REVISED - September 13, 2001
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _____________________
No. 99-51199 _____________________
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
MOISES CHAPA-GARZA, also known as Moises Garza, also known as Moises Garza Chapa, also known as Moises G Chapa, also known as Moises Chapa
Defendant - Appellant __________________
No. 00-50049 __________________
JULIAN RICARDO GOYTIA-CAMPOS, also known as Julian Ricardo Goitia-Campos
Defendant - Appellant
__________________
No. 00-50051 __________________
Plaintiff - Appellee v.
ALFONSO GUADALUPE PEREZ-VELAZQUEZ, also known as Erick Lee
No. 00-50107 __________________
FRANCISCO JAVIER SALDANA-ROLDAN
No. 00-50239 __________________
EPIFANIO IVARBO-MARTELL, also known as El Chino
--------------------- Appeals from the United States District Court for the Western District of Texas, San Antonio --------------------- August 20, 2001
ON PETITION FOR REHEARING EN BANC (Opinion March 1, 2001, 5 Cir., 2001, ________ F.3d __________ )
Before GOODWIN*, GARWOOD, and JONES, Circuit Judges.
PER CURIAM:
( ) Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is DENIED. No member of the panel nor judge in regular active service of the court having requested that the court be polled on Rehearing En Banc (FED. R. APP. P. and 5th Cir. R. 35), the Petition for Rehearing En Banc is DENIED.
(X) Treating the Petition for Rehearing En Banc as a Petition for Panel Rehearing, the Petition for Panel Rehearing is DENIED. The court having been polled at the request of one of the members of the court and a majority of the judges who are in regular active service not having voted in favor (Fed. R. App. P. and 5th Cir. R. 35), the Petition for Rehearing En Banc is DENIED.
Judge Stewart did not participate.
____________________________________________ * Circuit Judge of the Ninth Circuit, sitting by designation. RHESA HAWKINS BARKSDALE, Circuit Judge, dissenting from denial of
rehearing en banc:*
Last March, in United States v. Chapa-Garza, our court held
— in my view, erroneously — that Texas felony DWI (at least three
DWI convictions) is not a “crime of violence” within the meaning
of 18 U.S.C. § 16(b) and, therefore, not an “aggravated felony”
for sentence-enhancement purposes. 243 F.3d 921 (5th Cir. 2001).
This being an issue of exceptional importance, I respectfully
dissent from our court’s refusal to consider this case en banc.
I.
Chapa-Garza began by distinguishing the definition of
criminal violence in § 16(b), which applies to sentencing of
aliens, from that found in U.S.S.G. § 4B1.2, which describes
career offenders. Chapa-Garza, 243 F.3d at 925-26. Central to
its holding was: the language of § 16(b) contemplates an
intentional use of force; and such force is that used to
effectuate the crime itself. Id. at 926-27 (“[W]e ... hold ...
that a crime of violence as defined in 16(b) requires
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
crime”.).
* Edith H. Jones, Circuit Judge, concurs in this dissent to the extent that the difficulty of statutory construction in this case and the far-reaching significance of the panel decision should have motivated our court to rehear this case en banc. I respectfully submit that Chapa-Garza reached the wrong
result. In any event, the correct result is a close call. The
gravity of the issue is enhanced greatly by the fact that,
although the issue arose in this appeal in the context of
sentencing, the same statutory definitions arise in the civil
immigration context in determining whether an alien with a
conviction for felony DWI is removable. Therefore, I dissent
from the denial of rehearing en banc primarily because whether
felony DWI is an “aggravated felony” is an issue of exceptional
national importance, affecting hundreds if not thousands of
aliens. See FED. R. APP. P. 35(a) (rehearing en banc may be
ordered to secure uniformity in court’s decisions or when
proceeding involves question of exceptional importance). The
attention this issue has recently received, the exacerbation of
the circuit split since Chapa-Garza was rendered, and the action
taken by the Board of Immigration Appeals (BIA) in response to
Chapa-Garza highlight the importance of the issue.
