Case Information
*1 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 *2 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 predicat e 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.” T EX . P ENAL C ODE A NN . § 49.07 (1994). 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 *3 unlawfully present in the United States in violation of 8 U.S.C. § 1326(a) and (b)(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 sixt een-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 *4 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
,
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
,
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.
*6
The dissent from the panel majority’s ruling in
Vargas-Duran
argued that “use”, by its very
definition, requires intent.
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
,
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
,
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
*7
without operative effect.
Texaco Inc. v. Duhé
,
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.” B LACK ’ S L AW D ICTIONARY 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 T HE O XFORD E NGLISH D ICTIONARY 350 (2d ed. 1989) (emphasis added). Similarly, another dictionary observes that “SERVICE, ADVANTAGE, PROFIT, ACCOUNT, AVAIL, and USE have in common a sense of a useful or valuable end, result, or purpose . USE stresses the practicality of the end, result, or purpose for which something is employed.” W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY *8 OF THE E NGLISH L ANGUAGE U NABRIDGED 2523 (1993) (emphasis added). 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 B LACK ’ S L AW D ICTIONARY 123, 1489 (7th ed. 1999) (defining “attempt” and “threat”). Were we to interpret “use of force” inconsistently with its plain meaning – t hat 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 *9 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
,
Nothing in our opinion in Chapa-Garza encouraged a reading restricting our plain-meaning analysis of the word “use” to the context of only § 16(b). Section 16(b)’s dictate that “physical force . . . may be used” does not differ substantially from § 2L1.2's “use of force” requirement. The distinction we made between the application of force against the body of another does not necessarily mean that the use of that force was intentional.
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.
Our ruling today is also consistent with the result we reached in
United States v. Gracia-
Cantu
,
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.” B LACK ’ S L AW D ICTIONARY 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
,
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. T EX . P ENAL C ODE A NN . § 49.07 (1994). Texas courts have held that the very words “by accident or mistake” plainly dispense with any mens rea requirement. Stidman v. State , 981 S.W.2d 227, 230 (Tex. App. 1998). Therefore, all that need be proved for a conviction is an intoxicated driver’s operation of a motor vehicle in a public place that results in a serious bodily injury to another. No mens rea need be established for prosecution.
Further, the fact that the statute requires that serious bodily injury result from the operation of a motor vehicle by an intoxicated person does not mean that the statute requires that the defendant have used the force that caused the injury. All that the statute requires is that a bodily injury occur and that the injury was causally linked to the conduct of the defendant. No facts beyond these need be established in order for a conviction to lie.
*13 Looking only at the fact of Vargas-Duran’s conviction and t he 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.
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 U.S.S.G. §2L1.2 the predicate offense here in Vargas-Duran (i.e., intoxication assault under Tex. Pen. Code Ann. § 49.07) is not a “crime of violence” because:
A. That predicate offense is not specifically named in the Guideline definition; and
B. 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 “t hreatened” 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:
A. That opinion was issued prior to the issuance of the new U.S.S.G. §2L1.2 in 2001; and
B. This new definition of “crime of violence” does not have any cross-reference *15 to either 8 U.S.C. § 1101 (a)(43)(F), nor to 18 U.S.C. § 16(a) or (b), nor to U.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 Application Note 1(B)(ii)(I) as requiring an “intentional use of force.” Likewise, I disagree with Judge Garza’s interpretation of Tex. Pen. Code Ann. § 49.07 as containing as an element thereof the “use or threatened use or attempted use of physical force against the person of another” so as to come within the language of Note 1(B)(ii)(I), but I agree with much of his dissent, which reviews the history and purpose of the complete change made by the Sentencing Commission in 2001 in the text of §2L1.2 and the importance of construing the definitions of “crime of violence” and “aggravated felony” as set forth therein as new separate free standing definitions.
Given that the district court s 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 §2L1.2. Towards that end I make the following suggestions:
Ground Rules for Interpretation
1. The definitions in Application Note 1(B) of §2L1.2 are expressly limited to subsection (b)(1)
of that Guideline. 2. 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 t he 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.
3. 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.
4. 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 *17 the language used in t he 2001 version of “crime of violence” particularly as defined by (B)(ii)(I).
