UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 94-60379
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE RODRIGUEZ-GUZMAN, a/k/a
ARTURO NEGRETE-LOPEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
( June 6, 1995 )
Before POLITZ, Chief Judge, EMILIO M. GARZA and STEWART, Circuit
Judges.
POLITZ, Chief Judge:
Jose Rodriguez-Guzman appeals the district court's 16 point
increase in his base offense level computation under § 2L1.2 of the
United States Sentencing Guidelines. Finding no error, we affirm.
Background
In June of 1990, police in Dallas County, Texas arrested
Rodriguez while he was removing property from a nonresidential
building. Rodriguez pled guilty to felony burglary1 and was
sentenced to five years probation and a $500 fine. He was then
deported by the Immigration and Naturalization Service.
Rodriguez reentered the United States without authorization
and, on October 1, 1991, was arrested for breaking into an
unoccupied pickup truck and removing $445 worth of property.
Rodriguez again pled guilty to felony burglary.2 This time he was
sentenced to five years imprisonment. His probation for the 1990
burglary was revoked and he was sentenced thereon to a concurrent
five year term of imprisonment.
Rodriguez was released from prison on October 4, 1993. One
week later the INS ordered his deportation. He was deported
through Laredo, Texas on the morning of October 13; at 11:00 pm
that very evening the Border Patrol apprehended Rodriguez on a
north bound freight train near Encinal, Texas.
Rodriguez pled guilty to one count of illegal reentry into the
United States in violation of 8 U.S.C. § 1326(b). The district
court calculated the sentencing range using a base offense level of
8, increased 16 levels under U.S.S.G. § 2L1.2(b)(2) for his prior
deportation after conviction for an aggravated felony, and
decreased 3 levels for acceptance of responsibility. This
guidelines calculation resulted in a sentencing range of 70 to 87
1
Tex. Penal Code Ann. §30.02 (West 1994).
2
Tex. Penal Code Ann. §30.04 (pre-1994
amendment)(classifying burglary of a vehicle as a third degree
felony). This provision has been amended to classify burglary of
a vehicle as a Class A misdemeanor. Tex. Penal Code Ann. §30.04
(West 1994).
2
months. Rodriguez objected to the offense level computation,
contending that his prior convictions for burglary were not
aggravated felonies and that the increase should have been limited
to four levels under § 2L1.2(b)(1). That objection was rejected
and Rodriguez was sentenced to 70 months imprisonment followed by
3 years of supervised release. He timely appealed his sentence.
Analysis
Rodriguez first contends that the district court erred as a
matter of law when it determined that his prior convictions for
burglary were aggravated felonies justifying a 16 level increase
under § 2L1.2(b)(2). He maintains that neither the burglary of a
nonresidential structure nor the burglary of a vehicle is an
aggravated felony as that term is defined in the sentencing
guidelines, and that the increase of his offense level should
therefore have been limited to the four level adjustment set forth
in § 2L1.2(b)(1).
We review this challenge to the district court's application
of the sentencing guidelines de novo, accepting the trial court's
factual findings unless clearly erroneous.3 Section 2L1.2(b)(2)
provides for a 16 point increase in the base offense level "[i]f
the defendant previously was deported after a conviction for an
aggravated felony."4 Application Note 7 to § 2L1.2 defines
"aggravated felony" in part as "any crime of violence (as defined
3
United States v. Martinez, 954 F.2d 1050 (5th Cir. 1992).
4
U.S.S.G. §2L1.2(b)(2) (1994).
3
in 18 U.S.C. § 16, not including a purely political offense) for
which the term of imprisonment imposed (regardless of any
suspension of such imprisonment) is at least five years."5 Under
18 U.S.C. § 16 a "crime of violence" includes:
(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 offense6 (emphasis added).
To obtain a conviction under the two pertinent Texas burglary
statutes, the state need not prove the use, attempted use, or
threatened use of physical force against the person or property of
another.7 Therefore, neither of Rodriguez's burglary convictions
is a crime of violence as defined in subsection (a) of 18 U.S.C §
16. Subsection (b), however, provides a broader definition of a
crime of violence, extending it to felony offenses involving a
substantial risk that physical force may be used against the
property of another. A plain reading of subsection (b) mandates
the conclusion that the district court did not err in ruling that
a burglary of a nonresidential building or of a vehicle falls
within the definition.
By its very terms, subsection (b) requires only a substantial
5
Id. cmt. n. 7.
6
18 U.S.C. §16(a)&(b) (1988).
7
See Clark v. State, 667 S.W.2d 906 (Tex. Ct. App.
1984)(building); Richardson v. State, 888 S.W.2d 822 (Tex. Crim.
App. 1994)(vehicle).
