UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50059
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
SALVADOR HERNANDEZ-NEAVE,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas, Austin Division
December 21, 2001
Before REAVLEY, HIGGINBOTHAM and PARKER, Circuit Judges
ROBERT M. PARKER, Circuit Judge:
Defendant Hernandez-Neave (“Hernandez”) appeals a 16-level
increase to his base offense level under the United States
Sentencing Guidelines. The district court applied the increase
based on Hernandez’s prior conviction for unlawfully carrying a
firearm in a place licensed to sell alcoholic beverages. The
increase imposed a mandatory sentencing range upon him of from 57
to 71 months’ imprisonment. Hernandez was actually sentenced to 60
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months’ imprisonment. Because we hold that unlawfully carrying a
firearm under these circumstances is not a “crime of violence”
within the meaning of 18 U.S.C. § 16(b), we hereby VACATE
Hernandez’s sentence and REMAND the case to district court for re-
sentencing in accordance with this opinion.
I. BACKGROUND AND PROCEEDINGS IN THE DISTRICT COURT.
Salvador Hernandez-Neave is a foreign national who is in the
United States illegally. He was previously deported in 1998 and
was apprehended following his illegal reentry in 1999. During his
previous presence in the U.S., Hernandez was convicted of two other
felonies. The first, in 1984, was for unlawfully carrying a
firearm in an establishment licensed to sell alcoholic beverages.
The second, in 1993, was for driving while intoxicated (“DWI”).
Hernandez was arraigned in district court on an indictment for
illegal reentry to the United States subsequent to his conviction
for commission of an aggravated felony. The government sought a
conviction on the illegal reentry charge with sentencing guideline
offense level increases consonant with a prior aggravated felony.
As the sentencing guidelines define aggravated felony, it was
necessary for at least one of Hernandez’s prior felony convictions
to be a “crime of violence” for the district court to apply the 16
level increase sought by the government.
Hernandez argued that neither of his prior convictions, even
if felonies, were crimes of violence. At his arraignment, he
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declined a plea agreement but agreed to stipulate to the facts of
his illegal reentry in a bench trial with a hearing to determine
whether his prior convictions were crimes of violence. The
district court conducted the bench trial shortly after the
arraignment.1 The district judge accepted the stipulation of facts
and heard arguments as to whether the prior felonies were crimes of
violence.2
At the end of the bench trial, the district judge found
Hernandez guilty of illegal reentry but refused to find that
Hernandez’s prior felonies were aggravated or were crimes of
violence. Specifically, as to the illegal carrying conviction, the
district judge ruled:
But because of the clear law in the Circuit that a felon
in possession is not an aggravated felony within the
meaning of the upward departure to 20 years in this case,
I, specifically, until there is authority otherwise, will
not find that unlawfully carrying a weapon is an
1
The record on appeal contains various transcripts. One is
annotated “Transcript of Rearraignment held 10/25/00" and reports
the original arraignment at which Hernandez first disputed the
aggravated felony enhancement in his indictment. Another is
annotated “Transcript of Rearraignment held 10/26/00" and reports
the continuation of Hernandez’s arraignment, including the
determination of how to proceed. The transcript of the bench trial
by the district judge is included in this volume, originally
entered in the docket under entry number 19 as such. The third is
annotated “Transcript of Sentencing held 12/22/00.”
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The district court addressed whether Apprendi v. New Jersey, 530
U.S. 466 (2000), should apply to a determination of whether the
prior felonies were “aggravated” for the purposes of sentencing
enhancement. The district judge and counsel agreed that with a
stipulation as to the illegal reentry and with the court acting as
the trier of fact on the issue of whether the felonies were crimes
of violence, there was no Apprendi issue to be raised. We concur.
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aggravated felony without consequences.
See Transcript of Rearraignment held 10/26/00 at 24.
