IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 97-50901
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RODRIGO GALVAN-RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
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March 4, 1999
Before HIGGINBOTHAM, JONES, and WIENER, Circuit Judges.
PER CURIAM:
The sole issue in this appeal is whether, by its nature, the
offense of unauthorized use of a motor vehicle qualifies as a crime
of violence under 18 U.S.C. § 16. Defendant-Appellant Rodrigo
Galvan-Rodruiguez (“Galvan”) challenges the district court’s
holding that his prior conviction for unauthorized use of a motor
vehicle is a crime of violence, and therefore an “aggravated
felony,” for purposes of enhancing his sentence for illegal entry
and reentry into the United States by 16 levels pursuant to §
2L1.2(b)(2) of the United States Sentencing Guidelines (“U.S.S.G.”
or “the Guidelines”). Concluding that unauthorized use of a motor
vehicle is a crime of violence, thereby justifying a 16 level
enhancement, we affirm Galvan’s sentence.
I.
FACTS AND PROCEEDING
Defendant-Appellant Galvan was charged with illegal entry into
the United States and reentry following deportation, in violation
of 8 U.S.C. §§ 1325 and 1326, respectively. Galvan entered pleas
of guilty, and a presentence report (PSR) followed. Pursuant to
U.S.S.G. § 2L1.2, the guideline applied to defendants who are
convicted of unlawfully entering, reentering, or remaining in the
United States, the probation officer recommended that Galvan’s base
offense level of eight be increased by 16 levels, to 24, because he
had been deported following conviction of an aggravated felony, to
wit: unauthorized use of a motor vehicle. Additionally, Galvan was
afforded a three level decrease for acceptance of responsibility,
producing an offense level of 21.
Galvan objected to the PSR, contending that unauthorized use
of a motor vehicle was not an aggravated felony warranting a 16
level enhancement. The district court overruled his objection.
Based on Galvan’s offense level of 21 and a criminal history
category of V, the appropriate range of imprisonment was 70 to 87
months. Acting on its own, however, the district court departed
downwardly by two levels, to 19, and sentenced Galvan to 60 months
of imprisonment. Galvan timely appealed.
2
II
ANALYSIS
Galvan argues that the district court erred by assessing the
16 level aggravated felony enhancement under U.S.S.G. §
2L1.2(b)(2). He insists that unauthorized use of a motor vehicle
is not a crime of violence as defined by 18 U.S.C. § 16.
An appellant’s sentence must be affirmed unless it was imposed
in violation of the law or was based on an erroneous application of
the sentencing guidelines.1 We review a challenge to the district
court’s interpretation of the Guidelines de novo.2
According to U.S.S.G. § 2L1.2, when a defendant has been
deported and unlawfully reenters the United States, his offense
level will be increased by 16 levels if he had been previously
convicted of an “aggravated felony.”3 Application note seven
following § 2L1.2 defines “aggravated felony” as “any crime of
violence (as defined 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.”4 A “crime of violence” is:
1
United States v. Velazquez-Overa, 100 F.3d 418, 419 (5th
Cir. 1996), cert. denied, 117 S. Ct. 1283 (1997).
2
Id. at 420.
3
United States Sentencing Commission, Guidelines Manual, §
2L1.2(b)(2) (Nov. 1996).
4
U.S.S.G. § 2L1.2, comment n.7. Galvan was sentenced to
five years deferred adjudication for his conviction of
3
(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.5
The phrase “by its nature” in subsection (b) requires courts to
employ a categorical approach —— without examining the underlying
facts surrounding the conviction —— in determining whether an
offense constitutes a crime of violence.6
On three separate occasions, we have examined specific
offenses under the rubric of subsection (b) —— applicable to
offenses that involve a substantial risk that physical force may
ensue. We have held that indecency with a child,7 burglary of a
habitation,8 and burglary of a nonresidential structure or vehicle9
each involve a substantial probability that physical force on the
person or property will occur, thereby warranting a 16 level
unauthorized use of a motor vehicle.
5
18 U.S.C. § 16 (1994) (emphasis added).
6
Velazquez-Overa, 100 F.3d at 421 (“A sentencing court need
only consider the fact that [the defendant] was convicted and the
inherent nature of the offense.”).
7
Id. at 419.
8
United States v. Guadardo, 40 F.3d 102, 103-04 (5th Cir.
1994).
9
United States v. Ramos-Garcia, 95 F.3d 369, 371 (5th Cir.
1996), cert. denied, 117 S. Ct. 351 (1997); United States v.
Rodriguez-Guzman, 56 F.3d 18, 20 (5th Cir. 1995).
4
sentence enhancement under § 2L1.2(b)(2). Whether the offense of
unauthorized use of a motor vehicle qualifies as a crime of
violence, however, is a res nova issue in this circuit. Concluding
that the risks of physical force being exerted during the
commission of the burglary of a vehicle are substantially similar
to the risks of such force occurring while operating a vehicle
without the owner’s consent, we hold that the offense of
unauthorized use of motor vehicle is a crime of violence within the
intendment of 18 U.S.C. § 16.
We have recognized that when analyzing the operative phrase
“substantial risk,” it is not necessary that “[the risk] must occur
in every instance; rather a substantial risk requires a strong
probability that the event, in this case the application of
physical force during the commission of the crime, will occur.”10
The elements of burglary of a vehicle are analogous to the elements
of unauthorized use of a motor vehicle except that the additional
element, “intent to commit a felony or theft,” is needed to sustain
a burglary conviction. Just as burglary of a vehicle involves a
substantial risk that property might be damaged or destroyed in the
commission of the offense, the unauthorized use of a vehicle
likewise carries a substantial risk that the vehicle might be
broken into, “stripped,” or vandalized, or that it might become
involved in an accident, resulting not only in damage to the
10
Rodriguez-Guzman, 56 F.3d at 20 (emphasis added).
5
vehicle and other property, but in personal injuries to innocent
victims as well.11
It is true that, as argued by Galvan, the unauthorized use of
a vehicle will not always result in physical force to persons or
property, as, for example, when a child takes the family car
“joyriding” without parental consent; however, there is a strong
probability that the inexperienced or untrustworthy driver who has
no pride of ownership in the vehicle will be involved in or will
cause a traffic accident or expose the car to stripping or
vandalism. In fact, when an illegal alien operates a vehicle
without consent, a strong probability exists that the alien may try
to evade the authorities by precipitating a high-speed car chase
and thereby risking the lives of others, not to mention significant
damage to the vehicle and other property. As we perceive these
risks to be substantial, Galvan’s offense qualifies as a crime of
violence and thus warrants a 16 level sentence enhancement.
III
CONCLUSION
For the aforementioned reasons, we hold that the unauthorized
use of a motor vehicle, by its nature, qualifies as a crime of
violence under 18 U.S.C. § 16. Accordingly, the district court
11
See e.g., Coleman v. State, 802 S.W.2d 394, 395 (Tx. Ct.
App. 1990) (conviction for unauthorized use of a motor vehicle
supported by evidence of shattered glass from driver’s side
window and ignition wires ripped out of steering column).
6
properly assessed the 16 level aggravated felony enhancement under
§ 2L1.2(b)(2). The judgment of the district court is therefore, in
all respects,
AFFIRMED.
7