United States v. Enrique Vargas-Duran

319 F.3d 194, 2003 U.S. App. LEXIS 635, 2003 WL 131712

• Court: Court of Appeals for the Fifth Circuit
• Decided: January 16, 2003
• Docket: 02-20116
• Status: Published

Opinions

EMILIO M. GARZA, Circuit Judge:

Enrique Vargas-Duran appeals the district court’s determination that his Texas conviction for intoxication assault was a “crime of violence” for purposes of the 16-level sentencing enhancement under § 2L1.2(b)(l)(A)(ii) of the 2001 version of the United States Sentencing Guidelines. Vargas-Duran contends that, in light of our decision in United States v. Chapa-Garza, 243 F.3d 921 (5th Cir.2001), his prior conviction for intoxication assault is not a “crime of violence” under § 2L1.2(b)(l)(A)(ii) because it does not have as an element the intentional use of force against a person.¹ We disagree.

Vargas-Duran, a citizen of Mexico, was discovered in the United States after being arrested for driving while intoxicated. He had previously been deported following Texas felony convictions for burglary of a vehicle and intoxication assault. Vargas-Duran pled guilty to being unlawfully present in the United States in violation of 8 U.S.C. § 1326(a) and (b)(2). At sentencing, he objected to the categorization of his 1996 intoxication assault conviction as a “crime of violence” for the purposes of the 16-level enhancement under § 2L1.2(b)(l)(A)(ii) of the 2001 version of the Sentencing Guidelines. The district court overruled the objection and sentenced him to sixty-four months of imprisonment and three years of supervised release.

We follow both the Sentencing Guidelines and their accompanying policy statements. See United States v. Urias-Escobar, 281 F.3d 165, 167 (5th Cir.2002) (citing Mistretta v. United States, 488 U.S. 361, 391, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), and Williams v. United States, 503 U.S. 193, 199-201, 112 S.Ct. 1112, 117 L.Ed.2d 341 (1992)). In addition, we give the Sentencing Guidelines’ commentary controlling weight unless it is plainly erroneous or inconsistent with the guidelines themselves. See id. (citing Stinson v. United States, 508 U.S. 36, 42-45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993)). We review the district court’s interpretation and application of the Sentencing Guidelines de novo. United States v. Charles, 301 F.3d 309, 312-13 (5th Cir.2002) (en banc).

Under the 2001 version of § 2L1.2, a prior offense qualifies as a “crime of violence” for purposes of the 16-level sentencing enhancement if it is either “an offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another” or an offense enumerated in Application Note l(B)(ii)(II). U.S. Sentencing Guidelines Manual (“U.S.S.G.”), § 2L1.2, cmt. n. l(B)(ii); see United States v. Rayo-Valdez, 302 F.3d 314, 316 (5th Cir.2002) (“The language of § 2L1.2 says that ‘crime of violence’ means that which is in subpara-graph I, and includes that which is in subparagraph II.”).² Because intoxication assault is not one of the offenses enumerated in Application Note l(B)(ii)(II), it is a “crime of violence” under § 2L1.2(b)(l)(A)(ii) only if it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” Rayo-Valdez, 302 F.3d at 316. We need not discuss the facts underlying Vargas-Duran’s prior conviction, since we “look only to the fact of conviction and the statutory definition of the prior offense” to determine whether a prior conviction qualifies as a predicate offense for sentencing enhancement purposes. Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). “Congress did not intend sentencing hearings to become retrials of the underlying conduct involved in the defendant’s prior federal or state convictions.” United States v. Velazquez-Overa, 100 F.3d 418, 421 (5th Cir.1996).

