FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CIRILO AARON COVARRUBIAS No. 08-72516
TEPOSTE,
Petitioner, Agency No.
v. A078-469-158
ORDER AND
ERIC H. HOLDER Jr., Attorney
AMENDED
General,
OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
September 2, 2010—Pasadena, California
Filed October 26, 2010
Amended January 20, 2011
Before: Diarmuid F. O’Scannlain, Ronald M. Gould and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Gould
1135
COVARRUBIAS TEPOSTE v. HOLDER 1137
COUNSEL
Michael K. Mehr (argued) and Rachael E. Keast, Law Office
of Michael K. Mehr, Santa Cruz, California, for petitioner
Cirilo Aaron Covarrubias Teposte.
Manuel Palau (argued), Tony West, and Terri J. Scadron,
United States Department of Justice, Civil Division, Washing-
ton, D.C., for respondent Eric H. Holder Jr., Attorney Gen-
eral.
ORDER
Petitioner’s Motion to Amend Opinion is GRANTED in
part. The opinion filed on October 26, 2010 and published at
623 F.3d 1094, is amended as follows.
1138 COVARRUBIAS TEPOSTE v. HOLDER
The opinion concludes with: “We therefore grant the peti-
tion for review. PETITION GRANTED.” These two sen-
tences shall be deleted and replaced with the following
language:
“We therefore grant the petition for review and vacate the
order of removal.
PETITION GRANTED, ORDER VACATED.”
Footnote 2 shall remain unchanged and shall follow the
final sentence in the opinion as amended.
Petitioner’s motion for permission to file a supplemental
reply to response to motion to amend opinion is denied. No
petitions for rehearing or rehearing en banc will be enter-
tained.
IT IS SO ORDERED.
OPINION
GOULD, Circuit Judge:
Cirilo Aaron Covarrubias Teposte (hereafter “Covarru-
bias”) petitions for review of a decision of the Board of Immi-
gration Appeals (“BIA”) dismissing his appeal of an
Immigration Judge’s (“IJ”) order of removal based on a con-
viction of an aggravated felony. We must decide whether the
California offense of shooting at an inhabited dwelling or
vehicle is categorically a crime of violence as that term is
defined in 18 U.S.C. § 16(b) and therefore is an aggravated
felony making Covarrubias removable. We have jurisdiction
under 8 U.S.C. § 1252(a)(2)(D), and we grant the petition for
review.
COVARRUBIAS TEPOSTE v. HOLDER 1139
I
Covarrubias is a native and citizen of Mexico. He was
admitted to the United States as a lawful permanent resident
on February 15, 2002. On April 23, 2003, Covarrubias was
convicted in state court in California of the offense “Shooting
at Inhabited Dwelling or Vehicle” in violation of California
Penal Code (“CPC”) § 246. He was sentenced to a term of
imprisonment of seven years.
The government initiated removal proceedings against
Covarrubias on March 12, 2007 by filing a Notice to Appear.
The government charged him as removable pursuant to
§ 237(a)(2)(A)(iii) of the Immigration and Nationality Act (8
U.S.C. § 1227(a)(2)(A)(iii)), alleging that his conviction
under CPC § 246 was an aggravated felony in the form of a
crime of violence for which the term of imprisonment was at
least one year.
On February 28, 2008, Covarrubias appeared at a hearing
before the IJ and contested removability, denying the allega-
tions pertaining to the California conviction. The IJ sustained
the charge of removability in light of the conviction docu-
ments submitted by the Government1 and the IJ’s conclusion
that the conviction was an aggravated felony. Covarrubias did
not apply for relief from removal. The IJ issued a memoran-
dum and order setting out his reasoning. The IJ determined
that § 246 was categorically a crime of violence under both 18
U.S.C. §§ 16(a) and (b) because “the crime of discharging a
firearm at an occupied vehicle quite obviously has as an ele-
ment the use or attempted use of force against the person or
property of another, and also poses a substantial risk that
force will be actively employed against the person or property
of another.”
1
The record before the IJ included copies of an incomplete abstract of
judgment, the criminal complaint, and the transcript of a sentencing hear-
ing.
1140 COVARRUBIAS TEPOSTE v. HOLDER
Covarrubias appealed the IJ’s decision to the BIA, and the
BIA dismissed the appeal on May 15, 2008. The BIA agreed
with the IJ that CPC § 246 qualifies as a “crime of violence”
and therefore as an aggravated felony, but the BIA relied on
18 U.S.C. § 16(b) only and did not address § 16(a). The BIA
affirmed the IJ’s conclusion that Covarrubias was removable
pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). Covarrubias filed a
petition for review in our court, arguing that, contrary to the
BIA’s conclusion, his conviction under CPC § 246 is not cate-
gorically a crime of violence under § 16(b).
