United States v. Sanchez-Garcia

FILED
United States Court of Appeals
Tenth Circuit

PUBLISH
September 6, 2007
Elisabeth A. Shumaker
UNITED STATES CO URT O F APPEALS Clerk of Court

TENTH CIRCUIT

UNITED STATES OF AM ERICA,

Plaintiff-Appellee,
v. No. 06-2262
JO SE LUIS SA N CH EZ-G A RC IA,

Defendant-Appellant.

A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
FOR T HE D ISTRICT OF NEW M EXICO
(D .C. NO. CR-06-929-JC)

Terri J. Abernathy, Assistant United States Attorney (David C. Iglesias, United
States Attorney, with her on the brief), Las Cruces, NM , for Plaintiff-Appellee.

James N. Langell, Assistant Federal Public Defender, Las Cruces, NM , for
Defendant-Appellant.

Before KELLY, A ND ER SO N, and HENRY, Circuit Judges.

H E N RY, Circuit Judge.

W e are asked to decide whether unlawful use of means of transportation

(“UUM T”), as defined in Ariz. Rev. Stat. § 13-1803(A)(1), is a “crime of

violence” under 18 U.S.C. § 16(b). W e conclude it is not. Accordingly,
exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), w e

reverse the district court’s imposition of an eight-level “aggravated felony”

enhancement under U nited States Sentencing Guidelines (“U SSG”) §

2L1.2(b)(1)(C), vacate the defendant’s sentence, and remand for re-sentencing.

I. BACKGROUND

A. F ACTUAL B ACKGROUND

In M ay 2005, Jose Luis Sanchez-Garcia pleaded guilty in Arizona state

court to UUM T in violation of Ariz. Rev. Stat. § 13-1803(A )(1), a class 5 felony.

Under Ariz. Rev. Stat. § 13-1803(A)(1), “[a] person comm its [UUM T] if, without

intent permanently to deprive, the person . . . [k]nowingly takes unauthorized

control over another person’s means of transportation.” M r. Sanchez-Garcia was

sentenced to one-and-a-half years’ imprisonment and removed to M exico on

February 24, 2006. Less than five weeks later, on M arch 28, 2006, he was

arrested in Luna County, New M exico for illegally reentering the United States.

He subsequently pleaded guilty to illegal reentry after deportation in violation of

8 U.S.C. § 1326(a) and (b)(2).

B. S TATUTORY B ACKGROUND

For a violation of 8 U.S.C. § 1326, USSG § 2L1.2(b)(1)(C) provides that

the defendant’s offense level should be enhanced by eight levels if the violation

follow ed a conviction for an “aggravated felony.” For purposes of USSG §

2L1.2(b)(1)(C), “aggravated felony” is defined in the various subsections of 8

-2-
U.S.C. § 1101(a)(43). See USSG § 2L1.2, cmt. n.3(A). The only subsection of

this statute relevant here defines an aggravated felony as “a crime of violence (as

defined in section 16 of Title 18, but not including a purely political offense) for

which the term of imprisonment [is] at least one year.” 8 U.S.C. §

1101(a)(43)(F). 1 Section 16, in turn, defines a “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.

18 U.S.C. § 16.

C. P RESENTENCE I NVESTIGATION R EPORT

Citing USSG § 2L1.2(b)(1)(C), M r. Sanchez-Garcia’s presentence

investigation report (“PSR”) characterized UUM T as an aggravated felony and

recommended an eight-level enhancement to M r. Sanchez-Garcia’s base offense

level of eight. After a three-level reduction for acceptance of responsibility, M r.

Sanchez-Garcia’s total offense level was thirteen. W ith a criminal history

category of IV , his suggested sentencing range was tw enty-four to thirty months.

1
Another subsection of 8 U.S.C. § 1101(a)(43) provides that a “theft
offense” is also an aggravated felony. See 8 U.S.C. § 1101(a)(43)(G). W hile the
Ninth Circuit has held that UUM T, as defined in Ariz. Rev. Stat. § 13-1803, does
not constitute a “theft offense,” see United States v. Perez-Corona, 295 F.3d 996,
1001 (9th Cir. 2002), this question is not before us and we therefore express no
view on it.

-3-
 D. S ENTENCING

M r. Sanchez-Garcia objected to the eight-level enhancement, arguing that

UUM T is not an aggravated felony because it does not fall within § 16’s

alternative definitions of a crime of violence. The district court disagreed and

adopted the PSR’s factual findings and Guideline calculations. It then sentenced

M r. Sanchez-Garcia to twenty-four months’ imprisonment follow ed by two years’

supervised release. This timely appeal followed.

II. DISCUSSION

On appeal, the parties agree that UUM T does not qualify as a crime of

violence under § 16(a) because Ariz. Rev. Stat. § 13-1803(A)(1) does not have as

an element the use, attempted use, or threatened use of force. There is also no

dispute that UUM T is a felony punishable by more than one year of

imprisonment. Thus, the sole issue is whether UUM T, as defined in Ariz. Rev.

