United States v. Chapa-Garza

REVISED - September 13, 2001

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________

No. 99-51199
_____________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

MOISES CHAPA-GARZA, also known as Moises Garza, also known
as Moises Garza Chapa, also known as Moises G Chapa, also
known as Moises Chapa

Defendant - Appellant
__________________

No. 00-50049
__________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

JULIAN RICARDO GOYTIA-CAMPOS, also known as Julian Ricardo
Goitia-Campos

Defendant - Appellant

__________________

No. 00-50051
__________________

UNITED STATES OF AMERICA

Plaintiff - Appellee
 v.

ALFONSO GUADALUPE PEREZ-VELAZQUEZ, also known as Erick Lee

Defendant - Appellant

__________________

No. 00-50107
__________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

FRANCISCO JAVIER SALDANA-ROLDAN

Defendant - Appellant

__________________

No. 00-50239
__________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

EPIFANIO IVARBO-MARTELL, also known as El Chino

Defendant - Appellant

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Appeals from the United States District Court for the
Western District of Texas, San Antonio
---------------------
August 20, 2001

ON PETITION FOR REHEARING EN BANC
 (Opinion March 1, 2001, 5 Cir., 2001, ________ F.3d __________ )

Before GOODWIN*, GARWOOD, and JONES, Circuit Judges.

PER CURIAM:

( ) Treating the Petition for Rehearing En Banc as a Petition
for Panel Rehearing, the Petition for Panel Rehearing is DENIED. No
member of the panel nor judge in regular active service of the court
having requested that the court be polled on Rehearing En Banc
(FED. R. APP. P. and 5th Cir. R. 35), the Petition for Rehearing En Banc
is DENIED.

(X) Treating the Petition for Rehearing En Banc as a Petition
for Panel Rehearing, the Petition for Panel Rehearing is DENIED. The
court having been polled at the request of one of the members of the
court and a majority of the judges who are in regular active service
not having voted in favor (Fed. R. App. P. and 5th Cir. R. 35), the
Petition for Rehearing En Banc is DENIED.

Judge Stewart did not participate.

____________________________________________
*
Circuit Judge of the Ninth Circuit, sitting by designation.
RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting from denial of

rehearing en banc:*

Last March, in United States v. Chapa-Garza, our court held

— in my view, erroneously — that Texas felony DWI (at least three

DWI convictions) is not a “crime of violence” within the meaning

of 18 U.S.C. § 16(b) and, therefore, not an “aggravated felony”

for sentence-enhancement purposes. 243 F.3d 921 (5th Cir. 2001).

This being an issue of exceptional importance, I respectfully

dissent from our court’s refusal to consider this case en banc.

I.

Chapa-Garza began by distinguishing the definition of

criminal violence in § 16(b), which applies to sentencing of

aliens, from that found in U.S.S.G. § 4B1.2, which describes

career offenders. Chapa-Garza, 243 F.3d at 925-26. Central to

its holding was: the language of § 16(b) contemplates an

intentional use of force; and such force is that used to

effectuate the crime itself. Id. at 926-27 (“[W]e ... hold ...

that a crime of violence as defined in 16(b) requires

recklessness as regards the substantial likelihood that the

offender will intentionally employ force against the person or

property of another in order to effectuate the commission of the

crime”.).

*
Edith H. Jones, Circuit Judge, concurs in this dissent to
the extent that the difficulty of statutory construction in this
case and the far-reaching significance of the panel decision
should have motivated our court to rehear this case en banc.
 I respectfully submit that Chapa-Garza reached the wrong

result. In any event, the correct result is a close call. The

gravity of the issue is enhanced greatly by the fact that,

although the issue arose in this appeal in the context of

sentencing, the same statutory definitions arise in the civil

immigration context in determining whether an alien with a

conviction for felony DWI is removable. Therefore, I dissent

from the denial of rehearing en banc primarily because whether

felony DWI is an “aggravated felony” is an issue of exceptional

national importance, affecting hundreds if not thousands of

aliens. See FED. R. APP. P. 35(a) (rehearing en banc may be

ordered to secure uniformity in court’s decisions or when

proceeding involves question of exceptional importance). The

attention this issue has recently received, the exacerbation of

the circuit split since Chapa-Garza was rendered, and the action

taken by the Board of Immigration Appeals (BIA) in response to

Chapa-Garza highlight the importance of the issue.

