Case: 10-40451 Document: 00511344553 Page: 1 Date Filed: 01/07/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 7, 2011
No. 10-40451 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
ABELARDO SANCHEZ-LEDEZMA,
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before GARZA, STEWART, and HAYNES, Circuit Judges.
HAYNES, Circuit Judge:
Abelardo Sanchez-Ledezma appeals his sentence of eighteen months
imprisonment following his guilty plea to and conviction for illegally reentering
the United States following removal, in violation of 8 U.S.C. § 1326. Specifically,
Sanchez-Ledezma challenges the district court’s imposition of an eight-level
sentence enhancement for a prior “conviction for an aggravated felony,” namely,
the Texas state-law felony of evading arrest or detention with a motor vehicle.
U.S. S ENTENCING G UIDELINES M ANUAL (“U.S.S.G.”) § 2L1.2(b)(1)(C) (2009); see
also T EX. P ENAL C ODE A NN. § 38.04(b)(1) (West 2003). Sanchez-Ledezma argues
that the crime of evading arrest with a motor vehicle is, as a matter of law, not
an “aggravated felony” for purposes of § 2L1.2.
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No. 10-40451
The logic of our decision in United States v. Harrimon, 568 F.3d 531 (5th
Cir.), cert. denied, 130 S. Ct. 1015 (2009), compels affirmance. While Harrimon
concerned the analysis of section 38.04(b)(1) as a “violent felony” under a
different statute with an importantly different standard, our reasoning in that
decision nevertheless governs here.1
I. Facts & Procedural History
Abelardo Sanchez-Ledezma was charged by a single-count indictment with
illegally reentering the United States after departing under an order of removal
in violation of 8 U.S.C. § 1326. Sanchez-Ledezma pleaded guilty to that charge
without a plea agreement. At his rearraignment, Sanchez-Ledezma
acknowledged that he was a Mexican citizen; that he had been removed
previously from the United States to Mexico; and that he was subsequently
found in Laredo, Texas, without having been lawfully admitted to the United
States.
Pertinent to the appeal here, at the first sentencing hearing, the district
court apprised Sanchez-Ledezma that its independent assessment had concluded
that the evading arrest conviction should have been treated as an “aggravated
felony” under § 2L1.2(b)(1)(C), for which an eight-level enhancement would
apply, rather than a sixteen-level “crime of violence” as proposed in the original
PSR or a residual four-level “other felony” as proposed in the amended PSR. The
court gave Sanchez-Ledezma an opportunity to file a written objection to the
aggravated felony enhancement, which he did. The district court overruled that
1
We note, as do the parties, that the Supreme Court has granted certiorari in a case
from the Seventh Circuit presenting a very similar issue as that decided in Harrimon. See
United States v. Sykes, 598 F.3d 334 (7th Cir.), cert. granted, 131 S. Ct. 63 (2010). Our usual
practice is to rule based on present law, not to wait for the Supreme Court’s decision. See
United States v. Lopez-Velasquez, 526 F.3d 804, 808 n.1 (5th Cir. 2008) (“Absent an
intervening Supreme Court case overruling prior precedent, we remain bound to follow our
precedent even when the Supreme Court grants certiorari on an issue.”). That course is
especially appropriate here, where we have previously granted the appellant’s motion to
expedite the appeal.
2
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objection, calculated a Guidelines range of eighteen to twenty-four months
imprisonment, and imposed a sentence of eighteen months imprisonment with
a three-year term of supervised release.
Sanchez-Ledezma timely appealed his sentence, arguing that his evading
arrest conviction should have been treated as a four-level “other felony” under
§ 2L1.2(b)(1)(D) rather than an eight-level “aggravated felony” under
§ 2L1.2(b)(1)(C). Sanchez-Ledezma offers no other challenge to his plea,
conviction, or sentence on appeal.
II. Standard of Review
This appeal concerns only the interpretation of the United States
Sentencing Guidelines and statutory provisions incorporated in the Sentencing
Guidelines by reference. Sanchez-Ledezma’s argument that the district court
erred in this interpretation raises a claim of “significant procedural error” under
Gall v. United States, 552 U.S. 38, 51 (2007), which is reviewed de novo. See
United States v. Klein, 543 F.3d 206, 213 (5th Cir. 2008) (“An error in applying
the guidelines is a significant procedural error that constitutes an abuse of
discretion.”); United States v. Jeffries, 587 F.3d 690, 692 (5th Cir. 2009).
III. Discussion
The sole question presented by this case is whether an offense under
section 38.04(b)(1) of the Texas Penal Code is an “aggravated felony” within the
meaning of United States Sentencing Guidelines Manual § 2L1.2(b)(1)(C). The
district court answered that question in the affirmative, relying heavily on our
decision in Harrimon, and we agree.
The first step in our analysis is tracing the definition of “aggravated
felony.” The Application Notes to § 2L1.2 provide that, “[f]or purposes of
subsection (b)(1)(C), ‘aggravated felony’ has the meaning given that term in
section 101(a)(43) of the Immigration and Nationality Act,” codified at 8 U.S.C.
§ 1101(a)(43). U.S.S.G. § 2L1.2 cmt. n.3(A). Section 1101(a)(43) in turn defines
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No. 10-40451
aggravated felony as including, among other enumerated crimes, “a crime of
violence (as defined in section 16 of title 18 [of the United States Code], 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) (2006). Section 16, in turn, defines
“crime of violence” as
(a) an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another, or
(b) 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.