5. In comparing the language used in the new definition of “crime of violence” it should be noted
that:
A. 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 B. 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).
C. 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 *18 consider 18 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 §2L1.2 for the benefit of the bench and bar. In so doing, it is important to reemphasize that in rendering this proposal for construing the provisions of §2L1.2, I am not suggesting that we attempt to arrive at a one-size-fits-all definition of “crime of violence” that purports to apply to other guideline provisions which utilize the crime of violence terminology. Rather, this is a provision-specific proposal that hopefully adds a little clarity to a much muddled area of the law.
In determining the appropriate sentencing enhancement under §2L1.2, the Guidelines direct courts to “apply the greatest” of the enhancement levels, beginning with the 16-level and ending with the 4-level enhancement. Therefore, whenever the issue for enhancement involving a potential “crime of violence” under §2L1.2 is raised, I would determine the appropriate enhancement level as follows:
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 o f a dwelling.” If the predicate offense at issue is one of these listed *19 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 felony” definition. [11]
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 8 U.S.C. § 1101(a)(43), which retains and restores the analysis of 18 U.S.C. § 16(a) and (b). Under § 16(a) and (b), a predicate offense is an “aggravated felony” if it either “has as an element the use, attempted use, or threatened use of *20 physical force against the person or property of another” or 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.” Step 4 : If the predicate offense is a felony conviction that does not meet the definitional standard for “aggravated felony” as provided by § 1101(a)(43), the offense automatically receives a 4-level enhancement pursuant to §2L1.2(b)(1)(D). 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.” T EX . P EN . C ODE A NN . § 49.07(b). Nowhere in the text of that statute does there exist an element contemplating the use, attempted use, or threatened use of physical force nor can such an element be read into the statute. The guidelines simply command us to extend our analysis no further than the statutory elements. Therefore, intoxication assault cannot *21 be a “crime of violence” and a 16-level enhancement is improper.
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 § 16(a) and (b) where we must decide whether intoxication assault fits within either statutory definition. Section 16(a) is a near identical recitation of the general definition of “crime of violence” found in Application Note 1(B)(ii)(I). The only meaningful difference is the inclusion of one’s property in the former. Therefore, as I have already determined that intoxication assault does not involve using, attempting to use, or threatening to use physical force against the person of another, we can similarly conclude that intoxication assault does not contemplate the use of such force against the property of another. Accordingly, I focus on § 16(b).
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 such terms as “substantial risk” and “may be used,” is sufficient to capture the nature of the conduct in the intoxication assault statute. There is certainly a substantial risk that someone may suffer serious bodily injury as a result of an intoxicated driver’s operation of a motor vehicle, whether or not physical force is used in committing the offense. Therefore, because intoxication assault falls under the definition of an “aggravated felony” as contemplated by the Sentencing Guidelines, Vargas- Duran’s sentence is subject to an 8-level enhancement.
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.
EMILIO M. GARZA, Circuit Judge, joined by RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting:
The court’s opinion holds that “use” within the context of U.S. S ENTENCING G UIDELINES
M ANUAL § 2L1.2 (2001) means “intentional use.” 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
,
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 *24 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). [13]
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
,
“The guidelines drafters have been explicit when they wished to import a mens rea
requirement.”
Singleton
,
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, and departs from clear precedent governing statutory construction.
*27
See United States v. Menasche
,
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
.,
consider whether other provisions within a particular statute lend clarity to that term.
See, e.g.
,
King v. St. Vincent’s Hosp.
,
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
,
Second, under the rationale of
Chapa-Garza
, the nature of the 2001 revision of § 2L1.2
counsels against relying upon previous interpretations of 18 U.S.C. § 16 in this case.
Cf. Chapa-
Garza
,
Third, reliance upon
Chapa-Garza
for the proposition that “use” means “intentional use”
disregards the impact of the revised structure of § 2L1.2. In the Sentencing Commission’s effort
to create a more graduated sentence enhancement system under U.S.S.G. § 2L1.2, the
*31
Commission included four separate enhancement levels in the 2001 version of the guideline rather
than the two separate enhancement levels contained in the 2000 version.
See
U.S.S.G. App. C,
amend. 632;
see also United States v. Caicedo-Cuero
,
Without a mens rea element inappropriately added to the term “use” in U.S.S.G. § 2L1.2, it becomes clear that Vargas-Duran’s underlying conviction for felony intoxication assault is a “crime of violence” for purposes of the 16-level enhancement in § 2L1.2(b)(1)(A). Intoxication assault punishes a defendant if “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.” T EX . *32 P ENAL C ODE A NN . § 49.07(a)(1) (Vernon 1994). “Serious bodily injury” is defined as “injury that creates a substantial risk of death or that causes serious permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ.” T EX . P ENAL C ODE A NN . § 49.07(b) (Vernon 1994).