Early this year, prior to Chapa-Garza, the Tenth Circuit

held not unreasonable the BIA’s conclusion that felony DWI is a

crime of violence under § 16(b) and, therefore, an aggravated

felony under 8 U.S.C. § 1101(a)(43)(F). Tapia Garcia v. INS, 237

F.3d 1216 (10th Cir. 2001); cf. Camacho-Marroquin v. INS, 188

F.3d 649 (5th Cir. 1999) (felony DWI is “crime of violence” under

§ 16(b)), withdrawn, rehearing dismissed by 222 F.3d 1040 (5th

5
Cir. 2000). Compare Le v. U.S. Att’y Gen., 196 F.3d 1352, 1354

(11th Cir. 1999) (holding conviction for causing serious bodily

injury while driving under the influence is “crime of violence”

within § 16(a) because one element of offense is actual use of

physical force, and declining to address scope of § 16(b)).

Following Chapa-Garza, three circuits have addressed the

mens rea requirement of § 16(b), exacerbating the circuit-split.

The Second Circuit held a felony DWI conviction under New York

law does not constitute a crime of violence under § 16(b) for

removal purposes. Dalton v. Ashcroft, No. 00-4123, 2001 WL

822454 (2d Cir. 20 July 2001); but see id. at *7 (Walker, C.J.,

dissenting) (New York felony DWI is crime of violence within §

16(b)). The Seventh Circuit, relying on Chapa-Garza, held DWI is

not a crime of violence under § 16(b) for removal purposes

because it does not involve the intentional use of force. Bazan-

Reyes v. INS, No. 99-3861, 2001 WL 748157 (7th Cir. 5 July 2001).

The Ninth Circuit held a reckless mens rea is sufficient to

constitute a crime of violence under § 16(b), and, therefore,

involuntary manslaughter is a “crime of violence”. Park v. INS,

252 F.3d 1018 (9th Cir. 2001). Yet even more recently, the Ninth

Circuit has held that, although § 16(b) encompasses both

intentional and reckless conduct, because California DWI can be

committed by mere negligence, it is not a crime of violence

within § 16(b). United States v. Trinidad-Aquino, No. 00-10013,

6
2001 WL 883719 (9th Cir. 8 Aug. 2001); but see id. at *6-7

(Kozinski, J., dissenting) (majority’s conclusion is contrary to

law of circuit and common sense).

Moreover, Chapa-Garza stands in the way of the uniform

implementation of our country’s immigration laws. Recently, in

the light of Chapa-Garza and United States v. Hernandez-Avalos,

251 F.3d 505 (5th Cir. 2001), discussed infra, the BIA decided to

no longer remove from the Fifth Circuit those convicted of felony

DWI. In re Olivares, 23 I&N Dec. 148 (BIA 2001).

II.

A.

Chapa-Garza interprets § 16(b) erroneously. This is in

large part due to its failure to consider the underlying law of

Texas concerning what constitutes felony DWI in that State.

1.

In reaching the wrong result, Chapa-Garza noted the

differences between the language of § 16(b), defining a crime of

violence for purposes of sentencing under U.S.S.G. § 2L1.2 for

unlawful entry, and U.S.S.G. § 4B1.2, defining a career offender.

The difference, however, does not necessarily lead to distinct

results in their application.

Section 16(b) defines a crime of violence as

any other offense that is a felony and that,
by its nature, involves a substantial risk
that physical force against the person or

7
 property of another may be used in the course
of committing the offense.

(Emphasis added.) Section 4B1.2 defines a crime of violence as,

inter alia,

any offense under federal or state law,
punishable by imprisonment for a term
exceeding one year, that – ... is burglary of
a dwelling, arson, or extortion, involves use
of explosives, or otherwise involves conduct
that presents a serious potential risk of
physical injury to another.

(Emphasis added.)

Chapa-Garza contrasts § 4B1.2(a)(2)’s reference to a risk of

injury to § 16(b)’s mention of a risk of force. Chapa-Garza, 243

F.3d at 925. This distinction is immaterial, because it merely

distinguishes the cause from the effect. An injury would only

result from the use of force (be the application of force

intentional, reckless, unintentional), and the use of force could

result in injury. But see Dalton, 2001 WL 822454, at *5

(distinguishing “risk of injury” and risk of the “use of physical

force”, reasoning “[t]here are many crimes that involve a

substantial risk of injury but do not involve the use of force”).

