UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50517
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MIGUEL DE SANTIAGO-GONZALEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
March 20, 2000
Before JOLLY and DeMOSS, Circuit Judges, and DOWD*, District Judge.
DeMOSS, Circuit Judge:
Miguel DeSantiago-Gonzalez (“DeSantiago”) appeals from the
sentence imposed by the district court after he pleaded guilty to
attempting to unlawfully reenter the United States after
deportation in violation of 8 U.S.C. § 1326.
BACKGROUND
The facts of this case are quite simple and are undisputed.
Miguel DeSantiago was deported from the United States in January,
1999. He attempted to reenter the United States at the Paso del
Norte port of entry in El Paso, Texas on February 14, 1999, and he
pleaded guilty to illegal reentry by a deported alien in violation
of 8 U.S.C. § 1326. Prior to his original deportation, DeSantiago
had thrice been convicted in New Mexico of the misdemeanor offense
of driving while intoxicated (“DWI”), and according to the pre-
*
District Judge of the Northern District of Ohio, sitting by
designation.
sentence report (“PSR”), for each conviction, he had been given
jail time.1
In the PSR, the probation officer recommended that
DeSantiago's base offense level be increased by four levels,
pursuant to U.S.S.G. § 2L1.2(b)(1)(B), because he had previously
been convicted of three misdemeanor crimes of violence. DeSantiago
objected to the PSR, claiming that the misdemeanor DWI violations
were not “crimes of violence.” The district court overruled his
objections, stating that drunk driving creates a serious risk of
physical injury to another and therefore, is a crime of violence
making DeSantiago eligible for the § 2L1.2(b)(1)(B) enhancement.
The district court sentenced DeSantiago to a 20-month term of
imprisonment, followed by a one-year term of supervised release,
and DeSantiago has timely appealed.
DISCUSSION
DeSantiago's only issue on appeal is whether the district
court erred by enhancing his sentence four levels under § 2L1.2
because he had been thrice convicted of misdemeanor crimes of
violence. We review a district court's application of the
guidelines de novo, and its findings of fact for clear error. See
United States v. Hornsby, 88 F.3d 336, 338 (5th Cir. 1996); see also
1
DeSantiago was first convicted for driving while
intoxicated on August 11, 1991 in Roswell, New Mexico -– he pleaded
guilty and was sentenced to 48 days in jail. Next, he was
convicted for driving while intoxicated on January 29, 1993 in
Roswell -– he pleaded guilty and was sentenced to 90 days in jail.
Finally, he was convicted of aggravated driving while intoxicated
on March 17, 1994 in Roswell -– he pleaded guilty and was sentenced
to 364 days in jail.
2
United States v. Reyna-Espinosa, 117 F.3d 826, 828 (5th Cir. 1997).
The applicable guidelines offense section for DeSantiago's
conviction under 8 U.S.C. § 1326, provides as follows:
2L1.2. Unlawfully Entering or Remaining in the
United States
(a) Base Offense Level: 8
(b) Specific Offense Characteristic
(1) If the defendant previously was
deported after a criminal conviction, or if
the defendant unlawfully remained in the
United States following a removal order issued
after a criminal conviction, increase as
follows (if more than one applies, use the
greater):
(A) If the conviction was for an
aggravated felony, increase by 16 levels.
(B) If the conviction was for (i) any
other felony, or (ii) three or more
misdemeanor crimes of violence or misdemeanor
controlled substance offenses, increase by 4
levels.
U.S.S.G. § 2L1.2.