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
,
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. There are no Texas state law cases where intoxication assault *33 was prosecuted and actual force was not used to cause the injury. 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 U.S.S.G. § 2L1.2.
Vehicle Crashes 2000 at 2 (2002) at
http://www.nhtsa.dot.gov/people/economic/EconImpact2000/EconomicImpact.pdf (last visited Nov. 21, 2003). Furthermore, in Texas 1,745 of the 3,725 traffic fatalities were alcohol related in the year 2002. National Highway Traffic Safety Administration, 2002 Annual Assessment of Motor Vehicle Crashes 29, 50 (2002) at http://www-nrd.nhtsa.dot.gov/pdf/nrd- 30/NCSA/Rpts/2003/Assess02BW.pdf (last visited Nov. 21, 2003). Firearm related fatalities accounted for 28,663 deaths nationwide in the year 2000. Center for Disease Control, Deaths: Final Data for 2000, 50 National Vital Statistics Reports No. 15 at tbl.18 (2002) at http://www.cdc.gov/nchs/data/nvsr/nvsr50/nvsr50_15.pdf (last visited Nov. 21, 2003). Of the 28,663 firearm related fatalities nationwide 1,972 occurred in the state of Texas. Bureau of Vital Statistics, Texas Department of Health, 2000 Annual Report tbl.18 at http://www.tdh.state.tx.us/bvs/stats00/ANNR_HTM/00t18.HTM (last visited Nov. 21, 2003). Vargas-Duran’s conviction is the quintessential Texas intoxication assault case. Vargas- Duran was driving while intoxicated, struck a pedestrian who was attempting to cross the street, and fled the scene. Thus Vargas-Duran caused the precise harm the Texas intoxication assault statute seeks to avoid. By striking a pedestrian with a motor vehicle Vargas-Duran certainly used force to cause a serious bodily injury.
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 U.S.S.G. § 2L1.2, but the language of that guideline indicates that it did not choose to do so. Moreover, the court’s decision contradicts the rationale of our prior cases interpreting the Sentencing Guidelines. Accordingly, I respectfully DISSENT.
Notes
[1] The 1999 amendment to this statute is of no moment to this appeal.
[2] 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[.]
[3] Chapa-Garza was decided under 18 U.S.C. § 16(b), a predecessor of § 2L1.2 (the guideline at issue in the present appeal). Chapa-Garza’s sentence was enhanced by the district court because it determined that DWI was an aggravated felony. An aggravated felony was, in turn, defined as, among other things, a crime of violence. Section 16(b) of Title 18 provided that a crime of violence was “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 .” Cf. § 2L1.2 (2000) (defining a 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”).
[4] 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.” T HE A MERICAN H ERITAGE D ICTIONARY OF THE E NGLISH L ANGUAGE 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.” E NCARTA W ORLD E NGLISH D ICTIONARY 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.” W EBSTER ’ S N EW C OLLEGIATE D ICTIONARY 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.” W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY OF THE E NGLISH L ANGUAGE U NABRIDGED 2523 (1993).
[5] We recognize that a member of this Court in dissenting from our denial of
en banc
rehearing in
United States v. Chapa-Garza
,
[6] There is a Circuit split on the issue of whether “use of force” in the context of Sentencing
Guidelines requires intent.
See United States v. Lucio-Lucio
, No. CR-02-1403WPJ, 2003 WL
22436260, at *3 (10th Cir. Oct. 28, 2003) (ruling that the “use of force” contemplated by § 16(b)
“carries a connotation of at least some degree of intent”);
Bazan-Reyes v. INS
,
[7] Injury to a child is committed when a person “intentionally, knowingly, recklessly, or with criminal negligence, by act or intentionally, knowingly, or recklessly by omission, causes to a child, elderly individual, or disabled individual: (1) serious bodily injury; (2) serious mental deficiency, impairment, or injury; or (3) bodily injury.” T EX . P ENAL C ODE A NN . § 22.04(a) (2002).
[8] This interpretation also comports with our assessment, infra , that not only must force be used intentionally, but such use must also be “an element” of the predicate offense.
[9] The panel explicitly ruled that “[b]ecause the Texas crime of intoxication assault has
as
an element
the use of force against the person of another, we conclude that the district court did
not err in imposing the 16-level enhancement.”