In my view, Chapa-Garza, in parsing the language of § 16,

overlooks the common-sense understanding of that language. But

see, e.g., Bazan-Reyes, 2001 WL 748157, at *5-10 (comparing

language of § 16(b) and § 4B1.2(1)). Of course, principles of

statutory interpretation counsel reading the statute as a whole,

8
so that each word has meaning. The opinion is correct that “by

its nature” requires looking at the offense categorically.

Chapa-Garza, 243 F.3d at 924. But, the language “substantial

risk” suggests a state of mind of recklessness and cuts against

interpreting the language as referring to intentional conduct,

because it connotes something that may occur accidentally, not

something that is necessary to effectuate the offense.

Chapa-Garza, however, looked to a dictionary definition of

“use” to conclude that § 16(b) refers to intentional conduct.

Id. at 926. Such a definition belies the common-sense usage of

the word in § 16(b). It is true that “use” may more often refer

to the intentional, rather than the accidental, use of force;

but, without question, force may be used accidentally.2 Although

many precedent assume “use” refers to an intentional act, our

court has interpreted § 16(b) to include both accidental and

intentional uses of force. See United States v. Galvan-

Rodriguez, 169 F.3d 217 (5th Cir.), cert. denied, 528 U.S. 837

(1999) (concluding one reason unauthorized use of vehicle is

“crime of violence” under § 16(b) is risk physical force may

accidentally be used during operation of vehicle, not solely

because physical force may be applied intentionally). Force may

2
Webster’s list of synonyms specifies “USE is general and
indicates any putting to service of a thing, usu. for an intended
or fit purpose”. WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE
ENGLISH LANGUAGE UNABRIDGED (Merriam-Webster 1986). This suggests, of
course, that a purpose is not always intended.

9
be “used” — “employed” — without a specific purpose in mind.3 In

fact, the words “substantial risk” in § 16(b) suggest a lack of

intentionality, for a risk is something that the actor hopes will

not, but may, happen. Moreover, it is not immediately clear what

other word Congress would have employed to encompass the

unintentional application of force: “substantial risk that

physical force ... may be _____ in the course of committing the

offense”. But see United States v. Rutherford, 54 F.3d 370, 372-

73 (7th Cir.) (“A drunk driver who injures a pedestrian would not

describe the incident by saying he ‘used’ his car to hurt

someone. In ordinary English, the word ‘use’ implies intentional

availment.”), cert. denied, 516 U.S. 924 (1995). Compare

U.S.S.G. § 4B1.2(a)(2) (“involves conduct that”).

The holding that § 16(b) requires “recklessness as regards

the substantial likelihood that the offender will intentionally

employ force”, Chapa-Garza, 243 F.3d at 927 (emphasis added), is

less than clear. “[I]ntentionally employ” is substituted for the

statute’s “use”. How can a person be “reckless” regarding

whether he will do something “intentionally”? In the continuum

of states of mind, negligence, recklessness, and intentionality

3
Even the Seventh Circuit in Bazan-Reyes used a word
synonymous with “use” to state its holding that specific intent
was not required: “[W]e hold that the language of sec. 16(b)
simply does not support a finding that a risk that one object
will apply force to another is enough to constitute a crime of
violence under the statute”. 2001 WL 748157, at *10 (emphasis
added).

10
are, of course, distinct. Once the DWI offense begins, the

question is no longer whether force will be needed to effectuate

the offense but, rather, whether it will be used accidentally

(recklessly) during the commission of the offense. The

definition employed in Chapa-Garza, replacing “use” with

“intentional use”, is particularly troubling in the context of

DWI, which is criminalized not because of what the driver intends

to do (operate a vehicle while intoxicated) but rather because of

the unintended consequences of that action (great risk to people

and property). Cf. Trinidad-Aquino, 2001 WL 883719, at *7

(Kozinski, J., dissenting) (“reckless conduct — drinking and

driving — causes the negligence and turns a civil tort into a

criminal offense”).