Early this year, prior to Chapa-Garza, the Tenth Circuit
held not unreasonable the BIA’s conclusion that felony DWI is a
crime of violence under § 16(b) and, therefore, an aggravated
felony under 8 U.S.C. § 1101(a)(43)(F). Tapia Garcia v. INS, 237
F.3d 1216 (10th Cir. 2001); cf. Camacho-Marroquin v. INS, 188
F.3d 649 (5th Cir. 1999) (felony DWI is “crime of violence” under
§ 16(b)), withdrawn, rehearing dismissed by 222 F.3d 1040 (5th
5 Cir. 2000). Compare Le v. U.S. Att’y Gen., 196 F.3d 1352, 1354
(11th Cir. 1999) (holding conviction for causing serious bodily
injury while driving under the influence is “crime of violence”
within § 16(a) because one element of offense is actual use of
physical force, and declining to address scope of § 16(b)).
Following Chapa-Garza, three circuits have addressed the
mens rea requirement of § 16(b), exacerbating the circuit-split.
The Second Circuit held a felony DWI conviction under New York
law does not constitute a crime of violence under § 16(b) for
removal purposes. Dalton v. Ashcroft, No. 00-4123, 2001 WL
822454 (2d Cir. 20 July 2001); but see id. at *7 (Walker, C.J.,
dissenting) (New York felony DWI is crime of violence within §
16(b)). The Seventh Circuit, relying on Chapa-Garza, held DWI is
not a crime of violence under § 16(b) for removal purposes
because it does not involve the intentional use of force. Bazan-
Reyes v. INS, No. 99-3861, 2001 WL 748157 (7th Cir. 5 July 2001).
The Ninth Circuit held a reckless mens rea is sufficient to
constitute a crime of violence under § 16(b), and, therefore,
involuntary manslaughter is a “crime of violence”. Park v. INS,
252 F.3d 1018 (9th Cir. 2001). Yet even more recently, the Ninth
Circuit has held that, although § 16(b) encompasses both
intentional and reckless conduct, because California DWI can be
committed by mere negligence, it is not a crime of violence
within § 16(b). United States v. Trinidad-Aquino, No. 00-10013,
6 2001 WL 883719 (9th Cir. 8 Aug. 2001); but see id. at *6-7
(Kozinski, J., dissenting) (majority’s conclusion is contrary to
law of circuit and common sense).
Moreover, Chapa-Garza stands in the way of the uniform
implementation of our country’s immigration laws. Recently, in
the light of Chapa-Garza and United States v. Hernandez-Avalos,
251 F.3d 505 (5th Cir. 2001), discussed infra, the BIA decided to
no longer remove from the Fifth Circuit those convicted of felony
DWI. In re Olivares, 23 I&N Dec. 148 (BIA 2001).
II.
A.
Chapa-Garza interprets § 16(b) erroneously. This is in
large part due to its failure to consider the underlying law of
Texas concerning what constitutes felony DWI in that State.
1.
In reaching the wrong result, Chapa-Garza noted the
differences between the language of § 16(b), defining a crime of
violence for purposes of sentencing under U.S.S.G. § 2L1.2 for
unlawful entry, and U.S.S.G. § 4B1.2, defining a career offender.
The difference, however, does not necessarily lead to distinct
results in their application.
Section 16(b) defines a crime of violence as
any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or
7 property of another may be used in the course of committing the offense.
(Emphasis added.) Section 4B1.2 defines a crime of violence as,
inter alia,
any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that – ... 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.
(Emphasis added.)
Chapa-Garza contrasts § 4B1.2(a)(2)’s reference to a risk of
injury to § 16(b)’s mention of a risk of force. Chapa-Garza, 243
F.3d at 925. This distinction is immaterial, because it merely
distinguishes the cause from the effect. An injury would only
result from the use of force (be the application of force
intentional, reckless, unintentional), and the use of force could
result in injury. But see Dalton, 2001 WL 822454, at *5
(distinguishing “risk of injury” and risk of the “use of physical
force”, reasoning “[t]here are many crimes that involve a
substantial risk of injury but do not involve the use of force”).
In my view, Chapa-Garza, in parsing the language of § 16,
overlooks the common-sense understanding of that language. But
see, e.g., Bazan-Reyes, 2001 WL 748157, at *5-10 (comparing
language of § 16(b) and § 4B1.2(1)). Of course, principles of
statutory interpretation counsel reading the statute as a whole,
8 so that each word has meaning. The opinion is correct that “by
its nature” requires looking at the offense categorically.