At the sentencing on December 22, 2000, however, the district
judge reversed his opinion and stated that any such ruling was in
error. He did so after reviewing the Probation Office’s Pre-
Sentencing Investigation (“PSI”) report, which recommended that a
16-level sentencing enhancement be applied on the grounds that each
of Hernandez’s prior convictions were for aggravated felonies. The
district judge did not rule that the DWI constituted an aggravated
felony because of then-conflicting and unsettled Fifth Circuit
precedent. He did rule that Hernandez’s illegal carrying
conviction reflected an aggravated felony for the purposes of
sentencing. Incorporating the Probation Office’s PSI
recommendation, the sentencing guidelines imposed a mandatory range
of from 57 to 71 months’ incarceration. The district court
sentenced Hernandez to 60 months’ imprisonment. Hernandez now
appeals the district court’s determination that illegal carrying is
an aggravated felony constituting a crime of violence.
II. ANALYSIS.
We review a district court’s interpretation of the United
States Sentencing Guidelines de novo and its application of the
guidelines for clear error. See United States v. Chapa-Garza, 243
F.3d 921, 924 (5th Cir. 2001); United States v. Cho, 136 F.3d 982,
983 (5th Cir. 1998). Hernandez’s sentence must be affirmed unless
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it was imposed in violation of law or was based upon an erroneous
application of the Sentencing Guidelines. See Chapa-Garza, 243
F.3d at 924; United States v. Velazquez-Overa, 100 F.3d 418, 419
(5th Cir. 1996).
Hernandez was indicted for a violation of 8 U.S.C. §
1326(b)(2), illegal reentry of an alien deported subsequent to a
conviction for commission of an aggravated felony. Subject to the
sentencing guidelines for the specific offense, § 1326(b)(2)
provides for a fine, imprisonment of not more than 20 years, or
both. If the conviction had been for three or more misdemeanors
involving drugs, crimes against the person, or both, or a felony
other than an aggravated felony, the alien would be fined under
title 18, U.S. Code, imprisoned not more than 10 years, or both.
See 8 U.S.C. § 1326(b)(1). Therefore, the statute provides for a
higher maximum punishment, subject to the applicable sentencing
guidelines, for illegal reentry following an aggravated felony, as
opposed to other convictions.
The sentencing guideline which applies to § 1326 offenses is
U.S.S.G. § 2L1.2 and its Application Notes. See Chapa-Garza, 243
F.3d at 924. Under U.S.S.G. § 2L1.2, a violation of § 1326 is
subject to a base offense level of 8, with an increase of 16
offense levels if removal from the United States was preceded by a
conviction for an “aggravated felony.” Id. Application Note 1 of
guideline 2L1.2 refers to 8 U.S.C. § 1101(a)(43) for the definition
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of “aggravated felony.” In turn, § 1101(a)(43) includes “crime of
violence” as defined in 18 U.S.C. § 16. Id. There, a crime of
violence is defined as “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.” See 18 U.S.C. § 16(b).
Hernandez’s 1984 felony conviction was for a violation of TEX.
PENAL CODE § 46.02(c). Although that portion of Texas’s penal code
was revised and condensed since 1984, the current § 46.02 is
virtually identical with the one in effect at the time of
Hernandez’s offense. It establishes that if a person
intentionally, knowingly, or recklessly carries on or about his
person a handgun on any premises licensed or issued a permit by the
state of Texas for the sale of alcoholic beverages, he has
committed a third degree felony. See TEX. PENAL CODE § 46.02(c). At
issue is whether a conviction for this offense triggers the
sentencing enhancements under U.S.S.G. § 2L1.2 for an “aggravated
felony” as a “crime of violence.”
The district court decided this case before our decision in
Chapa-Garza, supra. There, we found that Texas felony DWI charges
did not constitute a “crime of violence” as defined under 18 U.S.C.
§ 16(b) and thus was not an aggravated felony for the purposes of
sentencing enhancements. We held that, consonant with the ordinary
meaning of the word “use” in § 16(b),
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[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 offense.
See Chapa-Garza, 243 F.3d at 927. In so doing, we employed a
categorical approach in determining that felony DWI under Texas law
was not a crime of violence “by its nature” according to § 16(b).
