IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-10734
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
CHRISTOPHER RODRIGUEZ JACKSON,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________
July 26, 2000
Before DAVIS, SMITH, and DENNIS, application of the sentencing guidelines. We
Circuit Judges. affirm.
JERRY E. SMITH, Circuit Judge: I.
Jackson contends that § 922(g)(1) is uncon-
stitutional but recognizes that we have rejected
Christopher Jackson pleaded guilty to being
the same challenge in United States v. Kuban,
a convicted felon in possession of a firearm in
94 F.3d 971 (5th Cir. 1996), and United States
violation of 18 U.S.C. § 922(g)(1). He chal-
lenges the constitutionality of § 922(g)(1) and
v. Rawls, 85 F.3d 240 (5th Cir. 1996). Ac- “Crime of violence” includes murder,
cordingly, this issue has no merit. manslaughter, kidnapping, aggravated
assault, forcible sex offenses, robbery,
II. arson, extortion, extortionate extension
A. of credit, and burglary of a dwelling.
Pursuant to U.S.S.G. § 2K2.1(a)(2), Jack- Other offenses are included as “crimes
son’s base offense level was set at 24 on ac- of violence” if (A) that offense has as an
count of two prior state-court convictions that element the use, attempted use, or
the court deemed to be “crimes of violence,” threatened use of physical force against
namely two convictions for unauthorized use the person of another, or (B) the con-
of a vehicle (“UUV”) under TEX. PENAL CODE duct set forth (i.e., expressly charged) in
§ 31.07. Jackson contends that the court erred the count of which the defendant was
in classifying UUV as a “crime of violence” as convicted involved use of explosives (in-
that term is defined in U.S.S.G. § 4B1.2.1 cluding any explosive material or de-
“We review a district court’s application of the structive device) or, by its nature, pre-
guidelines de novo.” United States v. DeSan- sented a serious potential risk of physi-
tiago-Gonzalez, 207 F.3d 261, 263 (5th Cir. cal injury to another.
2000).
UUV requires that a person (1) intention-
Section 4B1.2(a) provides: ally or knowingly operate (2) another’s boat,
airplane, or motor-propelled vehicle (3) with-
The term “crime of violence” means any out the effective consent of the owner. See
offense under federal or state law, pun- TEX. PEN. CODE § 31.07. Because UUV does
ishable by imprisonment for a term ex- not have as an element the use, attempted use,
ceeding one year, that SS or threatened use of physical force against the
person of another, § 4B1.2(a)(1) is not appli-
(1) has as an element the use, attempted cable. The first clause of subsection (a)(2) is
use, or threatened use of physical force likewise inapplicable, because UUV is not the
against the person of another, or burglary of a dwelling, arson, or extortion; and
UUV does not involve the use of explosives.
(2) is burglary of a dwelling, arson, or Therefore, UUV is a “crime of violence” as
extortion, involves use of explosives, or that term is defined in § 4B1.2(a) only if UUV
otherwise involves conduct that presents “presents a serious potential risk of physical
a serious potential risk of physical injury injury to another.” The court applied this “re-
to another. sidual clause” in sentencing Jackson.
Application note 1 states: Before determining whether that sentencing
is correct, we must consider 18 U.S.C. § 16,
which also defines “crime of violence.”2 The
1 2
Application Note 5 to U.S.S.G. § 2K2.1 At one time, § 4B1.2 incorporated the 18
explicitly incorporates the § 4B1.2 definition of U.S.C. § 16 definition of “crime of violence.” See
“crime of violence.” (continued...)
2
definition in § 16 differs in that it includes conduct set forth (i.e., expressly charged) in
force against property and uses slightly differ- the count of which the defendant was convict-
ent language: ed . . . by its nature, presented a serious poten-
tial risk of physical injury to another” (empha-
The term “crime of violence” meansSS sis added). The fourth difference, the use of
“substantial” instead of “serious,” is immate-
(a) an offense that has as an element the rial: “[T]he definitions are substantially simi-
use, attempted use, or threatened use of lar. Therefore, the reasoning employed in § 16
physical force against the person or cases is persuasive authority for [§ 4B1.2
property of another, or cases].” Kirk, 111 F.3d at 394.
