IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-51003
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
GILBERTO DELGADO-ENRIQUEZ,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Western District of Texas
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September 10, 1999
Before SMITH, BARKSDALE, and I.
PARKER, Circuit Judges. In March 1998, Delgado applied for
admission to the United States from Mexico,
JERRY E. SMITH, Circuit Judge: presenting a resident alien card that did not
belong to him. He admitted to using his broth-
Gilbert Delgado-Enriquez (“Delgado”) er’s documents and that he was a native and
pleaded guilty to illegal re-entry as a deported citizen of Mexico. Immigration records
alien in violation of 8 U.S.C. § 1326. He showed that he had been removed from the
appeals the sixteen-level enhancement of his United States in November 1995 after having
sentence, arguing that his previous conviction been convicted in the United States of first
of first degree criminal trespass is not an degree criminal trespass.
aggravated felony within the meaning of
U.S.S.G. § 2L1.2(b)(1)(A). We affirm. Delgado was indicted for illegal re-entry
after deportation in violation of 8 U.S.C.
§ 1326. A notice informed him he would be
subject to enhanced penalties upon conviction guilty of unlawfully entering the United States
because of his previous conviction. He plead- after being previously deported on the basis of
ed guilty in August 1998. a criminal conviction may receive a sixteen-
level enhancement if the previous conviction
Under the 1997 version of the United was an aggravated felony.1 The term
States Sentencing Commission Guidelines “aggravated felony” is defined at 8 U.S.C.
Manual, the offense level for Delgado’s illegal § 1101(a)(43). U.S.S.G. § 2L1.2, comment.
re-entry conviction was calculated under n.1.
U.S.S.G. § 2L1.2. The pre-sentence report
(“PSR”) recommended that sixteen levels be The government asserts that Delgado’s of-
added to the base offense level of 8 because fense should be construed as a “crime of vio-
the conviction of first degree criminal trespass lence” under § 1101(a)(43)(F). This sub-
is an aggravated felony within the meaning of section provides t hat a “crime of violence” is
U.S.S.G. § 2L1.2(b)(1)(A). The PSR also an aggravated felony when it meets the
recommended, however, that the court reduce definition found in 18 U.S.C. § 16 for non-
the offense level by three for acceptance of political offenses for which the term of im-
responsibility under U.S.S.G. § 3E1.1. prisonment is more than one year. Section 16
defines a crime of violence as:
Delgado objected to the sixteen-level
enhancement, arguing that his conviction for (a) an offense that has as an element the
first degree criminal trespass did not rise to the use, attempted use, or threatened use of
level of “aggravated felony.” The court physical force against the person or
overruled his objection, stating “The fact property of another, or
remains that he broke into the house and he
remained there with intent to commit theft or
other things . . . .” Delgado was then
sentenced to seventy months in prison 1
United States Sentencing Commission,
followed by three years of supervised release. Guidelines Manual, § 2L1.2(b)(2) (Nov. 1998).
The commentary to § 2L1.2 was amended on
November 1, 1997, to delete application notes 6-7.
II. See U.S.S.G. Manual, Appendix C, amend. 562
A. (Nov. 1997). As a result, the definition of
A sentence must be affirmed unless it was “aggravated felony” in the guidelines conforms to
imposed in violation of the law or was based the amended definition of the same term in the
on an erroneous application of the sentencing Illegal Immigration and Immigrant Responsibility
Act, Pub. L. 104-208, 110 Stat. 3009, which is
guidelines. United States v. Galvan-
still found at 8 U.S.C. § 1101(a)(43). Delgado
Rodriguez, 169 F.3d 217, 218 (5th Cir. 1999),
was sentenced after the new amendments became
petition for cert. filed (May 20, 1999) effective on November 1, 1997, so we rely on the
(No. 98-9509). We review a challenge to an amended definition of aggravated felony. For pur-
interpretation of the Guidelines de novo. Id. poses of this appeal, the new amendments do not
change the analysis of § 2L1.2(b) that we
B. announced in cases such as Galvan-Rodriguez,
Under § 2L1.2, a defendant who is found because we rely on portions of § 1101(a)(43) that
have not been changed.
