United States v. Charles

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 01-10113

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UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

JOSEPH CLIFTON CHARLES,

Defendant - Appellant.
_________________________________________________________________
July 31, 2002
Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES,
SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DEMOSS, BENAVIDES,
STEWART, PARKER, DENNIS and CLEMENT, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

We granted rehearing en banc in this sentencing appeal in

order to determine whether theft of a motor vehicle is a crime of

violence under United States Sentencing Guideline (“U.S.S.G.”) §

4B1.2(a)(2), requiring the enhanced sentence imposed on Charles.

We hold that simple automobile theft is not a crime of violence.

We therefore VACATE Charles’ sentence and REMAND for re-sentencing.

I

The defendant, Joseph Clifton Charles, pled guilty in this

case to possession of a firearm as a felon, in violation of 18
U.S.C. § 922(g)(1).1 Earlier, in July 1997, Charles had been

convicted of one count of motor vehicle theft. The question

therefore is what kind of sentence is appropriate for the instant

firearm conviction in the light of his previous conviction for

automobile theft.

For offenses involving the unlawful possession of a firearm,

U.S.S.G. § 2K2.1(a)(6) provides a base offense level of 14 if the

defendant is a “prohibited person,” in this case, a felon.

However, U.S.S.G. § 2K2.1(a)(4) provides for an increased base

offense level of 20 if the defendant had one prior felony

conviction of a “crime of violence,” as defined in § 4B1.2(a). The

district court determined that theft of a vehicle is a crime of

violence under § 4B1.2(a)(2), basing its conclusion on a

determination that the controlling precedent was United States v.

Jackson, 220 F.3d 635, 639 (5th Cir. 2000). There we held that

unauthorized use of a motor vehicle is indeed a crime of violence

under § 4B1.2(a)(2). Thus, in sentencing Charles, the district

court began with a base offense level of 20 and reduced the offense

level by 3 for acceptance of responsibility, to level 17. Based on

Charles’ criminal history category of five, the district court

1
Section 922(g)(1) makes it unlawful for a person who has been
convicted of a crime punishable by imprisonment for a term
exceeding one year to possess a firearm in or affecting interstate
commerce. Title 18 U.S.C. § 924(a)(2) provides for a penalty of up
to ten years for this offense. In October 1997, Charles had pled
guilty to the felony offense of unlawfully carrying a weapon on a
licensed premises, and was sentenced to two years’ imprisonment.

2
sentenced Charles to 51 months’ imprisonment, a three-year term of

supervised release, and a mandatory special assessment of $100.

Charles filed a timely notice of appeal of his sentence.

A panel of this court, considering itself bound by Jackson,

affirmed. See United States v. Charles, 275 F.3d 468 (5th Cir.

2001). A majority of active judges then voted to hear the case en

banc. United States v. Charles, 284 F.3d 567 (5th Cir. 2002).

II

The outcome of this appeal depends on whether simple motor

vehicle theft is a crime of violence under U.S.S.G. § 4B1.2(a)(2).

We should note at the outset, however, that this question has been

confused because of the differing definitions of “crime of

violence” that appear in 18 U.S.C. § 16 (“the statute”) and the

definition promulgated under § 4B1.2(a) of the sentencing

guidelines, which applies specifically to firearms offenses.2

2
Section 16 defines “crime of violence” as:

(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
against the person or property of another may be used in
the course of committing the offense.

In contrast, § 4B1.2(a) defines “crime of violence” as:

[A]ny offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that--
(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or

3
While § 16(a) and § 4B1.2(a)(1) are virtually identical, § 16(b)

and § 4B1.2(a)(2) are clearly different.3 Section 16(b) applies to

the use of force against person and property, whereas § 4B1.2(a)(2)

only applies to conduct that presents a serious potential risk of

physical injury to another person.4 Other differences include:

§16(b) focuses on a risk of physical force, whereas § 4B1.2(a)(2)

focuses on a risk of physical injury; § 16(b) requires a

“substantial risk,” whereas § 4B1.2(a) requires a “serious

potential risk”; and § 16(b) focuses on the “nature” of the felony,

whereas § 4B1.2(a)(2) focuses on “conduct.” See Jackson, 220 F.3d

at 637; United States v. Chapa-Garza, 243 F.3d 921, 925-26 (5th Cir.

2001).

(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.