Chapa-Garza, 243 F.3d at 924. But, the language “substantial
risk” suggests a state of mind of recklessness and cuts against
interpreting the language as referring to intentional conduct,
because it connotes something that may occur accidentally, not
something that is necessary to effectuate the offense.
Chapa-Garza, however, looked to a dictionary definition of
“use” to conclude that § 16(b) refers to intentional conduct.
Id. at 926. Such a definition belies the common-sense usage of
the word in § 16(b). It is true that “use” may more often refer
to the intentional, rather than the accidental, use of force;
but, without question, force may be used accidentally.2 Although
many precedent assume “use” refers to an intentional act, our
court has interpreted § 16(b) to include both accidental and
intentional uses of force. See United States v. Galvan-
Rodriguez, 169 F.3d 217 (5th Cir.), cert. denied, 528 U.S. 837
(1999) (concluding one reason unauthorized use of vehicle is
“crime of violence” under § 16(b) is risk physical force may
accidentally be used during operation of vehicle, not solely
because physical force may be applied intentionally). Force may
2 Webster’s list of synonyms specifies “USE is general and indicates any putting to service of a thing, usu. for an intended or fit purpose”. WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY OF THE ENGLISH LANGUAGE UNABRIDGED (Merriam-Webster 1986). This suggests, of course, that a purpose is not always intended.
9 be “used” — “employed” — without a specific purpose in mind.3 In
fact, the words “substantial risk” in § 16(b) suggest a lack of
intentionality, for a risk is something that the actor hopes will
not, but may, happen. Moreover, it is not immediately clear what
other word Congress would have employed to encompass the
unintentional application of force: “substantial risk that
physical force ... may be _____ in the course of committing the
offense”. But see United States v. Rutherford, 54 F.3d 370, 372-
73 (7th Cir.) (“A drunk driver who injures a pedestrian would not
describe the incident by saying he ‘used’ his car to hurt
someone. In ordinary English, the word ‘use’ implies intentional
availment.”), cert. denied, 516 U.S. 924 (1995). Compare
U.S.S.G. § 4B1.2(a)(2) (“involves conduct that”).
The holding that § 16(b) requires “recklessness as regards
the substantial likelihood that the offender will intentionally
employ force”, Chapa-Garza, 243 F.3d at 927 (emphasis added), is
less than clear. “[I]ntentionally employ” is substituted for the
statute’s “use”. How can a person be “reckless” regarding
whether he will do something “intentionally”? In the continuum
of states of mind, negligence, recklessness, and intentionality
3 Even the Seventh Circuit in Bazan-Reyes used a word synonymous with “use” to state its holding that specific intent was not required: “[W]e hold that the language of sec. 16(b) simply does not support a finding that a risk that one object will apply force to another is enough to constitute a crime of violence under the statute”. 2001 WL 748157, at *10 (emphasis added).
10 are, of course, distinct. Once the DWI offense begins, the
question is no longer whether force will be needed to effectuate
the offense but, rather, whether it will be used accidentally
(recklessly) during the commission of the offense. The
definition employed in Chapa-Garza, replacing “use” with
“intentional use”, is particularly troubling in the context of
DWI, which is criminalized not because of what the driver intends
to do (operate a vehicle while intoxicated) but rather because of
the unintended consequences of that action (great risk to people
and property). Cf. Trinidad-Aquino, 2001 WL 883719, at *7
(Kozinski, J., dissenting) (“reckless conduct — drinking and
driving — causes the negligence and turns a civil tort into a
criminal offense”).