That is, the particular facts of the defendant’s prior conviction
did not matter and the proper inquiry was whether a particular
defined offense, in the abstract, is a crime of violence under §
16(b) Id. at 924.
Here, the government argues that a crime of violence should be
defined by the nature of the risk of the defendant’s conduct rather
than by the defendant’s intent that a particular harmful result
will occur. As we explained in Chapa-Garza, however, the
“substantial risk that physical force . . . may be used” language
in § 16(b) refers only to those offenses in which there is a
substantial likelihood that the perpetrator will intentionally
employ physical force against the person or property of another.
This criterion is most reasonably read to refer to intentional
conduct. Id. at 926.
Additionally, § 16(b) requires that the physical force be
applied “in the course of committing the offense.” Id. at 927. As
such, it refers only to that physical force that may be used to
perpetrate the offense. Id.
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We used that analysis to determine that Texas felony DWI is
not a crime of violence as defined by § 16(b) because the crime is
committed when the defendant, after two prior DWI convictions,
begins operating a vehicle while intoxicated; intentional force
against another’s person or property is virtually never employed in
such conduct. Id.
Here, under Texas law, the felony crime of unlawfully carrying
a firearm is committed when the defendant, with intent, knowledge
or recklessness, carries a handgun onto premises which are licensed
or permitted to sell alcoholic beverages. The intent portion of
the crime goes to the act of carrying a firearm onto such premises.
It does not go to any supposed intentional force against another’s
person or property not involved in the act of carrying the firearm
onto the premises. The nature of the crime is enclosed within the
completion of that conduct. Doubtless, the Texas legislature
passed this law to limit the risk of mixing guns and alcohol.
Nonetheless, under our categorical approach to determining crimes
of violence, we do not look to either possible physical violence
nor to any particular conduct by a defendant, violent or otherwise.
The inquiry is simply into the nature of the crime. In the case of
unlawfully carrying a firearm onto premises licensed for the sale
of alcoholic beverages, physical force against the person or
property of another need not be used to complete the crime. The
crime is completed by simply stepping over a threshold while
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carrying such a weapon.
Driving while intoxicated may cause injury to another without
manifesting a “crime of violence” while leaving the intoxicated
driver open to other felony charges. So, too, unlawfully carrying
a firearm or other weapon identified in TEX. PENAL CODE § 46.02 into
a place licensed or permitted to sell alcoholic beverages is not a
“crime of violence” even though a subsequent shooting would leave
the shooter open to other felony charges which would be in the
crime of violence category. This comports with the analysis in our
earlier holding that being a felon in possession of a firearm is
not an aggravated felony, a point raised by Hernandez. United
States v. Fitzhugh, 954 F.2d 253, 254-55 (5th Cir. 1992).
Our application of the Chapa-Garza framework may appear to
conflict with our holding in United States v. Rivas-Palacios, 224
F.3d 396 (5th Cir. 2001). In that case, we determined that the
Texas crime of possession of an unregistered, short-barreled
shotgun was a crime of violence as defined in § 16(b). Id. at 398.
Rivas-Palacios did not purport to apply the (then days-old) Chapa-
Garza framework, and we conclude that to the extent that Rivas-
Palacios conflicts with our holding today, it also conflicts with
Chapa-Garza. “When panel opinions appear to conflict, we are bound
to follow the earlier opinion.” See H & D Tire and Automotive-
Hardware, Inc. v. Pitney Bowes, Inc., 227 F.3d 326, 330 (5th Cir.
2000).
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III. Conclusion.
We hold that the unlawful carrying of a handgun on premises
which have been licensed or permitted to sell alcoholic beverages,
while a felony under Texas law, is not a “crime of violence” under
18 U.S.C. § 16(b) and is therefore not an “aggravated felony” under
U.S.S.G. § 2L1.2. We therefore VACATE the sentence imposed by the
district court and REMAND this case to that court for re-sentencing
in accordance with this opinion.
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