3
Although § 16 has general application under the Comprehensive
Crime Control Act of 1984, in which Congress created the Sentencing
Commission and authorized it to promulgate sentencing guidelines,
see United States v. Parson, 955 F.2d 858, 864 (3d Cir. 1992)
(citing S. Rep. No. 98-225, 98th Cong., 1st Sess. 307 (1983), in 1984
U.S.C.C.A.N. 3182, 3486), and although the Sentencing Commission
has promulgated a different definition of “crime of violence” under
§ 4B1.2(a), no one in this appeal has raised the issue of whether
the Sentencing Commission has the authority to depart from § 16.
Consequently this is not an issue in this case. Nevertheless, we
should observe that the Third Circuit has concluded that the
Sentencing Commission has the power to adopt a different definition
of “crime of violence” from that in § 16. See Parson, 955 F.2d at
866.
4
This difference is also true of § 16(a) and § 4B1.2(a)(1).

4
 Nevertheless, in the past we have used § 16(b) cases to

interpret § 4B1.2(a)(2) cases, and vice-versa. For example, in

Jackson, in which we held that unauthorized use of a vehicle

(“UUV”) is a crime of violence under § 4B1.2(a)(2), we noted that

“[w]e are not unsympathetic to Jackson’s argument that UUV is not

what one might typically consider a ‘crime of violence,’ [but] we

do not write on a clean slate . . . .” Jackson, 220 F.3d at 639.

We looked for guidance to United States v. Galvan-Rodriguez, 169

F.3d 217 (5th Cir.), cert. denied, 528 U.S. 837 (1999), an

immigration case, in which we held that UUV is a crime of violence

under § 16. Other cases in this circuit, however, have made clear

that § 16 and § 4B1.2(a) are different, and that what qualifies as

a crime of violence under one does not necessarily qualify under

the other.5 To the extent that our prior cases have conflated the

§ 16(b) and § 4B1.2(a)(2) definitions of “crime of violence,” they

are overruled.

We therefore hold that sentences involving possession of a

firearm by a felon,6 which also involve a prior conviction for an

alleged “crime of violence,” are to have the “crime of violence”

determination made only in accordance with the definition in §

4B1.2(a) and its accompanying commentary.

5
See, e.g., United States v. Chapa-Garza, 243 F.3d 921, 925-
26 (5th Cir. 2001).
6
See U.S.S.G. § 2K2.1, applicable to the unlawful receipt,
possession, or transportation of firearms or ammunition, and to
prohibited transactions involving firearms or ammunition.

5
 III

In determining whether simple motor vehicle theft is a crime

of violence under § 4B1.2(a)(2), we are bound to follow each

sentencing guideline and accompanying policy statements. See

United States v. Urias-Escobar, 281 F.3d 165, 167 (5th Cir. 2002)

(citing Mistretta v. United States, 488 U.S. 361, 391 (1989) and

Williams v. United States, 503 U.S. 193, 199-201 (1992)). Further,

the guidelines' commentary is given controlling weight if it is not

plainly erroneous or inconsistent with the guidelines. See id.

(citing Stinson v. United States, 508 U.S. 36, 42-45 (1993)). 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).

As noted previously, U.S.S.G. § 2K2.1 sets forth base offense

levels for crimes involving the unlawful possession of a firearm,

and applies an enhanced base offense level of 20 if the defendant

has a previous felony conviction for a “crime of violence.”

U.S.S.G. § 2K2.1(a)(4)(A). Application Note 5 to § 2K2.1 refers to

§ 4B1.2(a) and its Application Note 1 for the definition of “crime

of violence.” Section 4B1.2(a) defines “crime of violence” as:

[A]ny offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that--
(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
another, or
(2) is burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves conduct

6
 that presents a serious potential risk of physical injury
to another.

U.S.S.G. § 4B1.2(a) (2000). Application Note 1 to this section

(“Application Note 1") states:

"Crime of violence" includes murder, manslaughter,
kidnapping, aggravated assault, forcible sex offenses,
robbery, arson, extortion, extortionate extension of
credit, and burglary of a dwelling. Other offenses are
included as "crimes of violence" if (A) that offense has
as an element the use, attempted use, or threatened use
of physical force against the person of another, or (B)
the conduct set forth (i.e., expressly charged) in the
count of which the defendant was convicted involved use
of explosives (including any explosive material or
destructive device) or, by its nature, presented a
serious potential risk of physical injury to another.