Because the Texas offense of intoxication assault requires proof that an intoxicated offender “cause[ ] serious bodily injury to another,” Tex. Penal Code Ann. § 49.07 (Vernon 1994),³ we conclude that it has as an element the use of force against the person of another. Clearly, the requirement that the offender “eause[ ] serious bodily injury” encompasses a requirement that the offender use force to cause that injury. Vargas-Duran has not demonstrated that an offender could be convicted under § 49.07 for causing “serious bodily injury” without actually using physical force against a person. We have not found any Texas decision in which an offender caused serious bodily injury without using force. In Gonzalez v. Texas, 2000 WL 1721159 (Tex.App.Houston [14th Dist.] Oct. 12, 2000, no pet.), the only decision cited by Vargas-Duran in support of his argument, the Texas Court of Appeals affirmed the defendant’s conviction for intoxication assault where he drove his vehicle into a parked car, which in turn struck a child standing nearby. Id. at *1. Contrary to Vargas-Duran’s contention, the defendant in Gonzalez clearly used force, albeit indirectly, against the person of another. Because causing “serious bodily injury” qualifies as using force, we conclude that intoxication assault as defined by the 1994 version of § 49.07 is a crime of violence for purposes of the 16-level enhancement under Application Note l(B)(ii)(I) to the 2001 version of § 2L1.2.⁴

Vargas-Duran contends that, because his prior conviction does not have as an element the intentional use of physical force, it is not a “crime of violence” for purposes of § 2L1.2(b)(l)(A)(ii). In support of his position, Vargas-Duran relies on our decision in United States v. Chapa-Garza, 243 F.3d 921 (5th Cir.2001), in which we applied a categorical approach and held that a Texas felony conviction for driving while intoxicated (DWI) was not a “crime of violence” under 18 U.S.C. § 16(b) because the offense did not involve “recklessness as regards the substantial likelihood that the offender will intentionally employ force against the person or property of another in order to effectuate the commission of the offense.” 243 F.3d at 927.

Perhaps the obvious should be stated first: Chapa-Garza did not apply the current version of § 2L1.2. Section 2L1.2 was substantially revised after we decided Chapa-Garza, and the definition of “crime of violence” at issue in Chapa-Garza is not the same as the definition at issue here. See United States v. Caicedo-Cuero, 312 F.3d 697, 709-11 (5th Cir.2002) (discussing the 2001 amendments to § 2L1.2’s definition of “crime of violence”). Section 16(b), from which Chapa-Garza gleaned a state of mind requirement, 243 F.3d at 925-27, no longer applies for purposes of the 16-level enhancement.⁵

Second, unlike intoxication assault, Texas felony DWI does not have as an element the use of force. “The crime of Texas felony DWI is committed when the defendant, after two prior DWI convictions, begins operating a vehicle while intoxicated.” Chapa-Garza, 243 F.3d at 927. Third, Chapa-Garza did not analyze the Texas felony DWI statute under § 16(a), the language of which is similar to Application Note l(B)(ii)(I). Compare 18 U.S.C. § 16(a) (covering any “offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another”) with U.S.S.G., § 2L1.2, cmt. n. l(B)(ii) (covering any “offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another”). The analysis in Chapa-Garza was instead based on the catch-all language of § 16(b), which applies to “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(b). In fact, Cha-par-Garza noted that “18 U.S.C. § 16(b) is the only justification for the 16-level enhancement advanced by the government.” 243 F.3d at 924 (emphasis added). Cha-par-Garza ’s analysis of § 16(b) would have been entirely unnecessary had the crime of Texas felony DWI contained as an element the “use of force,” as does the Texas crime of intoxication assault at issue in this case.

We do not agree that Chwpar-Garza’s, interpretation of § 16(b)’s language applies in this context. As discussed above, unlike Texas felony DWI, intoxication assault has as an element the use of force, and therefore, unlike Chapar-Garza, we are not confined to analyzing whether this offense is a “crime of violence” under the catch-all language of § 16(b). We question whether Chapar-Garza would have read a state of mind requirement into the revised definition of “crime of violence” under Application Note l(B)(ii) to the 2001 version of § 2L1.2.⁶

In light of the plain language of the revised guideline and its commentary, we decline to extend Chapa-Garza’s state of mind requirement. Nothing in the amended version of § 2L1.2 or its commentary indicates that the use of force must be intentional for a prior offense to qualify as a “crime of violence” for purposes of the 16-level enhancement. We must assume that the Sentencing Commission was aware of our holding in Chapa-Garza when it amended § 2L1.2 and would have explicitly incorporated a state of mind requirement had it intended to do so. It did not.⁷ Absent explicit direction, we will not read a state of mind requirement into the guideline. See United States v. Fry, 51 F.3d 543, 546 (5th Cir.1995) (holding that, where “the language of section 2K2.1(a)(3) makes no reference to the defendant’s mental state,” “[t]he section is plain on its face and should not ... be read to imply a scienter requirement.”); cf. United States v. Myers, 104 F.3d 76, 81 (5th Cir.1997) (“As a straightforward matter of textual interpretation, we will not presume that a statutory crime requires specific intent in the absence of language to that effect.”).⁸

