . [t]he section is plain on its face and should not . . . be read to imply a scienter requirement.”); Singleton, 946 F.2d at 25 (“Because statutory sections are to be construed as coherent wholes, the precision of the drafters in including mens rea in neighboring sections indicates that the reason that [§ 2K2.1] does not use the word
‘knowingly’ is that the drafters did not wish such a requirement to apply.”); cf. United States v. Myers, 104 F.3d 76, 81 (5th Cir. 1997) (“As a straightforward matter of textual interpretation, we will not presume that a statutory crime requires specific intent in the absence of language to that effect.”). The fact that the guideline drafters specifically used mens rea language in § 2L1.1 and not in § 2L1.2 indicates they did not intend the term “intentional” to be included before “use” for purposes of § 2L1.2.
Furthermore, interpreting “use” to mean “intentional use” in every sentencing guideline, in accordance with the court’s opinion, leads to curious results. For example, applying the reasoning of the court’s opinion to U.S.S.G. § 2K1.3(b)(3) and inserting the mens rea element “intentional” before the verb “use” would change § 2K1.3(b)(3) to: “If the defendant [intentionally] used or possessed . . . any explosive material with knowledge, intent, or reason to believe that it would be [intentionally] used or possessed in connection with another felony offense . . . .” Thus, the court’s opinion makes the mens rea language purposely included by the Sentencing Commission in this guideline superfluous,14 and departs from clear precedent governing statutory construction.
See United States v. Menasche, 348 U.S. 528, 538-39, 75 S. Ct. 513, 99 L. Ed. 615 (1955) (“It is our duty to give effect, if possible, to every clause and word of a statute.”) (internal citations omitted); United States v. Marek, 198 F.3d 532, 536 (5th Cir. 1999) (“A statute should be interpreted so as to give each provision significance.”) (citing United States v. Nordic Village, Inc., 503 U.S. 30, 36, 112 S. Ct. 1011, 117 L. Ed. 2d 181 (1992)); see also 2A SUTHERLAND STATUTORY CONSTRUCTION § 46.06 (6th ed. 2000) (“A statute should be construed so that effect is given to all its provisions, so that no part would be inoperative or superfluous.”).
To justify its holding that “use” means “intentional use,” the court’s opinion cites to various dictionary definitions. However, by exclusively relying on dictionary definitions, the court’s opinion ignores the Sentencing Commission’s understanding of the term “use” as demonstrated by other guidelines, and disregards clear Supreme Court precedent requiring that the meaning of a statutory provision must be determined within the context of the whole act and not in isolation. See U.S. Nat’l Bank of Oregon v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455, 113 S.Ct. 2173, 124 L. Ed. 2d 402 (1993) (“Over and over we have stressed that ‘in expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.’”) (quoting United States v. Heirs of Boisdore, 49 U.S. (8 How.) 113, 122, 12 L. Ed. 1009 (1849)). I do not dispute that dictionaries are useful tools that assist this court in determining the plain meaning of ambiguous terms. However, before deciding that a term is ambiguous and turning to outside sources we must consider whether other provisions within a particular statute lend clarity to that term. See, e.g., King v. St. Vincent’s Hosp., 502 U.S. 215, 221, 112 S. Ct. 570, 116 L. Ed. 2d 578 (1991) (“[T]he
meaning of statutory language, plain or not, depends on context.”) (internal citations omitted); K Mart Corp. v. Cartier Inc., 486 U.S. 281, 291, 108 S. Ct. 1811, 100 L.Ed. 2d 313 (1988) (“In ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.”).
The meaning of a term should be determined by considering its context within the whole statute in which the term appears. This is a more appropriate indication of what the drafters of that statute understood a particular term to mean than is an outside dictionary definition. This is especially true in the case of the Sentencing Guidelines because the Commission has extensive expertise in this area, promulgates the guidelines in an effort to implement a cohesive policy, and constantly revises the guidelines in an effort to maintain internal consistency. As the preceding discussion indicates, there is no ambiguity surrounding the term “use” when the Sentencing Guidelines are considered as a whole. It is clear that the Sentencing Commission does not understand the verb “use” to inherently include any mens rea element. Thus this Court should not impose a mens rea element upon that verb when the Sentencing Commission has declined to explicitly do so.