We must decide whether simple motor vehicle theft, under Texas

law, falls under this definition, that is, whether, by its nature,

it “involves conduct that presents a serious potential risk of

physical injury to another.” In Texas, theft is defined as

“unlawfully appropriat[ing] property with intent to deprive the

owner of property.” Tex. Pen. Code § 31.03(a). “Appropriation of

property is unlawful if: (1) it is without the owner's effective

consent; (2) the property is stolen and the actor appropriates the

property knowing it was stolen by another; or (3) property in the

custody of any law enforcement agency was explicitly represented by

any law enforcement agent to the actor as being stolen and the

actor appropriates the property believing it was stolen by

another.” Tex. Penal Code § 31.03(b). Charles’ indictment from

his motor vehicle theft offense charges that he:

7
 [did] unlawfully appropriate, by acquiring or otherwise
exercising control over property, to-wit, an automobile,
of the value of $1500 or more, and less than $20,000,
with intent to deprive the owner [] of the property . .
. [and did] intentionally operate one motor-propelled
vehicle, to-wit, an automobile, knowing that he did not
have the effective consent of the owner . . . .7

In United States v. Fitzhugh, 954 F.2d 253 (5th Cir. 1992), we held

that, in determining whether an offense is a crime of violence

under § 4B1.2 or § 4B1.1, we can consider only “conduct ‘set forth

in the count of which defendant was convicted,’” and not the other

facts of the case. Id. at 254 (citation omitted). This principle

is confirmed by Application Note 1 to § 4B1.2, which states that

“[o]ther offenses are included as ‘crimes of violence’ if . . . the

conduct set forth (i.e., expressly charged) in the count of which

the defendant was convicted . . . by its nature, presented a

serious potential risk of physical injury to another.” Based on

the language in § 4B1.2(a)(2) and in Application Note 1, we hold

that a crime is a crime of violence under § 4B1.2(a)(2) only if,

from the face of the indictment, the crime charged or the conduct

charged presents a serious potential risk of injury to a person.

Injury to another need not be a certain result, but it must be

clear from the indictment that the crime itself or the conduct

specifically charged posed this serious potential risk.

From the face of Charles’ indictment, it cannot be said that

his conduct in committing the offense presented a serious potential

7
Simultaneously with this opinion, we GRANT the motion of the
United States to supplement the record with Charles’ indictment.

8
risk of physical injury to another. His conduct presented a risk

of injury to property, that is, the automobile. However, there is

no suggestion in the indictment that Charles’ conduct in stealing

the car presented a serious potential risk of physical injury to

another person. He simply exercised control over property (the

automobile) and drove it without the owner’s consent.

Application Note 1, by requiring that other crimes must “by

[their] nature” present a “serious potential risk of physical

injury to another,” calls for a categorical inclusion or exclusion

of crimes and/or conduct. Simple motor vehicle theft does not, by

its nature, present this risk. It therefore is not a crime of

violence under § 4B1.2(a)(2).

IV

For the reasons we have thus explained, we overrule our

holding in United States v. Jackson, 220 F.3d 635 (5th Cir. 2000).

Further, we limit our holding in United States v. Galvan-Rodriguez,

169 F.3d 217 (5th Cir.), cert. denied, 528 U.S. 837 (1999) to its

property aspects and to § 16 cases. We therefore REVERSE the

judgment, VACATE the sentence, and REMAND this case for re-

sentencing in the light of this opinion.

REVERSED, VACATED and REMANDED.

9
RHESA HAWKINS BARKSDALE, Circuit Judge, with whom JONES and

CLEMENT, Circuit Judges join, concurring in part and dissenting in

part:

The theory of probabilities is at bottom nothing but common
sense reduced to calculus.

Pierre Simon de LaPlace, Oeuvres, vol. VII, Théorie Analytique des

Probabilitiés [1812-1820], introduction (emphasis added).

Common sense is the key to applying the “otherwise involves

conduct” portion of U.S.S.G. § 4B1.1(a)(2). Along that line, I

concur in the following standard set by the majority:

Based on the language in § 4B1.2(a)(2) and in
[its] Application Note 1, we hold that a crime
is a crime of violence under § 4B1.2(a)(2)
only if, from the face of the indictment, the
crime charged or the conduct charged presents
a serious potential risk of injury to a
person. Injury to another need not be a
certain result, but it must be clear from the
indictment that the crime itself or the
conduct specifically charged posed this
serious potential risk.

Maj. Opn. at 8 (emphasis added). I must respectfully dissent,

however, from its holding that, under this controlling standard,

Charles’ conduct does not constitute a crime of violence.

The operative phrase in § 4B1.2(a)(2) — “otherwise involves

conduct that [by its nature, app. n.1] presents a serious potential

risk of injury to another” (emphasis added) — contains, for

purposes of probabilities, a somewhat unusual use of the word
“serious”. Of course, “potential” is understood as “possible”;

“risk”, as “chance”. 2 THE NEW SHORTER OXFORD ENGLISH DICTIONARY 2310,

2609 (1993). But, what does “serious” add to the mix?