Because the Texas crime of intoxication assault has as an element the use of force against the person of another, we conclude that the district court did not err in imposing the 16-level enhancement. We therefore AFFIRM the sentence imposed by the district court.⁹

1 . Vargas-Duran also contends, solely for the purpose of preserving the issue for further appeal, that the "aggravated felony” provision of 8 U.S.C. § 1326(b)(2) is unconstitutional in the wake of the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). He concedes that this argument is foreclosed by Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which Apprendi expressly declined to overrule. See Apprendi, 530 U.S. at 489-90, 120 S.Ct. 2348 ("Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision’s validity and we need not revisit it for purposes of our decision today ....”) (footnote omitted). Thus, no further consideration is necessary. See United States v. Dabeit, 231 F.3d 979, 984 (5th Cir.2000) (" 'The Supreme Court has left no doubt that as a constitutionally inferior court, we are compelled to follow faithfully a directly controlling Supreme Court precedent unless and until the Supreme Court itself determines to overrule it.’ ”) (quoting Hopwood v. Texas, 84 F.3d 720, 722 (5th Cir.1996)).

2 . These offenses are "murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses (including sexual abuse of a minor), robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling.” U.S.S.G., § 2L1.2, cmt. n. l(B)(ii).

3 . Under the version of § 49.07 of the Texas Penal Code in effect at the time of Vargas-Duran's conviction, a defendant is guilty of a third degree felony if he or she "by accident or mistake, while operating an aircraft, watercraft, or motor vehicle in a public place while intoxicated, by reason of that intoxication cause[d] serious bodily injury to another.” Tex. Penal Code Ann. § 49.07 (Vernon 1994). Following Vargas-Duran's conviction, § 49.07 was amended to include serious bodily injuries caused by operating or assembling an amusement ride while intoxicated. Tex. Penal Code Ann. § 49.07 (Vernon Supp.2003). This revision does not apply to the instant matter, nor does it affect our analysis.

4 . The dissent posits that this conclusion is in conflict with our decision in United States v. Gracia-Cantu, 302 F.3d 308 (5th Cir.2002). We perceive no conflict, however, because Gracia-Cantu, which was decided under the prior version of § 2L1.2, stated only that:

Gracia-Cantu persuasively argues that his prior offense does not constitute a crime of violence under 18 U.S.C. § 16(a) because section 22.04(a) of the Texas Penal Code, the statute criminalizing injury to a child, does not require that the perpetrator actually use, attempt to use, or threaten to use physical force against a child. Rather, section 22.04(a) is results-oriented in that the culpable mental state must relate to the result of a defendant’s conduct rather than to the conduct itself. The government concedes that, because the statutory definition of the offense does not explicitly require the application of force as an element, 18 U.S.C. § 16(a) does not apply to Gracia-Cantu’s offense of injury to a child. Accordingly, we need not consider the issue further.

302 F.3d at 311-12 (citation omitted). Importantly, in this case the Government does not concede that § 49.07 does not require the application of force as an element of the offense. Thus, the 16-level enhancement under § 2L1.2, according to the Government, applies to the Texas offense of intoxication assault.

5 . The pre-2001 version of § 2L1.2, which increased the base offense level by 16 for all prior "aggravated felony” convictions, was replaced with a sliding scale of enhancements based on the seriousness of the prior conviction. See U.S.S.G., Supplement to Appendix C, Amendment 632, at 222-25 (2001). The Sentencing Commission stated that this amendment responded to concerns that "the breadth of the definition of 'aggravated felony' " under § 2L1.2 "sometimes results in disproportionate penalties.” Id. at 224. Significantly, the 2001 amendment to § 2L1.2 narrowed the definition of "crime of violence” for purposes of the 16-level enhancement by replacing the definition in § 16 with that in Application Note l(B)(ii). However, the amended application notes for § 2L1.2 retain § 16’s definition of "crime of violence” for purposes of the 8-level "aggravated felony" enhancement under § 2L1.2(b)(1)(C).

