IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-10113
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOSEPH CLIFTON CHARLES,
Defendant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
December 10, 2001
Before JOLLY and PARKER, Circuit Judges, and SPARKS,* District
Judge.
E. GRADY JOLLY, Circuit Judge:
Joseph Charles pleaded guilty to possessing a firearm as a
convicted felon in violation of 18 U.S.C. § 922(g)(1). His sentence
was enhanced on a finding that his previous state conviction of
vehicle theft was a “crime of violence,” which he challenges in this
appeal. We conclude, somewhat to our chagrin, that precedent binds
us to the notion that simple vehicle theft is a crime of violence
for the purposes of the sentencing guidelines. We therefore affirm
the sentence.
*
District Judge of the Western District of Texas, sitting by
designation.
I
On June 12, 2000, two officers observed Joseph Charles roll
through a four-way stop sign. The officers stopped Charles and ran
a computer check. The check indicated that there was a warrant
outstanding for his arrest. Accordingly, the officers arrested
Charles and searched his car. The car search revealed a .380
caliber pistol under the driver’s seat. Charles pleaded guilty to
possession of a firearm as a convicted felon. 18 U.S.C. §
922(g)(1).
Charles has two prior felony convictions. In October 1997, he
pleaded guilty to unlawfully carrying a weapon on a licensed
premise, and in July 1997, he pleaded guilty to theft of a vehicle.
At sentencing, the district court found that the previous conviction
for vehicle theft constituted a “crime of violence” under the
sentencing guidelines. See U.S.S.G. § 2K2.1(a)(4)(A). Accordingly,
the district court applied a base offense level of 20 and sentenced
Charles to 51 months of imprisonment, a three-year term of
supervised release, and a $100 mandatory special assessment.
II
We review the district court’s interpretation and application
of the sentencing guidelines de novo. See United States v.
Deavours, 219 F.3d 400, 402 (5th Cir. 2000).
Upon conviction as a felon in possession of a firearm, the
sentencing guidelines impose a base offense level of 20 if “the
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defendant had one prior conviction of either a crime of violence or
a controlled substance offense.” See U.S.S.G § 2K2.1(a)(4)(A). For
purposes of this section, the guidelines define “crime of violence”
as “any offense ... that ... (1) has as an element the use,
attempted use, or threatened use of physical force against a person
of another, or (2) 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.”
U.S.S.G. § 4B1.2(a) (emphasis added). To determine whether a
particular offense “presents a serious potential risk of injury to
another,” we take a categorical approach. See United States v.
Fitzhugh, 954 F.2d 253, 254 (5th Cir. 1992). That is to say, when
making this determination we only consider the allegations -- and
the certain inferences from those allegations -- set forth in the
indictment; which, of course, includes the elements of the crime.
We do not consider the facts underlying, but not mentioned in, the
indictment. See United States v. Ruiz, 180 F.3d 675, 676 (5th Cir.
1999)(finding that an escape from custody of a prison camp was a
crime of violence despite the fact that the defendant “simply walked
away ... no physical barriers prevented the escape and no guards
were armed”).
At the outset, we must say that we have some difficulty
visualizing simple car theft -- short of carjacking -- as a crime
of violence. Nevertheless, a panel of this court recently held that
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the unauthorized use of an automobile was a crime of violence
because “there is a substantial risk that the vehicle ... might
become involved in an accident.” See United States v. Jackson, 220
F.3d 635, 639 (5th Cir. 2000) (quoting United States v. Galvan-
Rodriguez, 169 F.3d 217, 219 (5th Cir. 1999)), cert. denied, 121
S.Ct. 1640 (2001). Consequently, it does appear, by this reasoning,
that in this circuit most traffic violations have been elevated to
crimes of violence.
In the light of this precedent the district court here
analogized the dangers inherent in the unauthorized use of a vehicle
to the dangers inherent in the simple theft of a vehicle and
concluded that vehicle theft was a crime of violence.
