UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 01-11061
SUMMARY CALENDAR
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UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
TIMOTHY S. LEE
Defendant - Appellant.
______________________________________________________________________________
On Appeal from the United States District Court for the
Northern District of Texas, Fort Worth Division
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October 28, 2002
Before REYNALDO G. GARZA, JONES, and EMILIO M. GARZA, Circuit Judges.
REYNALDO G. GARZA, Circuit Judge:
Defendant, Timothy S. Lee, appeals his guilty plea conviction for being a previously
convicted felon in possession of a firearm, a violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
For the following reasons, we affirm in part, vacate in part and remand for re-sentencing.
I.
On July 15, 2000, Timothy S. Lee was stopped when Officer Atkins of the Haltom City
Police noticed an expired inspection sticker displayed on the windshield of the vehicle Lee was
operating. While waiting for an assist unit to arrive on the scene, Officer Atkins performed a
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computer search and learned that Lee’s license had been suspended. Lee was placed under arrest
and a search of the vehicle incident to the arrest was conducted at the scene. During the search, a
9mm handgun and ammunition were discovered. It was later learned that Lee had five prior felony
convictions, that the firearm had been stolen, and that the handgun had been manufactured outside
of the state of Texas, and, therefore, that the firearm had traveled in interstate commerce.
On January 17, 2001, Lee was charged by indictment with two counts of being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Lee filed a pre-trial
motion to dismiss the indictment, arguing that § 922(g) is unconstitutional, both on its face and as
applied. His motion was denied. Lee subsequently entered a conditional guilty plea pursuant to a
written plea agreement. As part of the plea agreement, Lee reserved the right to appeal the district
court’s denial of his motion to dismiss the indictment.
The presentence report (“PSR” or “report”) calculated Lee’s base offense level under
U.S.S.G. § 2K2.1. The report concluded that Lee’s prior conviction for Unauthorized Use of a
Motor Vehicle (“UUMV”) was a crime of violence. Accordingly, the PSR adjusted Lee’s offense
level under U.S.S.G. § 2K2.1(a)(4)(A), resulting in a base offense level of 20. Lee objected to the
use of a base offense level of 20, arguing that his UUMV conviction should not be considered a
crime of violence for purposes of § 2K2.1(a)(4)(A) and § 4B1.2. The district court overruled the
objection, and on August 3, 2001, sentenced Lee to 78 months in prison and 3 years of supervised
release. Lee subsequently filed a timely notice of appeal.
II.
We first address Lee’s arguments regarding the constitutionality of 18 U.S.C. § 922. Lee
posits that § 922(g), which proscribes possession of a firearm by a convicted felon, is
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unconstitutional on its face because it does not require a substantial effect on interstate commerce.
Alternatively, Lee submits that § 922(g) is unconstitutional as applied for the same reason he
claims it is unconstitutional on its face –because prosecutions under the statute need not allege or
prove any substantial effect on interstate commerce.
At the onset, Lee concedes that his arguments are foreclosed by our decision in United
States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001), cert. denied, 122 S.Ct 1113 (2002). Lee
raises the issue here in order to preserve it for Supreme Court review. In Daugherty, we found
that the defendant’s commerce clause challenge to § 922(g) must necessarily fail because “the
constitutionality of § 922(g) is not open to question.” Daugherty, 264 F.3d at 518 (quoting
United States v. DeLeon, 170 F.3d 494, 499 (5th Cir. 1999), cert. denied, 528 U.S. 863, 120
S.Ct. 156, 145 L.Ed.2d 133 (1999)). We also made clear that stipulated evidence showing that a
weapon was manufactured outside of the state in which it was possessed was sufficient to support
a conviction. See Daugherty, 264 F.3d at 514, 518 (firearm that was manufactured in Egypt and
imported through Tennessee found sufficient to maintain a § 922(g)(1) conviction).
Here, as in Daugherty, there is stipulated evidence that the firearm was manufactured
outside the state of Texas and, therefore, that the firearm had previously traveled in interstate
commerce. Because we are bound by our prior precedent, Lee’s argument regarding the
constitutionality of § 922(g) must fail. See Martin v. Medtronic, Inc., 254 F.3d 573, 577 (5th Cir.