4
risk that physical force may be used during the commission of the
crime. A substantial risk that an event may occur does not mean
that it must occur in every instance; rather, a substantial risk
requires only a strong probability that the event, in this case the
application of physical force during the commission of the crime,
will occur.8 Under subsection (b), that application of physical
force can be to either a person or property. Thus, unlike some
other provisions of the sentencing guidelines,9 the scope of a
crime of violence under § 2L1.2 is not limited to crimes involving
a substantial risk of harm to persons alone.
As the facts surrounding Rodriguez's burglary convictions
amply demonstrate, the burglary of a nonresidential building or of
a vehicle often involves the application of destructive physical
force to the property of another.10 We perceive no error in the
district court's recognition of this risk or its conclusion that
these types of burglaries fall within the definition of a crime of
8
We perforce interpret "force" to mean more than the mere
asportation of some property of the victim. The clear import of
defining a "crime of violence" is that "force" as used in the
definition is synonymous with destructive or violent force.
9
Cf. U.S.S.G. §4B1.2(1)(limiting crimes of violence to those
crimes involving the use or risk of use of physical force against
persons).
10
Rodriguez was first arrested and convicted for burglary
after officers found him removing property from a building which
he had entered by breaking open a glass front door. Rodriguez was
arrested and convicted on a second count of burglary after
officers witnessed him smashing the window of a truck to steal
property therein.
5
violence found in § 16(b).11
Rodriguez insists that despite the language of § 16(b), we
should treat burglaries of nonresidential property differently than
burglaries of dwellings where the risk of physical harm to humans
is greater. He contends that we have recognized this distinction
in other cases and should do so again here.12 We must, however,
decline Rodriguez's invitation to impose a distinction not apparent
in the text of § 16(b).13 His suggested approach effectively would
read out of § 16(b) that portion of the statute extending the
definition of a crime of violence to those crimes which involve a
substantial risk of the application of force to the property of
another. We conclude, therefore, that the felony burglaries of a
nonresidential building and of a vehicle under the Texas Penal Code
are crimes of violence as defined in 18 U.S.C. § 16(b)14 and thus
11
United States v. Maul-Valverde, 10 F.3d 544, 545 n. 1 (8th
Cir. 1993)(noting that under §16, "all burglaries are aggravated
felonies."); United States v. Frias-Trujillo, 9 F.3d 875 (10th
Cir. 1993).
12
See United States v. Jackson, 22 F.3d 583 (5th Cir.
1994)(interpreting U.S.S.G. §2K2.1).
13
United States v. Harris, 25 F.3d 1275, 1279 (5th
Cir.)("[T]he meaning of the statute must, in the first instance,
be sought in the language in which the act is framed, and if that
is plain, . . . the sole function of the courts is to enforce it
according to its terms.") (quoting Meredith v. Time Ins. Co., 980
F.2d 352, 356 (5th Cir. 1993)), cert. denied, 115 S.Ct. 458
(1994).
14
We are aware of this court's prior observation in dicta
that "the burglary of a building does not always constitute a
crime of violence, and thus the sentencing court may need to
examine the facts underlying the conviction." United States v.
Guadardo, 40 F.3d 102, 105 (5th Cir. 1994)(holding that burglary
of a residence is a crime of violence per se). Now that we are
obliged to face the issue squarely, we see no reason to require
6
aggravated felonies justifying a 16 level increase under §
2L1.2(b)(2).
Rodriguez finally contends that the district court erred in
failing to recognize the Texas Legislature's recent
reclassification of burglary of a vehicle from a felony to a Class
A misdemeanor. He maintains that the district court should have
applied this change retroactively, thus viewing as a misdemeanor
his 1991 felony conviction for the burglary of the pickup truck.
Rodriguez did not raise this issue before the district court
and we therefore may review it only for plain error.15 Assuming,
purely arguendo, that the district court erred in failing to apply
the new statute retroactively, Rodriguez has not demonstrated
sufficient prejudice to support a finding of plain error.16 Today's
disposition concludes that the 1990 burglary conviction
independently supports the 16 point increase in the offense level.
The sentence is AFFIRMED.
the district court to undertake a fact-specific inquiry into each
conviction. If a crime by its nature presents a substantial risk
that force will be used against the property of another, then it
falls within the ambit of §16(b) whether such force was actually
used in the crime. See United States v. Flores, 875 F.2d 1110,
1113 (5th Cir. 1989) (commenting on the terms of §16 that "[a]ny
burglary might be covered under this language."); Frias-Trujillo,
9 F.3d at 877 ("There is no indication that Congress intended
'that a particular crime might sometimes count towards
enhancement and sometimes not, depending on the facts of the
case.'") (quoting Taylor v. United States, 495 U.S. 575, 601
(1990)).
15
United States v. Calverly, 37 F.3d 160 (5th Cir. 1994)(en
banc), cert. denied, 119 S.Ct. 1266 (1995).
16
See Id.
7