Stat. § 13-1803(A)(1), falls within § 16(b) as a crime “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(b).

A. S TANDARD OF R EVIEW

W e review de novo the legal question of whether a prior offense constitutes

a crime of violence under §16(b) and thus justifies an aggravated felony

enhancement under USSG § 2L1.2(b)(1)(C). See United States v. Treto-M artinez,

421 F.3d 1156, 1157-58 (10th Cir. 2005), cert. denied, 126 U.S. 1089 (2006).

-4-
 B. T HE C ATEGORICAL A PPROACH

To determine w hether a prior offense is a “crime of violence” under §

16(b), we apply the categorical approach outlined in Taylor v. United States, 495

U.S. 575, 588-89 (1990). See United States v. Venegas-Ornelas, 348 F.3d 1273,

1275 (10th Cir. 2003). Under this approach, we examine only the elements of

the statute of conviction and disregard the specific factual circumstances

underlying the defendant’s prior offense. United States v. Lucio-Lucio, 347 F.3d

1202, 1204 (10th Cir. 2003); United States v. Reyes-Castro, 13 F.3d 377, 379

(10th Cir. 1993). Accordingly, for a prior offense to be a crime of violence

under § 16(b), the “substantial risk” of “physical force” must inhere in the

elements of the prior offense rather than from the specific conduct in which the

defendant engaged. See United States v. Frias-Trujillo, 9 F.3d 875, 877 (10th

Cir. 1993) (“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.”) (internal quotation marks omitted).

W hile we are prohibited from examining “the underlying facts of the

charged crime,” we may take into account certain records of the prior conviction,

such as the charging document and comparable judicial records, if the statutory

definition of the prior offense is “ambiguous on its face because it reaches

different types of conduct under different sets of elements.” Venegas-Ornelas,

348 F.3d at 1275 n.1 (emphasis in original). This examination does not involve

-5-
“a subjective inquiry as to whether [the] particular factual circumstances

[underlying the conviction] involve a risk of violence.” M cCann v. Rosquist,

185 F.3d 1113, 1117 n.4 (10th Cir. 1999), vacated on other grounds, 529 U.S.

1126 (2000); see United States v. Rodriguez, 979 F.2d 138, 141 (8th Cir. 1992)

(“[T]he term ‘by its nature’ in [§ 16(b)] would be rendered superfluous if the

sentencing courts were saddled with the task of examining each individual

offense committed to determine whether it actually involved substantial risk of

physical force.”). Rather, we simply examine these documents to determine

which “part of the statute was charged against the [d]efendant” and, thus, “which

portion of the statute to examine on its face.” Venegas-Ornelas, 348 F.3d at

1275 n.1.

B. A NALYSIS

As set forth above, Ariz. Rev. Stat. § 13-1803(A)(1) provides that a person

commits felony UUM T when “[a] person . . ., without intent permanently to

deprive . . . [k]nowingly takes unauthorized control over another’s means of

transportation.” To establish UUM T, the State of Arizona need only prove that a

defendant “(1) knowingly t[ook] control; (2) without authority; . . . (3) of another

person’s means of transportation. The phrase ‘w ithout intent to permanently

deprive’ . . . does not describe an element of the crime which the state must

prove.” State v. Kamai, 911 P.2d 626, 630 (A riz. Ct. A pp. 1995).

Because Ariz. Rev. Stat. § 13-1803(A)(1) does not reach different types of

-6-
conduct under different sets of elements, there is no need to examine any records

relating to M r. Sanchez-Garcia’s UUM T conviction. Cf. Venegas-Ornelas, 348

F.3d at 1276 (examining judicial records of the defendant’s prior conviction for

first degree criminal trespass when the statute of conviction expressly covered a

person who “‘knowingly and unlawfully enters or remains in the dwelling of

another or . . . enters any motor vehicle with intent to commit a crime therein’”)

(quoting Colo. Rev. Stat. Ann. § 18-4-502) (emphasis added)). Under the

categorical approach, then, the critical question is whether knowingly taking

unauthorized control over another’s means of transportation is an 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 [it].” 18 U.S.C. §

16(b).

To answer this question, we start with the plain language of § 16(b), which

“simply covers offenses that naturally involve a person acting in disregard of the

risk that physical force might be used against another in comm itting an offense.”

Leocal v. Ashcroft, 543 U.S. 1, 10 (2004). In interpreting § 16(b), we have

stated that the “‘use of force’ language implies that some intentional availment

of force is required before an offense rises to the level of a crime of violence.”