2001), cert. denied, 122 S.Ct 807 (2002)(“a panel of this court can only overrule a prior panel
decision if such overruling is unequivocally directed by controlling Supreme Court
precedent”)(internal quotation and citations omitted). This portion of the district court’s judgment
is AFFIRMED.
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III.
We next address the issue of Lee’s prior state conviction for UUMV as it relates to his
sentence. Lee argues that his conviction for UUMV should not be considered a crime of violence
and therefore should not have been used to increase his base offense level under U.S.S.G. §§
2K2.1(a)(4)(A) and 4B1.2. Lee acknowledges that this argument is foreclosed by our decision in
United States v. Jackson, 220 F.3d 635639 (5th Cir. 2000), cert. denied, 532 U.S. 988 (2001),
which held that UUMV is a crime of violence. Although Jackson may have been controlling
precedent at the time, our recent case law –in particular, our decision in United States v. Charles,
301 F.3d 309 (5th Cir. 2002)– requires that the issue be further scrutinized.
A defendant may appeal a sentence imposed under the sentencing guidelines if the
sentence “(1) was imposed in violation of the law; (2) was imposed as a result of an incorrect
application of the sentencing guidelines; or (3) is greater than the sentence specified in the
applicable guideline range . . . .” 18 U.S.C. § 3742(a). Because Lee raised his objection below, the
district court’s application of the guidelines is reviewed de novo, and its findings of fact are
reviewed for clear error. See United States v. Stevenson, 126 F.3d 390, 393 (5th Cir. 1997).
As previously noted, the base offense levels for crimes involving the unlawful possession
of a firearm are set forth in U.S.S.G. § 2K2.1, and an enhanced base offense level of 20 is applied
if the defendant has a previous felony conviction for a “crime of violence.” U.S.S.G. §
2K2.1(a)(4)(A). The guideline commentary clarifies that, for the purposes of § 2K2.1, crime of
violence “has the meaning given that term in § 4B1.2(a) and Application Note 1 of the
Commentary to § 4B1.2.” U.S.S.G. § 2K2.1, comment. (n.5). According to Section 4B1.2(a):
The term “crime of violence” means any offense under federal or state law, punishable by
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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 that presents a serious potential risk of physical injury to another.
U.S.S.G. § 4B1.2(a). Application Note 1 to this section states:
“Crime of violence” includes murder, manslaughter, kidnaping, aggravated assault,
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 the
use of explosives (including any explosive material or destructive device) or, by its nature,
presented a serious potential risk of physical injury to another.
U.S.S.G. § 4B1.2, comment. (n.1).
As noted above, the PSR recommended that Lee’s base offense level be calculated at 20
because his prior felony UUMV offense constituted a crime of violence. According to the PSR,
this recommendation was based on our decision in United States v. Galvan-Rodriguez, 169 F.3d
217 (5th Cir. 1999). Lee objected, raising the same issue currently being reviewed, but also
conceding that his contention had been rejected in Jackson. The district court, in overruling Lee’s
objection, expressly relied on our holding in Jackson.
United States v. Galvan-Rodriguez. In Galvan-Rodriguez, the defendant was convicted of
illegal reentry into the United States and received a sixteen-level enhancement based on his prior
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Texas conviction for UUMV. See Galvan-Rodriguez, 169 F.3d at 218. The enhancement was
imposed pursuant to U.S.S.G. § 2L1.2, under which a defendant who has been deported and
unlawfully reenters the country will receive an increased offense level if he has previously been
convicted of an “aggravated felony.” See id. Section 2L1.2 defined aggravated felony, in pertinent
part, as any “crime of violence,” as that phrase is defined in 18 U.S.C. § 16. See U.S.S.G. §
2L1.2, comment. (n.7)(Nov. 1995). According to Section 16(b), a “crime of violence” is a felony
offense “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.” 18 U.S.C. § 16 (1994).
This Court held that UUMV is a crime of violence as defined by § 16 and is, therefore, also an
aggravated felony for purposes of the § 2L1.2(b)(2) offense level enhancement.