An analogy to burglary of a dwelling (a “crime of violence”
under § 4B1.2), as in United States v. Parson, 955 F.2d 858 (3d
Cir. 1992), quoted by Chapa-Garza, 243 F.3d at 926, is not
helpful: the dangers to people and property from burglary of a
dwelling arise from intentional acts, while in DWI they result
from unintentional acts. In fact, Chapa-Garza quoted from Parson
explaining that “a drunk driver risks causing severe injury to
others on the road or in the car, but in most cases he or she
does not intend to use force to harm others”. Chapa-Garza, 243
F.3d at 926 (quoting Parson, 955 F.2d at 866). In one key way
burglary of a dwelling and DWI are analogous: the actual use of
11 force is neither an element of burglary nor of DWI. See United
States v. Rodriguez-Guzman, 56 F.3d 18, 20 (5th Cir. 1995) (“To
obtain a conviction under ... Texas burglary statutes, the state
need not prove the use, attempted use, or threatened use of
physical force against the person or property of another.”
(citing Clark v. State, 667 S.W.2d 906 (Tex. Ct. App. 1984)
(building); Richardson v. State, 888 S.W.2d 822 (Tex. Cr. App.
1994) (vehicle)).4 It can be reasonably inferred from the nature
of both that the offender could foresee the substantial risk of
potential use of force during the commission of either burglary
or felony DWI.
In addition, the conclusion that the offender must
intentionally use force contravenes our court’s practice “not
[to] presume that a statutory crime requires specific intent in
the absence of language to that effect”. United States v. Myers,
104 F.3d 76, 81 (5th Cir.), cert. denied, 520 U.S. 1218 (1997).
2.
The Texas Penal Code provides: “A person commits an offense
if the person is intoxicated while operating a motor vehicle in a
public place.” TEX. PENAL CODE § 49.04(a) (Supp. 1999) (emphasis
added). “If it is shown on the trial of an offense under Section
4 But see Dalton, 2001 WL 822454, at *3 (“[W]e conclude that not all [New York felony DWIs] are ‘by their nature’ ‘crimes of violence’ because risk of physical force is not a requisite element of the New York DWI offense.”).
12 49.04 ... that the person has previously been convicted two times
of an offense relating to the operating of a motor vehicle while
intoxicated, ... the offense is a felony of the third degree.”
TEX. PENAL CODE § 49.09(b).
In an extremely important ruling, which appears to be at
odds with the plain wording of the underlying Texas DWI statute
(“while operating”), Chapa-Garza states that DWI is committed at
the time the defendant begins driving. Chapa-Garza, 243 F.3d at
927. I respectfully submit that, especially pursuant to the
intent and wording of § 16(b) and in keeping with the Texas DWI
statute, DWI is instead a continuum. Once he has begun to
operate the vehicle, an individual is guilty of DWI; but, the
offense continues as long as he continues driving (“while
operating”) the vehicle. Needless to say, the driver is subject
to arrest while he is driving the vehicle.
Chapa-Garza cites no authority to support its ruling that
DWI merely involves beginning operation of the vehicle. Again,
and as quoted supra, the phrase “while operating” is used in the
Texas DWI statute. Along this line, Texas courts have defined
“operating” as “exert[ing] personal effort upon [a] vehicle in a
manner that shows intentional use of the vehicle for its intended
purpose” and “affect[ing] the functioning of a vehicle in a
manner that would enable the vehicle’s use”. Barton v. State,
882 S.W.2d 456, 459 (Tex. Ct. App. 1994). A driver exerts
13 personal effort not only when he begins operation of the vehicle
but also “while” he operates it.
3.
Also, Chapa-Garza construed § 16(b)’s phrase “in the course
of committing the offense” to refer to the force necessary to
effectuate the offense. Chapa-Garza, 243 F.3d at 927. A more
common-sense understanding would be that the phrase also
encompasses the force used while effectuating the offense (i.e.,
while driving). Such an interpretation is particularly
reasonable in the context of drunk driving: First, as mentioned,
a DWI offense continues as long as the person is operating the
vehicle; the risk that physical force will be used against the
person or property of another while the offense is being
committed is obvious. Second, it can be reasonably inferred from
the nature of the offense of drunk driving that the offender
could foresee the potential use of force during the commission of
the crime, even if not necessary to effectuate the crime itself.
Third, as mentioned, the primary reason DWI has been criminalized
is to protect others and their property from damage perpetrated
by the drunk driver.
4.