II
We review de novo whether a criminal conviction is a
crime of violence and therefore an aggravated felony render-
ing an alien removable. Suazo Perez v. Mukasey, 512 F.3d
1222, 1225 (9th Cir. 2008). The BIA is not charged with
administering 18 U.S.C. § 16 and its interpretation of that
statute gains no deference. Fernandez-Ruiz v. Gonzales, 466
F.3d 1121, 1126 n.7 (9th Cir. 2006) (en banc) (citing Oye-
banji v. Gonzales, 418 F.3d 260, 262 (3d Cir. 2005)).
III
[1] Covarrubias is removable if his conviction in Califor-
nia for shooting at an inhabited dwelling or vehicle constitutes
an aggravated felony in the form of a crime of violence for
which the term of imprisonment is at least one year. 8 U.S.C.
§§ 1227(a)(2)(A)(iii), 1101(a)(43)(F). A “crime of violence”
is either:
(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
COVARRUBIAS TEPOSTE v. HOLDER 1141
against the person or property of another may be
used in the course of committing the offense.
18 U.S.C. § 16. Because the BIA rested its decision in this
case on § 16(b) and did not rely on § 16(a), we do not address
§ 16(a) here.
Covarrubias does not dispute that he was sentenced to
seven years’ imprisonment for his California offense, and that
California law treats his offense as a felony. We have yet to
establish whether the word “felony” in § 16(b) is defined as
an offense punishable by more than one year in prison, or
alternatively as an offense that is characterized as a felony
under state law. Ortega-Mendez v. Gonzales, 450 F.3d 1010,
1015 (9th Cir. 2006). We need not decide this question
because, under either approach, Covarrubias’s offense is a fel-
ony and satisfies that element of § 16(b). See id. (declining to
decide the question of which definition applied because the
result would be the same under either definition); see also
United States v. Campos-Fuerte, 357 F.3d 956, 959 (9th Cir.
2004) (concluding that a conviction for a California “wob-
bler” offense, which could be either a felony or misdemeanor,
was a felony in light of the sentence imposed), amended by
366 F.3d 691 (9th Cir. 2004).
[2] The question is whether CPC § 246, “by its nature,
involves a substantial risk that physical force against the per-
son or property of another may be used in the course of com-
mitting the offense.” 18 U.S.C. § 16(b). We apply the
categorical approach set forth in Taylor v. United States, 495
U.S. 575 (1990), and ask whether the full range of conduct
proscribed by the statute meets the ordinary, contemporary,
and common meaning of § 16(b). See Fernandez-Ruiz, 466
F.3d at 1125; Ruiz-Morales v. Ashcroft, 361 F.3d 1219, 1222
(9th Cir. 2004). If the statute of conviction is broader in scope
than the federal provision, then ordinarily we turn to the mod-
ified categorical approach and consult certain documentation
in the record to determine whether the conviction entailed
1142 COVARRUBIAS TEPOSTE v. HOLDER
admission to or proof of the necessary elements. See United
States v. Pallares-Galan, 359 F.3d 1088, 1099 (9th Cir.
2004); Fernandez-Ruiz, 466 F.3d at 1132. However, because
the BIA did not apply the modified categorical approach and
the government did not raise it on appeal, we limit our analy-
sis to the categorical approach. See Latu v. Mukasey, 547 F.3d
1070, 1076 (9th Cir. 2008) (“[W]here, as here, the govern-
ment has not asked us to apply the modified categorical
approach, we ‘consider only whether the categorical approach
is satisfied.’ ” (quoting Mandujano-Real v. Mukasey, 526 F.3d
585, 589 (9th Cir. 2008)).
[3] In Leocal v. Ashcroft, the Supreme Court addressed the
meaning of § 16(a) and explained that the phrase “use . . . of
physical force” “requires active employment” of force and
suggests a “higher degree of intent than negligent or merely
accidental conduct.” 543 U.S. 1, 9 (2004). The Court further
held that the words “use” and “physical force” in § 16(b)
should be given an “identical construction” to § 16(a), again
“requiring a higher mens rea than merely accidental or negli-
gent conduct.” Id. at 11. The “reckless disregard in § 16
relates not to the general conduct or to the possibility that
harm will result from a person’s conduct, but to the risk that
the use of physical force against another might be required in
committing a crime.” Id. at 10.
[4] Thus § 16(b) “covers offenses that naturally involve a
person acting in disregard of the risk that physical force might
be used against another in committing an offense.” Id. at 10.
The Court in Leocal cited burglary as the “classic example”
of a § 16(b) offense, explaining that it “would be covered
under § 16(b) not because the offense can be committed in a
generally reckless way or because someone may be injured,
but because burglary, by its nature, involves a substantial risk
that the burglar will use force against a victim in completing
the crime.” Id.