United States v. M oore, 420 F.3d 1218, 1223 (10th Cir. 2005) (some internal

quotation marks omitted). W e also have provided that the term “force” refers to

“destructive or violent force,” Venegas-Ornelas, 348 F.3d at 1275 (internal

-7-
quotation marks omitted), and that the term “substantial risk” requires a “high

probability” that such force may be employed, id. at 1277. In addition, the

phrase “in the course of committing the offense” focuses our inquiry on “the risk

of force used to carry out the offense itself, rather than the risk of force resulting

from the offense.” Id. at 1276 (internal quotation marks omitted). In other

words, § 16(b) is not concerned with the possibility of an accident or other

potential effects of a perpetrator’s conduct, but with the probability that the

perpetrator may use violent force to accomplish the criminal objective. See

Leocal, 543 U.S. at 10 n.7 (“The ‘substantial risk’ in 16(b) relates to the use of

force, not to the possible effect of a person’s conduct.”).

Applying these principles to Ariz. Rev. Stat. § 13-1803(A)(1), M r.

Sanchez-Garcia contends that UUM T does not fall within § 16(b) because its

statutory elements encompass inherently nonviolent conduct, such as borrowing a

vehicle with the owner’s permission and failing to return it on time. In response,

the government concedes that UUM T can be committed in nonviolent ways, but

maintains a substantial risk exists that intentional violent force may “be used . . .

as a means to gain unauthorized control of the vehicle.” Aple’s Br. at 8. In

support of this argument, the government directs our attention to United States v.

Galvan-Rodriguez, 169 F.3d 217 (5th Cir. 1999). There, the Fifth Circuit

concluded that the Texas offense of unauthorized use of a motor vehicle, a

similar offense to UUM T, does constitute a crime of violence under § 16(b), in

-8-
part, because the crime “carries a substantial risk that the vehicle might be

broken into, ‘stripped,’ or vandalized.” 2 169 F.3d at 219.

Like any offense involving the unauthorized taking of property, it is clear

there is som e chance that destructive or violent force might be employed in the

commission of U UM T when a person initially takes unauthorized control over a

means of transportation. For instance, one might gain access to another person’s

locked vehicle by breaking a window . Or, similar to w hen a person enters a

dwelling without permission, violent force might be used in a direct

confrontation with an occupant of the vehicle or a third-party intervenor. See

Leocal, 543 U .S. at 10 (stating that generic burglary, by its nature, carries a

substantial risk that violent force will be used against a person); Venegas-

Ornelas, 348 F.3d at 1278 (holding that first degree criminal trespass involving

the unauthorized entry into a dwelling, as defined by Colorado law, by its nature,

carries a substantial risk that violent force will be used against a person or

property).

2
The government also cites United States v. Thomas, 484 F.3d 542 (8th
Cir. 2007), and United States v. Lindquist, 421 F.3d 751 (8th Cir. 2006), cert.
denied, 127 S. Ct. 2094 (2007). These cases, however, involve the question of
whether offenses involving the unauthorized operation of a motor vehicle qualify
as “crimes of violence” under USSG § 4B1.2, not § 16(b). As both the Supreme
Court and this court have previously observed, the definitions of crime of
violence in §16(b) and § 4B1.2 are distinguishable because the former concerns a
risk of force whereas the latter concerns a risk of resulting injury. See Leocal,
543 U.S. at 10 n.7; Venegas-Ornelas, 348 F.3d at 1277 n.2. The broader scope of
§ 4B1.2 renders cases like Thomas and Lindquist inapplicable here.

-9-
 In the case of U UM T, however, we cannot say these risks are

“substantial.” Indeed, we think there is a relatively low probability of

destructive or violent force being employed to gain initial control over a vehicle

in the commission of UM M T because Ariz. Rev. Stat. § 13-1803(A)(1)

encompasses a broad range of conduct that does not present any risk of such

force being used. For instance, Ariz. Rev. Stat. § 13-1803(A)(1)’s terms prohibit

a person from driving a rental vehicle past the expiration of a rental agreement,

borrow ing a car he or she knows is stolen, and surreptitiously taking a friend’s

keys and going “joyriding.” M oreover, even if a vehicle is broken into, it is less

likely force will be used against a person during the commission of UUM T than

in residential burglary or trespass because “the interiors of vehicles are generally

visible from the outside, and there is little risk that a thief will stumble upon an

unexpected occupant once he or she gains entry to the car.” Sareang Ye v.

I.N.S., 214 F.3d 1128, 1134 (9th Cir. 2000) (holding that vehicle burglary is not

a crime of violence under § 16(b)).

In reaching this conclusion, we are mindful that “the proper inquiry is one

that contemplates the risks associated with the proscribed conduct in the

mainstream of prosecutions brought under the statute.” Lucio-Lucio, 347 F.3d at

1204 n.2 (internal quotation marks omitted); see James v. United States, 127 S.

