IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 01-10066
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UNITED STATES OF AMERICA
Plaintiff-Appellee,
versus
JUAN ENRIQUE LANDEROS-GONZALES
Defendant-Appellant.
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Appeal from the United States District Court for the
Northern District of Texas
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August 14, 2001
Before JOLLY, SMITH, and WIENER, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
Juan Enrique Landeros-Gonzales (“Landeros”) pleaded guilty to
illegally re-entering the United States after having been deported,
in violation of 8 U.S.C. § 1326. The district court imposed a 16-
level increase under the sentencing guidelines because Landeros had
previously been convicted of an aggravated felony. The district
court then sentenced Landeros to 71 months’ imprisonment followed
by 3 years’ supervised release. Landeros argues on appeal that the
district court erred in enhancing his sentence. Landeros contends,
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and we agree, that his prior conviction for criminal mischief -- as
relates to this case, the intentional marking of another’s property
-- does not constitute a “crime of violence” or “aggravated felony”
for the purposes of USSG §2L1.2(b)(1)(a). We therefore vacate the
sentence and remand for re-sentencing.
I
Juan Enrique Landeros-Gonzales is a native and citizen of
Mexico who has lived most of his life in the State of Texas.
In 1993, Landeros pleaded guilty in a Texas court to violating
the state’s “criminal mischief” statute, which provided that “a
person commits an offense if, without the effective consent of the
owner, . . . he intentionally or knowingly makes markings,
including inscriptions, slogans, drawings, or paintings on the
tangible property of the owner.” TEX. PENAL CODE ANN. §
28.03(a)(3)(Vernon 1994)(historical notes). Landeros admitted that
he had spray-painted graffiti on a building and a fence. Because
the aggregate value of the damage exceeded $750, Landeros’s offense
was considered a class 3 felony. TEX. PENAL CODE ANN. §
28.03(b)(4)(A)(Vernon 1994)(historical notes). The Texas court
sentenced Landeros to 10 years’ probation.
In 1998, the Texas court revoked Landeros’s probation and
ordered him to serve 6 years in prison. While Landeros was serving
his prison sentence, the Immigration and Naturalization Service
(“INS”) commenced deportation proceedings against him. On January
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15, 2000, Landeros was deported from the United States to Mexico.
In August 2000, border patrol agents apprehended Landeros in
San Angelo, Texas. Landeros pleaded guilty to one count of
illegally re-entering the United States after having been deported,
in violation of 8 U.S.C. § 1326.
The Pre-Sentence Report (“PSR”) noted that the applicable
sentencing guideline for illegal re-entry convictions mandates a
16-level increase to the base offense level if the defendant was
deported after being convicted of an “aggravated felony” as defined
in 8 U.S.C. § 1101(a)(43). See USSG § 2L1.2(b)(1)(A) & Application
Note 1. Included in the statutory definition of “aggravated
felony” are “crimes of violence,” which include any felony 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). The PSR recommended
that Landeros receive the 16-level increase because his 1993
conviction for criminal mischief was a “crime of violence” and,
therefore, an “aggravated felony” for the purposes of the
sentencing guidelines.
Landeros objected to the PSR’s recommendation, but the
district court agreed with the PSR. Based on the 16-level
enhancement, the district court sentenced Landeros to 71 months’
imprisonment and 3 years’ supervised release. According to
Landeros’s calculations, his sentence without the aggravated felony
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enhancement would have been 21 months’ imprisonment.
II
A
The sole issue on appeal is whether Landeros was convicted of
an offense that qualifies as a “crime of violence” and, therefore,
an “aggravated felony” under the sentencing guidelines.1 We accept
the district court’s findings of fact unless clearly erroneous, but
we review the district court’s interpretation and application of
the sentencing guidelines de novo. United States v. Deavours, 219
F.3d 400, 402 (5th Cir. 2000).
B
A felony offense is considered a “crime of violence” if the
offense, “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). We begin by
defining the relevant offense.
1
Landeros also suggests that his criminal mischief conviction
should have been considered an element of the illegal re-entry
offense. Because the fact of his prior conviction was not alleged
in the indictment, Landeros argues that his prison sentence may not
exceed the 2-year statutory maximum. Landeros has raised this
Apprendi issue for the sole purpose of preserving the question for
possible review by the United States Supreme Court. He
acknowledges that his position is contrary to Almendarez-Torres v.
United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 1222, 140
L.Ed.2d 350 (1998), which held that a prior conviction is a mere
sentencing factor. While it has been suggested that Almendarez-
Torres is inconsistent with Apprendi v. New Jersey, 530 U.S. 466,
120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), Almendarez-Torres is
nevertheless binding on this court.