Finally, even if legislative history may suggest that DWI
does not automatically fall within the category of a crime of
violence, it must be remembered that the DWI at issue is
14 felony DWI. The seriousness of the crime and of the risk of
violence is obvious in that, as noted supra, a DWI felony
conviction in Texas is at least the third DWI offense committed
by the defendant. TEX. PENAL CODE § 49.09(b). It goes without
saying that someone who has been arrested at least three times
for driving while intoxicated presents a real and great risk.
See Dalton, 2001 WL 822454, at *8 (Walker, C.J., dissenting)
(“[T]hat the offense [of felony DWI in New York] requires two
prior drunk driving convictions increases the attendant risk.”).
In other words, while it may be that not every DWI is a crime of
violence under § 16(b) (an issue not at hand), a felony DWI
certainly is.
B.
Even assuming the Chapa-Garza is correct, it is a very close
call. For example, the Government is correct in asserting that,
although it is dictum, our court in Galvan-Rodriguez made it
clear that one of the reasons the unauthorized use of a vehicle
is a “crime of violence” under § 16(b) is the risk that physical
force may accidentally be used during the operation of the
vehicle, not solely because physical force may be applied
intentionally to obtain access to the vehicle. 169 F.3d at 219.
Although this dictum in itself does not create disuniformity in
the law, it indicates that the issue of what constitutes a crime
of violence is complicated enough to merit en banc review. On
15 top of this, the issue at hand is unquestionably of exceptional
importance. The sentencing enhancement at issue involves an
increase from a statutory maximum of two years to 20 years. See
8 U.S.C. § 1326(a)(2), (b)(2). This increase is for a good
reason. That drunk driving is an extremely serious offense is
evidenced statistically: As of 1990, drunk drivers annually
caused over 25,000 deaths, approximately one million personal
injuries, and more than $5 billion in property damages. Michigan
State Police v. Sitz, 496 U.S. 444, 451 (1990). A more recent
study estimated that 2.6 million drunk driving crashes each year
victimize four million innocent people who are injured or have
their vehicles damaged. Statistics: General Statistics,
available at http://www.madd.org/stats/stat_gen.SHTML (last
visited 14 Aug. 2001). In 1999, seven percent of traffic
accidents were alcohol-related but 40 percent of traffic
fatalities were. Id.
In addition, and as noted, the same statutory definitions
arise in determining whether an alien convicted for felony DWI is
removable. The removal of aliens convicted of “aggravated
felonies” is provided for by 8 U.S.C. § 1227(a)(2)(A)(iii); that
section refers to the definition of “aggravated felony” in 8
U.S.C. § 1101(a)(43), the same section referenced by the
guideline at issue for the case at hand, U.S.S.G. § 2L1.2.
Section 1101(a)(43)(F) in turn references the definition of
16 “crime of violence” found in 18 U.S.C. § 16. In Texas alone, the
INS has removed thousands of aliens convicted of felony DWI and
approximately 500 such cases are pending before the Board.
As noted, both the Seventh and Second Circuits have vacated
removal orders by holding a felony DWI is not a crime of violence
within § 16(b). Dalton, 2001 WL 822454; Bazan-Reyes, 2001 WL
748157. Our precedent would likely require us to do the same,
extending our interpretation of § 16(b) to apply to removal
proceedings as well as to sentencing. In Hernandez-Avalos, our
court found cases arising in the criminal context relevant to
immigration and removal. 251 F.3d at 509. Hernandez-Avalos then
stated:
We fail to see the validity of interpreting this statute differently based on this distinction between sentencing and immigration cases; it is, after all, the same words of the same phrase from the same statute that is being interpreted in each instance.
Id.
Previously, the BIA had concluded that Texas felony DWI is a
crime of violence under § 16(b) and therefore an aggravated
felony under § 1101(a)(43)(F). See Matter of Puente-Salazar,
Interim Dec. 3412 (BIA 1999). Recently, as noted, the BIA,
recognizing the likelihood the interpretation of § 16(b) for
purposes of sentencing would be extended in our circuit to
removal proceedings as well, declined to apply Matter of Puente-
17 Salazar to removal cases arising in our circuit. In re Olivares,
23 I&N Dec. 148 (relying on Hernandez-Avalos).
III.
For these reasons, this case demands en banc review. I
respectfully dissent from our court’s refusing to do so.