Ct. 1586, 1597 (2007) (applying the categorical approach to determine whether

attempted burglary falls within the Armed Career Criminal Act and stating that

-10-
“the proper inquiry is whether the conduct encompassed by the elements of the

offense, in the ordinary case, presents a serious potential risk of injury to

another” (emphasis added)). Notably, in the instant case, the only Arizona state

cases cited by the parties involved prosecutions under Ariz. Rev. Stat. § 13-

1803(A)(1) for conduct that presented no risk of destructive or violent force. For

example, in State v. Griest, 994 P.2d 1028 (Ariz. Ct. App. 2000), an individual

who originally had permission to use a vehicle committed UUM T when he “put

the [vehicle] to a use the owner did not intend, and for period of time that

exceeded the owner’s permission.” 994 P.2d at 1029. See also Kamai, 911 P.2d

at 630 (evidence that defendant “took . . . [a] truck for longer than his employer

authorized” supported UUM T charge). That Ariz. Rev. Stat. § 13-1803(A)(1)

subsumes and has been used to prosecute this kind of conduct further

demonstrates that a high probability of the use of destructive or violent force

does not inhere in its statutory elements.

That the Fifth Circuit reached the opposite decision in this evolving area of

law regarding the Texas offense of unauthorized use of a motor vehicle in

Galvan-Rodriguez does not persuade us otherwise. As an initial matter, this case

has been harshly criticized w ithin the Fifth Circuit. See U nited States v. Charles,

275 F.3d 468, 470 (5th Cir. 2001) (Sparks, J., concurring) (stating that

“Galvan-Rodriguez . . . [is] simply wrongly decided” and lamenting that “most

traffic violations have been elevated to crimes of violence in the Fifth Circuit”

-11-
(internal quotation marks omitted)). M oreover, the Galvan-Rodriguez court cited

no authority and offered little explanation for its blanket statement that the risk of

a vehicle being “broken into, ‘stripped,’ and vandalized” is indeed substantial.

169 F.3d at 219. Furthermore, in rejecting the defendant’s argument that the

Texas statute encompassed too much nonviolent conduct to present a substantial

risk of violent force, the Fifth Circuit relied on the “strong probability” that an

unauthorized driver might “be involved in or will cause a traffic accident” or

attempt “to evade the authorities by precipitating a high-speed car chase and

thereby risk[] the lives of others, not to mention significant damage to the vehicle

and other property.” Id. at 219-20. This rationale has subsequently been rejected

by the Supreme Court. See Leocal, 543 U.S. at 11 (“Interpreting § 16 to

encompass accidental or negligent conduct would blur the distinction between the

‘violent’ crimes Congress sought to distinguish for heightened punishment and

other crimes.”); id. at 10 n.7 (“The ‘substantial risk’ in § 16(b) relates to the use

of force, not to the possible effect of a person’s conduct.”); see also Lucio-Lucio,

347 F.3d at 1206 (“W ithout a distinction between crimes that potentially involve

violent conduct and crimes that merely involve the possibility of resulting harm,

the § 16(b) definition would be far too inclusive; any sufficiently dangerous

activity, including extreme speeding, unlawful transportation of hazardous

chemicals, or child neglect, might qualify as a crime of violence.”). We therefore

decline to follow the Fifth Circuit’s decision.

-12-
 Our conclusion that UUM T does not fall within the ambit of § 16(b) is

buttressed by the “ordinary meaning” of the term “crime of violence,” which

“suggests a category of violent, active crimes,” Leocal, 543 U.S. at 11, as well as

a review of § 16(b)’s legislative history. As we explained in Lucio-Lucio, the

types of crimes Congress intended to be covered by § 16(b) are, at bottom, “the

same categories of offenses described in the District Columbia Code by the terms

‘dangerous crime’ and ‘crime of violence . . . .’” 347 F.3d at 1205 (quoting S.

Rep. No. 98-225, at 20-21 & n.60, reprinted in 1984 U.S.C.C.A.N. 3182, 3203-

04). The offenses listed include murder, rape, robbery, assorted burglary crimes,

assault with a dangerous weapon, and taking property by force. Id. (citing D.C.

Code § 23-1331(3), (4) (1981)). UUM T and similar offenses are not listed. M ore

importantly, logic and common sense indicate that Congress did not intend to

punish a person who was dilatory in returning a borrowed car or went joyriding in

the same manner as a convicted murderer, rapist, robber, or burglar.

III. CONCLUSION

For the foregoing reasons, we conclude that UUM T, as defined in Ariz.

Rev. Stat. § 13-1803(A)(1), is not a “crime of violence” under § 16(b). W e

therefore REVERSE the district court’s imposition of the eight-level aggravated

felony enhancement under USSG § 2L1.2(b)(1)(C), VACATE M r. Sanchez-

Garcia’s sentence, and REM AND for re-sentencing consistent with this opinion.

-13-