2
(b) any other offense that is a felony and vehicle4 are crimes of violence under § 16(b),
that, by its nature, involves a substantial and, therefore, aggravated felonies under
risk that physical force against the per- § 2L1.2. In all of these cases, we found that
son or property of another may be used because the criminal act at issue created a
in the course of committing the offense. “substantial risk that physical force will be
used against the person or property of another
18 U.S.C. § 16 (1994) (emphasis added). in the course of committing the offense,”
§ 16(b), these crimes qualified as crimes of
As we held in United States v. Velazquez- violence for purposes of § 16(b).
Overa, 100 F.3d 418, 421 (5th Cir. 1996), the
phrase “by its nature” requires courts to de- Delgado’s trespass conviction was under
termine whether an offense constitutes a crime Colorado law, under which a “person commits
of violence without examining the underlying the crime of first degree criminal trespass if he
facts surrounding the conviction. Galvan- knowingly and unlawfully enters or remains in
Rodriguez, 169 F.3d at 219. This categorical a dwelling or if he enters any motor vehicle
approach requires courts “only to consider the with intent to steal anything of value.” COLO.
fact that [the defendant] was convicted and the REV. STAT. ANN. § 18-4-502 (West 1991).
inherent nature of the offense.” Id. We must decide whether committing criminal
trespass, by its very nature, creates a sub-
C. stantial risk that the perpetrator will use physi-
Delgado contends that because there is no cal force against the person or property of
strong probability that physical force will be another.” When analyzing the phrase “sub-
used in a criminal trespass offense, his prior stantial risk,” we have stated that it is not
conviction cannot be considered a crime of necessary that the risk “must occur in every
violence within the meaning of 18 U.S.C. instance; rather a substantial risk requires a
§ 16(b). He points out because his guideline strong probability that the event, in this case
range would have been 21 to 27 months with- the application of physical force during the
out the sixteen-level enhancement for aggra- commission of the crime, will occur.”
vated felony, he was harmed by the alleged Rodriguez-Guzman, 56 F.3d at 20.
misapplication of the Guidelines.
The court did not err when it found that the
We have not heretofore considered whether act of criminal trespass, which specifically re-
criminal trespass qualifies as a crime of vio- quires entering or remaining in the dwelling of
lence for purposes of § 16. In previous cases, another, is a crime of violence under § 16(b).
however, this court has found that a burglary Entering or remaining in a dwelling of another
of a vehicle,2 a burglary of a non-residential creates a substantial risk that physical force
building,3 and the unauthorized use of a motor will be used against the residents in the dwell-
2 (...continued)
Galvan-Rodriguez, 169 F.3d at 219.
(1997).
3
United States v. Ramos-Garcia, 95 F.3d 369,
4
371 (5th Cir. 1996), cert. denied, 519 U.S. 1083 United States v. Rodriguez-Guzman, 56 F.3d
(continued...) 18, 20 (5th Cir. 1995).
3
ing. Indeed, even when the perpetrator has
illegally entered a nonresidential building, we
have found a “substantial risk of physical
force” being used against the property of
another. Rodriguez-Guzman, 56 F.3d at 11.
Therefore, we conclude that criminal trespass
is a crime of violence within the meaning of
§ 16(b) and an aggravated felony for purposes
of § 2L1.2(b)(1)(A).5
AFFIRMED.
5
There is also some indication that trespass has
been considered a crime that may invoke violence.
See, e.g., LA. REV. STAT. ANN. § 14:19 (West
1999) (providing that the use of force or violence
is justifiable to prevent a forcible offense or
trespass against property in a person’s lawful
possession); Bell v. Maryland, 378 U.S. 226, 328
n.15 (1964) (noting that historians of early English
law have concluded that “‘to allow men to make
forcible entries on land . . . is to invite violence’”)
(citation omitted); Castillo v. First City Bancor-
poration, Inc., 43 F.3d 953 (5th Cir. 1994) (noting
in civil context that common law actions in civil
trespass involved some violence, although the
amount might be minimal).
4