United States v. Hernandez-Neave

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.”
2
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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