United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit October 15, 2004
Charles R. Fulbruge III
Clerk
No. 02-20697
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
VERSUS
JESUS RODRIGUEZ-RODRIGUEZ,
Defendant – Appellant.
Appeal from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, GARZA, and DENNIS, Circuit Judges.
PER CURIAM:
In response to the Government’s petition, a panel rehearing is
granted. After further reflection and review, we have determined
that the original opinion should be vacated, and the following
opinion substituted in its place.
Jesus Rodriguez-Rodriguez (“Rodriguez”) appeals his sentence
for illegal reentry after deportation. The issue is whether the
district court correctly enhanced Rodriguez’s sentence based on a
determination that two prior crimes of which Rodriguez had been
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convicted were “crimes of violence” under the 2001 version of
United States Sentencing Guidelines (“U.S.S.G.”) §
2L1.2(b)(1)(A)(ii). We conclude that, under the Texas laws in
effect at the time of Rodriguez’s commission of burglary of a
building and unauthorized use of a motor vehicle, the state
criminal statutes violated were not “crimes of violence” for the
purpose of sentence enhancement under § 2L1.2(b)(1)(A)(ii).
Consequently, Rodriguez’s sentence must be set aside because it is
excessive and unauthorized.
Rodriguez was deported from the United States in August 1995.
After being found in a Texas prison on June 29, 2000, he pleaded
guilty to a one-count indictment charging him with illegal reentry
in violation of 8 U.S.C. § 1326(a) and (b)(2).
The pre-sentence report, which was adopted in its entirety by
the district court as the factual basis for the court’s sentencing
decision,1 chronicled Rodriguez’s criminal history, including his
Texas convictions of burglary of a building in 1990 and
unauthorized use of a motor vehicle (“UUMV”) in 1993. Classifying
those offenses as “crimes of violence,” the probation officer
recommended a sixteen-level increase in Rodriguez’s base offense
level pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii). Rodriguez
objected to the increase, contending that burglary of a building
1
See Sentencing Hearing Tr. at pg. 9, ¶¶ 1-5.
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and UUMV were not crimes of violence for purposes of §
2L1.2(b)(1)(A)(ii). Conceding that both of these offenses would
qualify as “aggravated felonies” under § 2L1.2(b)(1)(C), Rodriguez
contended that an eight-level increase should have been applied
instead. The district court overruled the objection and, using a
sixteen-level increase in Rodriguez’s base offense level, sentenced
Rodriguez to seventy-nine months of imprisonment and three years of
supervised release. Rodriguez filed a timely notice of appeal.
We review this challenge to the district court’s application
of § 2L1.2 de novo.2 The guidelines’ commentary is given
controlling weight in our review if it is not plainly erroneous or
inconsistent with the guidelines.3
The 2001 version of § 2L1.2, under which Rodriguez was
sentenced, provides for a sixteen-point increase in the base
offense level if the defendant previously was deported after a
conviction for a felony that is a crime of violence.4 According to
Application Note 1(B)(ii) of the commentary, “crime of violence”
(I) means an offense under federal, state, or local law
that has as an element the use, attempted use, or
threatened use of physical force against the person of
another; and
2
United States v. Charles, 301 F.3d 309, 312–13 (5th Cir. 2002)
(en banc).
3
Id. at 312.
4
See U.S.S.G. § 2L1.2(b)(1)(A)(ii) (Nov. 2001).
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(II) includes murder, manslaughter, kidnapping,
aggravated assault, forcible sex offenses (including
sexual abuse of a minor), robbery, arson, extortion,
extortionate extension of credit, and burglary of a
dwelling.5
Because burglary of a building and UUMV are not among the offenses
specifically enumerated in Application Note 1(B)(ii)(II), they are
crimes of violence only if the statutory definitions have as an
element “the use, attempted use, or threatened use of physical
force against the person of another.”6 Rodriguez was convicted of
burglary of a building on November 8, 1990. Although the record
does not explicitly state when the crime underlying his 1990
conviction was committed, it contains facts that conclusively
demonstrate that the burglary statute violated was the 1974
version. The 1974 Texas burglary statute, which contains the
burglary of a building provision, was not altered before 1993.7 We
are certain that Rodriguez did not commit the offense prior to
1974, because the record shows that he was born in 1963 and would
have been only 11 years old in 1974. The record indicates that
5
Id. § 2L1.2, cmt. (n.1(B)(ii)).
6
See United States v. Rayo-Valdez, 302 F.3d 314, 316 (5th Cir.
2002). Our cases recognize that burglary of a building and
burglary of a dwelling or habitation are distinct offenses. See,
e.g., United States v. Turner, 305 F.3d 349, 351 (5th Cir. 2002);
United States v. Albert Jackson, 22 F.3d 583, 585 (5th Cir. 1994).
7
See TEX. PENAL CODE ANN. § 30.02 (1990).
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Rodriguez had no juvenile record and no arrests prior to 1984.