6 . Other circuits have read a state of mind requirement into § 4B1.2, which defines "crime of violence” as including offenses that have "as an element the use, attempted use, or threatened use of physical force against the person of another.” See United States v. Rutherford, 54 F.3d 370, 372-74 (7th Cir.1995); United States v. Parson, 955 F.2d 858, 866 (3d Cir.1992). Vargas-Duran urges us to apply this interpretation to the language of Application Note l(B)(ii)(I). However, we have never read a state of mind requirement into § 4B1.2. We therefore decline to impose a state of mind requirement in this context. Moreover, although Parson noted in unreasoned dicta that § 16(a) "requires specific intent to use force,” 955 F.2d at 866, this does not persuade us that we must read a state of mind requirement into Application Note l(B)(ii)(I). Courts have reached varying determinations regarding the necessity of a state of mind requirement under § 16. Compare United States v. Trinidad-Aquino, 259 F.3d 1140, 1146 (9th Cir.2001) ("[T]he 'crime of violence’ definitions do not require an intentional use of force, but they do require a volitional act."), Dalton v. Ashcroft, 257 F.3d 200, 206-08 (2d Cir.2001) ("Although an accident may properly be said to involve force, one cannot be said to use force in an accident as one might use force to pry open a heavy, jammed door.” (emphasis in original)), and Bazan-Reyes v. I.N.S., 256 F.3d 600, 609-11 (7th Cir.2001) ("[OJur finding that the word 'use' requires volitional conduct prohibits a finding that drunk driving is a crime of violence under § 16(a).”) with Omar v. I.N.S., 298 F.3d 710, 720 (8th Cir.2002) ("We reject Omar's claim that § 16(b) requires an element of intent for a crime of violence and his attempt to read more into the words 'may be used’ than they can fairly support.”), Tapia Garcia v. I.N.S., 237 F.3d 1216, 1222-23 (10th Cir.2001) (finding the Board of Immigration Appeals’ decision that “the statutory definition of crime of violence in 18 U.S.C. § 16(b) does not require intentional conduct" reasonable), and Le v. U.S. Attorney General, 196 F.3d 1352, 1354 (11th Cir.1999) (holding that prior conviction for causing serious bodily injury while driving under the influence was a "crime of violence” under § 16(a) "because one element of the offense includes the actual use of physical force”).

7 .We also note that the Sentencing Commission did not include a catch-all provision similar to § 16(b) in the revised definition of "crime of violence” for the 16-level enhancement. Although the dissent reasons that the definition of "crime of violence” in Application Note l(B)(ii)(I) is a stronger candidate for imposing a state of mind requirement than that in § 16(b), only the broad catch-all language of § 16(b) requires narrowing. The dissent’s reliance on dicta in a footnote in Park v. I.N.S., 252 F.3d 1018 (9th Cir.2001), is misplaced as Park rejected Chapa-Garza's holding. Id. at 1024 n. 7 (concluding that " § 16(b) ... does not require that force be used intentionally.”).

8 . Although the dissent posits that the words "use of physical force” should have the same meaning under all of the definitions of "crime of violence” incorporated by § 2L1.2, the panel in Caicedo-Cuero correctly noted:

Although rendering the guideline less clear than is desirable, § 2L1.2’s implication of two distinct definitions of drug trafficking crimes is neither repugnant to principles of statutory construction nor inconsistent with the Sentencing Commission's prior practice. Looking to a parallel situation within § 2L1.2, relating to the dual definitions of "crimes of violence,” we note that the Sentencing Commission's practice of incorporating multiple definitions of the same term is, it turns out, not new.

312 F.3d at 708-09.

9 . Vargas-Duran also contends that his intoxication assault and burglary convictions are not "aggravated felonies" for purposes of the 8-level enhancement under § 2L1.2(b)(l)(C). Because the district court correctly determined that the 16-level enhancement applied to the intoxication assault conviction, it never reached these arguments. Thus, we need not address this contention on appeal.