(b) any other offense that is a felony and B.
that, by its nature, involves a substantial The parties dispute whether a court may
risk that physical force against the per- consider a defendant’s specific conduct in
son or property of another may be used making the § 4B1.2 “crime of violence” deter-
in the course of committing the offense. mination. In United States v. Fitzhugh, 954
F.2d 253, 254 (5th Cir. 1992), we held that
The differences between the § 16(b) residual § 4B1.2 does not allow a court to look beyond
clause and the § 4B1.2(a)(2) residual clause the charging instrument to the defendant’s spe-
are that (1) § 16 includes force against prop- cific conduct:
erty; (2) § 16 focuses on a risk of physical
force, whereas § 4B1.2(a) focuses on a risk of [T]he Sentencing Commission made
physical injury; (3) § 16 includes the phrase clear that only conduct “set forth in the
“by its nature,” whereas § 4B1.2(a) uses the count of which the defendant was con-
phrase “involves conduct that;” and (4) § 16 victed” may be considered in determin-
requires a “substantial risk,” whereas ing whether the offense is a crime of vi-
§ 4B1.2(a) requires a “serious potential risk.” olence. . . . [Section] 4B1.2 does not
intend to define “crime of violence” by
The first of these differences is significant: reference to conduct underlying the of-
Section 16 explicitly includes risk to property, fense when the defendant is not charged
whereas § 4B1.2(a) includes only risk to per- and convicted of such conduct. In
sons. The second difference is less important, short, the Commission has repudiated
because “in situations in which there is a sub- . . . cases which held that a sentencing
stantial risk that physical force against a per- court can look beyond the face of the
son will be used, a serious potential risk of indictment in considering this issue.
physical injury may also exist.” United States
v. Kirk, 111 F.3d 390, 394 (5th Cir. 1997). We applied Fitzhugh in United States v.
The third difference is significant, but is tem- Ruiz, 180 F.3d 675 (5th Cir. 1999), in which
pered by application note 1 to § 4B1.2, which the defendant, who had pleaded guilty to es-
restates the residual clause to require that “the cape from the custody of a federal prison
camp, argued that the district court had erred
in concluding that his escape constituted a
2
(...continued) “crime of violence” under § 4B1.2, because
U.S.S.G. § 4B1.2 (1988).
3
“he simply walked away from a prison camp In Jackson, we held that the burglary of a
where no physical barriers prevented the es- building is not a “crime of violence” within the
cape and no guards were armed.” Id. at 676. meaning of § 4B1.2 because it does not always
We responded: present the requisite risk, and the specific con-
duct of the defendant, as described in the pre-
In United States v. Fitzhugh, we held sentence report, did not present the requisite
that the commentary to § 4B1.2 makes risk. Id. at 585. According to Fitzhugh/Ruiz,
“clear that only conduct ‘set forth in the we should have considered first the categorical
count of which the defendant was con- issue,3 then only whether the conduct
victed’ may be considered in determin- described in the charging instrument presented
ing whether [an] offense is a crime of the requisite risk.
violence.” Under Fitzhugh, we are pre-
cluded from looking to the underlying In Kirk, we again considered the specific
facts of Ruiz’s conviction, as he conduct of a defendant in a § 4B1.2 analysis,
requests, because the circumstances to and we justified such consideration in a
which Ruiz directs our attention are not footnote.
mentioned in the indictment. The
indictment charges that Ruiz “knowingly [U]nder 18 U.S.C. § 16, we [are]
escape[d] from custody of [a federal compelled to apply a categorical
prison camp] . . . in which he was approach in determining crimes of
lawfully confined.” . . . Every escape violence. The Sentencing Guidelines,
scenario is a powder keg, which may . . however, do not require such a
. explode into violence and result in categorical approach. See Jackson, 22
physical injury. F.3d at 585. Because we determine that
the specific conduct Kirk was convicted
Id. at 676-77. of was a crime of violence we decline to
rule on whether a violation of [the
Fitzhugh and Ruiz dictate that we may not, applicable statute] could be per se a
as Jackson requests, consider the specific con- crime of violence under Sentencing
duct underlying his UUV convictions unless Guideline section 4B1.2.
that conduct were included in the charging in-
strument for those offenses. See also DeSan- Kirk, 111 F.3d at 395 n.8 (internal citation
tiago-Gonzalez, 207 F.3d at 261 (holding that omitted). In United States v. Claiborne, 132
the misdemeanor offense of driving while in-
toxicated is, as a categorical matter, a § 4B1.2
“crime of violence”). This rule avoids mini-
trials in which the government and the
defendant would have to “retry” past
convictions in the context of a sentencing 3
Although Fitzhugh and Ruiz direct that a court
hearing. Unfortunately, panels of this court, look to the charging instrument, that is unnecessary
beginning with United States v. Jackson, 22 if, as a categorical matter, the statutory elements of
F.3d 583 (5th Cir. 1994), appear to have a crime always present the requisite riskSSas a
overlooked Fitzhugh. matter of law, those elements are contained in the
charging instrument.