Therefore, Rodriguez must have committed the offense that led to
his 1990 conviction of burglary of a building sometime between 1974
and 1990. Thus, we will apply the 1974 version of the Texas
burglary of a building statute in determining whether Rodriguez’s
offense is a crime of violence for the purpose of sentence
enhancement under § 2L1.2(b)(1)(A)(ii).8
Under the applicable Texas law,9 a person commits burglary of
8
Because the district court did not explicitly state when
Rodriguez committed burglary of a building or which version of the
statute applied, the dissent would remand this case to the district
court for additional fact-finding. But the district court is not
required to make a “catechismic regurgitation of each fact
determined.” See United States v. Carreon, 11 F.3d 1225, 1231 (5th
Cir. 1994)(citing United States v. Sherbak, 950 F.2d 1095, 1099
(5th Cir. 1992); United States v. Lghodaro, 967 F.2d 1028, 1030
(5th Cir. 1992)). Rather, the district court can make explicit and
implicit findings of fact by adopting the pre-sentence report. See
id. And, we need not remand for additional factual findings so
long as the basis for the district court’s sentencing decision is
sufficiently clear even if implicit. See id.(citing United States
v. Hooker, 942 F.2d 878, 881 (5th Cir. 1991)). Here, the district
court, by adopting the pre-sentence report, explicitly found as
fact that Rodriguez: (1)was born on February 5, 1963; (2) was
convicted of burglary of a building on November 8, 1990; and (3)
had no juvenile record when it adopted the pre-sentence report as
the factual basis for sentencing. Implicit in these factual
findings is that Rodriguez must have committed the crime between
1974 and 1990, and therefore he was convicted under the burglary
statute in effect during that period. Because the 1974 version of
the burglary statute was unchanged during that time period, the
district court had to implicitly find that the 1974 version
controlled. And because the district court could not have
reasonably made any other finding, a remand is unnecessary.
9
See TEX. PENAL CODE ANN. § 30.02 (Vernon 1974).
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a building if, without the effective consent of the owner, he:
(1) enters a . . . building . . . not then open to the
public, with intent to commit a felony or theft; or (2)
remains concealed, with intent to commit a felony or
theft, in a building . . . ; or (3) enters a building .
. . and commits or attempts to commit a felony or
theft.10
Rodriguez was convicted of UUMV in 1993 and the record shows
that he committed that offense the same day that he was arrested in
1992. A person committed UUMV in 1992 “if he intentionally or
knowingly operate[d] another’s . . . motor-propelled vehicle
without the effective consent of the owner.”11
In United States v. Vargas-Duran,12 this court, sitting en
banc, held that for a non-enumerated offense to “have as an
element” the use, attempted use, or threatened use, of physical
force necessary for a sentence enhancement under §2L1.2, the fact
of physical force must be a fact that is necessary for the
prosecution to secure a conviction.13 We then held that because
10
Id.
11
TEXAS PENAL CODE ANN. § 31.07(a) (Vernon 1992).
12
United States v. Vargas-Duran, 356 F.3d 598 (5th Cir. 2004).
13
Id. at 605 & 606 (internal citations omitted); see also United
States v. Calderon-Pena, 2004 U.S. App. LEXIS 18036 at *14-15
(2004)(en banc)(holding that the offense of child endangerment was
not a “crime of violence” under §2L1.2 because child endangerment
did not “have the use, attempted use, or threatened use of physical
force against the person of another as a required
element.”)(emphasis added).
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the Texas offense of intoxication assault could be committed
without a defendant’s intentional use of physical force against the
person of another, it was not a “crime of violence” under §2L1.2.
This court specifically noted that its crime of violence analysis
with regard to determining whether an offense included as an
element the use of physical force as an element necessary to
support a sentence enhancement under §2L1.2 in Vargas-Duran was
consistent with the analytical approach adopted in United States v.
Gracia-Cantu.14 In Gracia-Cantu, this court determined that the
Texas offense of felony injury to a child, which could be committed
by an intentional, knowing, reckless, or criminally negligent act
or omission,15 did not have as an element the use of physical force
necessary to constitute a crime of violence because the statute did
not “require that the perpetrator actually use, or threaten to use
physical force against a child.”16
Similar to the crime definition statutes in Vargas-Duran and
Gracia-Cantu, neither the definition of burglary of a building nor
that of UUMV requires proof of use, attempted use, or threatened
use of physical force in order to convict. For instance, a Texas
14
See Vargas-Duran, 356 F.3d at 604-05.
15
See Gracia-Cantu,302 F.3d at 311-312 (citing TEX. PENAL CODE
ANN. § 22.04(a))(emphasis added).
16
Gracia-Cantu,302 F.3d at 311-312.