18 U.S.C. § 16 (2006). The district court held, and the parties agree, that only
the § 16(b) definition is potentially applicable in this case; and it is similarly
undisputed that Sanchez-Ledezma’s prior conviction was a felony.
Consequently, the true question presented by this appeal is whether the crime
of evading arrest with a motor vehicle is an “offense . . . 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.” § 16(b). This
inquiry requires a “categorical approach,” United States v. Chapa-Garza, 243
F.3d 921, 924 (5th Cir. 2001), under which we “look to the elements and the
nature of the offense of conviction, rather than to the particular facts relating to
[the particular defendant’s] crime,” Leocal v. Ashcroft, 543 U.S. 1, 7 (2004). We
have further explained that a “substantial risk” of physical force “requires a
strong probability that the application of physical force during the commission
of the crime will occur,” United States v. Rodriguez-Guzman, 56 F.3d 18, 20 (5th
Cir. 1995); that the use of force is merely “conceivable” is not sufficient, United
States v. Landeros-Gonzales, 262 F.3d 424, 427 (5th Cir. 2001).
We turn, then, to the crime of which Sanchez-Ledezma was previously
convicted, evading arrest with a motor vehicle. In relevant part, the version of
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section 38.04 of the Texas Penal Code under which Sanchez-Ledezma was
convicted provided:
(a) A person commits an offense if he intentionally flees from a
person he knows is a peace officer attempting lawfully to arrest or
detain him.
(b) An offense under this section is . . . (1) a state jail felony if the
actor uses a vehicle while the actor is in flight . . . .
T EX. P ENAL C ODE A NN. § 38.04 (West 2003).2 Our interpretation of this statute
in relation to the § 16(b) definition of “crime of violence” is a question of first
impression as such, but we are guided in that analysis by our recent decision in
Harrimon, 561 F.3d at 534–37.3
In Harrimon, we considered whether the crime of evading arrest with a
motor vehicle was “typically . . . purposeful, violent, and aggressive” as required
by the Supreme Court’s interpretation of § 924(e)(2)(B)(ii) in Begay v. United
States, 553 U.S. 137, 144–45 (2008) (internal quotation marks omitted). Our
assessment concluded
that fleeing by vehicle is purposeful, violent, and aggressive. First,
it is purposeful: . . . fleeing by vehicle requires intentional conduct.
Further, it is aggressive. As commonly understood, aggressive
behavior is offensive and forceful and characterized by initiating
hostilities or attacks. Fleeing by vehicle requires disregarding an
officer’s lawful order, which is a clear challenge to the officer’s
authority and typically initiates pursuit. This active defiance of an
attempted stop or arrest is similar to the behavior underlying an
escape from custody, which, as the Supreme Court noted in
2
The provision was amended in 2009 and renumbered in part. See Act of May 27, 2009,
81st Leg., R.S., ch. 1400, § 4, 2009 Tex. Gen. Laws 1400 (codified at TEX . PENAL CODE ANN .
§ 38.04 (West Supp. 2010)).
3
We note at the outset that the appellant is quite correct that Harrimon decided
whether a conviction under section 38.04(b)(1) was a “violent felony” within the meaning of
the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e) (2006), which depends upon a
test that is different in kind from that under § 16(b). Under the provisions of the statute itself,
a “violent felony” includes any felony that “involves conduct that presents of serious risk of
physical injury to another.” Id. § 924(e)(2)(B)(ii).
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Chambers [v. United States], is “less passive” and “more aggressive”
than that likely underlying failure to report. Fleeing by vehicle is
also violent: the use of a vehicle, usually a car, to evade arrest or
detention typically involves violent force which the arresting officer
must in some way overcome. . . . [N]ot only the arresting officer or
officers, but also pedestrians and other motorists are subject to this
force. Further, fleeing by vehicle will typically lead to a
confrontation with the officer being disobeyed, a confrontation
fraught with risk of violence.
568 F.3d at 534–35 (citing and quoting Chambers v. United States, 129 S. Ct.
687, 691 (2009)) (other internal citations and quotation marks omitted).
Sanchez-Ledezma argues that Harrimon does not expressly evaluate the
risk that an actor would intentionally employ force in the course of committing
a violation of section 38.04(b)(1) and focuses on the incidental risk of injury to
bystanders rather than the risk of the intentional use of force. As the passage
quoted above makes quite clear, that argument fails. We explained in Harrimon
that the crime at issue in both that case and this “typically involves violent force
which the arresting officer must in some way overcome” and “will typically lead
to a confrontation with the officer being disobeyed, a confrontation fraught with
risk of violence.” 568 F.3d at 535.4 Our ultimate conclusion was that evading
arrest with a vehicle met the standard for “aggressiveness” under Begay, which
we characterized as involving “offensive and forceful [behavior] . . . characterized
by initiating hostilities or attacks.” Id. at 534. These conclusions bear directly
on the question of the risk of the use of physical force against a person in the
course of committing the offense.
Evading arrest with a motor vehicle is, by the logic of Harrimon, a “crime
of violence” for purposes of § 16(b), and therefore an “aggravated felony” for
purposes of § 1101(a)(43)(F). The district court properly applied the
4
The repeated use of the word “typically” reflects the fact that the ACCA, like § 16(b),
requires a categorical approach. See Taylor v. United States, 495 U.S. 575, 602 (1990).
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§ 2L1.2(b)(1)(C) eight-level enhancement to Sanchez-Ledezma’s sentence
calculation.
IV. Conclusion
For the foregoing reasons, the judgment and sentence imposed by the
district court are AFFIRMED.
7