In addition to misapplying fundamental principles of statutory construction, the reliance by the court’s opinion upon Chapa-Garza is misguided. First, Chapa-Garza held that “use” means “intentional use” within the context of the 2000 version of U.S.S.G. § 2L1.2‘s definition of a crime of violence, not under the revised 2001 version of this guideline. Chapa-Garza, 243 F.3d at 923. Unlike the 2001 version of § 2L1.2, the 2000 version did not contain its own guideline-specific definition of a crime of violence. Instead, the 2000 definition was found, through a series of cross-references, in
Second, under the rationale of Chapa-Garza, the nature of the 2001 revision of
Third, reliance upon Chapa-Garza for the proposition that “use” means “intentional use” disregards the impact of the revised structure of
Without a mens rea element inappropriately added to the term “use” in
Intoxication assault involves the use of force. As the Eighth Circuit recently recognized in an automobile homicide case, “use of force” involves two components—use and force. Gonzalez-Lopez, 335 F.3d at 798-99. An automobile by its very nature embodies force. Id. (citing Omar v. I.N.S., 298 F.3d 710, 717 (8th Cir. 2002) (“[A] vehicle can exert considerable physical force because of its structure, weight and capacity for motion and velocity.“)). Furthermore, the drunk driver is clearly using and employing the force embodied in the motor vehicle by operating it. Gonzalez-Lopez, 335 F.3d at 799. Finally, the state intoxication assault statute ties the drunk driver‘s use together with the force of the automobile through its requirement that the “serious bodily injury” result from the driver‘s intoxication “while operating the motor vehicle.”
The actions punished by the intoxication assault statute involve instances where the defendant drove his car while drunk and hit a pedestrian, another vehicle, or a stationary object causing serious bodily harm to another. In the hands of a drunk, a motor vehicle is as likely to inflict physical force as a firearm.17 There are no Texas state law cases where intoxication assault was prosecuted and actual force was not used to cause the injury.18 Even Vargas-Duran admitted in his briefs to this Court that he could not find any Texas intoxication assault case that did not involve one of these scenarios. The most attenuated intoxication assault fact pattern actually prosecuted was the situation where a drunk driver ran his car into a parked vehicle, and the parked vehicle then struck a small child causing serious injuries. See Gonzalez v. Texas, No. 14-99-00853-CR, 2000 WL 1721159, at *1 (Tex.App.—Houston [14th Dist.] Oct. 12, 2000, no pet.) (not designated for publication). Clearly, even in this situation the defendant used force to cause physical harm. The Texas intoxication assault statute punishes an intoxicated driver for causing serious bodily injury to another by reason of their operation of a motor vehicle, thus the statute fulfills the “use of force” requirement and is a crime of violence for purposes of the 16-level enhancement in
In summary, this court‘s decision abrogates the Sentencing Commission‘s authority, properly delegated by Congress, to establish the mens rea required for each sentencing guideline. The Sentencing Commission could have included the mens rea element of intent in
Accordingly, I respectfully DISSENT.
DeMOSS, Circuit Judge, Specially concurring in part:
I agree with Judge Clement‘s majority opinion that under the definition of “crime of violence” in the 2001 version of
- That predicate offense is not specifically named in the Guideline definition; and
- That predicate offense does not have as an element “the use or attempted use or threatened use of physical force against the person of another,” as Judge Clement so clearly articulates in Part IIIB of her majority opinion.
I reach this conclusion because neither the word “use” nor the word “force” nor the word “attempted” nor the word “threatened” appears anywhere in the text of the statute defining this predicate offense; nor should these terms be read into that statute by inference.