The defendant argues, however, that because the unauthorized
use of an automobile always involves “use” (i.e., driving the car)
whereas the theft of an automobile does not, the district court’s
analogy is misguided. We do not find this argument persuasive.
Although it is true that an automobile may be stolen by towing or
dismantling the car, the defendant points to nothing in the vehicle
theft indictment that suggests that the theft here occurred in this
manner. Consequently, that Charles “used” the car at the time of
committing the theft is a certain inference from the indictment.
Accordingly, we are compelled to say that the result in this case
is dictated by the result in Jackson. Therefore, based on the
reasoning and holding of Jackson, we conclude that the theft of a
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vehicle constitutes a crime of violence for purposes of U.S.S.G. §
2K2.1(a)(4)(A). Accordingly, the district court’s decision is
AFFIRMED.
ENDRECORD
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SAM SPARKS, District Judge, specially concurs:
I concur with the panel’s holding only because of current circuit precedent and, therefore, the
sentencing of Charles must be affirmed. I specially concur, however, because the cases of United
States v. Jackson, 220 F.3d 635 (5th Cir. 2000) and United States v. Galvan-Rodriguez, 169 F.3d 217
(5th Cir. 1999) are simply wrongly decided. See United States v. Dueno, 171 F.3d 3 (1st Cir. 1999)
(distinguishing between burglary of a vehicle and a dwelling or commercial structure); Saraeng Ye v.
INS, 214 F.3d 1128 (9th Cir. 2000); Solorzano-Paltan v. INS, 207 F.3d 869, 873 (7th Cir. 2000)
(holding vehicle burglary was not an aggravated felony as it did not constitute a “crime of violence”).
Not withstanding contrary legal authorities, pure common sense and simple logic establish that vehicle
theft is no crime of violence. As Judge Jolly accurately writes, the result of these two cases’ reasoning
is that “most traffic violations have been elevated to crimes of violence” in the Fifth Circuit.
Reading U.S.S.G. § 2K2.1 itself illustrates the fallacy of this precedent. Subsection
2K2.1(a)(4) establishes the base offense level of 20 if the defendant “had one prior felony conviction
of either a crime of violence or a controlled substance offense.” Subsection 2K2.1(a)(6) establishes
if the defendant is a prohibited person (i.e., a felon) the base level is 14. In Charles’ case, the adjusted
offense level of 17 with a criminal history of V establishes a guideline range of incarceration of from
46 to 57 months. This guideline was designed for a person who has an aggravated felony like murder,
rape, kidnaping, hijacking, bank robbery with the use of a weapon, assault with a deadly weapon, etc.
The more appropriate guideline in Charles’ case would be the calculation under § 2K2.1(a)(6)
resulting in an offense level of 14 with a guideline range of 27 to 33 months.
There is a thirty (30) month differential in these two guidelines. The cost of thirty months
(according to Bureau of Prisons figures) exceeds $54,000. This 30-month differential actually exceeds
the minimum sentence of 27 months that would be applied if vehicle theft were not construed as an
aggravated felony. The purpose of this guideline was certainly not to sentence a person convicted of
car theft, unauthorized use of a vehicle, or DWI in the same manner as a convicted murder, rapist,
bomber, hijacker, or drug dealer. A sentence of 27 to 33 months in prison for possessing a gun by a
felon with no aggravating factors constitutes a sufficiently severe sentence. Of course, if the district
judge determines a sentence is too lenient, the judge can always use U.S.S.G. § 4A1.3 for an upward
departure. The expense of $55,000 of taxpayers’ money and making a defendant serve twice as long
a sentence simply because he might have an accident when he steals a car, or is driving a stolen car,
simply has no basis in the Guidelines nor in logic. These cases should be reviewed and vacated by the
Circuit. Vehicle theft should be classified as it really is – a felony – not an aggravated felony for the
purpose of applying U.S.S.G. § 2K2.1.
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