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We have explained that the statutory phrase “by its nature”
compels us to look only at the “inherent nature of the offense” to
determine whether the offense constitutes a crime of violence.
United States v. Delgado-Enriquez, 188 F.3d 592, 594 (5th Cir.
1999); see also United States v. Chapa-Garza, 243 F.3d 921, 924
(5th Cir. 2001)(“The proper inquiry is whether the particular
defined offense, in the abstract, is a crime of violence. . . .”).
This categorical approach does not take into account the specific
facts surrounding a particular criminal conviction.
The Texas “criminal mischief” statute provides that a person
commits an offense if he intentionally (1) “damages or destroys”
another’s property, (2) “tampers with” property in such a way as to
cause inconvenience to the owner or to some third person, or (3)
“makes markings” on another’s property. TEX. PENAL CODE §
28.03(a)(1)-(3). For the purpose of defining a “crime of
violence,” the different subsections of a comprehensive criminal
mischief statute should be treated as separate offenses. See
United States v. Damon, 127 F.3d 139, 142-43 (1st Cir. 1997). In
the light of Landeros’s criminal mischief indictment, it is clear
that he pleaded guilty to violating subsection (3) of the statute.
We therefore conclude that the relevant offense is the intentional
“marking” of another’s property with “inscriptions, slogans,
drawings, or paintings.”
C
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In the next step, we determine whether there is a substantial
risk that force will be used in the course of marking another’s
property.
We must be clear, though, about the meaning of the word
“force.” This court has held that “force,” as used in the
statutory definition of a “crime of violence,” is “synonymous with
destructive or violent force.” United States v. Rodriguez-Guzman,
56 F.3d 18, 20 n.8 (5th Cir. 1995)(explaining that, in the context
of a burglary offense, “force” means “more than the mere
asportation of some property of the victim”); see also United
States v. Velazquez-Overa, 100 F.3d 418, 420 (5th Cir. 1996).
Cognizant of this definition, the government emphasizes that
graffiti is not limited to spray-painting. A miscreant could make
markings on another’s property by etching or gouging, for examples.
Furthermore, the government adds, “It is not inconceivable that
someone might tear pickets off a fence in a pattern that would be
a readable slogan.” Although it is conceivable that someone might
commit the offense in this manner, the legal standard set forth in
18 U.S.C. § 16(b) is whether the offense involves a “substantial
risk” of force. A “substantial risk requires a strong probability
that the application of physical force during the commission of the
crime will occur.” Rodriguez-Guzman, 56 F.3d at 20.
To be sure, graffiti causes damage to property, but it does
not involve the kind of risk of destructive force that is involved
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in prior cases. In United States v. Galvan-Rodriguez, 169 F.3d
217, 219 (5th Cir. 1999), we held that the unauthorized use of a
motor vehicle is a crime of violence under 18 U.S.C. § 16(b)
because there is a substantial risk that “the vehicle might be
broken into, ‘stripped,’ or vandalized, or that it might become
involved in an accident. . . .” In Delgado-Enriquez, 188 F.3d at
595, we held that criminal trespass is a crime of violence under 18
U.S.C. § 16(b) because the offense, which specifically requires
entering or remaining in another’s dwelling, poses a substantial
risk that force will be used to enter the dwelling and subdue the
occupants. In Rodriguez-Guzman, 56 F.3d at 20-21, we held that the
burglary of a non-residential building is a crime of violence
because such crimes often involve breaking through windows and
doors. The offense at issue here -- the intentional “marking” of
another’s property -- is distinguishable because these similar
characteristics are lacking.
In sum, we cannot conclude that there is a substantial risk
that a vandal will use “destructive or violent force” in the course
of unlawfully “making marks” (such as inscriptions or drawings) on
another person’s property. Accordingly, Landeros’s conviction is
not a “crime of violence” under 18 U.S.C. § 16 and, consequently,
is not an “aggravated felony” for the purposes of USSG §
2L1.2(b)(1)(A). Because Landeros’s sentence is based upon an
erroneous interpretation of the sentencing guidelines, we must
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vacate the sentence. Velazquez-Overa, 100 F.3d at 419-20.
III
For the reasons set forth above, we conclude that Landeros’s
felony offense -- the intentional “marking” of another person’s
property -- does not “by its nature, involve[] 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). Because his prior offense was not a crime of violence (and
thus not an aggravated felony), the district court erred in
enhancing Landeros’s sentence under USSG § 2L1.2(b)(1)(A). The
sentence is VACATED, and the case is REMANDED for re-sentencing.
V A C A T E D and R E M A N D E D .
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