[5] In Fernandez-Ruiz, we joined several other circuits in
holding that the reasoning of Leocal means that crimes
COVARRUBIAS TEPOSTE v. HOLDER 1143
involving the reckless use of force do not qualify under § 16
as a crime of violence. 466 F.3d at 1129. There we held that
“neither recklessness nor gross negligence is a sufficient mens
rea to establish that a conviction is for a crime of violence”
under § 16. Id. at 1130. We have since interpreted the en banc
decision in Fernandez-Ruiz to mean that “reckless use of
force is not sufficient to support a finding of commission of
a crime of violence within the meaning of § 16(b).” Malta-
Espinoza v. Gonzales, 478 F.3d 1080, 1084 (9th Cir. 2007).
“The effect of our holdings is that in order to be a predicate
offense under either 18 U.S.C. § 16 approach, the underlying
offense must require proof of an intentional use of force or a
substantial risk that force will be intentionally used during its
commission.” United States v. Gomez-Leon, 545 F.3d 777,
787 (9th Cir. 2008). Thus our precedent seems squarely to
place crimes motivated by intent on a pedestal, while pushing
off other very dangerous and violent conduct that, because not
intentional, does not qualify as a “crime of violence.”
Covarrubias was convicted of CPC § 246, which provides:
Any person who shall maliciously and willfully dis-
charge a firearm at an inhabited dwelling house,
occupied building, occupied motor vehicle, occupied
aircraft, inhabited housecar, . . . or inhabited camper,
. . . is guilty of a felony, and upon conviction shall
be punished by imprisonment in the state prison for
three, five, or seven years, or by imprisonment in the
county jail for a term of not less than six months and
not exceeding one year.
As used in this section, “inhabited” means currently
being used for dwelling purposes, whether occupied
or not.
CPC § 246.
[6] Applying the categorical approach, “we consider not
only the language of the state statute, but also the interpreta-
1144 COVARRUBIAS TEPOSTE v. HOLDER
tion of that language in judicial opinions” to give meaning to
the elements of CPC § 246. Ortega-Mendez, 450 F.3d at
1016. California courts have interpreted the provision to
require at minimum a reckless state of mind.
To illustrate: In People v. Overman, a California Court of
Appeal held that “section 246 is not limited to shooting
directly at an inhabited or occupied target. Rather, it pro-
scribes shooting either directly at or in close proximity to an
inhabited or occupied target under circumstances showing a
conscious disregard for the probability that one or more bul-
lets will strike the target or persons in or around it.” 24 Cal.
Rptr. 3d 798, 805 (Ct. App. 2005). Similarly, in People v.
Jischke, the defendant was charged with violating CPC § 246
after shooting a gun through the floor of his apartment into
the apartment below. 59 Cal. Rptr. 2d 269, 272 (Ct. App.
1996). The court observed that CPC § 246 is “a general intent
crime” and held that “[t]here is no requirement that the defen-
dant intend to strike the building.” Id.; see also People v.
Chavira, 83 Cal. Rptr. 3d 851, 855 (Ct. App. 1970) (conclud-
ing that the evidence was sufficient to support a jury finding
of “intent” to hit a building under CPC § 246 because the
defendant had engaged “in a fusillade of shots” with “a reck-
less disregard” of the probability that some shots would hit
the building).
[7] In United States v. Narvaez-Gomez, we recognized this
controlling precedent from California on § 246 and deter-
mined that a violation of the statute “may result from purely
reckless conduct.” 489 F.3d 970, 977 (9th Cir. 2007). Here,
the BIA and the government correctly acknowledged that
CPC § 246 requires a merely reckless mens rea. Given the
elements of that statute set by California judicial decisions,
we can gather with certainty only that Covarrubias intention-
ally discharged a gun with reckless disregard as to whether
the bullet would hit an inhabited vehicle or dwelling. This
creates a risk of injury to other people and damage to prop-
erty. But it does not involve a substantial risk of using force
COVARRUBIAS TEPOSTE v. HOLDER 1145
with intent against persons or property. See Tran v. Gonzales,
414 F.3d 464, 472 (3d Cir. 2005) (concluding that a Pennsyl-
vania offense of reckless burning or exploding did not involve
a substantial risk that force would be used). “Reckless con-
duct, as generally defined, is not purposeful.” Fernandez Ruiz,
466 F.3d at 1130. An individual may be subjected to prosecu-
tion under § 246 if he consciously disregards the risk that the
shots he fires will hit a dwelling, but “this subjective aware-
ness of possible injury is not the same as the intentional use
of physical force against the person of another.” Id. at 1130.
[8] The government contends that reckless shooting at an
inhabited dwelling or vehicle in violation of § 246, like bur-
glary, carries a substantial risk that intentional force will be
used not in the act of shooting but rather during the course of
commission, through some kind of escalating confrontation.