An analogy to burglary of a dwelling (a “crime of violence”

under § 4B1.2), as in United States v. Parson, 955 F.2d 858 (3d

Cir. 1992), quoted by Chapa-Garza, 243 F.3d at 926, is not

helpful: the dangers to people and property from burglary of a

dwelling arise from intentional acts, while in DWI they result

from unintentional acts. In fact, Chapa-Garza quoted from Parson

explaining that “a drunk driver risks causing severe injury to

others on the road or in the car, but in most cases he or she

does not intend to use force to harm others”. Chapa-Garza, 243

F.3d at 926 (quoting Parson, 955 F.2d at 866). In one key way

burglary of a dwelling and DWI are analogous: the actual use of

11
force is neither an element of burglary nor of DWI. See United

States v. Rodriguez-Guzman, 56 F.3d 18, 20 (5th Cir. 1995) (“To

obtain a conviction under ... Texas burglary statutes, the state

need not prove the use, attempted use, or threatened use of

physical force against the person or property of another.”

(citing Clark v. State, 667 S.W.2d 906 (Tex. Ct. App. 1984)

(building); Richardson v. State, 888 S.W.2d 822 (Tex. Cr. App.

1994) (vehicle).4 It can be reasonably inferred from the nature

of both that the offender could foresee the substantial risk of

potential use of force during the commission of either burglary

or felony DWI.

In addition, the conclusion that the offender must

intentionally use force contravenes our court’s practice “not

[to] presume that a statutory crime requires specific intent in

the absence of language to that effect”. United States v. Myers,

104 F.3d 76, 81 (5th Cir.), cert. denied, 520 U.S. 1218 (1997).

2.

The Texas Penal Code provides: “A person commits an offense

if the person is intoxicated while operating a motor vehicle in a

public place.” TEX. PENAL CODE § 49.04(a) (Supp. 1999) (emphasis

added). “If it is shown on the trial of an offense under Section

4
But see Dalton, 2001 WL 822454, at *3 (“[W]e conclude that
not all [New York felony DWIs] are ‘by their nature’ ‘crimes of
violence’ because risk of physical force is not a requisite
element of the New York DWI offense.”).

12
49.04 ... that the person has previously been convicted two times

of an offense relating to the operating of a motor vehicle while

intoxicated, ... the offense is a felony of the third degree.”

TEX. PENAL CODE § 49.09(b).

In an extremely important ruling, which appears to be at

odds with the plain wording of the underlying Texas DWI statute

(“while operating”), Chapa-Garza states that DWI is committed at

the time the defendant begins driving. Chapa-Garza, 243 F.3d at

927. I respectfully submit that, especially pursuant to the

intent and wording of § 16(b) and in keeping with the Texas DWI

statute, DWI is instead a continuum. Once he has begun to

operate the vehicle, an individual is guilty of DWI; but, the

offense continues as long as he continues driving (“while

operating”) the vehicle. Needless to say, the driver is subject

to arrest while he is driving the vehicle.

Chapa-Garza cites no authority to support its ruling that

DWI merely involves beginning operation of the vehicle. Again,

and as quoted supra, the phrase “while operating” is used in the

Texas DWI statute. Along this line, Texas courts have defined

“operating” as “exert[ing] personal effort upon [a] vehicle in a

manner that shows intentional use of the vehicle for its intended

purpose” and “affect[ing] the functioning of a vehicle in a

manner that would enable the vehicle’s use”. Barton v. State,

882 S.W.2d 456, 459 (Tex. Ct. App. 1994). A driver exerts

13
personal effort not only when he begins operation of the vehicle

but also “while” he operates it.

3.

Also, Chapa-Garza construed § 16(b)’s phrase “in the course

of committing the offense” to refer to the force necessary to

effectuate the offense. Chapa-Garza, 243 F.3d at 927. A more

common-sense understanding would be that the phrase also

encompasses the force used while effectuating the offense (i.e.,

while driving). Such an interpretation is particularly

reasonable in the context of drunk driving: First, as mentioned,

a DWI offense continues as long as the person is operating the

vehicle; the risk that physical force will be used against the

person or property of another while the offense is being

committed is obvious. Second, it can be reasonably inferred from

the nature of the offense of drunk driving that the offender

could foresee the potential use of force during the commission of

the crime, even if not necessary to effectuate the crime itself.

Third, as mentioned, the primary reason DWI has been criminalized

is to protect others and their property from damage perpetrated

by the drunk driver.

4.