4
F.3d 253, 256 n.3 (5th Cir. 1998), we again damaged or destroy ed in the
followed Jackson, this time in dictum:4 commission of the offense, the
unauthorized use of a vehicle likewise
In determining whether a defendant carries a substantial risk that the vehicle
committed a crime of violence for might be broken into, “stripped,” or
purposes of U.S.S.G. § 4B1.2, we may vandalized, or that it might become
consider his specific conduct that involved in an accident, resulting not
resulted in conviction [citing Kirk and only in damage to the vehicle and other
Jackson]. The underlying facts of Clai- property, but in personal injuries to
borne’s conviction for attempted innocent victims as well. It is true that
unauthorized entry are not set forth in . . . the unauthorized use of a vehicle
the briefs, but the presentence report will not always result in physical force to
notes that he, accompanied by two men, persons or property, as, for example,
attempted to enter the inhabited when a child takes the family car
dwelling of a woman living in New “joyriding” without parental consent;
Orleans. however, there is a strong probability
that the inexperienced or untrustworthy
“[W]here two previous holdings or lines of driver who has no pride of ownership in
precedent conflict, the earlier opinion controls the vehicle will be involved in or will
and is the binding precedent.” Billiot v. Puck- cause a traffic accident or expose the car
ett, 135 F.3d 311, 316 (5th Cir.), cert. denied, to stripping or vandalism. In fact, when
525 U.S. 966 (1998) (internal quotation marks an illegal alien operates a vehicle
omitted). Fitzhugh predates Jackson, and without consent, a strong probability
therefore Fitzhugh is the law of this circuit. exists that the alien may try to evade the
authorities by precipitating a high-speed
C. car chase and thereby risking the lives of
In United States v. Galvan-Rodriguez, 169 others, not to mention significant
F.3d 217 (5th Cir.), cert. denied, 120 S. Ct. damage to the vehicle and other
100 (1999), an immigration case, we held that property.
UUV is a crime of violence under 18 U.S.C.
§ 16. Applying a categorical approach, and Id. at 219-20.
defining “substantial risk” as requiring “a
strong probability that the event . . . will Galvan-Rodriguez holds that UUV’s risk to
occur,” we stated that persons and property is sufficiently high to
constitute a § 16 crime of violence. We have
[j]ust as burglary of a vehicle involves a also held that the misdemeanor crime of
substantial risk that property might be driving while intoxicated (“DWI”) constitutes
a § 4B1.2(a)(2) crime of violence. See DeSan-
tiago-Gonzalez, 207 F.3d at 264. Pursuant to
4
The consideration of specific conduct was this authority, we conclude that UUV’s risk to
dictum, because we concluded that the crime at persons is likewise sufficient to render UUV,
issue, attempted unauthorized entry of an inhabited
dwelling, always presents the requisite risk. See
Claiborne, 132 F.3d at 256.
5
as a categorical matter, a crime of violence
under § 4B1.2(a)’s residual clause.5
While Galvan-Rodriguez in part considered
the risks to property from UUVSSnamely that
a vehicle may be stripped, vandalized, or dam-
aged in a collisionSSour language that there is
a “substantial risk that the vehicle . . . might
become involved in an accident” and that
“there is a strong probability that the . . .
[UUV] driver . . . will be involved in or will
cause a traffic accident” indicates a sufficiently
high risk of personal injuries. See Galvan-
Rodriguez, 169 F.3d at 219. We are not un-
sympathetic to Jackson’s argument that UUV
is not what one might typically consider a
“crime of violence,” but we do not write on a
clean slate, and our precedent dictates that
UUV’s risks are sufficient to satisfy the
§ 4B1.2 definition.
AFFIRMED.
ENDRECORD
5
Because we decide the issue as a categorical
matter, we need not consult the charging
instruments for Jackson’s UUV convictions.
6
DENNIS, Circuit Judge, dissenting:
As the majority opinion observes, the Texas offense of unauthorized use of a vehicle “requires that
a person (1) intentionally or knowingly operate (2) another’s boat, airplane, or motor-propelled
vehicle (3) without the effective consent of the owner.” TEX. PENAL CODE ANN. § 31.07. I agree
with the majority that the Texas crime is not an offense that “(1) has as an element the use, attempted
use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling,
arson, or extortion, [or] involves use of explosives[.]” U.S.S.G. §4B1.2(a). I cannot agree with the
majority, however, that the Texas offense of unauthorized use of a vehicle is a state crime that
“otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id.