Vargas-Duran
,
[10] Our ruling on the “element” requirement of this Sentencing Guideline is consistent with
that of the Second Circuit in
Chrzanoski v. Ashcroft
,
[11] I recognize that there exists an intermediate 12-level enhancement for felony drug trafficking offenses that carry a sentence exceeding 13 months; however, for the purposes of our inquiry in Vargas-Duran, I have not included this relatively straightforward enhancement in my discussion.
[12] There is confusion among the circuit courts regarding the mens rea requirements for
“use of force.”
Compare United States v. Gonzalez-Lopez
,
[13] 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).
[14] See also U.S.S.G. § 2L2.1(b)(3) (“If the defendant knew , believed , or had reason to believe that a passport or visa was to be used to facilitate the commission of a felony offense . . .”) (emphasis added); U.S.S.G. § 2K1.3(b)(2) (“If the offense involved any explosive material that the defendant knew or had reason to believe was stolen . . .”) (emphasis added); U.S.S.G. § 2K1.3(b)(3) (“If the defendant used or possessed . . . any explosive material with knowledge , intent , or reason to believe that it would be used or possessed in connection with another felony offense . . .”) (emphasis added); U.S.S.G. § 2K1.3(c)(1) (“If defendant . . . possessed or transferred any explosive material with knowledge or intent that it would be used or possessed in connection with another offense . . .”) (emphasis added); U.S.S.G. § 2K1.4(a)(1) (“[I]f the offense (A) created a substantial risk of death or serious bodily injury to any person . . ., and that risk was created knowingly . . .”) (emphasis added); U.S.S.G. § 2K1.4(c)(1) (“If . . . the offense was intended to cause death or serious bodily injury . . .”) (emphasis added); U.S.S.G. § 2K1.5(b)(1) (“If the offense was committed willfully and without regard for the safety of human life , or with reckless disregard for the safety of human life . . .”) (emphasis added); U.S.S.G. § 2K1.5(a)(3) (“If . . . he acted with mere negligence . . .”) (emphasis added).
[15] The court’s opinion claims “we would effectively nullify the state of mind required by ‘attempted use’ and ‘threatened use’” in the § 2L1.2 crime of violence definition by not reading a mens rea requirement into the meaning of the term use because “attempt and threat require intent.” An “attempted use” or “threatened use” of force is a discrete action and by definition is not the “use” of force. As the definitions cited in the court’s opinion indicate, “intent” is specifically included in the terms “attempt” and “threat.” See B LACK ’ S L AW D ICTIONARY 127 (6th ed. 1990) (defining attempt as “[a]n intent to commit a crime couple with an act taken toward committing the offense”) (emphasis added); B LACK ’ S L AW D ICTIONARY 1480 (6th ed. 1990) (defining threat as “a communicated intent to inflict physical or other harm on any person or property”) (emphasis added). Intent, however, is not specifically included in the verb “use” itself. The absence of a mens rea associated with the “use of force” does not mean force cannot
[16] Section 16 and § 2L1.2 are two of the eight versions of a “crime of violence” definition
in the United States Code and in the United States Sentencing Guidelines.
See United States v.
Charles
,
[17] Based upon the rationale of Chapa-Garza , it is even more appropriate to distinguish the 2001 § 2L1.2 crime of violence definition from the 18 U.S.C. § 16 crime of violence definition because there are more significant differences between these definitions than between those considered in Chapa-Garza itself. Specifically, the language of U.S.S.G. § 4B1.2(a), which Chapa-Garza distinguished, is closer to that of 18 U.S.C. § 16 than 18 U.S.C. § 16 is to the language of the crime of violence definition in the 2001 version of U.S.S.G. § 2L1.2. See U.S.S.G. § 2L1.2, cmt. n.1(B)(ii)(II). But see U.S.S.G. § 4B1.2(a)(2) (including within the definition, in addition to the listed crimes, other crimes which “present[] a serious risk of physical injury”); 18 U.S.C. § 16(b) (including within the definition additional crimes involving a “substantial risk that physical force . . . may be used,” and not listing any specific offenses).
[18] “Alcohol-involved crashes resulted in 16,792 fatalities, 513,000 nonfatal injuries, and $50.9 billion in economic costs in 2000, accounting for 22 percent of all crash costs.” Lawrence J. Blincoe et. al., National Highway Traffic Safety Administration, The Economic Impact of Motor