According to application note 1 to this guideline section, the
term “crime of violence” is defined according to the provisions of
U.S.S.G. § 4B1.2, and for purposes of § 2L1.2(b)(1)(B), the term
includes offenses punishable by imprisonment for a term of one year
or less. The applicable definition of a “crime of violence” for
the purposes of DeSantiago's sentence is thus found at § 4B1.2(a),
which provides as follows:
(a) The term "crime of violence" means
any offense under federal or state law,
punishable by imprisonment for a term
exceeding one year, that --
(1) has as an element the use,
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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. The application notes to § 4B1.2 go on to
further narrow the definition of a “crime of violence”:
1. For purposes of this guideline--
"Crime of violence" includes murder,
manslaughter, kidnapping, aggravated assault,
forcible sex offenses, robbery, arson,
extortion, 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 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, application note 1.
Based upon the foregoing, the central issue in this case
becomes, does the misdemeanor offense of driving while intoxicated
implicate § 4B1.2 because such an offense, by its very nature,
“involves conduct that presents a serious potential risk of
physical injury to another”?
We have held that a “substantial risk” requires only a strong
probability of occurrence, not certainty. See United States v.
Rodriguez-Guzman, 56 F.3d 18, 20 (5th Cir. 1995). We have also held
that the term “by its nature” dictates a categorical approach to
determining whether particular conduct is a crime of violence under
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18 U.S.C. § 16(b), that is, a crime is either violent by its nature
or not -- the circumstances of a particular case do not control the
determination of whether the crime is violent “by its nature.” See
United States v. Valazquez-Overa, 10 F.3d 418, 420 (5th Cir. 1996).
The district court relied on the reasoning of a Seventh
Circuit case, United States v. Rutherford, 54 F.3d 370 (7th Cir.
1995), for its holding that the very nature of the act of driving
while intoxicated involves “a serious risk of physical injury.”
Id. at 376. DeSantiago argues that the district court's reliance
on Rutherford is misplaced, because that decision violated rules of
statutory construction. He urges a plain meaning analysis of the
term “serious potential risk of physical injury.”
The government contends that DeSantiago's argument that rules
of statutory construction prohibit a finding that DWI can be a
crime of violence has been foreclosed by our recent holding in
Camacho-Marroquin v. INS, 188 F.3d 649, 652 (5th Cir. 1999), in
which we relied upon Rutherford. In Camacho, we held that the
Texas crime of felony DWI is, by its very nature, a crime of
violence. However, we are reluctant to give Camacho controlling
effect because it was a deportation case wherein the applicable
definition of “crime of violence” was found at 18 U.S.C. § 16,
which defines the term “crime of violence” in language similar to
but not identical with the definition which controls the sentencing
issue presented in this appeal found at U.S.S.G. §4B1.2(a).
Consequently, while we agree with DeSantiago that Camacho does
not control the outcome of this case, we find persuasive the
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reasoning of Rutherford, that the very nature of the crime of DWI
presents a “serious risk of physical injury” to others, and makes
DWI a crime of violence. In effect, sub-paragraph (2) of
§ 4B1.2(a) expands the definition of “crime of violence” so as to
encompass such reckless and negligent conduct as driving while
intoxicated. As noted above, we take a categorical approach in
determining whether a particular crime is violent “by its nature.”
See Valazquez-Overa, 10 F.3d at 420. As the Rutherford court
noted, that drunk driving is inherently dangerous, is “well-known
and well documented.” Rutherford, 54 F.3d at 376. Thus, as a
result of the inherent risk of physical injury associated with
drunk driving in general and without regard to the circumstances of
any particular case, we join the Seventh Circuit in holding that by
its very nature, the crime of driving while intoxicated is a crime
of violence as that term is defined in U.S.S.G. § 4B1.2(a)(2).
Accordingly, we hold that the district court did not err in
finding that the misdemeanor crime of DWI constitutes a “crime of
violence” under § 4B1.2(a)(2). And since DeSantiago had thrice
been convicted of a misdemeanor crime of violence at the time of
his attempted unlawful reentry into the United States, the four-
level enhancement under § 2L1.2(b)(1)(B) was appropriate.
CONCLUSION
For all of the foregoing reasons, the sentence imposed by the
district court below is AFFIRMED.
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