However, I agree with Judge Garza‘s dissent that we should not make this decision by relying upon our prior holding in Chapa-Garza because:
- That opinion was issued prior to the issuance of the new
U.S.S.G. §2L1.2 in 2001; and - This new definition of “crime of violence” does not have any cross-reference to either
8 U.S.C. § 1101 (a)(43)(F) , nor to18 U.S.C. § 16(a) or(b) , nor toU.S.S.G. §4B1.2 , as did the version of§2L1.2 which was applicable at the time Chapa-Garza was decided.
I find myself in a straddle position, agreeing with the result of Judge Clement‘s opinion, but disagreeing with Part IIIA of her opinion in which she relies on Chapa-Garza to interpret the language of
Given that the district courts of the Fifth Circuit handle more illegal alien cases than other district courts (and our Circuit sees more appeals of these cases than any other Circuit) and given that most of these illegal alien cases involve defendants with prior criminal convictions, I think it would be appropriate, time-saving, and cost-effective to set forth for the benefit of the bench and bar some ground rules and procedures for applying the new
Ground Rules for Interpretation
- The definitions in Application Note 1(B) of
§2L1.2 are expressly limited to subsection (b)(1) of that Guideline. - The definition of “crime of violence” in Application Note 1(B)(ii) was inserted by the Sentencing Commission in 2001 and differs significantly from other definitions of “crime of violence” in the criminal code and in the Guidelines. Therefore, any interpretation of this definition in Vargas-Duran should not be derived from other statutes or guidelines where other definitions of that term are used; and any interpretation here in Vargas-Duran is applicable only to cases applying the
§2L1.2 Guideline. Similarly, definitions of “crime of violence” prior to the 2001 amendments to§2L1.2 are no longer applicable to sentencing after November 1, 2001, under that Guideline. - The new definition of “aggravated felony” in Application Note 2 of
§2L1.2 is expressly limited to subsection (b)(1)(C) of that Guideline; and therefore any interpretation of that term here in Vargas-Duran should not be derived from other statutes or guidelines which define that term differently; and any interpretations here in Vargas-Duran are applicable only to cases applying§2L1.2 . Likewise, prior definitions of the term “aggravated felony” under prior versions of§2L1.2 are no longer controlling. - In adopting the new definitions of “crime of violence” and “aggravated felony” in the 2001 Guidelines, the Sentencing Commission clearly intended to change the type of predicate offenses which would qualify as a “crime of violence.” Therefore, we should strictly construe the language used in the 2001 version of “crime of violence” particularly as defined by (B)(ii)(I).
- In comparing the language used in the new definition of “crime of violence” it should be noted that:
- Not all of the specifically named offenses in subpart (II) meet the definitional test in subpart (I), which should lead to the conclusion that the specifically named crimes take precedence over the definition; and
- The definition in subpart (I) is identical to
18 U.S.C. § 16(a) except that it omits the words “or property”after the word “person;” which leads to the conclusion that a crime against property which is not specifically named in subpart (II) cannot be a crime of violence under subpart (I). - The list of specifically named offenses in subpart (II) is the same as the list of offenses which are crimes of violence under the definition in Application Note
§4B1.2 , but none of the definitions in§2L1.2 include any of the other definitions of a “crime of violence” which appear in§4B1.2 , which focus on “conduct that by its nature, presented a serious potential risk of physical injury to another.” This difference clearly indicates that in determining what constitutes a “crime of violence” under subpart (I) of§2L1.2 , we should not consider18 U.S.C. § 16(b) which focuses on conduct that “by its nature involves a substantial risk that physical force may be used against another” or§4B1.2 which focuses on “conduct that presents a serious potential risk of physical injury to another.”
In view of the foregoing, I propose that we craft a clear and methodical approach for determining sentencing enhancements under the current
In determining the appropriate sentencing enhancement under
Step 1: I would determine whether the predicate offense is one of the specifically named offenses found in Application Note 1(B)(ii)(II), which includes “murder, manslaughter, kidnaping, aggravated assault, forcible sex offenses (including sexual abuse of a minor), robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.” If the predicate offense at issue is one of these listed offenses, a 16-level enhancement is appropriate and no further analysis is required.