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prosecutor could secure a burglary of a building conviction under
the 1974 statute by proving that a defendant entered into an
unoccupied office building without consent in an attempt to steal
office equipment.17 Likewise, a Texas prosecutor could secure a
conviction under the UUMV statute by proving that a defendant took
his friend’s car up to the corner store without permission while
the friend was out of town.18 Neither of these situations involve
the use, attempted use, or threatened use of physical force against
another person. Therefore, the use of physical force cannot be a
necessary or required element of these offenses and, under Vargas-
Duran19 and Gracia-Cantu,20 neither of these offenses constitutes a
crime of violence that would support a sixteen-level crime-of-
violence enhancement under § 2L1.2(b)(1)(A)(ii).21
17
See TEX. PENAL CODE ANN. §30.02.
18
See TEXAS PENAL CODE ANN. §31.07(a).
19
See 356 F.3d at 605.
20
See 302 F.3d 311-312.
21
Our holding as it regards this generic burglary statute that
punishes the “nonconsensual entry into a building with intent to
commit a crime”, see Silva, 957 F.2d at 162, corresponds with our
conclusion in United States v. Rodriguez-Guzman. See 56 F.3d 18,
20 (5th Cir.1995) ("To obtain a conviction under the. . .Texas
burglary statutes, the state need not prove the use, attempted use,
or threatened use of physical force against the person. . .of
another."). In addition, several of our sister circuits have come
to the same conclusion when making “crime of violence”
determinations under §2L1.2 of the guidelines. See, e.g., United
States v. Gomez-Hernandez, 300 F.3d 974, 979 (8th Cir. 2002)(noting
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In summary, we conclude that Rodriguez’s Texas offense of
burglary of a building committed between 1974 and 1990 and his UUMV
offense committed in 1992 are not crimes of violence within the
meaning of U.S.S.G. § 2L1.2(b)(1)(A)(ii) because neither offense as
defined by state law is listed in Application Note 1(B)(ii)(II) or
has as an element the use, attempted use, or threatened use of
physical force against the person of another. Accordingly, we
vacate Rodriguez’s sentence and remand the case to the district
court for resentencing consistent with this opinion.
VACATED AND REMANDED.
that “generic” burglary has never had the use, attempted use, or
threatened use of physical force against the person of
another)(internal citation omitted); United States v. Pereira-
Salmeron, 337 F.3d 1148, 1152 (9th Cir. 2003)(noting that even
burglary of a dwelling, which is specifically listed as a crime of
violence under the guidelines, does not categorically have as an
element any touching or physical harm to the person of another);
United States v. Fuentes-Rivera, 323 F.3d 869, 871-72 (11th Cir.
2003) (noting that California’s first degree burglary statute,
which includes “intent to commit grand or petit larceny or any
felony” as an element, did not have the use, attempted use, or
threatened use of physical force as an element)(emphasis added).
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GARZA, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority opinion’s conclusion that
unauthorized use of a motor vehicle does not constitute a “crime
of violence” for purposes of applying U.S.S.G. §
2L1.2(b)(1)(A)(ii). Nonetheless, for the reasons expressed in my
dissent in Vargas-Duran, I continue to believe that Vargas-Duran
was wrongly decided. See Vargas-Duran, 356 F.3d 598, 610-16 (5th
Cir. 2004) (en banc) (Garza, J. dissenting). Recognizing this en
banc precedent, I would remand for the district court to
ascertain which version of the Texas burglary statute applies,
which is unclear from the record before us, and apply §
2L1.2(b)(1)(A)(ii) accordingly.
The majority opinion decides Rodriguez was convicted of
burglary of a building under the 1974 version of the Texas
burglary statute. It notes, however, the record does not
explicitly say when the crime was committed or which version of
the Texas burglary statute applies. The majority determines that
the 1974 version of the statute applies because Rodriguez would
have been only 11 years old in 1974. I do not dispute this
logic. Nonetheless, determining the version of the Texas
burglary statute applicable to Rodriguez is a finding of fact.
It is the role of the trial court to make the findings of fact
necessary to apply the sentencing guidelines. See U.S.S.G. §
1B1.1 et seq. (directing the trial court to make various factual
findings). The role of the appeals court is to review those
findings. See United States v. Myers, 198 F.3d 160, 163 (5th
Cir. 1999) (stating that this Court reviews a district court's
findings of fact under a clearly erroneous standard and its
application of the Guidelines to those findings de novo).
Accordingly, this Court should remand, allowing the district
court to fulfill its function of finding the facts necessary to
apply the appropriate sentencing guidelines.
Even under the 1974 version, the district court must
ascertain whether Rodriguez committed burglary of a building
“with intent to commit a felony” which under the charging papers,
indictment or special issues could establish a “crime of
violence.” A sentencing court may go beyond the mere fact of
conviction and statutory definition to determine what was
actually required to find all the elements of a crime. See
Taylor v. United States, 495 U.S. 575, 602 (1990) (“For example,
in a State whose burglary statutes include entry of an automobile
as well as a building, if the indictment or information and jury
instructions show that the defendant was charged only with a
burglary of a building, and that the jury necessarily had to find
an entry of a building to convict, then the Government should be
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allowed to use the conviction for enhancement.”).
For the above reasons, I respectfully dissent.
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