In United States v. Fitzhugh, 954 F.2d 253 (5th Cir. 1992), cert. denied, 510 U.S. 895 (1993), this
court held that by amending U.S.S.G. §4B1.2 on November 1, 1989, the Sentencing Commission
made clear that only conduct “set forth in the count of which the defendant was convicted” may be
considered in determining whether the offense is a crime of violence. Section “4B1.2 does not intend
to define ‘crime of violence’ by reference to conduct underlying the offense when the defendant is
not charged and convicted of such conduct.” Id. at 254. As this court in Fitzhugh noted, “[t]his
interpretation is further supported by the 1991 amendments to the commentary to §4B1.2[,]” which
“now states that the term ‘crime of violence’ includes offenses where ‘the conduct set forth, (i.e.
expressly charged) in the count of which the defendant was convicted’ poses a substantial risk of
physical injury to another.”6 Id. at 255. Accordingly, “[t]he sentencing court should co nsider
6
U.S.S.G. §4B1.2(a), Commentary, Application Note 1, in pertinent part, provides:
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
(continued...)
conduct expressly charged in the count of which the defendant was convicted, but not any other
conduct that might be associated with the offense.” Id. As the majority appears to acknowledge in
its footnote 2, U.S.S.G. §4B1.2 did not refer to the 18 U.S.C. § 16 definition of “crime of violence”
at the time of this court’s decision in Fitzhugh and does not now refer to that definition.7
I further agree with the majority that Fitzhugh is the law of this circuit and therefore trumps
subsequent conflicting panel opinions. See Maj.Op. at p. 5 (quoting Billiot v. Puckett, 135 F.3d 311,
316 (5th Cir.), cert. denied, 525 U.S. 966 (1998)).
Applying U.S.S.G. § 4B1.2(a), as explained by Fitzhugh, to the present case, I conclude that
Jackson’s Texas unauthorized use of vehicle offenses did not constitute “crimes of violence” under
that sentencing guideline. The conduct of which Jackson was expressly charged in connection with
the offenses did not pose a substantial risk of physical injury to another. The offenses as defined by
Texas law, viz., intentionally or knowingly operating another’s vehicle without the owner’s consent,
do not pose a substantial risk of physical injury to another.
If either United States v. DeSantiago-Gonzalez, 207 F.3d 261, 263 (5th Cir. 2000) or United States
v. Galvan-Rodriguez, 169 F.3d 217 (5th Cir.), cert. denied, 120 S. Ct. 100 (1999) is in conflict with
United States v. Fitzhugh, 954 F.2d 253, 254 (5th Cir. 1992), cert. denied, 510 U.S. 895 (1993), it
must yield to the previous holding and precedent in Fitzhugh.
6
(...continued)
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.
7
Unlike U.S.S.G. §4B1.2(a) and its Commentary, 18 U.S.C. §16 defines “crime of violence” as including
“use of physical force against the . . . property of another” as well as against the person of another.
8
In my view, DeSantiago and Galvan are legally and factually distinguishable from Fitzhugh and
the present case; and neither DeSantiago nor Galvan is controlling here. In Galvan, an alien was
charged with illegal entry into the United States and reentry following deportation in violation of 8
U.S.C. §§ 1325, 1326. Pursuant to U.S.S.G. §2L1.2, the probation officer recommended a 16 level
sentence enhancement because Galvan had been convicted of an aggravated felony: unauthorized use
of a motor vehicle. The sole issue on appeal in Galvan was whether unauthorized use of a motor
vehicle qualified as a crime of violence under 18 U.S.C. § 16, which includes any 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 the offense.” Galvan, 169 F.3d at 219 (emphasis added). Galvan
did not call for the application of U.S.S.G. §4B1.2(a), involving “conduct that presents a serious
potential risk of physical injury to another,” but applied U.S.S.G. §2L1.2 which refers to the broader
definition of crime of violence contained in 18 U.S.C. § 16. Galvan is also distinguishable from the
present case because the court in Galvan determined that “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[.]” Galvan, 169 F.3d at 220. Jackson was neither charged nor
convicted of illegal entry or unauthorized use of a vehicle as an illegal alien.
DeSantiago involved an alien who pleaded guilty to illegal reentry and who had three convictions
for driving while intoxicated (DWI). The probation officer recommended a four level sentence
enhancement because DeSantiago had committed three misdemeanor crimes of violence. Applying
U.S.S.G. §4B1.2(a), DeSantiago ruled that DWI was per se a crime of violence because it “involves
conduct that presents a serious potential risk of physical injury to another.” The court noted that the
fact that “drunk driving is inherently dangerous, is ‘well known and well documented.’” DeSantiago,
9
207 F.3d at 264 (citing United States v. Rutherford, 54 F.3d 370, 376 (7th Cir.), cert. denied, 516
U.S. 924 (1995)). On the other hand, it is not “well known and well documented” that the
unauthorized use of a vehicle always by its very nature “presents a serious potential risk of physical
injury to another.”
In summary, U.S.S.G. §4B1.2(a) as interpreted by Fitzhugh provides the correct principles of law
applicable to the present case. A proper application of those principles leads to the conclusion that
Jackson’s unauthorized use of a vehicle under Texas law did not constitute a “crime of violence.”
Therefore, the sentencing court erred in considering them as such in determining Jackson’s sentence.
Accordingly, Jackson’s sentence should be vacated and this case should be remanded for
resentencing.
10