United States v. Jackson. In Jackson, as in the case currently before us, a defendant with a
prior UUMV conviction was subsequently convicted for wrongfully possessing a firearm. See
Jackson, 220 F.3d at 636. The Jackson panel noted that the holding in Galvan-Rodriguez –that
UUMV is a crime of violence– was based on the fact that UUMV creates a substantial risk that
the vehicle might become involved in an accident, resulting in damage to the vehicle, other
property and innocent persons. See id. at 639. It was also noted that the misdemeanor crime of
driving while intoxicated had been held to be a crime of violence under § 4B1.2(a)(2). See id.
(citing United States v. DeSantiago-Gonzalez, 207 F.3d 261, 264 (5th Cir. 2000)). After
reviewing these cases, the Jackson court held that the “risk to persons is likewise sufficient to
render [UUMV], as a categorical matter, a crime of violence under § 4B1.2(a)’s residual clause.”
Jackson, 220 F.3d at 639.
United States v. Charles. In Charles, a panel of this Court, considering itself bound by
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Jackson, affirmed the district court’s finding that theft of a vehicle is a crime of violence under §
4B1.2(a). See Charles, 301 F.3d at 311. After rehearing the case en banc, however, this Court
overturned Jackson, and limited the holding of Galvan-Rodriguez to its property aspects and to §
16(b) cases. Id. at 314. We clarified that “sentences involving possession of a firearm by a felon,
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.” Id. at 312. We held that, for purposes of § 4B1.2, an offense is
considered a crime of violence “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.” Id. at 314.
After considering Charles’ indictment for vehicle theft, this Court concluded that simple
theft of a vehicle is not a crime of violence under § 4B1.2. Id. Although the defendant’s conduct
–i.e., theft of a car– presented a risk of injury to property, there was no suggestion in the
indictment that Charles’ conduct presented a serious potential risk of physical injury to another
person. Id. Charles “simply exercised control over property (the automobile) and drove it without
the owner’s consent.” Id.
Analysis. As a practical matter, our decision in Charles overruled the basis for the district
court’s determination that Lee’s prior UUMV conviction is a crime of violence. It should be
noted, however, that this Court specifically stated in Charles that it had granted rehearing en banc
“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).” Id. at 310. In Texas, theft and unauthorized
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use of a vehicle are distinct offenses. See TEX. PENAL CODE ANN., §§ 21.03 and 31.07.
The crime of theft involves “unlawfully appropriat[ing] property with intent to deprive the
owner of property.” TEX. PENAL CODE § 31.03(a). Unauthorized use of a vehicle is defined as
“intentionally or knowingly operat[ing] another’s boat, airplane, or motor-propelled vehicle
without the effective consent of the owner.” TEX. PENAL CODE § 31.07(a). Thus, UUMV
involves essentially the same elements as theft, but does not require the intent to deprive the
owner of property.
The Texas Court of Criminal Appeals has held that UUMV is a lesser included offense of
theft. See Neely v. State, 571 S.W.2d 926, 928 (Tex. Crim. App. 1978). This would suggest that,
because simple theft is not a crime of violence under Charles, UUMV –as a lesser included
offense of theft– could not be a crime of violence either. Recent case law from the Texas Court of
Appeals, however, implies that the Court of Criminal Appeals now reads Neely as requiring an
examination of the facts of each case to determine whether or not UUMV is a lesser included
offense of theft under the particular circumstances. See Brady v. State, 2001 WL 459719, *2-3
(Tex. App. 2001)(unpublished).
Because our decision in Charles overturned Jackson, limited Galvan-Rodriguez, and held
that vehicle theft is not a crime of violence, it is likely that Lee’s UUMV offense cannot be
considered a crime of violence. However, we held in Charles that the face of the indictment
should be examined, and in this case, Lee’s state indictment for UUMV is not in the record. Given
that the indictment should be reviewed –and that such a review would aid in clarifying the proper
application of the somewhat ambiguous Texas law– we therefore VACATE the sentence and
REMAND for re-sentencing consistent with Charles.
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IV.
For the foregoing reasons, the judgment of the district court is AFFIRMED in part, the
judgment of sentence is VACATED and we REMAND the matter for re-sentencing in the light of
this opinion and our decision in Charles.
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