Step 2: If the predicate offense is not a specifically named, per se “crime of violence,” I would then refer to the general definition found in Application Note 1(B)(ii)(I), which defines “crime of violence” 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.” In determining whether the predicate offense falls under this guideline definition, I would look only to the text of the statutory provision at issue to identify whether the requisite element is present. If the statutory definition does not contain such an element, i.e., the use, attempted use, or threatened use of physical force against the person of another, then analysis under the 16-level enhancement is complete, making appropriate an analysis of the predicate offense under the 8-level “aggravated
Step 3: To determine whether the predicate offense constitutes an “aggravated offense” warranting an 8-level enhancement, the court should look to the definition provided by
Step 4: If the predicate offense is a felony conviction that does not meet the definitional standard for “aggravated felony” as provided by
Step 5: Finally, if the predicate offense is not a felony but rather an aggregate of three or more misdemeanors deemed to be crimes of violence or drug trafficking offenses, the defendant is subject to a 4-level enhancement.
Applying Step 1 of this proposed methodology to the facts in Vargas-Duran, it is clear that intoxication assault is not one of the specifically named offenses found in Application Note 1(B)(ii)(II). Therefore, the focus of analysis is on Step 2 to determine whether the statute at issue “has as an element the use, attempted use, or threatened use of physical force against the person of another.” One is guilty of intoxication assault in Texas if he “by accident or mistake . . . while operating a motor vehicle in a public place while intoxicated, by reason of that intoxication causes serious bodily injury to another.”
I would next move on to Step 3 and analyze intoxication assault under the lens of an “aggravated felony.” Application Note 2 refers us to
Section 16(b) applies if the predicate offense is a felony 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.” It seems clear to me that this broader definition, which includes
Bottom line, I would vacate the 16-level enhancement imposed by the district court and remand the case back with specific instructions to apply the 8-level enhancement in accordance with the methodology set forth herein.
Notes
Section 1326, title 8, states in pertinent part:
(a) In general
Subject to subsection (b) of this section, any alien who —
(1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter
(2) enters, attempts to enter, or is at any time found in, the United States, unless (A) prior to his reembarkation at a place outside the United States or his application for admission from foreign contiguous territory, the Attorney General has expressly consented to such alien’s reapplying for admission; or (B) with respect to an alien previously denied admission and removed, unless such alien shall establish that he was not required to obtain such advance consent under this chapter or any prior Act,
shall be fined under title 18, or imprisoned not more than 2 years, or both.
(b) Criminal penalties for reentry of certain removed aliens
Notwithstanding subsection (a) of this section, in the case of any alien described in such subsection —
. . .
(2) whose removal was subsequent to a conviction for commission of an aggravated felony, such alien shall be fined under such title, imprisoned not more than 20 years, or both[.]
Chapa-Garza was decided under
Lest this Court be accused of selectively defining “use” to comport with the result reached in this case, we hasten to add that other dictionaries have similarly defined the term. According to The American Heritage Dictionary, “use” means “[t]o put into service or apply for a purpose; employ.” THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1894 (4th ed. 2000). The verb form of “use” as stated in the Encarta World English Dictionary is defined as meaning “to employ something for some purpose or to put something into action or service,” while the noun form is defined as “the act of using something for a particular purpose.” ENCARTA WORLD ENGLISH DICTIONARY 1956 (1999). One Webster’s dictionary gives the primary definition of “use” as “the act or practice of employing something,” and a secondary definition as “to put into action or service: avail oneself of: employ.” WEBSTER’S NEW COLLEGIATE DICTIONARY 1279 (6th ed. 1979). Finally, “use” has been defined as “the act or practice of using something: employment,” or “to put into action or service.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED 2523 (1993).
The complete text of the 2001 version of § 2L1.2‘s crime of violence definition for purposes of subsection (b)(1) is:
“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 a minor), robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.
U.S.S.G. § 2L1.2 cmt n.1(B)(ii) (2001).