The government posits that the reckless shooting required for
CPC § 246 itself does not involve the intentional use of force,
but such a shooting will, in the ordinary case, provoke a reac-
tion from the occupant of the target building or vehicle, which
will in turn cause the offender to employ intentional force
against the occupant.
[9] This argument, while not entirely devoid of merit,
stretches the Supreme Court’s burglary analogy in Leocal too
far. Burglary is a specific intent crime, while CPC § 246 is a
general intent crime. The criminal goal of burglary makes it
likely that the offender will undertake other intentional acts to
achieve that goal. See United States v. Becker, 919 F.2d 568,
571 (9th Cir. 1990) (“Any time a burglar enters a dwelling
with felonious or larcenous intent there is a risk that in the
course of committing the crime he will encounter one of its
lawful occupants, and use physical force against that occupant
either to accomplish his illegal purpose or to escape apprehen-
sion.”). But with a crime committed recklessly, it is unlikely
that the reckless actor will, in response to external events,
form an intent to use force in furtherance of his crime. See
Tran, 414 F.3d at 471-73 (concluding that a Pennsylvania
1146 COVARRUBIAS TEPOSTE v. HOLDER
reckless burning statute “does not contemplate a risk that the
reckless burning offender will step in and commit an inten-
tional act of violence”); Bejarano-Urrutia v. Gonzales, 413
F.3d 444, 446-47 (4th Cir. 2005) (concluding that aggravated
involuntary manslaughter is not analogous to burglary for pur-
poses of § 16(b) because it “does not intrinsically involve a
substantial risk that force will be applied ‘as a means to an
end’ ”). Indeed, once the initial shooting has occurred, an
offender of CPC § 246 has no further criminal purpose to
accomplish through the use of intentional force. The idea that
a reckless act of a shooter will provoke violence from a build-
ing inhabitant which in turn will provoke a now-intentional
action by the shooter in furtherance of his offense is thus too
speculative to support a conclusion that CPC § 246 is categor-
ically a crime of violence.
We can imagine scenarios in which a reckless shooter
would ultimately use force during the course of the crime
after events escalated the violence. Yet there must be a limit
to the speculation about what intentional acts could hypotheti-
cally occur in response to the crime of conviction. Otherwise,
in contravention of Fernandez-Ruiz, every recklessly commit-
ted offense could categorically satisfy § 16(b) based on the
risk, even if remote, that it could lead to future intentional
conduct.
Other circuits are in accord. The Seventh Circuit evaluated
a similar statute in Jimenez-Gonzalez v. Mukasey, 548 F.3d
557 (7th Cir. 2008). The Seventh Circuit held that it was not
a categorical crime of violence under § 16(b) to “recklessly,
knowingly, or intentionally” perform “an act that creates a
substantial risk of bodily injury to another person” by “shoot-
ing a firearm into an inhabited dwelling or other building or
place where people are likely to gather.” Id. at 559. The Sev-
enth Circuit distinguished the fact that the offense at issue did
“not require any purposeful conduct,” whereas burglary and
other firearms offenses that have been held to constitute
crimes of violence “required intentional conduct exhibiting a
COVARRUBIAS TEPOSTE v. HOLDER 1147
reckless disregard to the likelihood of injury.” Id. at 561. The
court also observed that “[u]nlike burglary, where there nec-
essarily is a risk of force being employed in a confrontation
inside the dwelling, the offense of criminal recklessness is
complete when the gun is fired.” Id.
[10] Because California Penal Code § 246 is not categori-
cally a crime of violence according to the definition in 18
U.S.C. § 16(b), the BIA erred in affirming the IJ’s decision
finding Covarrubias removable for an aggravated felony. We
therefore grant the petition for review and vacate the order of
removal.2
PETITION GRANTED, ORDER VACATED.
2
We grant this relief under compulsion of our prior precedent. The basic
question here is whether the act of intentionally discharging a firearm with
conscious disregard of the proximity to an inhabited dwelling or vehicle
is by its nature a violent act. It does not take a sophisticated understanding
of weaponry to know that if the discharged bullet aimed at the dwelling
or vehicle struck a person therein, it would cause grievous harm. Shooting
a gun in the direction of another person seems like a paradigm of violent
action. The shooter’s indifference to the result of his dangerous act might
be thought sufficient to call it a “use” of force. But our en banc precedent
in Fernandez-Ruiz stands in the way of a doctrinal development that
would acknowledge the common sense view that shooting at an inhabited
structure, whether intentionally or recklessly, is a crime of violence war-
ranting removal under the immigration laws. Our panel has no power to
modify circuit precedent, and we are bound by Fernandez-Ruiz until such
time as the Supreme Court or an en banc panel of our court revisits this
issue.