“Serious” does not modify “injury”, as in “serious bodily

injury”. See, e.g., U.S.S.G. § 1B1.1 app. n.1(i) (2001). Instead,

it modifies “potential risk”: “serious potential risk”. As so

employed, “serious” means “of significant degree or amount, worthy

of consideration”. Id. at 2785. It does not mean that injury to

another is probable. At bottom, § 4B1.2(a)(2) calls for the

application of common sense.

Therefore, for Charles’ car theft to constitute a crime of

violence, there must have been a “significant possible chance” of

injury to a person when, as detailed in the conduct charged in his

indictment, Charles “unlawfully appropriate[d] ... an automobile

... and intentionally operate[d] it”. (Emphasis added.) In the

light of this charged conduct, and contrary to the majority’s

apparent view, far more is at stake than “simple car theft”. For

example, because the charged conduct included Charles’ operating

the stolen vehicle, the theft took on an additional, dangerous

characteristic: the unauthorized operation of the vehicle.

Common sense (not to mention judicial notice) informs us of

the numerous “significant possible chances” of injury to another

that come into play when an automobile is stolen and then operated

by the thief. Not infrequently, for such, or similar,

11
circumstances, we read or hear about such injuries, including

deaths. In these circumstances, there is a “significant possible

chance” of injury: to the person(s) from whom the vehicle is

stolen, or who might otherwise be in or near the vehicle; and to

persons in the vicinity of the automobile when it is operated under

the attendant stress to the thief and urgency to escape with the

vehicle, resulting in quite likely dangerous driving and the

serious risk of a collision or hitting someone not in a vehicle.

Add to this the extra, even greater, “significant possible chance”

of injury to another if, at or near the time of the theft, or even

later, the thief driving (operating) the stolen vehicle is pursued

by police, especially at high speed and, most especially if, as a

result, the fleeing thief and/or pursuing police are not stopping

for stop signs or red lights.

In short, common sense tells us that, for the conduct charged,

the possible combinations of factors leading to injury to another

are almost limitless. A fortiori, I cannot understand how the

charged conduct does not equate with a “serious potential risk of

physical injury to another”. Surely, it does. Accordingly, I must

respectfully dissent from the majority’s holding otherwise.

12
HAROLD DeMOSS, Circuit Judge, specially concurring:

I concur fully in the holding of this opinion that simple

automobile theft is not a crime of violence. I write separately to

amplify the nature and extent of the confusion and ambiguities

which exist as to the meaning of the term “crime of violence” which

this opinion addresses only in a limited way. A computerized word

check indicates that the term “crime of violence” is used 108 times

in the United States Code and in the United States Sentencing

Guidelines. In many of the instances where this term is used there

is a cross-reference to a statutory definition. From a numerical

standpoint, the most frequently used cross-reference is that to 18

U.S.C. § 16, as set forth in the majority opinion. In some

instances, the term is used without any cross-reference to a

definition and in those instances it is impossible to determine the

meaning to be ascribed to the term “crime of violence” as used

therein.

There are, in fact, eight different definitions of the term

“crime of violence” in the United States Code and the United States

Sentencing Guidelines. These different definitions can be located

at the following citations: 18 U.S.C. § 16, 18 U.S.C. §

924(c)(D)(3), 18 U.S.C. § 3156(a)(4), Fed. R. Crim. P. 32(f)(2), 28

U.S.C. § 540A(c), 42 U.S.C. § 13726(a)(1), U.S.S.G. § 2L1.2,

application notes (B)(ii) and U.S.S.G. § 4B1.2(a). There are a

variety of common elements in each of these definitions, but they

each have differing words and phrases. I can see no rational
justification for a defined term such as “crime of violence,” which

is used as frequently as the term “crime of violence” is used, to

have this many different meanings. I can see no rational

justification for a prior conviction being categorized as a “crime

of violence” under one of these definitions but not under another.

Finally, I can see no rational justification for some of these

definitions being closed-ended and self-contained; and others of

these definitions have catch-all clauses which invite speculation

and differing results depending upon who (prosecutor, defense

counsel, probation officer, or judge) is making the interpretive

call which these catch-all provisions require. In my view, the

level of ambiguity generated by these varying definitions is

totally unacceptable in a criminal justice system that claims to be

based on due process. In my view, blame for this state of disarray

falls squarely on the shoulders of the Congress (specifically the

Judiciary Committees of the House and the Senate) and on the

Sentencing Commission and its staff. It is not the task of the

Judicial Branch to say which of these varying definitions the

Congress intended to be controlling; nor is it the task of the

Judicial Branch to make specific what Congress has failed to

specify.

14