Finally, even if legislative history may suggest that DWI

does not automatically fall within the category of a crime of

violence, it must be remembered that the DWI at issue is

14
felony DWI. The seriousness of the crime and of the risk of

violence is obvious in that, as noted supra, a DWI felony

conviction in Texas is at least the third DWI offense committed

by the defendant. TEX. PENAL CODE § 49.09(b). It goes without

saying that someone who has been arrested at least three times

for driving while intoxicated presents a real and great risk.

See Dalton, 2001 WL 822454, at *8 (Walker, C.J., dissenting)

(“[T]hat the offense [of felony DWI in New York] requires two

prior drunk driving convictions increases the attendant risk.”).

In other words, while it may be that not every DWI is a crime of

violence under § 16(b) (an issue not at hand), a felony DWI

certainly is.

B.

Even assuming the Chapa-Garza is correct, it is a very close

call. For example, the Government is correct in asserting that,

although it is dictum, our court in Galvan-Rodriguez made it

clear that one of the reasons the unauthorized use of a vehicle

is a “crime of violence” under § 16(b) is the risk that physical

force may accidentally be used during the operation of the

vehicle, not solely because physical force may be applied

intentionally to obtain access to the vehicle. 169 F.3d at 219.

Although this dictum in itself does not create disuniformity in

the law, it indicates that the issue of what constitutes a crime

of violence is complicated enough to merit en banc review. On

15
top of this, the issue at hand is unquestionably of exceptional

importance. The sentencing enhancement at issue involves an

increase from a statutory maximum of two years to 20 years. See

8 U.S.C. § 1326(a)(2), (b)(2). This increase is for a good

reason. That drunk driving is an extremely serious offense is

evidenced statistically: As of 1990, drunk drivers annually

caused over 25,000 deaths, approximately one million personal

injuries, and more than $5 billion in property damages. Michigan

State Police v. Sitz, 496 U.S. 444, 451 (1990). A more recent

study estimated that 2.6 million drunk driving crashes each year

victimize four million innocent people who are injured or have

their vehicles damaged. Statistics: General Statistics,

available at http://www.madd.org/stats/stat_gen.SHTML (last

visited 14 Aug. 2001). In 1999, seven percent of traffic

accidents were alcohol-related but 40 percent of traffic

fatalities were. Id.

In addition, and as noted, the same statutory definitions

arise in determining whether an alien convicted for felony DWI is

removable. The removal of aliens convicted of “aggravated

felonies” is provided for by 8 U.S.C. § 1227(a)(2)(A)(iii); that

section refers to the definition of “aggravated felony” in 8

U.S.C. § 1101(a)(43), the same section referenced by the

guideline at issue for the case at hand, U.S.S.G. § 2L1.2.

Section 1101(a)(43)(F) in turn references the definition of

16
“crime of violence” found in 18 U.S.C. § 16. In Texas alone, the

INS has removed thousands of aliens convicted of felony DWI and

approximately 500 such cases are pending before the Board.

As noted, both the Seventh and Second Circuits have vacated

removal orders by holding a felony DWI is not a crime of violence

within § 16(b). Dalton, 2001 WL 822454; Bazan-Reyes, 2001 WL

748157. Our precedent would likely require us to do the same,

extending our interpretation of § 16(b) to apply to removal

proceedings as well as to sentencing. In Hernandez-Avalos, our

court found cases arising in the criminal context relevant to

immigration and removal. 251 F.3d at 509. Hernandez-Avalos then

stated:

We fail to see the validity of interpreting
this statute differently based on this
distinction between sentencing and
immigration cases; it is, after all, the same
words of the same phrase from the same
statute that is being interpreted in each
instance.

Id.

Previously, the BIA had concluded that Texas felony DWI is a

crime of violence under § 16(b) and therefore an aggravated

felony under § 1101(a)(43)(F). See Matter of Puente-Salazar,

Interim Dec. 3412 (BIA 1999). Recently, as noted, the BIA,

recognizing the likelihood the interpretation of § 16(b) for

purposes of sentencing would be extended in our circuit to

removal proceedings as well, declined to apply Matter of Puente-

17
Salazar to removal cases arising in our circuit. In re Olivares,

23 I&N Dec. 148 (relying on Hernandez-Avalos).

III.

For these reasons, this case demands en banc review. I

respectfully dissent from our court’s refusing to do so.

18